<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 1, 1998
REGISTRATION NO. 33-91848
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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FLEETWOOD CREDIT RV RECEIVABLES TRUSTS
(Issuer with respect to the Securities)
FLEETWOOD CREDIT RECEIVABLES CORP.
(Originator of the Trusts described herein)
(Exact name of Registrant as specified in charter)
<TABLE>
<S> <C>
CALIFORNIA 33-0444724
(State or other jurisdiction of incorporation
or organization) (I.R.S. Employer Identification No.)
</TABLE>
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22840 SAVI RANCH PARKWAY
YORBA LINDA, CALIFORNIA 92687
(714) 921-3400
(Address and telephone number of Originator's principal executive offices)
---------------------
LAWRENCE F. PITTROFF
DIRECTOR AND SENIOR VICE PRESIDENT
FLEETWOOD CREDIT RECEIVABLES CORP.
22840 SAVI RANCH PARKWAY
YORBA LINDA, CALIFORNIA 92687
(714) 921-3400
(Name, address and telephone number of agent for service with respect to the
Registrant)
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Copies to:
<TABLE>
<S> <C>
JOSEPH V. GATTI, ESQ. DALE W. LUM, ESQ.
ARTER & HADDEN LLP BROWN & WOOD LLP
1801 K STREET NW 555 CALIFORNIA STREET
WASHINGTON, D.C. 20006 SAN FRANCISCO, CA 94104
</TABLE>
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
- ------------------
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
- ------------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE AGGREGATE PRICE AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED PER UNIT(1) PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Asset Backed Securities......... $2,000,000,000 100% $2,000,000,000 $590,008.03(2)
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee on the
basis of the proposed maximum offering price per unit.
(2) Of this amount, $303.03 has been previously paid.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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<PAGE> 2
INTRODUCTORY NOTE
This Registration Statement contains (i) a form of Prospectus relating to
the offering of series of Asset Backed Notes and/or Asset Backed Certificates by
various Fleetwood Credit RV Receivables Trusts created from time to time by
Fleetwood Credit Receivables Corp. and (ii) two forms of Prospectus Supplement
relating to the offering by Fleetwood Credit RV Receivables 199 - Trusts of
the particular series of Asset Backed Certificates or of Asset Backed Notes and
Asset Backed Certificates described therein. Each form of Prospectus Supplement
relates only to the securities described therein and is a form which may be
used, among others, by Fleetwood Credit Receivables Corp. to offer Asset Backed
Notes and/or Asset Backed Certificates under this Registration Statement.
<PAGE> 3
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED APRIL 1, 1998
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1998)
$
FLEETWOOD CREDIT RV RECEIVABLES 199 - OWNER TRUST
$ % ASSET BACKED NOTES, CLASS A-1
$ FLOATING RATE ASSET BACKED NOTES, CLASS A-2
$ % ASSET BACKED NOTES, CLASS A-3
$ % ASSET BACKED CERTIFICATES
FLEETWOOD CREDIT RECEIVABLES CORP.
SELLER
FLEETWOOD CREDIT CORP.
SERVICER AND
A WHOLLY OWNED SUBSIDIARY OF
ASSOCIATES FIRST CAPITAL CORPORATION
---------------------
The Fleetwood Credit RV Receivables 199 - Owner Trust Asset Backed
Securities will consist of three classes of notes (respectively, the "Class A-1
Notes", "Class A-2 Notes" and "Class A-3 Notes", collectively, the "Notes") and
one class of certificates (the "Certificates" and, together with the Notes, the
"Securities"). Principal, in the amounts set forth herein, and interest at the
Interest Rates and Pass-Through Rate specified herein for each class of Notes
and the Certificates, respectively, will be distributed to the related
Securityholders on the 15th day of each month (or, if such day is not a Business
Day, on the next succeeding Business Day), beginning , 199 .
Distributions on the Certificates will be subordinated to payments due on the
Notes to the extent described herein. Each class of Notes and the Certificates
will be payable in full on the Final Scheduled Distribution Date specified
herein for such Securities.
The Fleetwood Credit RV Receivables 199 - Owner Trust (the "Trust") will be
formed pursuant to a Trust Agreement to be entered into between Fleetwood Credit
Receivables Corp. (the "Seller") and , as Owner Trustee. The
Certificates will be issued pursuant to the Trust Agreement and will represent
fractional undivided interests in the Trust. The Notes will be issued and
secured pursuant to an Indenture to be entered into between the Trust and
, as Indenture Trustee, and will represent obligations of the Trust.
The property of the Trust will primarily include a pool of simple interest
retail installment sale contracts (the "Initial Receivables") secured by new and
used recreational vehicles (the "Initial Financed Vehicles"), certain monies due
under the Initial Receivables on and after 1, 199 , security interests
in the Initial Financed Vehicles, monies on deposit in a Pre-Funding Account to
be established with the Indenture Trustee and certain other property, as more
fully described herein. From time to time on or before , 199 ,
additional simple interest retail installment sale contracts (the "Subsequent
Receivables" and, together with the Initial Receivables, the "Receivables")
secured by new and used recreational vehicles (the "Subsequent Financed
Vehicles" and, together with the Initial Financed Vehicles, the "Financed
Vehicles"), will be purchased by the Trust from the Seller from monies on
deposit in the Pre-Funding Account. In each case, the Receivables, including the
security interests in the related Financed Vehicles, will be purchased by the
Seller from Fleetwood Credit concurrently with their conveyance to the Trust.
See "Property of the Trust" herein. The Notes will be secured by the assets of
the Trust pursuant to the Indenture.
There currently is no secondary market for the Notes or the Certificates and
there is no assurance that one will develop. The Underwriters expect, but will
not be obligated, to make a market in each class of Notes and the Certificates.
There is no assurance that any such market will develop, or if one does develop,
that it will continue or provide sufficient liquidity.
---------------------
THE NOTES WILL REPRESENT OBLIGATIONS OF, AND THE CERTIFICATES WILL REPRESENT
BENEFICIAL INTERESTS IN, THE TRUST AND WILL NOT REPRESENT OBLIGATIONS OF OR
INTERESTS IN FLEETWOOD CREDIT RECEIVABLES CORP., FLEETWOOD CREDIT CORP.,
ASSOCIATES FIRST CAPITAL CORPORATION, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO
PUBLIC(1) COMMISSIONS THE SELLER(1)(2)
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<S> <C> <C> <C>
Per Class A-1 Note.............................. % % %
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Per Class A-2 Note.............................. % % %
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Per Class A-3 Note.............................. % % %
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Per Certificate................................. % % %
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Total.................................. $ $ $
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</TABLE>
(1) Plus accrued interest, if any, from , 199 .
(2) Before deduction of expenses payable by the Seller estimated at $ .
---------------------
The Securities are offered by the several Underwriters when, as and if
issued and accepted by them, and subject to reject orders in whole or in part.
It is expected that the delivery of Securities, in book-entry form, will be made
through the facilities of The Depository Trust Company on or about ,
199 , against payment in immediately available funds.
---------------------
[UNDERWRITERS]
---------------------
The date of this Prospectus Supplement is , 199 .
<PAGE> 4
THIS PROSPECTUS SUPPLEMENT DOES NOT CONTAIN COMPLETE INFORMATION ABOUT THE
OFFERING OF THE NOTES AND THE CERTIFICATES. ADDITIONAL INFORMATION IS CONTAINED
IN THE ACCOMPANYING PROSPECTUS (THE "PROSPECTUS"), AND PROSPECTIVE INVESTORS ARE
URGED TO READ BOTH THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS IN FULL. SALES
OF THE NOTES OR THE CERTIFICATES MAY NOT BE CONSUMMATED UNLESS THE PURCHASER HAS
RECEIVED BOTH THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS. TO THE EXTENT ANY
STATEMENTS IN THIS PROSPECTUS SUPPLEMENT CONFLICT WITH STATEMENTS IN THE
PROSPECTUS, THE STATEMENTS IN THIS PROSPECTUS SUPPLEMENT SHALL CONTROL.
Certain persons participating in this offering may engage in transactions
that stabilize, maintain or otherwise affect the price of any Class of Notes or
the Certificates. Such transactions may including stabilizing. For a description
of these activities, see "Underwriting."
UNTIL , 199 , ALL DEALERS EFFECTING TRANSACTIONS IN THE
SECURITIES, WHETHER OR NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED
TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO
DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR
UNSOLD ALLOTMENTS OR SUBSCRIPTIONS. UPON RECEIPT OF A REQUEST BY AN INVESTOR, OR
SUCH INVESTOR'S REPRESENTATIVE, WITHIN THE PERIOD DURING WHICH THERE IS A
PROSPECTUS DELIVERY OBLIGATION, THE SELLER OR THE UNDERWRITERS WILL PROMPTLY
DELIVER, OR CAUSE TO BE DELIVERED, WITHOUT CHARGE AND IN ADDITION TO SUCH
DELIVERY REQUIREMENTS, A PAPER COPY OF THE PROSPECTUS OR A PROSPECTUS ENCODED IN
AN ELECTRONIC FORMAT.
---------------------
REPORTS TO SECURITYHOLDERS
The Indenture Trustee and the Trustee will provide to the related
Securityholders of record (which shall be Cede & Co., as the nominee of The
Depository Trust Company, unless and until Definitive Securities are issued
under the limited circumstances described in the Prospectus) unaudited monthly
and annual reports concerning the Receivables. See "Certain Information
Regarding the Securities -- Statements to Securityholders" and "-- Evidence as
to Compliance" in the Prospectus. Such reports will not constitute financial
statements prepared in accordance with generally accepted accounting principles.
The Seller, as originator of the Trust, will file with the Securities and
Exchange Commission (the "Commission") such periodic reports as are required
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
S-2
<PAGE> 5
SUMMARY
This Summary is qualified in its entirety by reference to the detailed
information appearing elsewhere herein and in the accompanying Prospectus.
Certain capitalized terms used and not otherwise defined herein shall have the
meanings ascribed thereto elsewhere in this Prospectus Supplement, or to the
extent not defined herein, shall have the meanings ascribed thereto in the
Prospectus. See the Index of Terms for the location herein of certain
capitalized terms.
Trust...................... Fleetwood Credit RV Receivables 199 - Owner Trust
(the "Trust"). The Trust will be an "Owner Trust"
for purposes of the Prospectus.
Seller..................... Fleetwood Credit Receivables Corp. (the "Seller"),
a wholly owned, limited purpose subsidiary of
Fleetwood Credit Corp. See "The Seller" in the
Prospectus.
Servicer................... Fleetwood Credit Corp. (the "Servicer" or
"Fleetwood Credit"), a wholly owned subsidiary of
Associates First Capital Corporation. See "The
Servicer" in the Prospectus.
Securities Offered
A. General................. The Fleetwood Credit RV Receivables 199 - Owner
Trust Asset Backed Notes (the "Notes") will
represent obligations of the Trust secured by the
assets of the Trust (other than the Certificate
Distribution Account). The Fleetwood Credit RV
Receivables 199 - Owner Trust Asset Backed
Certificates (the "Certificates" and, together with
the Notes, the "Securities") will represent
fractional undivided interests in the Trust. The
Certificates will be "Owner Certificates" for
purposes of the Prospectus.
The Trust will issue three classes of Notes
pursuant to an indenture to be dated as of
1, 199 (the "Indenture"), between the
Trust and , as trustee (the "Indenture
Trustee"), as follows: (i) $ aggregate
principal amount of % Asset Backed Notes, Class
A-1 (the "Class A-1 Notes"); (ii) $
aggregate principal amount of Floating Rate Asset
Backed Notes, Class A-2 (the "Class A-2 Notes") and
(iii) $ aggregate principal amount
of % Asset Backed Notes, Class A-3 (the "Class
A-3 Notes").
The Trust will issue the Certificates pursuant to a
trust agreement to be dated as of 1, 199
(the "Trust Agreement"), between the Seller and
, as trustee (the "Owner Trustee" and,
together with the Indenture Trustee, the
"Trustees"). Payments in respect of the
Certificates will be subordinated to payments on
the Notes to the extent described herein.
Each class of Notes and the Certificates will be
issued in minimum denominations of $1,000 and
$20,000, respectively, and integral multiples of
$1,000 in excess thereof. Definitive Securities
will be issued only under the limited circumstances
described in the Prospectus. See "Certain
Information Regarding the Securities -- Book-Entry
Registration" and "-- Definitive Securities" in the
Prospectus.
B. Property of the Trust... The property of the Trust will primarily include a
pool of simple interest retail installment sale
contracts (the "Initial Receivables") secured by
the new and used recreational vehicles financed
thereby (the "Initial Financed Vehicles"), certain
monies due under the Initial Receivables
S-3
<PAGE> 6
on and after 1, 199 (the "Initial Cutoff
Date"), security interests in the Initial Financed
Vehicles, the Collection Account, the Note
Distribution Account, the Certificate Distribution
Account, the Yield Supplement Account, the
Pre-Funding Account and the Reserve Fund, in each
case together with the proceeds thereof, proceeds
from claims under certain insurance policies in
respect of individual Initial Financed Vehicles or
the related Obligors and certain rights under the
sale and servicing agreement to be dated as of
1, 199 (the "Sale and Servicing
Agreement"), among the Seller, the Servicer and the
Indenture Trustee. From time to time on or before
, 199 , additional simple interest
retail installment sale contracts (the "Subsequent
Receivables" and, together with the Initial
Receivables, the "Receivables") secured by the new
and used recreational vehicles financed thereby
(the "Subsequent Financed Vehicles" and, together
with the Initial Financed Vehicles, the "Financed
Vehicles"), certain monies due under the Subsequent
Receivables on and after the related Subsequent
Cutoff Dates, security interests in the Subsequent
Financed Vehicles and proceeds from claims under
certain insurance policies in respect of individual
Subsequent Financed Vehicles or the related
Obligors will be purchased by the Trust from the
Seller from monies on deposit in the Pre-Funding
Account. See "Property of the Trust" herein.
C. Distribution Dates...... Payments of interest and principal on the
Securities will be made on the fifteenth day of
each month or, if such day is not a Business Day,
on the next succeeding Business Day (each, a
"Distribution Date"), commencing ,
199 . With respect to the Notes, each Distribution
Date will be a "Payment Date" for purposes of the
Prospectus. Payments on the Securities on each
Distribution Date will be paid to the holders of
record of the related Securities on the day
immediately preceding such Distribution Date or, if
Definitive Securities are issued, the last day of
the immediately preceding calendar month (each such
date, a "Record Date").
To the extent not previously paid in full prior to
such time, the outstanding principal amount of (i)
the Class A-1 Notes will be payable on
, 199 (the "Class A-1 Final Scheduled
Distribution Date"), (ii) the Class A-2 Notes will
be payable on , (the "Class A-2 Final
Scheduled Distribution Date"), (iii) the Class A-3
Notes will be payable on , (the
"Class A-3 Final Scheduled Distribution Date") and
(iv) the Certificates will be payable on
, (the "Certificate Final Scheduled
Distribution Date" and, together with the Class A-1
Final Scheduled Distribution Date, the Class A-2
Final Scheduled Distribution Date and the Class A-3
Final Scheduled Distribution Date, the "Final
Scheduled Distribution Dates").
The Receivables............ The Receivables arise from simple interest retail
installment sale contracts originated by dealers in
new and used recreational vehicles (the "Dealers")
which are purchased by Fleetwood Credit. All of the
Receivables will be selected from the contracts
owned by Fleetwood Credit based upon the criteria
described in the Prospectus under "The Receivables"
and "Certain Information Regarding the
Securities -- Sale and Assignment of the
Receivables".
S-4
<PAGE> 7
On or before the date of initial issuance of the
Securities (the "Closing Date"), Fleetwood Credit
will sell the Initial Receivables to the Seller
pursuant to a receivables purchase agreement to be
dated as of 1, 199 (the "Receivables
Purchase Agreement") between the Seller and
Fleetwood Credit. The Seller will, in turn, sell
the Initial Receivables to the Trust pursuant to
the Sale and Servicing Agreement. As of the Initial
Cutoff Date, the Initial Receivables had an
aggregate principal balance of $ , a
weighted average annual percentage rate (the "APR")
of %, a weighted average original maturity of
months and a weighted average remaining maturity
of months.
From time to time during the Funding Period,
pursuant to the Receivables Purchase Agreement,
Fleetwood Credit will be obligated to sell, and the
Seller will be obligated to purchase, Subsequent
Receivables at a purchase price equal to the
aggregate principal amount thereof as of a date in
the related month of transfer designated by
Fleetwood Credit and the Seller (each, a
"Subsequent Cutoff Date"). Pursuant to the Sale and
Servicing Agreement and one or more transfer
agreements (each, a "Transfer Agreement") among the
Seller, the Servicer and the Owner Trustee, and
subject to the satisfaction of certain conditions
described herein, the Seller will in turn sell the
Subsequent Receivables to the Trust at a purchase
price equal to the amount paid by the Seller to
Fleetwood Credit for such Subsequent Receivables,
which purchase price shall be paid from monies on
deposit in the Pre-Funding Account. The aggregate
principal balance of the Subsequent Receivables to
be conveyed to the Trust during the Funding Period
will not exceed $ (i.e., % of the sum
of the Original Pool Balance and the Pre-Funded
Amount). Subsequent Receivables will be transferred
from Fleetwood Credit to the Seller and from the
Seller to the Trust on the Business Day specified
by Fleetwood Credit and the Seller during the month
in which the related Subsequent Cutoff Date occurs
(each, a "Subsequent Transfer Date").
The Pre-Funding Account.... The Pre-Funding Account will be established by
Fleetwood Credit, maintained as a trust account
with the Indenture Trustee and will be designed
solely to hold funds to be applied during the
Funding Period to pay to the Seller the purchase
price for Subsequent Receivables. Monies on deposit
in the Pre-Funding Account will not be available to
cover losses on or in respect of the Receivables.
The Pre-Funding Account will be created with an
initial deposit by the Seller of $ (the
"Pre-Funded Amount"). The "Funding Period" will be
the period from the Closing Date until the earliest
to occur of (i) the date on which the remaining
Pre-Funded Amount is less than $100,000, (ii) the
date on which an Event of Default or Servicer
Default occurs or (iii) the close of business on
the , 199 Distribution Date. During the
Funding Period, on one or more Subsequent Transfer
Dates, the Indenture Trustee will use the
Pre-Funded Amount to purchase Subsequent
Receivables from the Seller. The Seller expects
that the Pre-Funded Amount will be reduced to less
than $100,000 by the , 199 Distribution
Date, although no assurances can be given in this
regard. In the event that any portion of the
Pre-Funded Amount remains on deposit in the
Pre-Funding Account at the end of the Funding
Period, the Notes will be subject to a mandatory
redemption
S-5
<PAGE> 8
in part, and the Certificates may be subject to a
mandatory prepayment in part, in each case as
described herein under "The Notes -- Mandatory
Redemption", "The Certificates -- Mandatory
Prepayment" and "Certain Information Regarding the
Securities -- The Pre-Funding Account; Mandatory
Redemption and Prepayment of the Securities".
The Yield Supplement
Account; The Yield
Supplement Agreement..... Fleetwood Credit will establish a yield supplement
account with the Indenture Trustee for the benefit
of the Securityholders (the "Yield Supplement
Account"). The Yield Supplement Account is designed
solely to hold funds to be applied to provide
payments to the Securityholders in respect of
Receivables the APR of which is less than the sum
of (i) the weighted average of the Interest Rates
and the Pass-Through Rate and (ii) the Servicing
Fee Rate (the "Required Rate"). The Yield
Supplement Account will be created with an initial
deposit (the "Yield Supplement Account Initial
Deposit") in an amount (which amount may be
discounted at a rate to be specified in the Sale
and Servicing Agreement) equal to the aggregate
amount by which (i) interest on the Principal
Balance of each Initial Receivable for the period
commencing on the Initial Cutoff Date and ending
with the scheduled maturity of each such Receivable
(assuming that payments on such Receivables are
made as scheduled and no prepayments are made) at a
rate equal to the Required Rate, exceeds (ii)
interest on such Principal Balance at the APR of
such Receivable (the "Yield Supplement Amount" and,
with respect to the Initial Receivables, the
"Maximum Initial Yield Supplement Amount").
Fleetwood Credit, the Seller and the Indenture
Trustee will enter into a yield supplement
agreement to be dated as of 1, 199 (the "Yield
Supplement Agreement") pursuant to which on each
Subsequent Transfer Date Fleetwood Credit will
deposit an amount (which amount may be discounted
at a rate to be specified in the Sale and Servicing
Agreement), if any, into the Yield Supplement
Account (the "Additional Yield Supplement Amount")
equal to the aggregate Yield Supplement Amounts in
respect of the related Subsequent Receivables for
the period commencing with the related Subsequent
Cutoff Date and ending with the scheduled maturity
of each related Subsequent Receivable, assuming
that payments on such Receivables are made as
scheduled and no prepayments are made. The
aggregate Additional Yield Supplement Amounts in
respect of the Subsequent Receivables is referred
to herein as the "Maximum Subsequent Yield
Supplement Amount" and, together with the Maximum
Initial Yield Supplement Amount, the "Maximum Yield
Supplement Amount". See "Certain Information
Regarding the Securities -- The Yield Supplement
Account; The Yield Supplement Agreement" herein.
Terms of the Notes......... The principal terms of the Notes will be as
described below:
A. Interest Rates.......... The Class A-1 Notes will bear interest at the rate
of % per annum (the "Class A-1 Rate") and the
Class A-3 Notes will bear interest at the rate of %
per annum (the "Class A-3 Rate"). The per annum
rate of interest with respect to the Class A-2
Notes for each Interest Period (the "Class A-2
Rate" and, together with the Class A-1 Rate and the
Class A-3 Rate, the "Interest Rates") will equal
LIBOR for such
S-6
<PAGE> 9
Interest Period, determined as described herein
under "The Notes -- Payments of
Interest -- Calculation of LIBOR", plus %;
provided that the Class A-2 Rate shall not
exceed % per annum.
B. Interest................ Interest on the outstanding principal amount of the
Notes will accrue at the related Interest Rate from
the Closing Date or from the most recent
Distribution Date on which interest has been paid
to but excluding the following Distribution Date
(each, an "Interest Period"). Interest will be
calculated on the (i) Class A-1 and Class A-3 Notes
on the basis of a 360-day year consisting of twelve
30-day months and (ii) the Class A-2 Notes on the
basis of the actual number of days in each Interest
Period divided by 360. See "The Notes -- Payments
of Interest".
C. Principal............... Principal of the Notes will be payable on each
Distribution Date in an aggregate amount equal to
the Note Principal Distributable Amount, calculated
as described herein under "Certain Information
Regarding the Securities -- Distributions on the
Securities", for the month immediately preceding
the month in which such Distribution Date occurs
(each, a "Collection Period") to the extent of the
Available Amount remaining after the Servicer has
been reimbursed for any outstanding Advances and
has been paid the Servicing Fee (including any
unpaid Servicing Fee with respect to one or more
prior Collection Periods) (collectively, the
"Servicer Payment") and following the payment of
distributions of interest in respect of the Notes.
In addition, on each Distribution Date until the
Notes have been paid in full, all Excess Amounts
will be paid to Noteholders as an additional
payment of principal. See "The Notes -- Payments of
Principal".
On each Determination Date, the Indenture Trustee
will determine the amount in the Collection Account
and the Reserve Fund available for distribution on
the related Distribution Date and shall allocate
such amounts between the Notes and the Certificates
as described herein under "The Notes -- Payments of
Principal". Payments to Securityholders shall be
made on each Distribution Date in accordance with
such allocations. Except as otherwise described
herein under "The Notes -- Mandatory Redemption,"
no principal payments will be made on (i) the Class
A-2 Notes until the Class A-1 Notes have been paid
in full and (ii) the Class A-3 Notes until the
Class A-2 Notes have been paid in full. The unpaid
principal amount of each class of Notes will be
payable on the related Final Scheduled Distribution
Date. See "The Notes -- Payments of Principal"
herein.
D. Redemption.............. The Notes will be subject to mandatory redemption
in part in the event that any portion of the
Pre-Funded Amount remains on deposit in the
Pre-Funding Account at the end of the Funding
Period. See "The Notes -- Mandatory Redemption" and
"Certain Information Regarding the
Securities -- The Pre-Funding Account; Mandatory
Redemption and Prepayment of the Securities"
herein.
In the event of an Optional Purchase or Auction
Sale, each class of Notes outstanding will be
redeemed in whole, but not in part, at a redemption
price equal to the unpaid principal amount of the
related class of Notes plus accrued interest
thereon at the related Interest Rate. See
"Summary -- Optional Purchase", "-- Termination"
and "The Notes -- Optional Redemption" herein.
S-7
<PAGE> 10
Terms of the
Certificates............... The principal terms of the Certificates will be as
described below:
A. Interest................ On each Distribution Date, the Owner Trustee will
distribute pro rata to Certificateholders of record
as of the related Record Date interest in an amount
equal to one-twelfth of the product of % per
annum (the "Pass-Through Rate") and the Certificate
Balance as of the first day of the immediately
preceding Collection Period (after giving effect to
distributions of principal or other reductions in
the Certificate Balance to be made on the
Distribution Date occurring in such immediately
preceding Collection Period) or, in the case of the
first Distribution Date, the Original Certificate
Balance. Such distributions generally will be made
to the extent of the Available Amount remaining
following payment of the Servicer Payment and
interest and principal in respect of the Notes.
Interest on the Certificates will be calculated on
the basis of a 360-day year consisting of twelve
30-day months. See "The
Certificates -- Distributions of Interest" herein.
B. Principal............... On each Distribution Date on or after the earlier
to occur of (i) the Distribution Date on which the
Class A-1 Notes have been paid in full or (ii)
the 199 Distribution Date, principal of the
Certificates will be payable in an amount generally
equal to the Certificate Principal Distributable
Amount for the related Collection Period,
calculated as described herein under "Certain
Information Regarding the
Securities -- Distributions on the Securities".
Such distributions generally will be made to the
extent of the Available Amount remaining following
payment of the Servicer Payment, interest and
principal in respect of the Notes and interest in
respect of the Certificates. The rights of
Certificateholders to receive distributions of
principal will be subordinated to the rights of
Noteholders to receive distributions of interest
and principal to the extent described herein.
Notwithstanding the foregoing, following any
qualification, reduction or withdrawal by either
Rating Agency of its then-current rating of any
class of Notes (each, a "Rating Event"), no
distributions of principal on the Certificates will
be made until all the Notes have been paid in full,
unless such rating has been restored.
Under certain circumstances after the Notes have
been paid in full, amounts on deposit in the
Reserve Fund will be applied to retire the
Certificates. See "The
Certificates -- Distributions of Principal" herein.
C. Prepayment.............. The Certificates will be subject to mandatory
prepayment in part in the event that more than
$100,000 of the Pre-Funded Amount remains on
deposit in the Pre-Funding Account at the end of
the Funding Period. See "The
Certificates -- Mandatory Prepayment" and "Certain
Information Regarding the Securities -- The
Pre-Funding Account; Mandatory Redemption and
Prepayment of the Securities" herein.
In the event of an Optional Purchase or Auction
Sale, the Certificates will be prepaid in whole,
but not in part, at a prepayment price equal to the
Certificate Balance plus accrued interest thereon
at the Pass-Through Rate. See "Summary -- Optional
Purchase", "-- Termination" and "The
Certificates -- Optional Prepayment" herein.
Reserve Fund............... The Securityholders will be afforded certain
limited protection, to the extent described herein,
against losses in respect of the Receivables by
S-8
<PAGE> 11
the establishment of a segregated trust account
held by the Indenture Trustee for the benefit of
the Securityholders (the "Reserve Fund").
The Reserve Fund will be funded by the Seller on
the Closing Date in an amount equal to $
plus an amount attributable to the maximum
aggregate Negative Carry Amount. Thereafter, all
Excess Amounts will be deposited from time to time
in the Reserve Fund to the extent necessary to
maintain the Reserve Fund at an amount to be
specified in the Sale and Servicing Agreement (the
"Specified Reserve Fund Balance"). "Excess Amounts"
in respect of a Distribution Date will be all
interest collections on or in respect of the
Receivables during the related Collection Period on
deposit in the Collection Account and the
Distribution Accounts, after payment of the
Servicer Payment and distributions of interest and
principal in respect of the Securities on such
Distribution Date. The Specified Reserve Fund
Balance for the first Distribution Date will be
$ , and on any Distribution Date
thereafter will be calculated as described herein
under "Certain Information Regarding the
Securities -- The Reserve Fund".
On each Distribution Date, funds will be withdrawn
from the Reserve Fund to pay the Servicer Payment
and to make required distributions on the
Securities, in each case to the extent Available
Funds are insufficient for such purposes. In
addition, on each Distribution Date relating to the
Funding Period, the Negative Carry Amount, if any,
will be withdrawn from the Reserve Fund and
deposited into the Collection Account.
On each Distribution Date, after giving effect to
all distributions made on such Distribution Date,
any amounts in the Reserve Fund in excess of the
Specified Reserve Fund Balance will be distributed
to the Seller and upon such distribution, the
Securityholders will have no further rights in, or
claims to, such amounts. Notwithstanding the
foregoing, during the Funding Period, all such
Excess Amounts will be deposited into the Reserve
Fund and will not be paid to the Seller until the
Distribution Date immediately succeeding the date
on which the Funding Period ends (or on the
Distribution Date on which the Funding Period ends
if the Funding Period ends on a Distribution Date).
See "Certain Information Regarding the
Securities -- Distributions" and "-- The Reserve
Fund" herein.
Advances; Non-Reimbursable
Payments................. On the Business Day immediately preceding each
Distribution Date, the Servicer will advance, in
respect of each Receivable, an amount equal to all
interest at the related APR which accrued in
respect of such Receivable from the last day upon
which a payment was made on such Receivable through
the last day of the related Collection Period. The
Servicer will be required to make an Advance only
to the extent it determines, in its reasonable
judgment, such Advance will be recoverable from
future payments and collections on or in respect to
the Receivables or otherwise. See
"Summary -- Advances" and "Certain Information
Regarding the Securities -- Certain Payments by the
Servicer" in the Prospectus.
Optional Purchase.......... The Seller, the Servicer or any successor to the
Servicer, will each have the option to purchase
from the Trust all Receivables then outstanding and
all other property in the Trust on any Distribution
Date following the
S-9
<PAGE> 12
last day of a Collection Period as of which the
Pool Balance is less than 10% of the sum of the
Pool Balance as of the Initial Cutoff Date (the
"Original Pool Balance") and the aggregate
principal balance of all Subsequent Receivables
conveyed to the Trust as of the related Subsequent
Cutoff Dates (an "Optional Purchase"), at a
purchase price determined as described herein under
"Certain Information Regarding the
Securities -- Termination".
Termination................ If none of the Seller, the Servicer or any
successor to the Servicer exercises its optional
termination right within 90 days after the last day
of the Collection Period as of which such right can
first be exercised, the Indenture Trustee shall
solicit bids for the purchase of all Receivables
remaining in the Trust. In the event that
satisfactory bids are received (an "Auction Sale")
as described herein under "Certain Information
Regarding the Securities -- Termination", the sale
proceeds will be distributed to Securityholders on
the second Distribution Date succeeding the last
day of such Collection Period. If satisfactory bids
are not received, the Indenture Trustee shall
decline to sell the Receivables and shall not be
under any obligation to solicit any further bids or
otherwise negotiate any further sale of the
Receivables. See "Certain Information Regarding the
Securities -- Termination" herein.
Ratings.................... It is a condition to the issuance of (i) the Notes
that they be rated Aaa by Moody's Investors
Service, Inc. ("Moody's") and AAA by Standard &
Poor's, a division of The McGraw-Hill Companies,
Inc. ("Standard & Poor's" and, together with
Moody's, the "Rating Agencies") and (ii) the
Certificates that they be rated at least A2 by
Moody's and A by Standard & Poor's. The ratings of
each class of Notes and the Certificates will be
based primarily on the value of the Initial
Receivables, the Pre-Funding Account, the terms of
the Securities and the Reserve Fund. The foregoing
ratings do not address the likelihood that the
Securities will be retired following the sale of
the Receivables by the Trustee as described above
under "Termination".
There is no assurance that any rating will not be
lowered or withdrawn by the assigning Rating Agency
if, in its judgment, circumstances so warrant. In
the event that the rating initially assigned to any
class of Notes or the Certificates is subsequently
lowered or withdrawn for any reason, no person or
entity will be obligated to provide any additional
credit enhancement with respect to such Securities.
There can be no assurance whether any other rating
agency will rate any class of Notes or the
Certificates, or if one does, what rating would be
assigned by such other rating agency. A security
rating is not a recommendation to buy, sell or hold
securities.
Tax Status................. In the opinion of special federal income tax
Counsel to the Seller, the Notes will be
characterized as debt, and the Trust will not be
characterized as an association (or a publicly
traded partnership) taxable as a corporation. In
the opinion of state tax counsel to the Seller, the
same characterizations will apply for California
income and single business tax purposes. Each
Noteholder, by the acceptance of a Note, will agree
to treat the Notes as indebtedness, and each
Certificateholder, by the acceptance of a
Certificate, will agree to treat the Trust as a
partnership in which the Certificateholders are
partners for federal income tax
S-10
<PAGE> 13
purposes. See "Certain Federal Income Tax
Consequences" herein and in the Prospectus and
"Certain State Tax Consequences" herein.
ERISA Considerations....... Subject to the considerations discussed under
"ERISA Considerations" herein and in the
Prospectus, the Notes will be eligible for purchase
by employee benefit plans that are subject to the
Employee Retirement Income Security Act of 1974, as
amended ("ERISA").
BECAUSE THE CERTIFICATES WILL BE SUBORDINATED TO
THE NOTES, EMPLOYEE BENEFIT PLANS SUBJECT TO ERISA
WILL NOT BE ELIGIBLE TO PURCHASE THE CERTIFICATES.
Any benefit plan fiduciary considering purchase of
the Securities should, among other things, consult
with its counsel in determining whether all
required conditions have been satisfied. See "ERISA
Considerations" herein and in the Prospectus.
Legal Investment........... The Class A-1 Notes will be eligible securities for
purchase by money market funds under Rule 2a-7
under the Investment Company Act of 1940, as
amended.
S-11
<PAGE> 14
FORMATION OF THE TRUST
GENERAL
The Trust will be a business trust formed under the laws of the State of
Delaware pursuant to the Trust Agreement for the transactions described in this
Prospectus Supplement. After its formation, the Trust will not engage in any
activity other than (i) acquiring, holding and managing the Receivables and the
other assets of the Trust and proceeds therefrom; (ii) issuing the Notes and the
Certificates; (iii) making payments on the Notes and the Certificates; and (iv)
engaging in other activities that are necessary, suitable or convenient to
accomplish the foregoing purposes or are incidental thereto or connected
therewith.
The Trust will initially be capitalized with equity equal to the Original
Certificate Balance, less amounts deposited in the Reserve Fund. The Seller will
retain Certificates with an original principal balance of approximately 1% of
the Original Certificate Balance and the remaining equity interest will be sold
to third party investors that are expected to be unaffiliated with the Seller,
the Servicer or the Trust.
If the protection provided to the Securityholders by the Reserve Fund is
insufficient, the Trust will look only to payments made by or on behalf of the
Obligors on or in respect of the Receivables, the proceeds from the repossession
and sale of Financial Vehicles securing Defaulted Receivables and the proceeds
of Dealer repurchase obligations, if any, more fully described below under
"Property of the Trust," to make distributions on the Securities. In such event,
certain factors such as the failure of the Trust to possess first perfected
security interests in the Financed Vehicles, may limit the ability of the Trust
to realize on the collateral securing the Receivables or may limit the amount
realized to less than the amount due by the related Obligors. Securityholders
may thus be subject to delays in payment and may incur losses on their
investment in the Securities as a result of defaults or delinquencies by
Obligors and depreciation in the value of the related Financial Vehicles. See
"Certain Legal Aspects of the Receivables" in the Prospectus.
The Trust's principal offices will be in , , in care of
, as Owner Trustee, at the address listed below under "The Owner
Trustee".
CAPITALIZATION
The following table illustrates the capitalization of the Trust as of the
Closing Date, as if the issuance and sale of the Securities had taken place on
such date:
<TABLE>
<S> <C>
Class A-1 Notes............................................. $
-------
Class A-2 Notes.............................................
-------
Class A-3 Notes.............................................
-------
Certificates................................................
-------
Total............................................. $
=======
</TABLE>
THE OWNER TRUSTEE
will be the Owner Trustee. is a and its Corporate
Trust Office is located at , .
The Owner Trustee will have the rights and duties set forth in the
Prospectus under "Certain Information Regarding the Securities -- The Trustees"
and "-- Duties of the Trustees".
S-12
<PAGE> 15
PROPERTY OF THE TRUST
The property of the Trust will include a pool of simple interest retail
installment sale contracts, originated on or before , 199 (in the
case of the Initial Receivables) and on or before , 199 (in the case
of the Subsequent Receivables), between Dealers and Obligors, certain monies due
thereunder on and after the Initial Cutoff Date or the related Subsequent Cutoff
Date, as the case may be, and amounts on deposit in the Pre-Funding Account. On
or before the Closing Date, Fleetwood Credit will sell the Initial Receivables
to the Seller which will in turn sell them to the Trust. It is anticipated that
Subsequent Receivables will be conveyed to the Trust on one or more Subsequent
Transfer Dates during the Funding Period. Neither the Seller nor the Servicer
may substitute any other retail installment sale contract for any Receivable
sold to the Trust during the term of the Sale and Servicing Agreement.
The assets of the Trust will also include: (i) such amounts as from time to
time may be held in interest bearing trust accounts to be established and
maintained by the Servicer with (a) the Indenture Trustee into which all
payments made on or in respect of the Receivables will be deposited (the
"Collection Account"), (b) the Indenture Trustee into which amounts payable to
the Noteholders will be deposited and distributed (the "Note Distribution
Account") and (c) the Owner Trustee into which amounts payable to the
Certificateholders will be deposited and distributed (the "Certificate
Distribution Account" and, together with the Note Distribution Account, the
"Distribution Accounts"); (ii) security interests in the Financed Vehicles and
any accessions thereto; (iii) the right to proceeds from physical damage, credit
life and disability insurance policies, if any, covering individual Financed
Vehicles or Obligors, as the case may be; (iv) the right to receive proceeds, if
any, of Dealer repurchase obligations; (v) any Servicer Letter of Credit; (vi)
the rights of the Seller under the Receivables Purchase Agreement and the Yield
Supplement Agreement; (vii) the Reserve Fund and the Yield Supplement Account;
and (viii) any and all proceeds of the foregoing. For purposes of the
Prospectus, the Collection Account will be an "Owner Collection Account" and the
Certificate Distribution Account will be an "Owner Certificate Distribution
Account".
The "Pool Balance" will be calculated as described in the Prospectus under
"Property of the Trusts" and will increase during the Funding Period by the
principal amount (not to exceed $ ) of Subsequent Receivables conveyed
to the Trust as of the related Subsequent Cutoff Dates. Coincident with each
such transfer of Subsequent Receivables, the Yield Supplement Agreement will
require Fleetwood Credit to deposit into the Yield Supplement Account an amount
equal to the Additional Yield Supplement Amount, if any, in respect of such
Subsequent Receivables. Additions of Subsequent Receivables will be conditioned
on the compliance with the procedures described in the Receivables Purchase
Agreement and the Sale and Servicing Agreement. Each conveyance of Subsequent
Receivables also will be subject to the conditions described under "Certain
Information Regarding the Securities -- Sale and Assignment of Receivables --
The Subsequent Receivables" in the Prospectus, and to the following additional
conditions, among others: (i) the weighted average APR of the Receivables
(including the Subsequent Receivables) is not less than % and (ii) the
weighted average remaining term of the Receivables (including the Subsequent
Receivables) as of the related Subsequent Transfer Date is not greater than
months.
Because the Subsequent Receivables will be originated after the Initial
Receivables, following their conveyance to the Trust, the characteristics of the
Receivables, including the Subsequent Receivables, may vary from those of the
Initial Receivables. The Seller expects that the principal balances of the
Subsequent Receivables to be added to the Trust will require application of the
entire Pre-Funded Amount by , 199 ; however, there can be no
assurance that a sufficient amount of Subsequent Receivables will be available
for such purpose.
S-13
<PAGE> 16
THE RECEIVABLES
The Receivables will have been purchased by Fleetwood Credit from Dealers
in the ordinary course of business. The Initial Receivables were, and the
Subsequent Receivables will be, selected from Fleetwood Credit's portfolio of
recreational vehicle retail installment sale contracts based on the criteria
described under "The Receivables" in the Prospectus. Each Receivable had as of
the Initial Cutoff Date, or will have as of the related Subsequent Cutoff Date,
as the case may be, an APR equal to or greater than %.
As of the Initial Cutoff Date, approximately % of the Initial
Receivables, by Original Pool Balance, were secured by motor homes and
approximately % were secured by travel trailers. Approximately % of
the Initial Receivables, by Original Pool Balance, represented financing of new
recreational vehicles and approximately % represented financing of used
recreational vehicles. As of the Initial Cutoff Date, the average outstanding
principal balances of Initial Receivables secured by motor homes and travel
trailers were $ and $ , respectively. A significant portion of
the Initial Receivables represent financing of recreational vehicles
manufactured by Fleetwood Enterprises, Inc. Except in the case of breach of
representations by the related Dealer, as described under "Property of the
Trusts" in the Prospectus, it is expected that none of the Initial Receivables
provide for recourse to the Dealer who originated the related Initial
Receivable. Based upon information presented by Obligors in their Receivables
applications, as of the Initial Cutoff Date the Initial Receivables were
originated in states. Approximately %, % and % of the
Initial Receivables, by Original Pool Balance, were originated in the States of
, and , respectively. Each other state accounts for less
than 5% of the Initial Receivables by Original Pool Balance. As of the Initial
Cutoff Date, approximately % of the Original Pool Balance represented
Paid-Ahead Receivables.
COMPOSITION OF THE INITIAL RECEIVABLES
<TABLE>
<S> <C>
Aggregate Principal Balance as of the Initial Cutoff Date... $
Number of Initial Receivables...............................
Average Principal Balance as of the Initial Cutoff Date..... $
Aggregate Original Amount Financed.......................... $
Range of Original Amounts Financed.......................... $ to $
Weighted Average APR(1)..................................... %
Range of APRs............................................... % to %
Weighted Average Original Term(1)........................... months
Range of Original Terms..................................... to months
Weighted Average Remaining Term as of the Initial Cutoff
Date(1)................................................... months
Range of Remaining Terms as of the Initial Cutoff Date...... to months
</TABLE>
- ---------------
(1) Weighted by unpaid principal balance as of the Initial Cutoff Date.
DISTRIBUTION OF THE INITIAL RECEIVABLES BY APR
<TABLE>
<CAPTION>
PERCENTAGE
NUMBER OF OF NUMBER INITIAL PERCENTAGE
OF INITIAL OF INITIAL CUTOFF DATE OF ORIGINAL
APR RANGE RECEIVABLES RECEIVABLES POOL BALANCE POOL BALANCE
--------- ----------- ----------- ------------ ------------
<S> <C> <C> <C> <C>
% to %............................... % $ %
% to %...............................
% to %...............................
% to %...............................
% to %...............................
% to %...............................
% to %...............................
----- ------ -------- ------
Total................................ % $ %
===== ====== ======== ======
</TABLE>
S-14
<PAGE> 17
DELINQUENCIES, REPOSSESSIONS AND NET LOSSES
Set forth below is certain information concerning Fleetwood Credit's
experience with respect to its portfolio of recreational vehicle receivables
similar to the Receivables.
Fleetwood Credit did not acquire recreational vehicle receivables similar
to the Receivables prior to July 1986. Accordingly, Fleetwood Credit's
experience with respect to such receivables is limited and only a small portion
of its recreational vehicle receivables portfolio has reached maturity. There is
no assurance that Fleetwood Credit's delinquency, credit loss and repossession
experience with respect to recreational vehicle receivables in the future, or
the experience of the Trust with respect to the Receivables, will be similar to
that set forth below. Losses and delinquencies are affected by, among other
things, general and regional economic conditions and the supply of and demand
for recreational vehicles.
DELINQUENCY EXPERIENCE
<TABLE>
<CAPTION>
AT DECEMBER 31,
--------------------------------------------------------------------------
1997 1996 1995 1994 1993
-------------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Portfolio Outstanding at
End of Period(1)(2)..... $1,241,738,614 $949,664,166 $760,702,992 $661,517,831 $532,764,234
Delinquencies at End of
Period(1)(3)
30-59 Days.............. 4,630,619 $ 3,160,686 $ 2,494,548 $ 1,520,815 $ 1,515,090
60-89 Days.............. 703,823 342,035 419,116 141,132 193,591
90 Days or More......... 385,684 33,902 169,736 81,964 324,765
------------ ------------ ------------ ------------
Total Delinquencies....... $ 5,720,126 $ 3,536,623 $ 3,083,400 $ 1,743,911 $ 2,033,446
============== ============ ============ ============ ============
Total Delinquencies as a
Percentage of Portfolio
Outstanding at End of
Period.................. 0.46% 0.37% 0.41% 0.26% 0.38%
</TABLE>
- ---------------
(1) Includes recreational vehicle receivables that have been sold but are still
serviced by the Servicer.
(2) The sum of all principal amounts outstanding under the recreational vehicle
receivables.
(3) The period of delinquency is based on the number of days payments are
contractually past due.
CREDIT LOSS AND REPOSSESSION EXPERIENCE
<TABLE>
<CAPTION>
FISCAL YEAR ENDED DECEMBER 31,
--------------------------------------------------------------------------
1997 1996 1995 1994 1993
-------------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Average Portfolio
Outstanding(1)(2)(3)....... $1,113,127,480 $853,227,748 $720,418,169 $596,920,867 $512,484,430
Average Number of Receivables
Outstanding(3)............. 46,469 36,665 30,367 25,455 22,724
Repossessions as a Percentage
of Average Number of
Receivables Outstanding.... 0.77% 0.66% 0.56% 0.50% 0.71%
Net Losses(1)................ $ 3,631,982 $ 2,210,186 $ 1,800,947 $ 1,255,618 $ 1,738,647
Net Losses as a Percentage of
Average Portfolio
Outstanding................ 0.33% 0.26% 0.25% 0.21% 0.34%
</TABLE>
- ---------------
(1) Includes recreational vehicle receivables that have been sold but are still
being serviced by the Servicer.
(2) The sum of all principal amounts outstanding under the recreational vehicle
receivables.
(3) Amounts represent the average of month-end figures for each month in the
periods indicated.
S-15
<PAGE> 18
MATURITY, PREPAYMENT AND YIELD CONSIDERATIONS
The following discussion supplements the information contained in the
Prospectus under "The Receivables -- Maturity and Prepayment Considerations" and
"Yield Considerations". Except as otherwise provided herein under "The
Notes -- Mandatory Redemption", no principal payments will be made on the Class
A-2 Notes until the Class A-1 Notes have been paid in full and no principal
payments will be made on the Class A-3 Notes until the Class A-2 Notes have been
paid in full. In addition, except as otherwise provided herein under "The
Notes -- Mandatory Redemption", no principal payments on the Certificates will
be made until the earlier to occur of the Distribution Date on which the Class
A-1 Notes have been paid in full or the 199 Distribution Date. See "The
Notes -- Payments of Principal" and "The Certificates -- Distributions of
Principal" herein. As the rate of payment of principal of each class of Notes
and the Certificates depends primarily on the rate of payment (including
prepayments) of the principal balance of the Receivables, final payment of any
class of Notes and the final distribution in respect of the Certificates could
occur significantly earlier than their respective Final Scheduled Distribution
Dates. Any reinvestment risk resulting from the rate of prepayment of the
Receivables and the distribution of such payments to Securityholders will be
borne entirely by the Securityholders.
THE NOTES
GENERAL
The Notes will be issued pursuant to the Indenture, a form of which has
been filed as an exhibit to the Registration Statement. Copies of the Indenture
(without exhibits) may be obtained by Noteholders upon request in writing to the
Indenture Trustee at its Corporate Trust Office. The following summary does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Indenture and the Notes. The following summary supplements, and
to the extent inconsistent therewith, replaces the description of the general
terms and provisions of the Notes of any given Series and the related Indenture
set forth in the Prospectus, to which description reference is hereby made.
PAYMENTS OF INTEREST
General. Interest on the outstanding principal amount of each class of
Notes will accrue at the related per annum Interest Rates and will be payable to
Noteholders on each Distribution Date. Interest accrued but not paid on any
Distribution Date will be due on the immediately succeeding Distribution Date,
together with, to the extent permitted by applicable law, interest on such
shortfall at the related Interest Rate. Interest payments on the Notes will be
funded from the portion of the Available Amount remaining after payment of the
Servicer Payment. See "Certain Information Regarding the
Securities -- Distributions" and "-- The Reserve Fund" herein. Interest payments
to all classes of Noteholders will have the same priority. Under certain
circumstances, the amount available for interest payments could be less than the
amount of interest payable on the Notes on any Distribution Date, in which case
each class of Noteholders will receive their ratable share (based upon the
aggregate amount of interest due to such class of Noteholders) of the aggregate
amount available to be distributed in respect of interest on the Notes.
Calculation of LIBOR. The Interest Rate payable on the Class A-2 Notes in
respect of any Interest Period will equal the lesser of (i) the sum of the
London interbank offered rate ("LIBOR") for such Interest Period plus % and
(ii) %. LIBOR for each Interest Period will be determined by the Indenture
Trustee, as calculation agent (in such capacity, the "Calculation Agent") as
follows:
(i) On the second London Banking Day prior to the Distribution Date on
which any Interest Period commences (each, a "LIBOR Determination Date"),
the Calculation Agent will determine the arithmetic mean of the offered
rates for deposits in U.S. dollars for the period of one month, commencing
on such Distribution Date, which appear either (a) on the Telerate Page
3750 as of 11:00 A.M., London time, on that LIBOR Determination Date
("LIBOR Telerate") or (b) the Reuters Screen LIBO Page as of 11:00 A.M.,
London time, on the LIBOR Determination Date ("LIBOR Reuters"). "London
Banking Day" means any business day on which dealings in deposits in United
States dollars are
S-16
<PAGE> 19
transacted in the London interbank market and "Telerate Page 3750" means
the display designated as page "3750" on the Telerate Service (or such
other page as may replace the 3750 page on that service or such other
service or services as may be nominated by the British Bankers' Association
for the purpose of displaying London interbank offered rates for U.S.
dollar deposits). "Reuters Screen LIBO Page" means the display designated
as Page "LIBO" on the Reuters Monitor Money Rate Service (or such other
page as may replace the LIBO page on that service for the purpose of
displaying London interbank offered rates of major banks. If at least two
such offered rates appear on the Telerate Page 3750, LIBOR for such
Interest Period will be the arithmetic mean of such offered rates as
determined by the Calculation Agent.
(ii) If fewer than two offered rates appear on each of the Telerate
Page 3750 and the Reuters Screen LIBO Page on such LIBOR Determination
Date, the Calculation Agent will request the principal London offices of
each of four major banks in the London interbank market selected by such
Calculation Agent (after consultation with the Seller) to provide such
Calculation Agent with its offered quotations for deposits in U.S. dollars
for the period of one month, commencing on such Distribution Date, to prime
banks in the London interbank market at approximately 11:00 a.m., London
time, on such LIBOR Determination Date and in a principal amount equal to
an amount of not less than $1,000,000 that is representative of a single
transaction in such market at such time. If at least two such quotations
are provided, LIBOR for such Interest Period will be the arithmetic mean of
such quotations. If fewer than two such quotations are provided, LIBOR for
such Interest Period will be the arithmetic mean of rates quoted by three
major banks in The City of New York selected by the Calculation Agent
(after consultation with the Seller) at approximately 11:00 a.m., New York
City time, on such LIBOR Determination Date for loans in U.S. dollars to
leading European banks, for the period of one month, commencing on such
Distribution Date, and in a principal amount equal to an amount of not less
than $1,000,000 that is representative of a single transaction in such
market at such time; provided, however, that if the banks selected as
aforesaid by the Calculation Agent are not quoting rates as mentioned in
this sentence, LIBOR for such Interest Period will be the same as LIBOR for
the immediately preceding Interest Period.
PAYMENTS OF PRINCIPAL
Principal payments will be made to the Noteholders on each Distribution
Date in an amount generally equal to the sum of (i) the Note Percentage,
calculated as described herein under "Certain Information Regarding the
Securities -- Distributions", of the Monthly Principal Payment plus (ii) an
amount (the "Accelerated Principal Distribution Amount") equal to the portion,
if any, of Available Funds remaining after payment of (a) the Servicer Payment,
(b) the Note Interest Distributable Amount, (c) the portion of the Monthly
Principal Payment allocated to the Noteholders pursuant to clause (i) above, (d)
the Certificate Interest Distributable Amount and (e) the portion of the Monthly
Principal Payment allocated to the Certificateholders as described herein under
"The Certificates -- Distributions of Principal". Principal payments on the
Notes will be paid from the portion of the Available Amount remaining after
payment of the Servicer Payment, the Note Interest Distributable Amount and the
Certificate Interest Distributable Amount. See "Certain Information Regarding
the Securities -- Distributions" and "-- The Reserve Fund" herein.
Principal payments on the Notes will be applied on each Distribution Date,
first, to the Class A-1 Notes until the principal amount of the Class A-1 Notes
has been reduced to zero, second, to the Class A-2 Notes until the principal
amount of the Class A-2 Notes has been reduced to zero and, third, to the Class
A-3 Notes until the principal amount of the Class A-3 Notes has been reduced to
zero. To the extent not previously paid in full, the principal amount of the
Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes will be due on the
Class A-1 Final Scheduled Distribution Date, the Class A-2 Final Scheduled
Distribution Date and the Class A-3 Final Scheduled Distribution Date,
respectively. The actual date on which the aggregate outstanding principal
amount of any class of Notes is paid may be earlier than its Final Scheduled
Distribution Date based on a variety of factors, including payments of
Accelerated Principal Distribution Amounts and the factors described under "The
Receivables -- Maturity and Prepayment Considerations" in the Prospectus.
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MANDATORY REDEMPTION
The Notes will be subject to redemption in part on the Distribution Date on
or immediately following the last day of the Funding Period in the event that
any portion of the Pre-Funded Amount remains on deposit in the Funding Account,
after giving effect to the purchase of any Subsequent Receivables on such date
(a "Mandatory Redemption"). If such remaining Pre-Funded Amount is less than or
equal to $100,000, such amount will be applied to redeem the Class A-1 Notes
until the principal amount of the Class A-1 Notes has been reduced to zero, with
any remaining amount being applied to redeem the Class A-2 Notes. If such
remaining Pre-Funded Amount is greater than $100,000, such amount will be used
to redeem each class of Notes and to prepay the Certificates. The aggregate
principal amount of each class of Notes to be redeemed and the Certificates to
be prepaid will be an amount equal to the Pre-Funded Percentage of such class of
Notes or Certificates, as the case may be, multiplied by such remaining
Pre-Funded Amount. The "Pre-Funded Percentage" of a class of Notes or the
Certificates will be the percentage derived from the fraction, the numerator of
which is the initial principal amount of such class of Notes or the Original
Certificate Balance, as applicable, and the denominator of which is the sum of
the aggregate initial principal amount of the Notes and the Original Certificate
Balance.
OPTIONAL REDEMPTION
The Class A-3 Notes will be subject to redemption in whole, but not in
part, on any Distribution Date relating to an Optional Purchase or an Auction
Sale, provided that such Distribution Date occurs after the Class A-1 Notes and
the Class A-2 have been paid in full. The redemption price will equal the unpaid
principal amount of the Class A-3 Notes plus accrued interest thereon at the
Class A-3 Rate. See "Certain Information Regarding the
Securities -- Termination" herein.
THE INDENTURE TRUSTEE
will be the Indenture Trustee. The Indenture Trustee is a
and its Corporate Trust Office is located at ,
, .
The Indenture Trustee will have the rights and duties set forth in the
Prospectus under "Certain Information Regarding the Securities -- The Trustees"
and "-- Duties of the Trustees".
THE CERTIFICATES
GENERAL
The Certificates will be issued pursuant to the Trust Agreement, a form of
which has been filed as an exhibit to the Registration Statement. Copies of the
Trust Agreement (without exhibits) may be obtained by Certificateholders upon
request in writing to the Owner Trustee at its Corporate Trust Office. The
following summary does not purport to be complete and is subject to and
qualified in its entirety by reference to the Trust Agreement and the
Certificates. The following summary supplements, and to the extent inconsistent
therewith replaces, the description of the general terms and provisions of the
Certificates of any given series and the related Trust Agreement set forth in
the Prospectus, to which description reference is hereby made.
DISTRIBUTIONS OF INTEREST
Interest on the Certificate Balance will accrue at the Pass-Through Rate
and will be payable to Certificateholders on each Distribution Date. Interest
accrued but not paid on any Distribution Date will be due on the immediately
succeeding Distribution Date together with, to the extent permitted by
applicable law, interest on such shortfall at the Pass-Through Rate. Interest
distributions with respect to the Certificates will be funded from the portion
of the Available Amount remaining after payment of the Servicer Payment and the
Note Interest Distributable Amount. See "Certain Information Regarding the
Securities -- Distributions" and "-- The Reserve Fund" herein.
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The "Certificate Balance" will initially equal $ (the "Original
Certificate Balance") and thereafter will equal the Original Certificate Balance
reduced by (i) all distributions actually made on or prior to the related
Distribution Date to Certificateholders allocable to principal and (ii) Realized
Losses allocable to the Certificates. "Realized Losses" with respect to each
Collection Period will equal the amount by which (a) the aggregate unpaid
principal balance of all Receivables which became Defaulted Receivables during
such Collection Period exceeds (a) the sum of (i) the aggregate liquidation
proceeds recovered in respect of principal of such Defaulted Receivables during
such Collection Period and (ii) recoveries in respect of all Defaulted
Receivables received during such Collection Period, to the extent not otherwise
included in the amount determined pursuant to clause (i) above.
DISTRIBUTIONS OF PRINCIPAL
On each Distribution Date on which principal of the Certificates is
payable, the Certificateholders will be entitled to receive distributions in an
amount generally equal to the Certificate Percentage, calculated as described
herein under "Certain Information Regarding the Securities -- Distributions", of
the Monthly Principal Payment. Distributions with respect to principal will be
funded from the portion of the Available Amount remaining after payment of the
Servicer Payment, the Note Distributable Amount and the Certificate Interest
Distributable Amount. See "Certain Information Regarding the
Securities -- Distributions" and "-- The Reserve Fund" herein.
Notwithstanding the foregoing, upon any qualification, reduction or
withdrawal by any Rating Agency of its rating of any class of Notes, then, with
respect to each Distribution Date thereafter, the Certificateholders will not
receive any distributions of principal until all the Notes have been paid in
full, unless such rating has been restored. In addition, on and after any
Distribution Date on which the Notes have been paid in full, funds in the
Reserve Fund will be applied to reduce the Certificate Balance to zero if, after
giving effect to all distributions required to be made to the Servicer and the
Securityholders on such Distribution Date, the amount on deposit in the Reserve
Fund is equal to or greater than the Certificate Balance. See "Certain
Information Regarding the Securities -- The Reserve Fund".
MANDATORY PREPAYMENT
The Certificates will be subject to prepayment in part on the Distribution
Date on or immediately following the last day of the Funding Period in the event
that more than $100,000 of the Pre-Funded Amount remains on deposit in the
Pre-Funding Account, after giving effect to the purchase of any Subsequent
Receivables on such date (a "Mandatory Prepayment"). The aggregate principal
amount of Certificates to be prepaid will be an amount equal to the Pre-Funded
Percentage of the Certificates multiplied by the Pre-Funded Amount then on
deposit in the Pre-Funding Account.
OPTIONAL PREPAYMENT
The Certificates will be subject to prepayment in whole, but not in part,
on any Distribution Date relating to an Optional Purchase or an Auction Sale.
Certificateholders will receive an amount in respect of the Certificates equal
to the Certificate Balance, together with accrued interest at the Pass-Through
Rate. Any such distribution will effect early retirement of the Certificates.
See "Certain Information Regarding the Securities -- Termination" herein.
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CERTAIN INFORMATION REGARDING THE SECURITIES
BOOK-ENTRY REGISTRATION
Each class of Notes and the Certificates will initially be represented by
one or more certificates registered in the name of Cede & Co. ("Cede"), as the
nominee of The Depository Trust Company ("DTC"). No person acquiring an interest
in any Securities will be entitled to receive a definitive certificate
representing such person's interest, except in the event that Definitive
Securities of the related class are issued under the limited circumstances
described in the Prospectus under "Certain Information Regarding the
Securities -- Definitive Securities". Unless and until Securities are issued in
definitive form, all references herein to distributions, notices, reports and
statements to and to actions by and effects upon the related Securityholders
will refer to the same actions and effects with respect to DTC or Cede, as the
case may be, for the benefit of the related Security Owners in accordance with
DTC procedures. See "Certain Information Regarding the Securities -- General",
"-- Book-Entry Registration" and "-- Definitive Securities" in the Prospectus.
THE PRE-FUNDING ACCOUNT; MANDATORY REDEMPTION AND PREPAYMENT OF THE SECURITIES
The Pre-Funding Account. The Servicer will establish the Pre-Funding
Account in the name of the Indenture Trustee for the benefit of the
Securityholders into which the Pre-Funded Amount will be deposited on the
Closing Date from the net proceeds received from the sale of the Securities and
from which monies will be applied during the Funding Period to purchase
Subsequent Receivables from the Seller. The Pre-Funding Account will be
maintained with the same entity at which the Collection Account is maintained.
The Pre-Funding Account will be part of the Trust but monies on deposit therein
will not be available to cover losses on or in respect of the Receivables. Any
portion of the Pre-Funded Amount remaining on deposit in the Pre-Funding Account
at the end of the Funding Period will be payable as described below under
"-- Mandatory Redemption and Prepayment of the Securities". Monies on deposit in
the Pre-Funding Account may be invested in Permitted Investments under the
circumstances and in the manner to be described in the Sale and Servicing
Agreement. Earnings on investment of funds in the Pre-Funding Account will be
deposited into the Collection Account and losses will be charged against the
funds on deposit in the Pre-Funding Account. See "Certain Information Regarding
the Securities -- The Trust Accounts" in the Prospectus.
Upon each conveyance of Subsequent Receivables to the Trust, an amount
equal to the purchase price paid by the Seller to Fleetwood Credit for such
Subsequent Receivables on the related Subsequent Transfer Date will be withdrawn
from the Pre-Funding Account and paid to the Seller.
Mandatory Redemption and Prepayment of the Securities. The Notes will be
subject to a Mandatory Redemption and the Certificates may be subject to a
Mandatory Prepayment on the Distribution Date immediately succeeding the date on
which the Funding Period ends (or on the Distribution Date on which the Funding
Period ends if the Funding Period ends on a Distribution Date), in the event
that any portion of the Pre-Funded Amount, exclusive of any investment earnings
thereon, remains on deposit in the Pre-Funding Account after giving effect to
the purchase by the Seller and conveyance to the Trust of all Subsequent
Receivables on the related Subsequent Transfer Dates, including any such
purchase and conveyance on the date on which the Funding Period ends.
The amount to be paid to (i) Noteholders in connection with a Mandatory
Redemption will be determined as described herein under "The Notes -- Mandatory
Redemption" and (ii) Certificateholders in connection with a Mandatory
Prepayment will be determined as described herein under "The Certificates --
Mandatory Prepayment". It is anticipated that the aggregate principal amount of
Subsequent Receivables sold to the Trust during the Funding Period will not be
exactly equal to the Pre-Funded Amount and that therefore there will be at least
a nominal amount of principal prepaid to Securityholders.
THE YIELD SUPPLEMENT ACCOUNT; THE YIELD SUPPLEMENT AGREEMENT
The Yield Supplement Account. The Yield Supplement Account will be created
with an initial deposit by Fleetwood Credit of an amount equal to the Yield
Supplement Initial Deposit. The Yield Supplement Initial Deposit will equal an
amount (which amount may be discounted at a rate to be specified in the Sale and
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Servicing Agreement) equal to the aggregate amount by which (i) interest on the
Principal Balance of each Initial Receivable for the period commencing on the
Initial Cutoff Date and ending with the scheduled maturity of each such
Receivable (assuming that payments on such Receivables are made as scheduled and
no prepayments are made) at a rate equal to the Required Rate, exceeds (ii)
interest on such Principal Balances at the APR of each such Receivable (the
"Yield Supplement Amount" and, with respect to the Initial Receivables, the
"Maximum Initial Yield Supplement Amount").
On each Distribution Date, the Indenture Trustee will transfer to the
Collection Account from monies on deposit in the Yield Supplement Account an
amount equal to the Yield Supplement Deposit Amount in respect of the
Receivables for such Distribution Date. See "Distributions on the
Securities -- Deposits to the Collection Account; Priority of Payments" herein.
Amounts on deposit on any Distribution Date in the Yield Supplement Account in
excess of the Maximum Yield Supplement Amount, after giving effect to all
distributions to be made on such Distribution Date, will be paid to the Seller.
Monies on deposit in the Yield Supplement Account may be invested in Permitted
Investments under the circumstances and in the manner described in the Sale and
Servicing Agreement. See "Certain Information Regarding the Securities -- The
Trust Accounts" in the Prospectus. Any monies remaining on deposit in the Yield
Supplement Account upon the termination of the Trust will be paid to the Seller.
The Yield Supplement Agreement. Pursuant to the Yield Supplement Agreement,
on each Subsequent Transfer Date Fleetwood Credit will deposit into the Yield
Supplement Account an amount equal to the Additional Yield Supplement Amount.
The aggregate of the Additional Yield Supplement Amounts in respect of
Subsequent Receivables, if any, is referred to herein as the "Maximum Subsequent
Yield Supplement Amount" and, together with the "Maximum Initial Yield
Supplement Amount", the "Maximum Yield Supplement Amount".
DISTRIBUTIONS ON THE SECURITIES
General. On the eighth calendar day of each month or, if such day is not a
Business Day, the immediately succeeding Business Day (each, a "Determination
Date"), the Servicer will inform the Indenture Trustee of the amount of
Available Funds collected on or in respect of the Receivables, the Negative
Carry Amount, if any, the Yield Supplement Amount in respect of the Receivables,
if any, the amount of Advances and Non-Reimbursable Payments to be made by the
Servicer and the amount of the Servicing Fee and other servicing compensation
payable to the Servicer, in each case with respect to the immediately preceding
Collection Period. On or prior to each Determination Date, the Servicer shall
also determine, among other things, the Note Interest Distributable Amount, the
Certificate Interest Distributable Amount, the Note Principal Distributable
Amount, the Certificate Principal Distributable Amount and, based on the sum of
(i) Available Funds and (ii) amounts on deposit in the Reserve Fund, after
giving effect to the withdrawals therefrom described herein under "Deposits to
the Collection Account" (collectively, the "Available Amount"), the amounts to
be distributed to the Securityholders. Distributions to Noteholders will be made
out of amounts on deposit in the Note Distribution Account and distributions to
Certificateholders will be made out of amounts on deposit in the Certificate
Distribution Account, in each case as described herein.
Determination of Available Funds. "Available Funds" with respect to each
Distribution Date will mean the sum of (i) the earnings received by the
Indenture Trustee during the related Collection Period from investment of the
Pre-Funded Amount on deposit in the Pre-Funding Account; (ii) an amount (the
"Negative Carry Amount") equal to the difference between (a) 30 days' interest
on the Pre-Funded Amount on deposit in the Pre-Funding Account as of the first
day of such Collection Period at a rate equal to the weighted average of the
Interest Rates and the Pass-Through Rate and (b) the amount described in clause
(i) above, which Negative Carry Amount will be withdrawn from the Reserve Fund
and deposited in the Collection Account as described herein under "-- The
Reserve Fund"; (iii) all cash received by the Servicer on or in respect of the
Receivables during the immediately preceding Collection Period (including Non-
Reimbursable Payments and Advances but other than (a) late payment and extension
fees, if any, and other administrative fees and (b) recoveries collected on or
in respect of all Receivables which have been previously repurchased by the
Seller or purchased by the Servicer pursuant to the Sale and Servicing
Agreement);
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(iv) the Repurchase Amounts of all Receivables purchased or repurchased by the
Seller or the Servicer under the Sale and Servicing Agreement in respect of the
immediately preceding Collection Period; and (v) the Yield Supplement Deposit
Amount for the related Collection Period.
With respect to each Collection Period (i) "Collected Interest" will mean
the sum of (a) the portion of all payments received by the Servicer on or in
respect of the Receivables during such Collection Period allocable to interest
and (b) the amounts described in clauses (i), (ii) and (v) of the immediately
preceding paragraph with respect to such Collection Period, and (ii) "Collected
Principal" will mean the portion of all payments received by the Servicer on or
in respect of the Receivables during such Collection Period allocable to
principal.
Deposits to the Collection Account; Priority of Payments. The Servicer will
remit collections received on or in respect of the Receivables within two
Business Days of receipt thereof to the Collection Account unless it satisfies
the conditions described in the Prospectus under "Certain Information Regarding
the Securities -- Collections" permitting the remittance of such collections on
a monthly basis.
In addition, on each Distribution Date, the Trustee will cause the Negative
Carry Amount for the related Collection Period, if any, to be withdrawn from the
Reserve Fund and deposited in the Collection Account and the aggregate Yield
Supplement Amount in respect of the Receivables for the related Collection
Period, if any (the "Yield Supplement Deposit Amount"), to be withdrawn from the
Yield Supplement Account and deposited in the Collection Account.
Deposits to the Distribution Accounts. The amount to be distributed to
Securityholders following the Funding Period in connection with a Mandatory
Redemption or Mandatory Prepayment is described herein under "The
Notes -- Mandatory Redemption" and "The Certificates -- Mandatory Prepayment".
The amount of other distributions to be made on each Distribution Date to
Securityholders will be determined in the manner described below. On each
Distribution Date, the Servicer will instruct the Indenture Trustee to make the
following deposits and distributions, to the extent of the Available Amount, in
the following order of priority:
(i) to the Servicer, from Collected Interest, the Servicer Payment;
(ii) to the Note Distribution Account, from the Available Amount
(after giving effect to the reduction in the Available Amount described in
clause (i) above), the Note Interest Distributable Amount;
(iii) to the Note Distribution Account, from the Available Amount
(after giving effect to the reduction in the Available Amount described in
clauses (i) and (ii) above), the Note Principal Distributable Amount;
(iv) to the Certificate Distribution Account, from the Available
Amount (after giving effect to the reduction in the Available Amount
described in clauses (i) through (iii) above), the Certificate Interest
Distributable Amount;
(v) to the Certificate Distribution Account, from the Available Amount
(after giving effect to the reduction in the Available Amount described in
clauses (i) through (iv) above), the Certificate Principal Distributable
Amount; and
(vi) in the event that the distributions described in clauses (i)
through (v) above have been funded exclusively from Available Funds, any
remaining Available Funds will be deposited into the Reserve Fund until the
amount on deposit therein equals the Specified Reserve Fund Balance, with
any excess being deposited into the Note Distribution Account for payment
to Noteholders as an Accelerated Principal Distribution Amount.
Notwithstanding the foregoing, during the Funding Period, all Excess
Amounts will be deposited into the Reserve Fund and will not be deposited
into the Note Distribution Account until the Distribution Date immediately
succeeding the date on which the Funding Period ends (or on the
Distribution Date on which the Funding Period ends if the Funding Period
ends on a Distribution Date).
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For purposes hereof, the following terms shall have the following meanings:
The "Monthly Principal Payment" will mean, with respect to any Distribution
Date, (i) the Pool Balance as of the last day of the second Collection Period
preceding the Collection Period in which such Distribution Date occurs (or, with
respect to the first Distribution Date, the Original Pool Balance) less (ii) the
Pool Balance as of the last day of the Collection Period relating to such
Distribution Date.
The "Note Distributable Amount" will mean, with respect to any Distribution
Date, the sum of the Note Principal Distributable Amount and the Note Interest
Distributable Amount.
The "Note Interest Distributable Amount" will mean, with respect to any
Distribution Date, the sum of the Note Monthly Interest Distributable Amount for
such Distribution Date and the Note Interest Carryover Shortfall for such
Distribution Date.
The "Note Monthly Interest Distributable Amount" will mean, with respect to
any Distribution Date, interest accrued for the related Interest Period on each
class of Notes at the respective Interest Rate for such class on the outstanding
principal amount of the Notes of such class on the immediately preceding
Distribution Date (or, in the case of the first Distribution Date, on the
Closing Date), after giving effect to all payments of principal to the
Noteholders of such class on or prior to such Distribution Date.
The "Note Interest Carryover Shortfall" will mean, with respect to any
Distribution Date, the excess of the Note Monthly Interest Distributable Amount
for the immediately preceding Distribution Date and any outstanding Note
Interest Carryover Shortfall on such preceding Distribution Date, over the
amount in respect of interest that is actually deposited in the Note
Distribution Account on such preceding Distribution Date, plus, to the extent
permitted by applicable law, interest on the amount of interest due but not paid
to Noteholders on the preceding Distribution Date at the respective Interest
Rates borne by each class of Notes for the related Interest Period.
The "Note Principal Distributable Amount" will mean, with respect to any
Distribution Date, the sum of the Note Monthly Principal Distributable Amount
for such Distribution Date and the Note Principal Carryover Shortfall as of the
close of the preceding Distribution Date; provided, however, that the Note
Principal Distributable Amount shall not exceed the outstanding principal amount
of the Notes; and provided, further, that the Note Principal Distributable
Amount on the Class A-1 Final Scheduled Distribution Date shall not be less than
the amount that is necessary (after giving effect to other amounts to be
deposited in the Note Distribution Account on such Distribution Date and
allocable to principal) to reduce the outstanding principal amount of the Class
A-1 Notes to zero and on the Class A-2 Final Scheduled Distribution Date the
Note Principal Distributable Amount shall not be less than the amount that is
necessary (after giving effect to other amounts to be deposited in the Note
Distribution Account on such Distribution Date and allocable to principal) to
reduce the outstanding principal amount of the Class A-2 Notes to zero. In
addition, on the Final Scheduled Distribution Date, the principal required to be
deposited in the Note Distribution Account will include the amount of any
principal due and remaining unpaid on each Receivable in the Trust as of such
Final Scheduled Distribution Date so as to reduce the outstanding principal
amount of the Class A-3 Notes to zero.
The "Note Monthly Principal Distributable Amount" will mean, with respect
to any Distribution Date, the Note Percentage of the Monthly Principal Payment.
The "Note Percentage" will mean (i) for each Distribution Date to and
including the later to occur of (a) the Distribution Date on which the principal
amount of the Class A-1 Notes is reduced to zero and (b) the
199 Distribution Date, 100%, (ii) for each Distribution Date thereafter to and
including the Distribution Date on which the principal amount of the Class A-3
Notes is reduced to zero, the percentage equivalent of a fraction, the numerator
of which is the outstanding principal amount of the Notes on the Distribution
Date immediately preceding the Distribution Date for which the Note Percentage
is being calculated (after giving effect to all distributions made on such
immediately preceding Distribution Date) and the denominator of which is the
Pool Balance on the last day of the second Collection Period preceding the
Collection Period in which the Distribution Date for which the Note Percentage
is being calculated occurs; provided, however, that on each Distribution Date
following the occurrence of a Rating Event until the
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principal amount of all the Notes is paid in full or such rating is restored,
the Note Percentage shall mean 100%, and (iii) zero for each Distribution Date
thereafter.
The "Note Principal Carryover Shortfall" will mean, with respect to any
Distribution Date, the excess of the Note Monthly Principal Distributable Amount
for the immediately preceding Distribution Date and any outstanding Note
Principal Carryover Shortfall on such preceding Distribution Date over the
amount in respect of principal that is actually deposited in the Note
Distribution Account on such preceding Distribution Date.
The "Certificate Distributable Amount" will mean, with respect to any
Distribution Date, the sum of the Certificate Principal Distributable Amount and
the Certificate Interest Distributable Amount.
The "Certificate Interest Distributable Amount" will mean, with respect to
any Distribution Date, the sum of the Certificate Monthly Interest Distributable
Amount for such Distribution Date and the Certificate Interest Carryover
Shortfall for such Distribution Date.
The "Certificate Monthly Interest Distributable Amount" will mean, with
respect to any Distribution Date, 30 days' interest at the Pass-Through Rate on
the Certificate Balance as of the first day of the immediately preceding
Collection Period (after giving effect to all distributions of principal to be
made on the Distribution Date occurring in such immediately preceding Collection
Period) or, in the case of the first Distribution Date, the Original Certificate
Balance.
The "Certificate Interest Carryover Shortfall" will mean, with respect to
any Distribution Date, the excess of the Certificate Monthly Interest
Distributable Amount for the immediately preceding Distribution Date and any
outstanding Certificate Interest Carryover Shortfall on such preceding
Distribution Date, over the amount in respect of interest that is actually
deposited in the Certificate Distribution Account on such preceding Distribution
Date, plus interest on such excess, to the extent permitted by law, at the
Pass-Through Rate for the related Interest Period.
The "Certificate Principal Distributable Amount" will mean, with respect to
any Distribution Date, the sum of the Certificate Monthly Principal
Distributable Amount for such Distribution Date and the Certificate Principal
Carryover Shortfall as of the close of the immediately preceding Distribution
Date; provided, however, that the Certificate Principal Distributable Amount
shall not exceed the Certificate Balance. In addition, on the Certificate Final
Scheduled Distribution Date, the principal required to be deposited into the
Certificate Distribution Account will include the amount of any principal due
and remaining unpaid on each Receivable in the Trust as of the Certificate Final
Scheduled Distribution Date so as to reduce the Certificate Balance to zero, and
remaining after any required distribution to the Note Distribution Account.
The "Certificate Monthly Principal Distributable Amount" will mean, with
respect to any Distribution Date, the Certificate Percentage of the Monthly
Principal Payment.
The "Certificate Percentage" will mean (i) for each Distribution Date to
and including the later to occur of (a) the Distribution Date on which the
principal amount of the Class A-1 Notes is reduced to zero and (b) the
, 199 Distribution Date, zero, and (ii) for each Distribution Date
thereafter to and including the Distribution Date on which the Certificate
Balance is reduced to zero, the percentage equivalent of a fraction, the
numerator of which is the Certificate Balance on the Distribution Date
immediately preceding the Distribution Date for which the Certificate Percentage
is being calculated (after giving effect to all distributions made on such
preceding Distribution Date) and the denominator of which is the Pool Balance on
the last day of the second Collection Period preceding the Collection Period in
which the Distribution Date for which the Certificate Percentage is being
calculated occurs; provided, however, that on each Distribution Date following
the occurrence of a Rating Event until the principal amount of all outstanding
Notes is paid in full or such rating is restored, the Certificate Percentage
shall mean zero.
The "Certificate Principal Carryover Shortfall" will mean, with respect to
any Distribution Date, the excess of the Certificate Monthly Principal
Distributable Amount for the immediately preceding Distribution Date and any
outstanding Certificate Principal Carryover Shortfall on such preceding
Distribution Date, over
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the amount in respect of principal that is actually deposited in the Certificate
Distribution Account on such preceding Distribution Date.
Payments From the Distribution Accounts. On each Distribution Date, all
amounts on deposit in the Note Distribution Account (other than Investment
Earnings) will be paid in the following order of priority:
(i) to the applicable Noteholders, accrued and unpaid interest on the
outstanding principal amount of the applicable class of Notes at the
applicable Interest Rate;
(ii) to the Class A-1 Noteholders in reduction of principal, until the
principal amount of the Class A-1 Notes has been reduced to zero;
(iii) to the Class A-2 Noteholders in reduction of principal, until
the principal amount of the Class A-2 Notes has been reduced to zero; and
(iv) to the Class A-3 Noteholders in reduction of principal, until the
principal amount of the Class A-3 Notes has been reduced to zero.
On each Distribution Date, all amounts on deposit in the Certificate
Distribution Account will be distributed to the Certificateholders in the
following order of priority:
(i) to the Certificateholders, accrued and unpaid interest on the
outstanding Certificate Balance at the Pass-Through Rate; and
(ii) to the Certificateholders in reduction of principal, until the
Certificate Balance has been reduced to zero.
THE RESERVE FUND
The rights of the Certificateholders to receive distributions with respect
to the Receivables generally will be subordinated to the rights of the Servicer
(to the extent of the Servicer Payment) and the Noteholders to the extent
described above. The protection afforded to the Noteholders through the
foregoing subordination will be effected both by the preferential right of the
Noteholders to receive, to the extent described herein, current distributions
with respect to the Receivables and by the establishment of the Reserve Fund.
The Reserve Fund will be funded by the Seller on the Closing Date in an amount
equal to $ plus an amount attributable to the maximum aggregate
Negative Carry Amount. Thereafter, all Excess Amounts will be deposited from
time to time in the Reserve Fund to the extent necessary to maintain the amount
in the Reserve Fund at the Specified Reserve Fund Balance.
The "Specified Reserve Fund Balance" with respect to the first Distribution
Date will equal $ , and on each Distribution Date thereafter, will
equal the lesser of (i) $ or (ii) % of the sum of the unpaid
principal amount of the Notes and the Certificate Balance (after giving effect
to distributions of principal to be made on such Distribution Date).
Notwithstanding the foregoing, in no event shall the Specified Reserve Fund
Balance be less than $ . However, on each Distribution Date following
any Fiscal Quarter in which losses or delinquencies in respect of the
Receivables exceed the percentages to be specified in the Sale and Servicing
Agreement, the Specified Reserve Fund Balance will be equal to the greater of
the amount described above or an amount equal to the Pool Balance as of the last
day of the related Collection Period multiplied by a percentage determined by
subtracting from % a fraction (expressed as a percentage) equal to one
minus a fraction, the numerator of which will equal the outstanding principal
amount of the Notes and the denominator of which will equal the Pool Balance, in
each case as of the last day of the three related Collection Periods in such
Fiscal Quarter; provided, however, that following any Fiscal Quarter thereafter
in which the losses and delinquencies in respect of the Receivables are less
than the percentages to be specified in the Sale and Servicing Agreement, the
Specified Reserve Fund Balance shall return to the amount described in the first
two sentences of this paragraph. A "Fiscal Quarter" will mean each of the
following three-month periods: (i) January, February and March; (ii) April, May
and June; (iii) July, August and September; and (iv) October, November and
December. In addition, if on any Distribution Date cumulative losses in respect
of the Receivables exceed % of the sum of the Original Pool Balance and the
S-25
<PAGE> 28
aggregate principal balance of all Subsequent Receivables conveyed to the Trust
as of the related Subsequent Cutoff Dates, the Specified Reserve Fund Balance
shall remain at the level in effect as of such date and shall not be reduced
further in accordance with the first sentence of this paragraph.
The Servicer may, from time to time after the date of this Prospectus
Supplement, request each Rating Agency to approve a formula for determining the
Specified Reserve Fund Balance that is different from that described above and
would result in a decrease in the amount of the Specified Reserve Fund Balance
or the manner by which it is funded. If each Rating Agency delivers a letter to
the Trustees to the effect that the use of any such new formulation will not
result in the qualification, reduction or withdrawal of its then-current rating
of any class of Notes or the Certificates, then the Specified Reserve Fund
Balance will be determined in accordance with such new formula. The Sale and
Servicing Agreement will accordingly be amended to reflect such new calculation
without the consent of any Securityholder.
On each Distribution Date, funds will be withdrawn from the Reserve Fund as
described above for distribution first, to the Servicer in respect of the
Servicer Payment, second to Noteholders to the extent of shortfalls in the
amounts available to make distributions of interest on the Notes, third to
Noteholders to the extent of shortfalls in the amounts available to make
distributions of principal on the Notes, fourth to Certificateholders to the
extent of shortfalls in the amounts available to make distributions of interest
on the Certificates and fifth to Certificateholders to the extent of shortfalls
in the amounts available to make distributions of principal on the Certificates.
On each Distribution Date relating to the Funding Period, the amount of
Collected Interest for such Distribution Date will include an amount equal to
the Negative Carry Amount for the related Collection Period, if any, which
amount will be withdrawn from the Reserve Fund and deposited into the Collection
Account.
On each Distribution Date, the Trustee will deposit all Excess Amounts into
the Reserve Fund until the amount on deposit therein equals the Specified
Reserve Fund Balance. If the amount on deposit in the Reserve Fund on such
Distribution Date (after giving effect to all deposits thereto and withdrawals
therefrom on such Distribution Date) is greater than the Specified Reserve Fund
Balance, the Indenture Trustee will release and distribute such excess, together
with any Excess Amounts not required to be deposited into the Reserve Fund, to
the Seller. Notwithstanding the foregoing, (i) during the Funding Period, all
Excess Amounts will be deposited into the Reserve Fund and will not be paid to
the Seller until the Distribution Date immediately succeeding the date on which
the Funding Period ends (or on the Distribution Date on which the Funding Period
ends if the Funding Period ends on a Distribution Date) and (ii) under the
circumstances described herein under "The Certificates -- Distributions of
Principal", funds in the Reserve Fund will be applied to reduce the Certificate
Balance to zero. Upon any such release of amounts from the Reserve Fund to the
Seller, the Certificateholders will have no further rights in, or claims to,
such amounts.
After the payment in full, or the provision for such payment, of (i) all
accrued and unpaid interest on the Securities and (ii) the outstanding principal
balance of the Securities, any funds remaining on deposit in the Reserve Fund,
subject to certain limitations, will be paid to the Seller.
The subordination of the Certificates and the Reserve Fund are intended to
enhance the likelihood of receipt by Noteholders of the full amount of principal
and interest due them and to decrease the likelihood that the Noteholders will
experience losses. In addition, the Reserve Fund is intended to enhance the
likelihood of receipt by Certificateholders of the full amount of principal and
interest due them and to decrease the likelihood that the Certificateholders
will experience losses. However, in certain circumstances, the Reserve Fund
could be depleted. If the amount required to be withdrawn from the Reserve Fund
to cover shortfalls in collections on the Receivables exceeds the amount of
available cash in the Reserve Fund, Noteholders or Certificateholders could
incur losses or a temporary shortfall in the amounts distributed to the
Noteholders or the Certificateholders could result, which could, in turn,
increase the average life of the Notes or the Certificates.
Amounts held from time to time in the Reserve Fund will continue to be held
for the benefit of holders of the Notes and the Certificates. Funds on deposit
in the Reserve Fund may be invested in Permitted
S-26
<PAGE> 29
Investments. Investment income on monies on deposit in the Reserve Fund will not
be available for distribution to Noteholders or Certificateholders or otherwise
subject to any claims or rights of the Noteholders or Certificateholders and
will be paid to the Seller.
SERVICING COMPENSATION
As described in the Prospectus under "Certain Information Regarding the
Securities -- Servicing Compensation", the Servicer will receive a monthly fee,
payable on each Distribution Date, equal to one-twelfth of the product of 1.0%
and the Pool Balance as of the first day of the related Collection Period. The
Servicer will also be entitled to receive additional compensation in the form of
certain late fees, prepayment charges and other administrative fees or similar
charges.
STATEMENTS TO CERTIFICATEHOLDERS
On each Distribution Date, the Trustee will include with each distribution
to each Securityholder of record a statement, setting forth for the related
Collection Period, the information described under "Certain Information
Regarding the Securities -- Statements to Securityholders" in the Prospectus.
TERMINATION
The obligations of the Servicer, the Seller and the Indenture Trustee
pursuant to the Sale and Servicing Agreement, the Trust Agreement and the
Indenture will terminate with respect to the Securityholders upon the earliest
to occur of (i) the maturity or other liquidation of the last Receivable and the
disposition of any amounts received upon liquidation of any property remaining
in the Trust, (ii) the payment to Securityholders of all amounts required to be
paid to them pursuant to the Sale and Servicing Agreement, the Trust Agreement
and the Indenture and (iii) the occurrence of either event described below.
In order to avoid excessive administrative expenses, the Seller or the
Servicer, or any successor to the Servicer, will be permitted at its option to
purchase from the Trust, on any Distribution Date following the last day of a
Collection Period as of which the Pool Balance is 10% or less of the sum of the
Original Pool Balance and the aggregate principal balance of all Subsequent
Receivables conveyed to the Trust as of the related Subsequent Cutoff Dates, all
remaining Receivables at a price equal to the aggregate Repurchase Amounts for
the Receivables (including Defaulted Receivables), plus the appraised value of
any other property held by the Trust (less liquidation expenses). In the event
that both the Seller and the Servicer, or any successor to the Servicer, elect
to purchase the Receivables, the party first notifying the Trustee (based on the
Trustee's receipt of such notice) shall be permitted to purchase the
Receivables. Exercise of such right will effect early retirement of the
Securities.
If neither the Seller nor the Servicer (nor any successor to the Servicer)
exercises its optional termination right within 90 days after the day of a
Collection Period as of which such right can first be exercised, the Trustee
shall solicit bids for the purchase of the Receivables remaining in the Trust.
In the event that satisfactory bids are received as described below, the sale
proceeds will be distributed to Securityholders on the second Distribution Date
succeeding the last day of such Collection Period. Any purchaser of the
Receivables must agree to the continuation of the then current Servicer as
Servicer on terms substantially similar to those in the Sale and Servicing
Agreement. Any such sale will effect early retirement of the Securities.
The Trustee must receive at least two bids from prospective purchasers that
are considered at the time to be competitive participants in the market for
motor vehicle retail installment sale contracts. The highest bid may not be less
than the fair market value of such Receivables and must equal the sum of (i) the
greater of (a) the aggregate Repurchase Amounts for the Receivables (including
Defaulted Receivables), plus the appraised value of any other property held by
the Trust (less liquidation expenses) or (b) an amount that when added to
amounts on deposit in the Collection Account that would constitute Available
Funds for such second succeeding Distribution Date would result in proceeds
sufficient to distribute the sum of (1) the Note Distributable Amount and (2)
the Certificate Distributable Amount, and (ii) the sum of (a) an amount
sufficient to reimburse the Servicer for any outstanding Advances and (b) the
Servicing Fee payable on such
S-27
<PAGE> 30
final Distribution Date, including any unpaid Servicing Fees with respect to one
or more prior Collection Periods. The Indenture Trustee may consult with
financial advisors, including one or more of the Underwriters, to determine if
the fair market value of such Receivables has been offered. Upon the receipt of
such bids, the Indenture Trustee shall sell and assign such Receivables to the
highest bidder and the Securities shall be retired in such Distribution Date. If
any of the foregoing conditions are not met, the Indenture Trustee shall decline
to consummate such sale and shall not be under any obligation to solicit any
further bids or otherwise negotiate any further sale of Receivables remaining in
the Trust. In such event, however, the Indenture Trustee may from time to time
solicit bids in the future for the purchase of such Receivables upon the same
terms described above.
The Indenture Trustee will give written notice of termination to each
Securityholder of record. The final distribution to each Securityholder will be
made only upon surrender and cancellation of such holder's Notes or Certificates
at any office or agency of the Indenture Trustee specified in the notice of
termination. Any funds remaining in the Trust, after the Indenture Trustee has
taken certain measures to locate a Securityholder and such measures have failed,
will be distributed to the United Way.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
In the opinion of Arter & Hadden LLP, special federal income tax counsel to
the Seller, the Trust will not be taxable as an association or publicly traded
partnership taxable as a corporation, but should be classified as a partnership
under the Internal Revenue Code of 1986, as amended (the "Code"). In the opinion
of such counsel, the Notes will be treated as indebtedness and the Certificates
should constitute the equity of the Trust. For a discussion of the anticipated
material federal income tax consequences of the purchase, ownership and
disposition of the Securities, see "Certain Federal Income Tax Consequences" in
the Prospectus.
CERTAIN STATE TAX CONSEQUENCES
The activities to be undertaken by the Servicer in servicing and collecting
the Receivables will take place in California. The State of California imposes a
state individual income tax and a single business tax which is imposed on
corporations, partnerships and other entities doing business in the State of
California. This discussion is based upon present provisions of California
statutes and the regulations promulgated thereunder, and applicable judicial or
ruling authority, all of which are subject to change, which change may be
retroactive. No ruling on any of the issues discussed below will be sought from
the California Department of Treasury.
Because of the variation in each state's tax laws based in whole or in part
upon income, it is impossible to predict tax consequences to holders of Notes
and Certificates in all of the state taxing jurisdictions in which they are
already subject to tax. Noteholders and Certificateholders are urged to consult
their own tax advisors with respect to state tax consequences arising out of the
purchase, ownership and disposition of Notes and Certificates.
For purposes of the following summary, references to the Trust, the Notes,
the Certificates and related terms, parties and documents shall be deemed to
refer, unless otherwise specified herein, to each Trust and the Notes,
Certificates and related terms, parties and documents applicable to such Trust.
TAX CONSEQUENCES WITH RESPECT TO THE NOTES
It is expected that state tax counsel of the Seller ("California Tax
Counsel") will advise the Trust that, assuming the Notes will be treated as debt
for federal income tax purposes, the Notes will be treated as debt for
California income and single business tax purposes. Accordingly, Noteholders not
otherwise subject to taxation in California should not become subject to
taxation in California solely because of a holder's ownership of Notes. However,
a Noteholder already subject to California's income tax or single business tax
could be required to pay additional California tax as a result of the holder's
ownership or disposition of Notes.
S-28
<PAGE> 31
TAX CONSEQUENCES WITH RESPECT TO THE CERTIFICATES
If the arrangement created by the Trust Agreement is treated as a
partnership (not taxable as a corporation) for federal income tax purposes,
California Tax Counsel will deliver its opinion that the same treatment should
also apply for California tax purposes. In such case, the resulting constructive
partnership should not be treated as doing business in California but rather
should be viewed as a passive holder of investments and, as a result, should not
be subject to the California single business tax (which, if applicable, could
possibly result in reduced distributions to Certificateholders). The
Certificateholders also should not be subject to the California single business
tax on income received through the partnership.
Under current law, Certificateholders that are nonresidents of California
and are not otherwise subject to California income tax should not be subject to
California income tax on the income from the constructive partnership. In any
event, classification of the arrangement as a "partnership" would not cause a
Certificateholder not otherwise subject to taxation in California to pay
California tax on income beyond that derived from the Certificates.
If the Certificates are instead treated as ownership interests in an
association taxable as a corporation or a "publicly traded partnership" taxable
as a corporation, then the hypothetical entity should not be subject to the
California single business tax (which, if applicable, could result in reduced
distributions to Certificateholders). A Certificateholder not otherwise subject
to tax in California would not become subject to California tax as a result of
its mere ownership of such an interest.
ERISA CONSIDERATIONS
THE NOTES
The Notes may be purchased by an employee benefit plan or an individual
retirement account (a "Plan") subject to ERISA or Section 4975 of the Code. A
fiduciary of a Plan must determine that the purchase of a Note is consistent
with its fiduciary duties under ERISA and does not result in a nonexempt
prohibited transaction as defined in Section 406 of ERISA or Section 4975 of the
Code. For additional information regarding treatment of the Notes under ERISA,
see "ERISA Considerations" in the Prospectus.
The Notes may not be purchased with the assets of a Plan if the Seller, the
Servicer, the Indenture Trustee, the Owner Trustee or any of their affiliates
(i) has investment or administrative discretion with respect to such Plan
assets; (ii) has authority or responsibility to give, or regularly gives,
investment advice with respect to such Plan assets, for a fee and pursuant to an
agreement or understanding that such advice (a) will serve as a primary basis
for investment decisions with respect to such Plan assets and (b) will be based
on the particular investment needs for such Plan; or (iii) is an employer
maintaining or contributing to such Plan.
THE CERTIFICATES
The Certificates may not be acquired by (i) an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code (other than a
governmental plan described in Section 4975(g)(2) of the Code) or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity or which uses plan assets to acquire Certificates. By
its acceptance of a Certificate, each Certificateholder will be deemed to have
represented and warranted that it is not subject to the foregoing limitation.
Due to the complexities of the foregoing rules and the penalties imposed
upon persons involved in prohibited transactions, it is important that the
fiduciary of an employee benefit plan considering the purchase of Certificates
consult with its counsel regarding the applicability of the prohibited
transaction provisions of ERISA and the Code to such investment. In particular,
while payments made on the Certificates from the property of the Trust or from
monies on deposit in the Reserve Fund are encompassed by the Exemption, payments
made from the Yield Supplement Account (or pursuant to the Yield Supplement
Agreement by Fleetwood Credit) to the Certificateholders may not be included
under the terms of the Exemption since such
S-29
<PAGE> 32
payments are not derived from assets held in the Trust or from amounts on
deposit in the Reserve Fund. Accordingly, fiduciaries of Benefit Plans should
determine, in their particular circumstances, whether the prohibited transaction
provisions of ERISA or the Code might be applicable to payments made from the
Yield Supplement Account or from Fleetwood Credit under the Yield Supplement
Agreement.
The DOL issued Prohibited Transaction Class Exemption ("PTCE") 95-60 on
July 12, 1995 in response to the United States Supreme Court decision John
Hancock Mutual Life Insurance Co. v. Harris Trust and Savings Bank 114 S.Ct. 517
(1993), in which the Supreme Court held that assets held in an insurance
company's general account may be deemed to be "plan assets" for ERISA purposes
under certain circumstances. Subject to certain conditions, PTCE 95-60 provides
general relief from the prohibited transaction rules that would otherwise be
applicable to assets held in an insurance company's general account. Prospective
insurance company purchasers should consult with their counsel to determine
whether the decision in John Hancock, as modified by PTCE 95-60, affects their
ability to make purchases of the Certificates.
UNDERWRITING
Under the terms and subject to the conditions contained in an Underwriting
Agreement dated , 199 (the "Underwriting Agreement"), the
Underwriters named below (the "Underwriters"), for whom is acting as
representative (the "Representative") have severally but not jointly agreed to
purchase from the Seller the following respective principal amounts of the
Securities:
<TABLE>
<CAPTION>
PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF AMOUNT OF PRINCIPAL
CLASS A-1 CLASS A-2 CLASS A-3 AMOUNT OF
UNDERWRITERS NOTES NOTES NOTES CERTIFICATES
------------ --------- --------- --------- ------------
<S> <C> <C> <C> <C>
[Names of Underwriters]................ $ $ $ $
---- ---- ---- ----
Total........................ $ $ $ $
==== ==== ==== ====
</TABLE>
The Underwriting Agreement provides that the obligations of the
Underwriters are subject to certain conditions precedent and that the
Underwriters will be obligated to purchase all of the Securities if any are
purchased.
The Underwriters have advised the Seller that the Underwriters propose
initially to offer the Securities to the public at the respective public
offering prices set forth on the cover page of this Prospectus Supplement, and
to certain dealers at such prices less a concession not in excess of % of
the Class A-1 Note denominations, the Class A-2 Note denominations, the Class
A-3 Note denominations and the Certificate denominations. The Underwriters may
allow and such dealers may reallow a concession not in excess of % of the
Class A-1 Note denominations, % of the Class A-2 Note denominations, %
of the Class A-3 Note denominations and % of the Certificate denominations.
After the initial public offering, the public offering prices and such
concessions may be changed.
The Underwriting Agreement provides that the Seller and Fleetwood Credit
will jointly and severally indemnify the Underwriters against certain
liabilities, including liabilities under applicable securities laws, or
contribute to payments the Underwriters may be required to make in respect
thereof.
Upon receipt of a request by an investor who has received an electronic
Prospectus from an Underwriter or a request by such investor's representative
within the period during which there is an obligation to deliver a Prospectus,
the Seller or the Underwriters will promptly delver, or cause to be delivered,
without charge, a paper copy of this Prospectus Supplement and the Prospectus.
Until the distribution of the Securities is completed, rules of the
Commission may limit the ability of the Underwriters and certain selling group
members to bid for and purchase the Securities. As an exemption to these rules,
the Underwriters are permitted to engage in certain transactions that stabilize
the price of the Securities. Such transactions consist of bids or purchases for
the purpose of pegging, fixing or maintaining the price of the Securities.
S-30
<PAGE> 33
Neither the Seller nor any Underwriter makes any representation or
prediction as to the direction or magnitude of any effect that the transactions
described above may have on the prices of the Securities. In addition, neither
the Seller nor any Underwriter makes any representation that the Underwriters
will engage in such transactions or that such transactions, once commenced, will
not be discontinued without notice.
LEGAL OPINIONS
Certain legal matters relating to the Securities will be passed upon for
the Seller by Timothy M. Hayes or Frederic C. Liskow, each a Vice President and
Assistant General Counsel to Associates First Capital Corporation, the parent
company of the Servicer. Mr. Hayes and Mr. Liskow each own shares of Class A
Common Stock of Associates First Capital Corporation, and each have options to
purchase additional shares of such Class A Common Stock. Arter & Hadden LLP,
Washington, D.C. will act as special counsel to the Seller with respect to
certain matters relating to the Securities, including certain federal income tax
matters relating to the Securities. Brown & Wood LLP, San Francisco, California
will act as counsel for the Underwriters. Brown & Wood LLP has from time to time
represented Fleetwood Credit in certain matters not related to the offering of
the Securities.
S-31
<PAGE> 34
INDEX OF TERMS
Set forth below is a list of certain of the more significant terms used in
this Prospectus Supplement and the pages on which the definitions of such terms
may be found herein.
<TABLE>
<CAPTION>
TERM PAGE
---- ------
<S> <C>
Accelerated Principal Distribution Amount....... S-17
Additional Yield Supplement Account............. S-6
Additional Yield Supplement Amount.............. S-21
APR............................................. S-5
Auction Sale.................................... S-10
Available Amount................................ S-21
Available Funds................................. S-21
Calculation Agent............................... S-16
Cede............................................ S-19
Certificate Balance............................. S-18
Certificate Distribution Account................ S-13
Certificate Final Scheduled Distribution Date... S-4
Certificateholders' Distributable Amount........ S-23
Certificateholders' Interest Carryover
Shortfall..................................... S-24
Certificateholders' Interest Distributable
Amount........................................ S-23
Certificateholders' Monthly Interest
Distributable................................. S-23
Amount Certificateholders' Monthly Principal
Distributable Amount.......................... S-24
Certificateholders' Percentage.................. S-24
Certificateholders' Principal Carryover
Shortfall..................................... S-24
Certificateholders' Principal Distributable
Amount........................................ S-24
Certificates....................................S-1, S-3
Class A-1 Final Scheduled Distribution Date..... S-4
Class A-1 Notes.................................S-1, S-3
Class A-1 Rate.................................. S-7
Class A-2 Final Scheduled Distribution Date..... S-4
Class A-2 Notes.................................S-1, S-3
Class A-2 Rate.................................. S-7
Class A-3 Final Scheduled Distribution Date..... S-4
Class A-3 Notes.................................S-1, S-3
Class A-3 Rate.................................. S-7
Closing Date.................................... S-5
Code............................................ S-28
Collected Interest.............................. S-21
Collected Principal............................. S-21
Collection Account............................S-13, S-21
Collection Period............................... S-7
Commission...................................... S-2
Dealers......................................... S-4
Determination Date.............................. S-21
Distribution Accounts........................... S-13
Distribution Date............................... S-4
DTC............................................. S-19
ERISA........................................... S-11
Final Scheduled Distribution Dates.............. S-4
Financed Vehicles...............................S-1, S-4
Fleetwood Credit................................ S-3
Funding Period.................................. S-5
Indenture....................................... S-3
Indenture Trustee............................... S-3
Initial Cutoff Date.............................S-1, S-4
Initial Financed Vehicles.......................S-1, S-4
Initial Receivables.............................S-1, S-4
Interest Period................................. S-7
Interest Rates.................................. S-7
LIBOR........................................... S-16
LIBOR Determination Date........................ S-16
London Banking Day.............................. S-16
Mandatory Prepayment............................ S-19
Mandatory Redemption............................ S-17
Maximum Initial Yield Supplement Amount..S-6, S-20, S-21
</TABLE>
<TABLE>
<CAPTION>
TERM PAGE
---- ------
<S> <C>
Maximum Subsequent Yield Supplement Amount.....S-6, S-21
Maximum Yield Supplement
Amount.......................................S-6, S-21
Monthly Principal Payment....................... S-22
Moody's......................................... S-10
Negative Carry Amount........................... S-21
Note Distribution Account....................... S-13
Noteholders' Distributable Amount............... S-22
Noteholders' Interest Carryover Shortfall....... S-23
Noteholders' Interest Distributable Amount...... S-22
Noteholders' Monthly Interest Distributable
Amount........................................ S-23
Noteholders' Monthly Principal Distributable
Amount........................................ S-23
Noteholders' Percentage......................... S-23
Noteholders' Principal Carryover Shortfall...... S-23
Noteholders' Principal Distributable Amount...S-17, S-23
Notes...........................................S-1, S-3
Optional Purchase............................... S-10
Original Certificate Balance.................... S-18
Original Pool Balance........................... S-10
Owner Certificate Distribution Account.......... S-13
Owner Certificates.............................. S-3
Owner Collection Account........................ S-13
Owner Trust..................................... S-3
Owner Trustee................................... S-3
Pass-Through Rate............................... S-8
Payment Date.................................... S-4
Plan............................................ S-29
Pool Balance.................................... S-13
Pre-Funded Amount............................... S-5
Pre-Funded Percentage........................... S-18
Pre-Funding Account.............................S-1, S-5
Rating Agencies................................. S-10
Rating Event.................................... S-8
Realized Losses................................. S-18
Receivables.....................................S-1, S-4
Receivables Purchase Agreement.................. S-5
Record Date..................................... S-4
Redemption Price................................ S-18
Required Rate..................................S-6, S-20
Reserve Fund.................................... S-9
Sale and Servicing Agreement.................... S-4
Securities......................................S-1, S-3
Seller..........................................S-1, S-3
Servicer........................................ S-3
Servicer Payment................................ S-7
Specified Reserve Fund Balance.................S-9, S-25
Standard & Poor's............................... S-10
Subsequent Cutoff Date.......................... S-5
Subsequent Financed Vehicles....................S-1, S-4
Subsequent Receivables..........................S-1, S-4
Subsequent Transfer Date........................ S-5
Transfer Agreement.............................. S-5
Trust...........................................S-1, S-3
Trust Agreement................................. S-3
Underwriting Agreement.......................... S-30
Yield Supplement Account........................ S-6
Yield Supplement Account Initial Deposit........ S-6
Yield Supplement Agreement...................... S-6
Yield Supplement Amount........................S-6, S-20
Yield Supplement Deposit Amount................. S-22
</TABLE>
S-32
<PAGE> 35
======================================================
NO DEALER, SALESMAN OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT IN
CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS AND THE PROSPECTUS
SUPPLEMENT. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE SELLER, THE SERVICER OR THE
UNDERWRITERS. NEITHER THIS PROSPECTUS NOR THE PROSPECTUS SUPPLEMENT CONSTITUTES
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES
OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Reports to Securityholders...................... S-2
Summary......................................... S-3
Formation of the Trust.......................... S-19
Property of the Trust........................... S-20
The Receivables................................. S-21
Maturity, Prepayment and Yield Considerations... S-24
The Notes....................................... S-25
The Certificates................................ S-28
Certain Information Regarding the Securities.... S-30
Certain Federal Income Tax Consequences......... S-44
ERISA Considerations............................ S-44
Underwriting.................................... S-47
Legal Opinions.................................. S-48
Index of Terms.................................. S-49
PROSPECTUS
Available Information........................... 2
Incorporation of Certain Documents by
Reference..................................... 2
Summary......................................... 3
Formation of the Trusts......................... 18
Property of the Trusts.......................... 19
The Receivables................................. 21
Yield Considerations............................ 25
Pool Factors and Trading Information............ 26
Use of Proceeds................................. 27
The Seller...................................... 27
The Servicer.................................... 27
The Notes....................................... 28
The Owner Certificates.......................... 34
The Grantor Certificates........................ 35
Certain Information Regarding the Securities.... 37
Certain Legal Aspects of the Receivables........ 71
Certain Federal Income Tax Consequences......... 80
ERISA Considerations............................ 99
Plan of Distribution............................ 100
Legal Opinions.................................. 101
Index of Terms.................................. 102
</TABLE>
---------------
UNTIL , 199 , ALL DEALERS EFFECTING TRANSACTIONS IN THE
SECURITIES, WHETHER OR NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED
TO DELIVER A PROSPECTUS SUPPLEMENT AND THE PROSPECTUS. THIS IS IN ADDITION TO
THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS SUPPLEMENT AND THE PROSPECTUS
WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTION.
======================================================
======================================================
$
FLEETWOOD CREDIT RV
RECEIVABLES
199 - OWNER TRUST
$
% ASSET BACKED
NOTES, CLASS A-1
$
FLOATING RATE ASSET BACKED
NOTES, CLASS A-2
$
% ASSET BACKED
NOTES, CLASS A-3
$
% ASSET BACKED CERTIFICATES
FLEETWOOD CREDIT
RECEIVABLES CORP.
SELLER
FLEETWOOD CREDIT CORP.
SERVICER AND
A WHOLLY OWNED SUBSIDIARY OF
ASSOCIATES FIRST CAPITAL
CORPORATION
------------------------------------
PROSPECTUS SUPPLEMENT
------------------------------------
[UNDERWRITERS]
======================================================
<PAGE> 36
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOLD BE UNLAWFUL PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STAT.
SUBJECT TO COMPLETION, DATED APRIL 1, 1998
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1998)
$
FLEETWOOD CREDIT RV RECEIVABLES 199- GRANTOR TRUST
$ % ASSET BACKED CERTIFICATES, CLASS A
$ % ASSET BACKED CERTIFICATES, CLASS B
FLEETWOOD CREDIT RECEIVABLES CORP.
SELLER
FLEETWOOD CREDIT CORP.
SERVICER AND
A WHOLLY OWNED SUBSIDIARY OF
ASSOCIATES FIRST CAPITAL CORPORATION
---------------------
The Fleetwood Credit RV Receivables 199- Grantor Trust Asset Backed
Certificates (the "Certificates") will consist of one class of senior
certificates (the "Class A Certificates") and one class of subordinated
certificates (the "Class B Certificates"). Principal, and interest to the extent
of the Class A Pass-Through Rate of % per annum, and the Class B
Pass-Through Rate of % per annum, will be distributed to the Class A
Certificateholders and Class B Certificateholders, respectively, on the 15th day
of each month (or, if such day is not a Business Day, on the next succeeding
Business Day), beginning , 199 . The Final Scheduled Distribution
Date will be the Distribution Date.
The Class A Certificates and the Class B Certificates will respectively
evidence in the aggregate undivided ownership interests of % and % of
the Fleetwood Credit RV Receivables 199 - Grantor Trust (the "Trust"). The
Trust will be formed pursuant to a Pooling and Servicing Agreement to be entered
into among Fleetwood Credit Receivables Corp., as Seller (the "Seller"),
Fleetwood Credit Corp., as Servicer ("Fleetwood Credit" or, in its capacity as
Servicer, the "Servicer"), and , as Trustee (the "Trustee"). The rights of the
Class B Certificateholders to receive distributions of interest and principal
will be subordinated to the rights of the Class A Certificateholders to the
limited extent described herein.
The property of the Trust will primarily include a pool of simple interest
retail installment sale contracts (the "Initial Receivables") secured by new and
used recreational vehicles (the "Initial Financed Vehicles"), certain monies due
under the Initial Receivables on and after 1, 199 , security interests
in the Initial Financed Vehicles, monies on deposit in a trust account (the
"Pre-Funding Account") to be established with the Trustee and certain other
property, as more fully described herein. From time to time on or before
, 199 , additional simple interest retail installment sale contracts
(the "Subsequent Receivables" and, together with the Initial Receivables, the
"Receivables") secured by new and used recreational vehicles (the "Subsequent
Financed Vehicles" and, together with the Initial Financed Vehicles, the
"Financed Vehicles"), will be purchased by the Trust from the Seller from monies
on deposit in the Pre-Funding Account. In each case, the Receivables, including
the security interests in the related Financed Vehicles, will be purchased by
the Seller from Fleetwood Credit concurrently with their conveyance to the
Trust. See "Property of the Trust" herein.
There currently is no secondary market for either Class of Certificates and
there is no assurance that one will develop. The Underwriters expect, but will
not be obligated, to make a market in each Class of Certificates. There is no
assurance that any such market will develop, or if one does develop, that it
will continue or provide sufficient liquidity.
---------------------
THE CERTIFICATES WILL REPRESENT INTERESTS IN THE TRUST AND WILL NOT REPRESENT
INTERESTS IN OR OBLIGATIONS OF FLEETWOOD CREDIT RECEIVABLES CORP., FLEETWOOD
CREDIT CORP., ASSOCIATES FIRST CAPITAL CORPORATION, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
===========================================================================================================================
UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO THE
PUBLIC(1) COMMISSIONS SELLER(1)(2)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Class A Certificate......................... % % %
- ---------------------------------------------------------------------------------------------------------------------------
Per Class B Certificate......................... % % %
- ---------------------------------------------------------------------------------------------------------------------------
Total.................................. $ $ $
===========================================================================================================================
</TABLE>
(1) Plus accrued interest from 1, 199 .
(2) Before deduction of expenses payable by the Seller estimated at $ .
---------------------
The Class A Certificates and Class B Certificates are offered by the several
Underwriters when, as and if issued and accepted by them, and subject to their
right to reject orders in whole or in part. It is expected that delivery of the
Certificates, in book-entry form will be made through the facilities of The
Depository Trust Company on or about , 199 , against payment in
immediately available funds.
---------------------
[UNDERWRITERS]
---------------------
The date of this Prospectus Supplement is , 199 .
<PAGE> 37
THIS PROSPECTUS SUPPLEMENT DOES NOT CONTAIN COMPLETE INFORMATION ABOUT THE
OFFERING OF THE CERTIFICATES. ADDITIONAL INFORMATION IS CONTAINED IN THE
ACCOMPANYING PROSPECTUS (THE "PROSPECTUS"), AND PROSPECTIVE INVESTORS ARE URGED
TO READ BOTH THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS IN FULL. SALES OF THE
CERTIFICATES MAY NOT BE CONSUMMATED UNLESS THE PURCHASER HAS RECEIVED BOTH THIS
PROSPECTUS SUPPLEMENT AND THE PROSPECTUS. TO THE EXTENT ANY STATEMENTS IN THIS
PROSPECTUS SUPPLEMENT CONFLICT WITH STATEMENTS IN THE PROSPECTUS, THE STATEMENTS
IN THIS PROSPECTUS SUPPLEMENT SHALL CONTROL.
Certain persons participating in this offering may engage in transactions
that stabilize, maintain or otherwise affect the price of either Class of
Certificates. Such transactions may including stabilizing. For a description of
these activities, see "Underwriting."
UNTIL , 199 , ALL DEALERS EFFECTING TRANSACTIONS IN THE
CERTIFICATES, WHETHER OR NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED
TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO
DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR
UNSOLD ALLOTMENTS OR SUBSCRIPTIONS. UPON RECEIPT OF A REQUEST BY AN INVESTOR, OR
SUCH INVESTOR'S REPRESENTATIVE, WITHIN THE PERIOD DURING WHICH THERE IS A
PROSPECTUS DELIVERY OBLIGATION, THE SELLER OR THE UNDERWRITERS WILL PROMPTLY
DELIVER, OR CAUSE TO BE DELIVERED, WITHOUT CHARGE AND IN ADDITION TO SUCH
DELIVERY REQUIREMENTS, A PAPER COPY OF THE PROSPECTUS OR A PROSPECTUS ENCODED IN
AN ELECTRONIC FORMAT.
---------------------
REPORTS TO CERTIFICATEHOLDERS
, as Trustee, will provide to Certificateholders
(which shall be Cede & Co. as the nominee of The Depository Trust Company unless
Definitive Certificates are issued under the limited circumstances described in
the Prospectus) unaudited monthly and annual reports concerning the Receivables.
See "Certain Information Regarding the Securities -- Statements to
Securityholders" and "-- Evidence as to Compliance" in the Prospectus. Such
reports will not constitute financial statements prepared in accordance with
generally accepted accounting principles. The Seller, as originator of the
Trust, will file with the Securities and Exchange Commission (the "Commission")
such periodic reports as are required under the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
S-2
<PAGE> 38
SUMMARY
This Summary is qualified in its entirety by reference to the detailed
information appearing elsewhere herein and in the accompanying Prospectus.
Certain capitalized terms used and not otherwise defined herein shall have the
meanings ascribed thereto elsewhere in this Prospectus Supplement, or to the
extent not defined herein, shall have the meanings ascribed thereto in the
Prospectus. See the Index of Terms for the location herein of certain
capitalized terms.
Trust...................... Fleetwood Credit RV Receivables 199 - Grantor Trust
(the "Trust"). The Trust will be a "Grantor Trust"
for purposes of the Prospectus.
Seller..................... Fleetwood Credit Receivables Corp. (the "Seller"),
a wholly owned, limited purpose subsidiary of
Fleetwood Credit Corp. See "The Seller" in the
Prospectus.
Servicer................... Fleetwood Credit Corp. ("Fleetwood Credit" or, in
its capacity as Servicer, the "Servicer"), a wholly
owned subsidiary of Associates First Capital
Corporation. See "The Servicer" in the Prospectus.
Securities Offered......... The Fleetwood Credit RV Receivables 199 - Grantor
Trust Asset Backed Certificates (the
"Certificates") will consist of one class of senior
certificates (the "Class A Certificates") and one
class of subordinated certificates (the "Class B
Certificates"). The Certificates will be "Grantor
Certificates", the Class A Certificates will be
"Senior Certificates" and the Class B Certificates
will be "Subordinated Certificates" for purposes of
the Prospectus.
Each Certificate will represent a fractional
undivided interest in the Trust. The property of
the Trust will consist primarily of a pool of
simple interest retail installment sale contracts
(the "Initial Receivables") secured by the new and
used recreational vehicles financed thereby (the
"Initial Financed Vehicles"), certain monies due
under the Initial Receivables on and after
1, 199 (the "Initial Cutoff Date"),
security interests in the Initial Financed
Vehicles, an interest bearing account initially
established with the Trustee (the "Certificate
Account") and the proceeds thereof, proceeds from
claims under certain insurance policies in respect
of individual Initial Financed Vehicles or the
related Obligors, certain rights under a pooling
and servicing agreement to be dated as of
1, 199 (the "Agreement"), among the
Seller, the Servicer and , as
trustee (the "Trustee"), and amounts on deposit in
a trust account established for the benefit of the
Certificateholders (the "Pre-Funding Account"). The
Agreement will be a "Pooling and Servicing
Agreement" and the Trustee will be a "Grantor
Trustee" for purposes of the Prospectus. From time
to time on or before , 199 ,
additional simple interest retail installment sale
contracts (the "Subsequent Receivables" and,
together with the Initial Receivables, the
"Receivables") secured by the new and used
recreational vehicles financed thereby (the
"Subsequent Financed Vehicles" and, together with
the Initial Financed Vehicles, the "Financed
Vehicles"), certain monies due under the Subsequent
Receivables after the related Subsequent Cutoff
Dates, security interests in the related Subsequent
Financed Vehicles and proceeds from claims under
certain insurance policies in respect of individual
Subsequent Financed Vehicles or the related
Obligors will be purchased by the Trust from the
Seller from monies on deposit in the Pre-Funding
Account. See "Property of the Trust" herein.
S-3
<PAGE> 39
The Class A Certificates will evidence in the
aggregate an undivided ownership interest (the
"Class A Percentage") of % of the Trust
(initially representing $ ) and the Class
B Certificates will evidence in the aggregate an
undivided ownership interest (the "Class B
Percentage") of % of the Trust (initially
representing $ ). The Class B Certificates
will be subordinated to the Class A Certificates to
the limited extent described herein.
The Certificates will be issued pursuant to the
Agreement in denominations of $1,000 and integral
multiples thereof in book-entry form. Definitive
Certificates will be issued only under the limited
circumstances described in the Prospectus. See
"Certain Information Regarding the
Securities -- Book-Entry Registration" and
"-- Definitive Certificates" in the Prospectus.
Class A Pass-Through
Rate....................... % per annum, calculated on the basis of a 360-day
year consisting of twelve 30-day months (the "Class
A Pass-Through Rate"), payable monthly.
Class B Pass-Through
Rate....................... % per annum, calculated on the basis of a 360-day
year consisting of twelve 30-day months (the "Class
B Pass-Through Rate"), payable monthly.
The Receivables............ The Receivables arise from simple interest retail
installment sale contracts originated by dealers in
new and used recreational vehicles (the "Dealers")
which are purchased by Fleetwood Credit. All of the
Receivables will be selected from the contracts
owned by Fleetwood Credit based upon the criteria
described in the Prospectus under "The Receivables"
and "Certain Information Regarding the
Securities -- Sale and Assignment of the
Receivables".
On or before the date of initial issuance of the
Certificates (the "Closing Date"), Fleetwood Credit
will sell the Initial Receivables to the Seller
pursuant to a receivables purchase agreement to be
dated as of 1, 199 (the "Receivables
Purchase Agreement") between the Seller and
Fleetwood Credit. The Seller will, in turn, sell
the Initial Receivables to the Trust pursuant to
the Agreement. As of the Initial Cutoff Date, the
Initial Receivables had an aggregate principal
balance of $ , a weighted average annual
percentage rate (the "APR") of %, a weighted
average original maturity of months and a weighted
average remaining maturity of months.
From time to time during the Funding Period,
pursuant to the Receivables Purchase Agreement,
Fleetwood Credit will be obligated to sell, and the
Seller will be obligated to purchase, Subsequent
Receivables at a purchase price equal to the
aggregate principal amount thereof as of a date in
the related month of transfer designated by
Fleetwood Credit and the Seller (each, a
"Subsequent Cutoff Date"). Pursuant to the
Agreement and one or more transfer agreements
(each, a "Transfer Agreement") among the Seller,
the Servicer and the Trustee, and subject to the
satisfaction of certain conditions described herein
and in the Prospectus under "Certain Information
Regarding the Securities -- Sale and Assignment of
the Receivables", the Seller will in turn sell the
Subse-
S-4
<PAGE> 40
quent Receivables to the Trust at a purchase price
equal to the amount paid by the Seller to Fleetwood
Credit for such Subsequent Receivables, which
purchase price shall be paid from monies on deposit
in the Pre-Funding Account. The aggregate principal
balance of the Subsequent Receivables to be
conveyed to the Trust during the Funding Period
will not exceed $ (i.e., % of the sum of
the Original Class A Certificate Balance and the
Original Class B Certificate Balance). Subsequent
Receivables will be transferred from Fleetwood
Credit to the Seller and from the Seller to the
Trust on the Business Day specified by Fleetwood
Credit and the Seller during the month in which the
related Subsequent Cutoff Date occurs (each, a
"Subsequent Transfer Date").
The Pre-Funding Account.... The Pre-Funding Account will be established by
Fleetwood Credit, maintained as a trust account
with the Trustee and is designed solely to hold
funds to be applied by the Trustee during the
Funding Period to pay to the Seller the purchase
price for Subsequent Receivables. Monies on deposit
in the Pre-Funding Account will not be available to
cover losses on or in respect of the Receivables.
The Pre-Funding Account will be created with an
initial deposit by the Seller of $ (the
"Pre-Funded Amount"). The "Funding Period" will be
the period from the Closing Date until the earliest
to occur of (i) the date on which the remaining
Pre-Funded Amount is less than $100,000, (ii) the
date on which an Event of Default or Servicer
Default occurs or (iii) the close of business on
, 199 . During the Funding Period, on
one or more Subsequent Transfer Dates, the Trustee
will use the Pre-Funded Amount to purchase
Subsequent Receivables from the Seller. The Seller
expects that the Pre-Funded Amount will be reduced
to less than $100,000 by the , 199
Distribution Date, although no assurances can be
given in this regard. Any portion of the Pre-Funded
Amount remaining on deposit in the Pre-Funding
Account at the end of the Funding Period will be
payable as principal to Certificateholders in
accordance with their respective Class Percentages.
See "The Certificates -- The Pre-Funding Account;
Mandatory Prepayment of the Certificates" herein.
The Yield Supplement
Account; The Yield
Supplement Agreement..... Fleetwood Credit will establish a yield supplement
account with the Trustee for the benefit of the
Certificateholders (the "Yield Supplement
Account"). The Yield Supplement Account is designed
solely to hold funds to be applied by the Trustee
to provide payments to the Certificateholders in
respect of Receivables the APR of which is less
than the sum of (i) the weighted average of the
Class A Pass-Through Rate and the Class B
Pass-Through Rate and (ii) the Servicing Fee Rate
(the "Required Rate").
The Yield Supplement Account will be created with
an initial deposit by Fleetwood Credit (the "Yield
Supplement Account Initial Deposit") in an amount
to be specified in the Agreement. The Yield
Supplement Account Initial Deposit will equal the
aggregate amount (which amount may be discounted at
a rate to be specified in the Agreement) by which
interest on the Principal Balance of each Initial
Receivable for the period commencing on the Initial
Cutoff Date and ending with the scheduled maturity
of each Receivable, assuming that payments on such
Receiv-
S-5
<PAGE> 41
ables are made as scheduled and no prepayments are
made, at a rate equal to the Required Rate, exceeds
interest on such Principal Balances at the APR of
each such Receivable (the "Yield Supplement Amount"
and, with respect to the Initial Receivables, the
"Maximum Initial Yield Supplement Amount").
Fleetwood Credit, the Seller and the Trustee will
enter into a yield supplement agreement to be dated
as of 1, 199 (the "Yield Supplement
Agreement") pursuant to which on each Subsequent
Transfer Date Fleetwood Credit will deposit an
amount (which amount may be discounted at a rate to
be specified in the Agreement), if any, into the
Yield Supplement Account (the "Additional Yield
Supplement Amount") equal to the aggregate Yield
Supplement Amounts in respect of the related
Subsequent Receivables for the period commencing
with the related Subsequent Cutoff Date and ending
with the scheduled maturity of each related
Subsequent Receivable, assuming that payments on
such Receivables are made as scheduled and no
prepayments are made. The aggregate Additional
Yield Supplement Amounts in respect of the
Subsequent Receivables is referred to herein as the
"Maximum Subsequent Yield Supplement Amount" and,
together with the Maximum Initial Yield Supplement
Amount, the "Maximum Yield Supplement Amount." See
"The Certificates -- The Yield Supplement Account;
The Yield Supplement Agreement" herein.
Distribution Dates......... The 15th day of each month (or, if such day is not
a Business Day, the next succeeding Business Day),
beginning , 199 . The final scheduled
Distribution Date (the "Final Scheduled
Distribution Date") will be the
Distribution Date.
Interest................... On each Distribution Date, the Trustee will
distribute to holders of record of (i) the Class A
Certificates (the "Class A Certificateholders") as
of the day immediately preceding such Distribution
Date or, if Definitive Certificates are issued, the
last day of the immediately preceding calendar
month (each such date, a "Record Date"), interest
in an amount equal to one-twelfth of the product of
the Class A Pass-Through Rate, calculated on the
basis of a 360-day year consisting of twelve 30-day
months, and the Class A Certificate Balance as of
the immediately preceding Distribution Date (after
giving effect to distributions of principal made on
such immediately preceding Distribution Date), and
(ii) the Class B Certificates (the "Class B
Certificateholders" and, together with the Class A
Certificateholders, the "Certificateholders") as of
the related Record Date, interest in an amount
equal to one-twelfth of the product of the Class B
Pass-Through Rate, calculated on the basis of a
360-day year consisting of twelve 30-day months,
and the Class B Certificate Balance as of the
immediately preceding Distribution Date (after
giving effect to reductions in the Class B
Certificate Balance made on such immediately
preceding Distribution Date). In the case of the
first Distribution Date, the Trustee will
distribute to Certificateholders of record as of
the related Record Date interest in an amount equal
to (a) the product of (i) the Class A Pass-Through
Rate or Class B Pass-Through Rate, as the case may
be, (ii) the Original Class A Certificate Balance
or Original Class B Certificate Balance, as the
case may be, and (iii) the number of days from and
including the Closing Date to but excluding such
Distribution
S-6
<PAGE> 42
Date, (b) divided by 360. The rights of the Class B
Certificateholders to receive distributions of
interest, to the extent of collections on or in
respect of the Receivables allocable to interest
and certain available amounts on deposit in the
Reserve Fund and the Yield Supplement Account, will
be subordinated to the rights of Class A
Certificateholders to receive distributions of
interest but will not be subordinated to the rights
of Class A Certificateholders to receive
distributions of principal, as described herein.
The "Class A Certificate Balance" will initially
equal $ (the "Original Class A Certificate
Balance") and on any Distribution Date will equal
the Original Class A Certificate Balance, reduced
by all distributions of principal actually made on
or prior to such Distribution Date to Class A
Certificateholders. The "Class B Certificate
Balance" will initially equal $ (the
"Original Class B Certificate Balance") and on any
Distribution Date will equal the Original Class B
Certificate Balance, reduced by (i) all
distributions of principal actually made on or
prior to such Distribution Date to Class B
Certificateholders and (ii) Realized Losses
allocable to the Class B Certificates. See "The
Certificates -- Distributions on the Certificates"
herein.
Principal.................. On each Distribution Date, the Trustee will
distribute pro rata (i) to Class A
Certificateholders of record as of the related
Record Date an amount equal to the Class A
Percentage of all payments received by the Servicer
during the immediately preceding calendar month
(each, a "Collection Period") allocable to
principal on or in respect of the Receivables and
(ii) to Class B Certificateholders of record as of
the related Record Date an amount equal to the
Class B Percentage of all payments received by the
Servicer during the related Collection Period
allocable to principal on or in respect of the
Receivables. The rights of the Class B
Certificateholders to receive distributions of
principal will be subordinated to the rights of the
Class A Certificateholders to receive distributions
of interest and principal to the limited extent
described herein.
Mandatory Prepayment....... The Certificates will be prepaid in part on the
Distribution Date immediately succeeding the date
on which the Funding Period ends (or on the
Distribution Date on which the Funding Period ends
if the Funding Period ends on a Distribution Date)
in the event that any portion of the Pre-Funded
Amount remains on deposit in the Pre-Funding
Account after giving effect to the acquisition by
the Seller and sale to the Trust of all Subsequent
Receivables, including any such acquisition and
conveyance on the date on which the Funding Period
ends (a "Mandatory Prepayment"). The amount to be
distributed to Certificateholders of either Class
in connection with any Mandatory Prepayment will
equal the Class A Percentage or the Class B
Percentage, as the case may be, multiplied by the
remaining Pre-Funded Amount. See "The
Certificates -- The Pre-Funded Account; Mandatory
Prepayment of the Certificates" herein.
Subordination of the Class
B Certificates............. The rights of the Class B Certificateholders to
receive distributions with respect to the
Receivables will be subordinated to the rights of
the Class A Certificateholders to the limited
extent described herein. This subordination is
intended to enhance the likelihood of timely
receipt by
S-7
<PAGE> 43
Class A Certificateholders of the full amount of
interest and principal required to be paid to them,
and to afford such Class A Certificateholders
limited protection against losses in respect of the
Receivables. No distribution will be made to the
Class B Certificateholders on any Distribution Date
in respect of (i) interest until the full amount of
interest on the Class A Certificates payable on
such Distribution Date has been distributed to the
Class A Certificateholders and (ii) principal until
the full amount of interest on and principal of the
Class A Certificates payable on such Distribution
Date has been distributed to the Class A
Certificateholders. Distributions of interest on
the Class B Certificates, to the extent of
collections on or in respect of the Receivables
allocable to interest and certain available amounts
on deposit in the Reserve Fund and the Yield
Supplement Account, will not be subordinated to the
payment of principal on the Class A Certificates.
The protection afforded to the Class A
Certificateholders by the subordination feature
described above will be effected both by the
preferential right of the Class A
Certificateholders to receive, to the extent
described herein, current distributions from
collections on or in respect of the Receivables and
by the establishment of the Reserve Fund.
The Reserve Fund........... The Certificateholders will be afforded certain
limited protection, to the extent described herein,
against losses in respect of the Receivables by the
establishment of a segregated trust account held by
the Trustee for the benefit of Certificateholders
(the "Reserve Fund"). The Reserve Fund will not be
part of the Trust.
The Reserve Fund will be funded by the Seller on
the Closing Date in an amount equal to $
plus an amount attributable to the maximum
aggregate Negative Carry Amount. Thereafter, on
each Distribution Date all Excess Amounts, if any,
will be deposited from time to time in the Reserve
Fund to the extent necessary to maintain the
Reserve Fund at an amount to be specified in the
Agreement (the "Specified Reserve Fund Balance").
"Excess Amounts" in respect of a Distribution Date
will be all interest collections on or in respect
of the Receivables on deposit in the Certificate
Account in respect of such Distribution Date, after
the Servicer has been reimbursed for any
outstanding Advances and has been paid the
Servicing Fee (including any unpaid Servicing Fees
with respect to one or more prior Collection
Periods) and after giving effect to all
distributions of interest and principal required to
be made to the Class A and Class B
Certificateholders on such Distribution Date. The
Specified Reserve Fund Balance for the first
Distribution Date will be $ plus an amount
attributable to the maximum aggregate Negative
Carry Amount, and on any Distribution Date
thereafter will be calculated as described herein
under "The Certificates -- The Reserve Fund". On
each Distribution Date, funds will be withdrawn
from the Reserve Fund for distribution, first, to
Class A Certificateholders to the extent of
shortfalls in the amounts available to make
required distributions of interest on the Class A
Certificates, second, to Class B Certificateholders
to the extent of shortfalls in the amounts
available to make required distributions of
interest on the Class B Certificates, third, to
Class A Certificateholders to the extent of
shortfalls in the amounts available to make
required distributions of principal on the Class A
Certificates and fourth, to Class B
Certificateholders to the extent of
S-8
<PAGE> 44
shortfalls in the amounts available to make
required distributions of principal on the Class B
Certificates. In addition, on each Distribution
Date relating to the Funding Period, the Negative
Carry Amount, if any, will be withdrawn from the
Reserve Fund and deposited into the Certificate
Account.
On each Distribution Date, after giving effect to
all distributions made on such Distribution Date,
any amounts in the Reserve Fund in excess of the
Specified Reserve Fund Balance will be distributed
to the Seller and upon such distribution the
Certificateholders will have no further rights in,
or claims to, such amounts. Notwithstanding the
foregoing, during the Funding Period, all Excess
Amounts will be deposited into the Reserve Fund and
will not be paid to the Seller until the
Distribution Date immediately succeeding the date
on which the Funding Period ends (or on the
Distribution Date on which the Funding Period ends
if the Funding Period ends on a Distribution Date).
See "The Certificates -- The Reserve Fund" herein.
Advances; Non-Reimbursable
Payments................. On the Business Day immediately preceding each
Distribution Date, the Servicer will advance, in
respect of each Receivable, an amount equal to all
interest at the related APR which accrued in
respect of such Receivable from the last day upon
which a payment was made on such Receivable through
the last day of the related Collection Period. The
Servicer will be required to make an Advance only
to the extent it determines, in its reasonable
judgment, such Advance will be recoverable from
future payments and collections on or in respect of
the Receivables or otherwise. See
"Summary -- Advances" and "Certain Information
Regarding the Securities -- Certain Payments by the
Servicer" in the Prospectus.
Termination................ If none of the Seller, the Servicer or any
successor to the Servicer exercises its optional
termination right within 90 days after the last day
of the Collection Period as of which such right can
first be exercised, the Trustee shall solicit bids
for the purchase of all Receivables remaining in
the Trust. In the event that satisfactory bids are
received as described herein under "The
Certificates -- Termination", the sale proceeds
will be distributed to Certificateholders on the
second Distribution Date succeeding the last day of
such Collection Period. If satisfactory bids are
not received, the Trustee shall decline to sell the
Receivables and shall not be under any obligation
to solicit any further bids or otherwise negotiate
any further sale of the Receivables.
Ratings.................... It is a condition to the issuance of the
Certificates that the Class A Certificates be rated
Aaa by Moody's Investors Service, Inc. ("Moody's")
and AAA by Standard & Poor's, a division of The
McGraw-Hill Companies, Inc. ("Standard & Poor's"
and, together with Moody's, the "Rating Agencies")
and the Class B Certificates be rated Baa2 by
Moody's and A by Standard & Poor's. The ratings of
each Class of Certificates will be based primarily
on the value of the Initial Receivables, the
Pre-Funding Account, the terms of the Certificates
and the Reserve Fund. The foregoing ratings do not
address the likelihood that the Certificates will
be retired following the sale of the Receivables by
the Trustee as described above under "Termination".
S-9
<PAGE> 45
There is no assurance that any rating will not be
lowered or withdrawn by the assigning Rating Agency
if, in its judgment, circumstances so warrant. In
the event that the rating initially assigned to the
Class A Certificates or the Class B Certificates is
subsequently lowered or withdrawn for any reason,
no person or entity will be obligated to provide
any additional credit enhancement with respect to
such Certificates. There can be no assurance
whether any other rating agency will rate the Class
A Certificates or the Class B Certificates, or if
one does, what rating would be assigned by any such
other rating agency. A security rating is not a
recommendation to buy, sell or hold securities.
Tax Status................. In the opinion of special federal income tax
counsel to the Seller, the Trust will be classified
as a grantor trust for federal income tax purposes
and not as an association taxable as a corporation.
For federal income tax purposes, the
Certificateholders will be considered to own
stripped bonds and stripped coupons. See "Certain
Federal Income Tax Consequences" herein and
"Certain Federal Income Tax Consequences -- Tax
Characterization of Grantor Trusts" in the
Prospectus. Certificateholders should consult their
own tax advisors as to the proper treatment of
original issue discount with respect to the
Receivables and the application of the stripped
bond rules.
ERISA Considerations....... Subject to the conditions described herein, the
Class A Certificates may be purchased by employee
benefit plans that are subject to the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"). BECAUSE THE CLASS B CERTIFICATES WILL BE
SUBORDINATED TO THE CLASS A CERTIFICATES, EMPLOYEE
BENEFIT PLANS SUBJECT TO ERISA WILL NOT BE ELIGIBLE
TO PURCHASE CLASS B CERTIFICATES. Any benefit plan
fiduciary considering purchase of the Certificates
should, among other things, consult with its
counsel in determining whether all required
conditions have been satisfied. See "ERISA
Considerations" herein and in the Prospectus.
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<PAGE> 46
FORMATION OF THE TRUST
The Seller will establish the Trust by selling and assigning the property
of the Trust to the Trustee in exchange for the Certificates. The Servicer will
service the Receivables pursuant to the Agreement and will be compensated for
acting as such. See "The Certificates -- Servicing Compensation" herein. To
facilitate servicing and to minimize administrative burden and expense, the
Servicer will be appointed custodian for the Receivables by the Trustee, but
will not stamp the Receivables to reflect the sale and assignment of the
Receivables to the Trust, amend the certificates of title of the Financed
Vehicles or execute any transfer instrument (including, among other instruments,
UCC-3 assignments) relating to any Financed Vehicles. Consequently, in some
states, in the absence of such amendments and actions, the Trustee will have
certain risks with respect to its security interests in the Financed Vehicles.
See "Certain Legal Aspects of the Receivables" in the Prospectus.
If the protection provided to (i) the Class A Certificateholders by the
subordination of the Class B Certificates and by the Reserve Fund and (ii) the
Class B Certificateholders by the Reserve Fund is insufficient, the Trust will
look only to payments made by or on behalf of the Obligors on or in respect of
the Receivables, the proceeds from the repossession and sale of Financed
Vehicles securing Defaulted Receivables and the proceeds of Dealer repurchase
obligations, if any, more fully described below under "Property of the Trust",
to make distributions on the Certificates. In such event, certain factors, such
as the failure of the Trustee to possess first perfected security interests in
the Financed Vehicles, may limit the ability of the Trust to realize on the
collateral securing the Receivables or may limit the amount realized to less
than the amount due by the related Obligors. Certificateholders may thus be
subject to delays in payment and may incur losses on their investment in the
Certificates as a result of defaults or delinquencies by Obligors and
depreciation in the value of the related Financed Vehicles. The rights of the
Class B Certificateholders to receive distributions of principal will be
subordinated to the rights of the Class A Certificateholders to receive
distributions of interest and principal to the extent described herein. See "The
Certificates -- Subordination of the Class B Certificates" herein and "Certain
Legal Aspects of the Receivables" in the Prospectus.
PROPERTY OF THE TRUST
Each Certificate will represent a fractional undivided interest in the
Trust. The property of the Trust will include a pool of simple interest retail
installment sale contracts, originated on or before , 199 (in the
case of the Initial Receivables) and on or before , 199 (in the
case of the Subsequent Receivables), between Dealers in new and used
recreational vehicles, manufactured primarily by Fleetwood Enterprises, Inc.
("Fleetwood Enterprises"), and retail purchasers of those vehicles (the
"Obligors"), and certain monies due thereunder on and after the Initial Cutoff
Date or the related Subsequent Cutoff Date, as the case may be, and amounts on
deposit in the Pre-Funding Account. The Initial Receivables were, and the
Subsequent Receivables will be, originated by Dealers and subsequently assigned
to Fleetwood Credit. Such Receivables will be serviced by Fleetwood Credit and
evidence the indirect financing made available by Fleetwood Credit to the
Obligors. On or before the Closing Date, Fleetwood Credit will sell the Initial
Receivables to the Seller which, in turn, will sell them to the Trust, which
will be formed as described herein under "Formation of the Trust" and in the
Prospectus under "Formation of the Trusts". It is anticipated that Subsequent
Receivables will be conveyed to the Trust on one or more Subsequent Transfer
Dates during the Funding Period.
Neither the Seller nor the Servicer may substitute any other retail
installment sale contract for any Receivable sold to the Trust during the term
of the Agreement. The assets of the Trust will also include: (i) such amounts as
from time to time may be held in the Certificate Account, an interest bearing
trust account to be established and maintained by the Servicer with the Trustee
pursuant to the Agreement; (ii) security interests in the Financed Vehicles and
any accessions thereto; (iii) the right to proceeds from physical damage, credit
life and disability insurance policies, if any, covering individual Financed
Vehicles or Obligors, as the case may be; (iv) the right to receive proceeds of
Dealer repurchase obligations, if any; (v) any Servicer Letter of Credit; (vi)
the rights of the Seller under the Receivables Purchase Agreement and the Yield
Supplement Agreement; and (vii) any and all proceeds of the foregoing. The
Reserve Fund and the
S-11
<PAGE> 47
Yield Supplement Account will be maintained with the Trustee for the benefit of
the Certificateholders, but will not be property of the Trust.
The "Pool Balance" will be calculated as described in the Prospectus under
"Property of the Trusts" and will be increased during the Funding Period by the
principal amount (not to exceed $ ) of Subsequent Receivables conveyed
to the Trust as of the related Subsequent Cutoff Dates. Coincident with each
such transfer of Subsequent Receivables, the Yield Supplement Agreement will
require Fleetwood Credit to deposit into the Yield Supplement Account an amount
equal to the Additional Yield Supplement Amount, if any, in respect of such
Subsequent Receivables. Any such additions of Subsequent Receivables will be
conditioned on the compliance with the procedures described in the Receivables
Purchase Agreement and the Agreement. Each conveyance of Subsequent Receivables
also will be subject to the conditions described under "Certain Information
Regarding the Securities -- Sale and Assignment of Receivables -- The Subsequent
Receivables" in the Prospectus, and to the following additional conditions,
among others: (i) the weighted average APR of the Receivables (including the
related Subsequent Receivables) is not less than % and (ii) the weighted
average remaining term of the Receivables (including the Subsequent Receivables)
as of the related Subsequent Transfer Date is not greater than months.
Because the Subsequent Receivables will be originated after the Initial
Receivables, following their conveyance to the Trust, the characteristics of the
Receivables, including the Subsequent Receivables, may vary from those of the
Initial Receivables. The Seller expects that the principal balances of the
Subsequent Receivables to be added to the Trust will require application of the
entire Pre-Funded Amount by , 199 ; however, there can be no
assurance that a sufficient amount of Subsequent Receivables will be available
for such purpose. If the Pre-Funded Amount has not been reduced to zero by the
end of the Funding Period, the remaining portion thereof will be distributed to
Certificateholders as a prepayment of principal as described herein under "The
Certificates -- The Pre-Funding Account; Mandatory Prepayment of the
Certificates."
THE RECEIVABLES
The Receivables will have been purchased by Fleetwood Credit from Dealers
in the ordinary course of business. The Initial Receivables were, and the
Subsequent Receivables will be, selected from Fleetwood Credit's portfolio of
recreational vehicle retail installment sale contracts based on the criteria
described under "The Receivables" in the Prospectus. Each Receivable has as of
the Initial Cutoff Date, or will have as of the related Subsequent Cutoff Date,
as the case may be, an APR equal to or greater than %.
As of the Initial Cutoff Date, approximately % of the Initial
Receivables, by Original Pool Balance, were secured by motor homes and
approximately % were secured by travel trailers. Approximately % of
the Initial Receivables, by Original Pool Balance, represented financing of new
recreational vehicles and approximately % represented financing of used
recreational vehicles. As of the Initial Cutoff Date, the average outstanding
principal balances of Initial Receivables secured by motor homes and travel
trailers were $ and $ , respectively. A significant portion of
the Initial Receivables represent financing of recreational vehicles
manufactured by Fleetwood Enterprises. Except in the case of breach of
representations by the related Dealer, as described in the Prospectus under
"Property of the Trusts", it is expected that none of the Receivables will
provide for recourse to the Dealer who originated the related Receivable. Based
upon information presented by Obligors in their Receivables applications, as of
the Initial Cutoff Date the Initial Receivables were originated in states.
Based on Original Pool Balance, approximately % of the Initial Receivables
were originated in the State of , approximately % of the
Initial Receivables were originated in the State of and
approximately % of the Initial Receivables were originated in the State of
. Each other state accounts for less than 5% of the Initial
Receivables by Original Pool Balance. As of the Initial Cutoff Date,
approximately % of the Original Pool Balance represented Paid-Ahead
Receivables.
S-12
<PAGE> 48
COMPOSITION OF THE INITIAL RECEIVABLES
<TABLE>
<S> <C>
Aggregate Principal Balance as of the Initial Cutoff
Date..................................................... $
Number of Initial Receivables..............................
Average Principal Balance as of the Initial Cutoff Date.... $
Aggregate Original Amount Financed......................... $
Range of Original Amounts Financed......................... $ to $
Weighted Average APR(1).................................... %
Range of APRs.............................................. % to %
Weighted Average Original Term(1).......................... months
Range of Original Terms.................................... to months
Weighted Average Remaining Term as of the Initial Cutoff
Date(1).................................................. months
Range of Remaining Terms as of the Initial Cutoff Date..... to months
</TABLE>
- ---------------
(1) Weighted by unpaid principal balance as of the Initial Cutoff Date.
DISTRIBUTION OF THE INITIAL RECEIVABLES BY APR
<TABLE>
<CAPTION>
PERCENTAGE PERCENTAGE
NUMBER OF OF NUMBER INITIAL OF
OF INITIAL OF INITIAL CUTOFF DATE ORIGINAL POOL
APR RANGE RECEIVABLES RECEIVABLES POOL BALANCE BALANCE
--------- ----------- ----------- ------------ -------------
<S> <C> <C> <C> <C>
% to %.................... % $ %
% to %
% to %
% to %
% to %
% to %
% to %
--------- --- ---------- ---
Total............................... 100%(1) $ 100%(1)
========= === ========== ===
</TABLE>
- ---------------
(1) Percentages may not add to 100% due to rounding.
DELINQUENCIES, REPOSSESSIONS AND NET LOSSES
Set forth below is certain information concerning Fleetwood Credit's
experience with respect to its portfolio of recreational vehicle receivables
similar to the Receivables.
Fleetwood Credit did not acquire recreational vehicle receivables similar
to the Receivables prior to July 1986. Accordingly, Fleetwood Credit's
experience with respect to such receivables is limited and only a small portion
of its recreational vehicle receivables portfolio has reached maturity. There is
no assurance that Fleetwood Credit's delinquency, credit loss and repossession
experience with respect to recreational vehicle receivables in the future, or
the experience of the Trust with respect to the Receivables, will be similar to
that set forth below. Losses and delinquencies are affected by, among other
things, general and regional economic conditions and the supply of and demand
for recreational vehicles.
S-13
<PAGE> 49
DELINQUENCY EXPERIENCE
<TABLE>
<CAPTION>
AT DECEMBER 31,
----------------------------------------------------------------------------
1997 1996 1995 1994 1993
-------------- ------------ ------------ ------------ --------------
<S> <C> <C> <C> <C> <C>
Portfolio Outstanding at
End of Period(1)(2).... $1,241,738,614 $949,664,166 $760,702,992 $661,517,831 $ 532,764,234
Delinquencies at End of
Period(1)(3)
30-59 Days............. 4,630,619 $ 3,160,686 2,494,548 1,520,815 1,515,090
60-89 Days............. 703,823 342,035 419,116 141,132 193,591
90 Days or More........ 385,684 33,902 169,736 81,964 324,765
-------------- ------------ ------------ ------------ --------------
Total Delinquencies...... $ 5,720,126 $ 3,536,623 $ 3,083,400 $ 1,743,911 $ 2,033,446
============== ============ ============ ============ ==============
Total Delinquencies as a
Percentage of Portfolio
Outstanding at End of
Period................. 0.46% 0.37% 0.41% 0.26% 0.38%
</TABLE>
- ---------------
(1) Includes recreational vehicle receivables that have been sold but are still
serviced by the Servicer.
(2) The sum of all principal amounts outstanding under the recreational vehicle
receivables.
(3) The period of delinquency is based on the number of days payments are
contractually past due.
CREDIT LOSS AND REPOSSESSION EXPERIENCE
<TABLE>
<CAPTION>
FISCAL YEAR ENDED DECEMBER 31,
--------------------------------------------------------------------------
1997 1996 1995 1994 1993
-------------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Average Portfolio
Outstanding(1)(2)(3).... $1,113,127,480 $853,227,748 $720,418,169 $596,920,867 $512,484,430
Average Number of
Receivables
Outstanding(3).......... 46,469 36,665 30,367 25,455 22,724
Repossessions as a
Percentage of Average
Number of Receivables
Outstanding............. 0.77% 0.66% 0.56% 0.50% 0.71%
Net Losses(1)............. $ 3,631,982 $ 2,210,186 $ 1,800,947 $ 1,255,618 $ 1,738,647
Net Losses as a Percentage
of Average Portfolio
Outstanding............. 0.33% 0.26% 0.25% 0.21% 0.34%
</TABLE>
- ---------------
(1) Includes recreational vehicle receivables that have been sold but are still
being serviced by the Servicer.
(2) The sum of all principal amounts outstanding under the recreational vehicle
receivables.
(3) Amounts represent the average of month-end figures for each month in the
periods indicated.
S-14
<PAGE> 50
YIELD CONSIDERATIONS
The following discussion supplements the information contained in the
Prospectus under "Yield Considerations".
The Class B Certificates will provide limited protection against losses on
the Receivables. Accordingly, the yield on the Class B Certificates will be
extremely sensitive to the loss experience of the Receivables and the timing of
any such losses. If the actual rate and amount of losses experienced by the
Receivables exceed the rate and amount of such losses assumed by an investor,
the yield to maturity on the Class B Certificates may be lower than anticipated.
POOL FACTORS AND TRADING INFORMATION
The "Class A Pool Factor" and the "Class B Pool Factor" will be seven-digit
decimal numbers which the Servicer will compute each month indicating the Class
A Certificate Balance and the Class B Certificate Balance at the end of the
related Collection Period as a fraction of the Original Class A Certificate
Balance or Original Class B Certificate Balance, as the case may be. Pursuant to
the Agreement, the Certificateholders will receive monthly reports concerning
the payments received on the Receivables, the Pool Balance, the Class A Pool
Factor and the Class B Pool Factor and various other items of information
pertaining to the Trust. Certificateholders during each calendar year will be
furnished information for tax reporting purposes not later than the latest date
permitted by law. See "Pool Factors and Trading Information" and "Certain
Information Regarding the Securities -- Statements to Securityholders" in the
Prospectus.
THE CERTIFICATES
The Certificates will be issued pursuant to the Agreement. Copies of the
Agreement (without exhibits) may be obtained by Certificateholders upon request
in writing to the Trustee at its Corporate Trust Office. The following summary
does not purport to be complete and is subject to and qualified in its entirety
by reference to the Agreement. The following summary supplements, and to the
extent inconsistent therewith, replaces the description contained in the
Prospectus of the general terms and provisions of the Grantor Certificates of a
given Series and the related Pooling and Servicing Agreement, to which
description reference is hereby made.
GENERAL
The Certificates will evidence fractional undivided interests in the Trust
created pursuant to the Agreement and will not represent interests in or
obligations of the Seller, Fleetwood Credit, Associates First Capital
Corporation, the Trustee or any of their respective affiliates. The Class A
Certificates will evidence in the aggregate an undivided ownership interest of
% of the Trust and the Class B Certificates will evidence in the aggregate
an undivided ownership interest of % of the Trust.
In general, it is intended that Class A Certificateholders and Class B
Certificateholders receive, on each Distribution Date, the Class A Percentage
and Class B Percentage, respectively, of all payments allocated to principal on
or in respect of the Receivables collected by the Servicer during the related
Collection Period plus one full month's interest at the Class A Pass-Through
Rate on the Class A Certificate Balance or the Class B Pass-Through Rate on the
Class B Certificate Balance, as the case may be, in each case as of the
immediately preceding Distribution Date (after giving effect to distributions of
principal and, in the case of the Class B Certificates, reduction in the Class B
Certificate Balance, to be made on such immediately preceding Distribution Date)
or, in the case of the first Distribution Date or if no distribution has yet
been made, the Original Class A Certificate Balance and the Original Class B
Certificate Balance, as the case may be. Interest to Certificateholders may be
provided by payments made by or on behalf of Obligors on or in respect of the
Receivables, payments of Yield Supplement Amounts from amounts on deposit in the
Yield Supplement Account (including, in the case of Subsequent Receivables, any
Additional Yield Supplement Amounts) and the Reserve Fund, and Advances and
Non-Reimbursable Payments by the Servicer. See "-- Distributions on the
Certificates" herein. A prepayment of a Receivable may be made by or on behalf
of the related Obligor, by application of certain insurance proceeds, as a
result of a repurchase made by the Seller or a Dealer or a
S-15
<PAGE> 51
purchase by the Servicer, as the case may be, or as a result of the repossession
and sale of the related Financed Vehicle or other enforcement measure taken with
respect to a Defaulted Receivable. See "Certain Information Regarding the
Securities -- Sale and Assignment of the Receivables" and "-- Servicing
Procedures" in the Prospectus.
BOOK-ENTRY REGISTRATION
The Certificates will be offered for purchase in denominations of $1,000
and integral multiples thereof in book-entry form. Each Class of Certificates
will initially be represented by one or more certificates registered in the name
of Cede & Co. ("Cede"), as the nominee of The Depository Trust Company ("DTC").
No beneficial owner of a Class A Certificate (a "Class A Certificate Owner"), or
a Class B Certificates (a "Class B Certificate Owner" and, together with the
Class A Certificate Owners, the "Certificate Owners"), will be entitled to
receive a certificate representing such owner's interest, except in the limited
circumstances described in the Prospectus. Unless and until Certificates of a
Class are issued in fully registered certificated form ("Definitive
Certificates") under certain limited circumstances described in the Prospectus,
all references herein to distributions, notices, reports and statements to and
to actions by and effects upon the related Certificateholders will refer to the
same actions and effects with respect to DTC or Cede, as the case may be, for
the benefit of Certificate Owners in accordance with DTC procedures. See
"Certain Information Regarding the Securities -- General", "-- Book-Entry
Registration" and "-- Definitive Securities" in the Prospectus. Class A
Certificate Owners and Class B Certificate Owners will be "Security Owners" for
purposes of the Prospectus.
THE PRE-FUNDING ACCOUNT; MANDATORY PREPAYMENT OF THE CERTIFICATES
The Pre-Funding Account. The Servicer will establish the Pre-Funding
Account in the name of the Trustee for the benefit of the Certificateholders
into which the Pre-Funded Amount will be deposited on the Closing Date from the
net proceeds received from the sale of the Certificates and from which monies
will be applied during the Funding Period to purchase Subsequent Receivables
from the Seller. The Pre-Funding Account will be maintained with the same entity
at which the Certificate Account is maintained. The Pre-Funding Account will be
part of the Trust but monies on deposit therein will not be available to cover
losses on or in respect of the Receivables. Any portion of the Pre-Funded Amount
remaining on deposit in the Pre-Funding Account at the end of the Funding Period
will be payable as described below as a prepayment of principal to the
Certificateholders. Monies on deposit in the Pre-Funding Account may be invested
in Permitted Investments under the circumstances and in the manner to be
described in the Agreement. Earnings on investment of funds in the Pre-Funding
Account will be deposited into the Certificate Account and losses will be
charged against the funds on deposit in the Pre-Funding Account. See "Certain
Information Regarding the Securities -- The Trust Accounts" in the Prospectus.
Upon each conveyance of Subsequent Receivables to the Trust, an amount
equal to the purchase price paid by the Seller to Fleetwood Credit for such
Subsequent Receivables on the related Subsequent Transfer Date will be withdrawn
from the Pre-Funding Account and paid to the Seller.
Mandatory Prepayment of the Certificates. The Certificates will be subject
to Mandatory Prepayment in part on the Distribution Date immediately succeeding
the date on which the Funding Period ends (or on the Distribution Date on which
the Funding Period ends if the Funding Period ends on a Distribution Date), in
the event that any portion of the Pre-Funded Amount, exclusive of any investment
earnings thereon, remains on deposit in the Pre-Funding Account after giving
effect to the purchase by the Seller and conveyance to the Trust of all
Subsequent Receivables on the related Subsequent Transfer Dates, including any
such purchase and conveyance on the date on which the Funding Period ends.
Upon the occurrence of a Mandatory Prepayment, the holders of Certificates
of each Class will receive an amount equal to the Class A Percentage or the
Class B Percentage, as the case may be, multiplied by the portion of the
Pre-Funded Amount remaining in the Pre-Funding Account. It is anticipated that
the aggregate principal amount of Subsequent Receivables sold to the Trust
during the Funding Period will not be exactly
S-16
<PAGE> 52
equal to the Pre-Funded Amount and that therefore there will be at least a
nominal amount of principal prepaid to Certificateholders.
THE YIELD SUPPLEMENT ACCOUNT; THE YIELD SUPPLEMENT AGREEMENT
The Yield Supplement Account. The Yield Supplement Account will be created
with an initial deposit by Fleetwood Credit (the "Yield Supplement Initial
Deposit") in an amount to be specified in the Agreement. The Yield Supplement
Account Initial Deposit will equal the aggregate amount (which amount may be
discounted at a rate to be specified in the Agreement) by which (i) interest on
the Principal Balance of each Initial Receivable for the period commencing on
the Initial Cutoff Date and ending with the scheduled maturity of each
Receivable, assuming that payments on such Receivables are made as scheduled and
no prepayments are made, at a rate equal to the Required Rate, exceeds (ii)
interest on such Principal Balances at the APR of each such Receivable (the
"Yield Supplement Amount" and, with respect to the Initial Receivables, the
"Maximum Initial Yield Supplement Amount").
On each Distribution Date, the Trustee will transfer to the Certificate
Account from monies on deposit in the Yield Supplement Account an amount equal
to the Yield Supplement Deposit Amount in respect of the Receivables for such
Distribution Date. See "-- Distributions on the Certificates" herein. Amounts on
deposit on any Distribution Date in the Yield Supplement Account in excess of
the Maximum Yield Supplement Amount, after giving effect to all distributions to
be made on such Distribution Date, will be paid to the Seller. Monies on deposit
in the Yield Supplement Account may be invested in Permitted Investments under
the circumstances and in the manner described in the Agreement. See "Certain
Information Regarding the Securities -- The Trust Accounts" in the Prospectus.
Any monies remaining on deposit in the Yield Supplement Account upon the
termination of the Trust will be paid to the Seller. The Yield Supplement
Account will not be part of the Trust.
The Yield Supplement Agreement. Pursuant to the Yield Supplement Agreement,
on each Subsequent Transfer Date Fleetwood Credit will deposit into the Yield
Supplement Account an amount equal to the Additional Yield Supplement Amount.
The aggregate of the Additional Yield Supplement Amounts in respect of
Subsequent Receivables, if any, is referred to herein as the "Maximum Subsequent
Yield Supplement Amount" and, together with the "Maximum Initial Yield
Supplement Amount", the "Maximum Yield Supplement Amount".
DISTRIBUTIONS ON THE CERTIFICATES
On the eighth calendar day of each month or, if such day is not a Business
Day, the immediately succeeding Business Day (the "Determination Date"), the
Servicer will inform the Trustee of the amount of Available Funds collected on
or in respect of the Receivables, the Negative Carry Amount, if any, the Yield
Supplement Amount in respect of the Receivables, if any, the amount of Advances
and Non-Reimbursable Payments to be made by the Servicer and the amount of the
Servicing Fee and other servicing compensation payable to the Servicer, in each
case with respect to the immediately preceding Collection Period. On or prior to
each Determination Date, the Servicer shall also determine the Class A
Distributable Amount, the Class B Distributable Amount and, based on the
Available Funds and other amounts available for distribution on the related
Distribution Date as described below, determine the amounts to be distributed to
the Class A Certificateholders and the Class B Certificateholders.
On each Distribution Date, the Trustee will cause the Negative Carry Amount
for the related Collection Period, if any, to be withdrawn from the Reserve Fund
and deposited in the Certificate Account and the aggregate Yield Supplement
Amount in respect of the Receivables for the related Collection Period, if any
(the "Yield Supplement Deposit Amount"), to be withdrawn from the Yield
Supplement Account and deposited in the Certificate Account.
The Trustee shall make distributions to the Certificateholders out of
amounts on deposit in the Certificate Account. The amount to be distributed to
the Certificateholders following the Funding Period in connection with a
Mandatory Prepayment is described herein under "The Pre-Funding Account;
Mandatory Prepayment
S-17
<PAGE> 53
of the Certificates". The amount of other distributions to be made on each
Distribution Date to Certificateholders shall be determined in the manner
described below.
Determination of Available Funds. "Available Funds" with respect to each
Distribution Date will mean the sum of (i) the earnings received by the Trustee
during the related Collection Period from investment of the Pre-Funded Amount on
deposit in the Pre-Funding Account, (ii) an amount (the "Negative Carry Amount")
equal to the difference between (a) one month's interest on the Pre-Funded
Amount on deposit in the Pre-Funding Account as of the first day of such
Collection Period at a rate equal to the weighted average of the Class A and
Class B Pass-Through Rates and (b) the amount described in clause (i) above,
which Negative Carry Amount will be withdrawn from the Reserve Fund as described
herein under "Subordination of the Class B Certificates" and "The Reserve Fund",
(iii) all cash received by the Servicer on or in respect of the Receivables
during the related Collection Period (including Non-Reimbursable Payments and
Advances but other than (a) late payment and extension fees, if any, and other
administrative fees and (b) recoveries collected on or in respect of all
Receivables which have been previously repurchased by the Seller or purchased by
the Servicer pursuant to the Agreement), (iv) the Repurchase Amounts of all
Receivables purchased or repurchased by the Seller or the Servicer under the
Agreement in respect of the immediately preceding Collection Period and (v) the
Yield Supplement Deposit Amount for the related Collection Period.
With respect to each Collection Period (i) "Collected Interest" will mean
the sum of (a) the portion of all payments received by the Servicer on or in
respect of the Receivables during such Collection Period allocable to interest
and (b) the amounts described in clauses (i), (ii) and (v) of the immediately
preceding paragraph with respect to such Collection Period, and (ii) "Collected
Principal" will mean the portion of all payments received by the Servicer on or
in respect of the Receivables during such Collection Period allocable to
principal.
Calculation of Distributable Amounts. The "Class A Distributable Amount"
with respect to each Distribution Date will mean the sum of (i) the "Class A
Principal Distributable Amount", which will equal the Class A Percentage of the
Monthly Principal Payment (but not exceeding the Class A Certificate Balance as
of such Distribution Date) and (ii) the "Class A Interest Distributable Amount",
which will equal one month's interest at the Class A Pass-Through Rate on the
Class A Certificate Balance as of the first day of the immediately preceding
Collection Period (after giving effect to distributions of principal to be made
on the Distribution Date occurring in such immediately preceding Collection
Period) or, in the case of the first Distribution Date or if no distribution has
yet been made, the Original Class A Certificate Balance.
In addition, with respect to the Distribution Date relating to the
Collection Period in which the last Receivable in the Trust is scheduled to
mature, the Class A Principal Distributable Amount will include the portion of
such amount necessary (after giving effect to the other amounts described above
to be distributed to the Class A Certificateholders on such Distribution Date
allocable to principal) to reduce the Class A Certificate Balance to zero.
The "Class B Distributable Amount" with respect to each Distribution Date
will be calculated in the same manner as the Class A Distributable Amount,
appropriately modified to relate to the Class B Certificates, but will also
include recoveries to the extent allocable to principal on Receivables which
became Defaulted Receivables in one or more prior Collection Periods. The "Class
B Principal Distributable Amount" and the "Class B Interest Distributable
Amount" with respect to each Distribution Date will be calculated in the same
manner as the Class A Principal Distributable Amount and the Class A Interest
Distributable Amount, respectively, in each case appropriately modified to
related to the Class B Certificates.
The "Monthly Principal Payment" with respect to each Distribution Date will
equal (i) the sum of the Pool Balance (or, with respect to the first
Distribution Date, the Original Pool Balance) plus the amount on deposit in the
Pre-Funding Account (other than investment earnings), in each case as of the
first day of the related Collection Period, less (ii) the sum of the Pool
Balance plus the amount on deposit in the Pre-Funding Account (other than
investment earnings), in each case as of the last day of the related Collection
Period.
The "Class A Certificate Balance" will initially equal the Original Class A
Certificate Balance and on any Distribution Date will equal the Original Class A
Certificate Balance, reduced by all distributions actually
S-18
<PAGE> 54
made on or prior to such Distribution Date to Class A Certificateholders
allocable to principal. The "Class B Certificate Balance" will initially equal
the Original Class B Certificate Balance and on any Distribution Date will equal
the Original Class B Certificate Balance reduced by (i) all distributions
actually made on or prior to such Distribution Date to Class B
Certificateholders allocable to principal and (ii) Realized Losses allocable to
the Class B Certificates. "Realized Losses" with respect to each Collection
Period will equal the amount by which (a) the aggregate unpaid principal balance
of all Receivables which became Defaulted Receivables during such Collection
Period exceeds (b) the sum of (i) the aggregate liquidation proceeds recovered
in respect of principal of such Defaulted Receivables during such Collection
Period and (ii) recoveries in respect of all Defaulted Receivables received in
such Collection Period, to the extent not otherwise included in the amount
determined pursuant to clause (i) above.
Payment of Distributable Amounts. Prior to each Distribution Date, the
Servicer will calculate the amount to be distributed to the Certificateholders.
On each Distribution Date, the Trustee will distribute to Certificateholders the
following amounts in the following order of priority, to the extent of Available
Funds for such Distribution Date:
(i) to the Class A Certificateholders, an amount equal to the Class A
Interest Distributable Amount and any unpaid Class A Interest Carryover
Shortfall, such amount to be paid from Collected Interest (as Collected
Interest has been reduced by reimbursing the Servicer for any outstanding
Advances and paying the Servicer the Servicing Fee, including any unpaid
Servicing Fees with respect to one or more prior Collection Periods); and
if such Collected Interest is insufficient, the Class A Certificateholders
will receive such deficiency first, from the Class B Percentage of
Collected Principal and second, if such amounts are still insufficient,
from monies on deposit in the Reserve Fund;
(ii) to the Class B Certificateholders, an amount equal to the Class B
Interest Distributable Amount and any unpaid Class B Interest Carryover
Shortfall, such amount to be paid from Collected Interest (after giving
effect to the reduction in Collected Interest described in clause (i)
above); and if such Collected Interest is insufficient, the Class B
Certificateholders will be entitled to receive such deficiency from monies
on deposit in the Reserve Fund;
(iii) to the Class A Certificateholders, an amount equal to the Class
A Principal Distributable Amount and any unpaid Class A Principal Carryover
Shortfall, such amount to be paid from Collected Principal (after giving
effect to the reduction in Collected Principal described in clause (i)
above); and if such Collected Principal is insufficient, the Class A
Certificateholders will be entitled to receive such deficiency first, from
Collected Interest (after giving effect to the reduction in Collected
Interest described in clauses (i) and (ii) above) and second, if such
amounts are still insufficient, from monies on deposit in the Reserve Fund;
and
(iv) to the Class B Certificateholders, an amount equal to the Class B
Principal Distributable Amount and any unpaid Class B Principal Carryover
Shortfall, such amount to be paid from Collected Principal (after giving
effect to the reduction in Collected Principal described in clauses (i) and
(iii) above); and if such Collected Principal is insufficient, the Class B
Certificateholders will be entitled to receive such deficiency first, from
Collected Interest (after giving effect to the reduction in Collected
Interest described in clauses (i), (ii) and (iii) above) and second, if
such amounts are still insufficient, from monies on deposit in the Reserve
Fund.
The "Class A Interest Carryover Shortfall" with respect to any Distribution
Date will equal the excess, if any, of the Class A Interest Distributable Amount
for such Distribution Date and any outstanding Class A Interest Carryover
Shortfall from the immediately preceding Distribution Date plus interest on such
outstanding Class A Interest Carryover Shortfall, to the extent permitted by
law, at the Class A Pass-Through Rate from such immediately preceding
Distribution Date through the current Distribution Date, over the amount of
interest distributed to the Class A Certificateholders on such Distribution
Date. The "Class A Principal Carryover Shortfall" with respect to any
Distribution Date will equal the excess of the Class A Principal Distributable
Amount plus any outstanding Class A Principal Carryover Shortfall with respect
to
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<PAGE> 55
one or more prior Distribution Dates over the amount of principal that the
holders of the Class A Certificates actually received on such Distribution Date.
The "Class B Interest Carryover Shortfall" and the "Class B Principal
Carryover Shortfall" with respect to any Distribution Date will be calculated in
the same manner as the Class A Interest Carryover Shortfall and the Class A
Principal Carryover Shortfall, respectively, in each case appropriately modified
to relate to the Class B Certificates.
Any Excess Amounts in the Certificate Account with respect to any
Distribution Date, after giving effect to the distributions described in clauses
(i) through (iv) of the third preceding paragraph, will be distributed in the
following amounts and in the following order of priority: (i) to the Reserve
Fund until the amount on deposit therein equals the Specified Reserve Fund
Balance and (ii) to the Seller. Notwithstanding the foregoing, during the
Funding Period, all Excess Amounts will be deposited into the Reserve Fund and
will not be paid to the Seller until the Distribution Date immediately
succeeding the date on which the Funding Period ends (or on the Distribution
Date on which the Funding Period ends if the Funding Period ends on a
Distribution Date).
SUBORDINATION OF THE CLASS B CERTIFICATES
The rights of the Class B Certificateholders to receive distributions with
respect to the Receivables will be subordinated to the rights of the Servicer
(to the extent that the Servicer is reimbursed for any outstanding Advances and
is paid the Servicing Fee, including any unpaid Servicing Fees with respect to
one or more prior Collection Periods) and Class A Certificateholders to the
extent described below. This subordination is intended to enhance the likelihood
of timely receipt by Class A Certificateholders of the full amount of interest
and principal required to be paid to them, and to afford such Certificateholders
limited protection against losses in respect of the Receivables.
No distribution will be made to the Class B Certificateholders on any
Distribution Date in respect of (i) interest until the full amount of interest
on the Class A Certificates payable on such Distribution Date has been
distributed to the Class A Certificateholders and (ii) principal until the full
amount of interest on and principal of the Class A Certificates payable on such
Distribution Date has been distributed to the Class A Certificateholders.
Distributions of interest on the Class B Certificates, to the extent of
Collected Interest and certain available amounts on deposit in the Reserve Fund
and the Yield Supplement Account, will not be subordinated to the payment of
principal on the Class A Certificates. Because the rights of the Class B
Certificateholders to receive distributions of principal will be subordinated to
the rights of the Class A Certificateholders to receive distributions of
interest and principal to the extent described herein, the aggregate amount of
principal distributions on the Class B Certificates may be affected by the loss
experience of the Receivables. If the aggregate amount of losses experienced by
the Receivables exceeds the amount on deposit in the Reserve Fund, Class B
Certificateholders may not recover their initial investment in the Class B
Certificates.
THE RESERVE FUND
In the event of delinquencies or losses on the Receivables, the protection
afforded to the Class A Certificateholders will be effected both by the
application of available funds for such Distribution Date in the priorities
specified herein under "-- Distributions on the Certificates -- Payment of
Distributable Amounts", and the establishment of the Reserve Fund. The Reserve
Fund will not be a part of or otherwise includible in the Trust and will be a
segregated trust account held by the Trustee. The Reserve Fund will be funded by
the Seller on the Closing Date in an amount equal to $ plus an amount
attributable to the maximum aggregate Negative Carry Amount. Thereafter, on each
Distribution Date, all Excess Amounts, if any, will be deposited from time to
time in the Reserve Fund to the extent necessary to maintain the amount in the
Reserve Fund at the Specified Reserve Fund Balance. Any assets (and earnings
thereon) in the Reserve Fund will be owned by, and taxed to, the Seller for
federal income and state and local franchise tax purposes.
The "Specified Reserve Fund Balance" with respect to the first Distribution
Date will equal $ plus an amount equal to the maximum aggregate
Negative Carry Amount. On each Distribution Date
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<PAGE> 56
thereafter, will equal % of the sum of the Class A Certificate Balance and
the Class B Certificate Balance (after giving effect to distributions of
principal and, in the case of the Class B Certificates, any other reductions in
the Class B Certificate Balance to be made on such Distribution Date); provided,
however, that so long as the foregoing sum of the Class A Certificate Balance
and the Class B Certificate Balance exceeds $ , the Specified Reserve
Fund Balance will not be less than $ . From and after the Distribution
Date as of which the foregoing sum of the Class A Certificate Balance and the
Class B Certificate Balance is less than $ , the Specified Reserve Fund
Balance will equal such sum. Notwithstanding the foregoing, on each Distribution
Date following any Fiscal Quarter in which losses or delinquencies in respect of
the Receivables exceed the percentages to be specified in the Agreement, the
Specified Reserve Fund Balance will be equal to the greater of the amount
described above or an amount equal to the Pool Balance as of the immediately
preceding Record Date multiplied by a percentage determined by subtracting
from % a fraction (expressed as a percentage) equal to one minus a fraction,
the numerator of which will equal the Class A Certificate Balance and the
denominator of which will equal the Pool Balance plus an amount equal to the
amount on deposit in the Pre-Funding Account (other than investment earnings),
in each case as of the last day of the three related Collection Periods in such
Fiscal Quarter; provided, however, that following any Fiscal Quarter thereafter
in which the losses and delinquencies in respect of the Receivables are less
than the percentages to be specified in the Agreement, the Specified Reserve
Fund Balance shall return to the amount described in the first two sentences of
this paragraph. A "Fiscal Quarter" will mean each of the following three month
periods: (i) January, February and March; (ii) April, May and June; (iii) July,
August and September; and (iv) October, November and December. In addition, if
on any Distribution Date cumulative losses in respect of the Receivables
exceed % of the sum of the Original Pool Balance and the aggregate principal
balance of all Subsequent Receivables conveyed to the Trust as of the related
Subsequent Cutoff Dates, the Specified Reserve Fund Balance shall remain at the
level in effect as of such date and shall not be reduced further in accordance
with the first sentence of this paragraph.
The Servicer may, from time to time after the date of this Prospectus
Supplement, request each Rating Agency to approve a formula for determining the
Specified Reserve Fund Balance that is different from that described above and
would result in a decrease in the amount of the Specified Reserve Fund Balance
or the manner by which it is funded. If each Rating Agency delivers a letter to
the Trustee to the effect that the use of any such new formulation will not
result in the qualification, reduction or withdrawal of its then-current rating
of either Class of Certificates, then the Specified Reserve Fund Balance will be
determined in accordance with such new formula. The Agreement will accordingly
be amended to reflect such new calculation without the consent of any
Certificateholder.
On each Distribution Date, funds will be withdrawn from the Reserve Fund as
described above for distribution first, to Class A Certificateholders to the
extent of shortfalls in the amounts available to make required distributions of
interest on the Class A Certificates, second to Class B Certificateholders to
the extent of shortfalls in the amounts available to make required distributions
of interest on the Class B Certificates, third to Class A Certificateholders to
the extent of shortfalls in the amounts available to make required distributions
of principal on the Class A Certificates and fourth to Class B
Certificateholders to the extent of shortfalls in the amounts available to make
required distributions of principal on the Class B Certificates.
On each Distribution Date relating to the Funding Period, the amount of
Collected Interest for such Distribution Date will include an amount equal to
the Negative Carry Amount for the related Collection Period, if any, which
amount will be withdrawn from the Reserve Fund.
On each Distribution Date, the Trustee will deposit all Excess Amounts, if
any, into the Reserve Fund until the amount on deposit therein equals the
Specified Reserve Fund Balance. If the amount on deposit in the Reserve Fund on
such Distribution Date (after giving effect to all deposits thereto or
withdrawals therefrom on such Distribution Date) is greater than the Specified
Reserve Fund Balance, the Trustee will release and distribute such excess,
together with any Excess Amounts not required to be deposited into the Reserve
Fund, to the Seller. Notwithstanding the foregoing, during the Funding Period,
all Excess Amounts will be deposited into the Reserve Fund and will not be paid
to the Seller until the Distribution Date immediately succeeding the date on
which the Funding Period ends (or on the Distribution Date on which the
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<PAGE> 57
Funding Period ends if the Funding Period ends on a Distribution Date). Upon any
such release of amounts from the Reserve Fund, the Certificateholders will have
no further rights in, or claims to, such amounts.
Amounts held from time to time in the Reserve Fund will continue to be held
for the benefit of holders of the Certificates. Funds on deposit in the Reserve
Fund may be invested in Permitted Investments. Investment income on monies on
deposit in the Reserve Fund will not be available for distribution to
Certificateholders or otherwise subject to any claims or rights of the
Certificateholders and will be paid to the Seller.
If on any Distribution Date the Class B Certificate Balance equals zero and
amounts on deposit in the Reserve Fund have been depleted as a result of losses
in respect of the Receivables, the protection afforded to the Class A
Certificateholders by the subordination of the Class B Certificates and by the
Reserve Fund will be exhausted. In addition, if on any Distribution Date amounts
on deposit in the Reserve Fund have been depleted, the protection afforded to
the Class B Certificateholders by the Reserve Fund will be exhausted. In either
of the foregoing circumstances, the Class A Certificateholders or the Class B
Certificateholders, as the case may be, will bear directly the risks associated
with ownership of the Receivables.
Neither the Class B Certificateholders, the Seller nor the Servicer will be
required to refund any amounts properly distributed or paid to them, whether or
not there are sufficient funds on any subsequent Distribution Date to make full
distributions to the Class A Certificateholders.
EXAMPLE OF DISTRIBUTIONS
The following chart sets forth an example of the application of the
foregoing provisions to the first monthly distribution in respect of the
Certificates:
<TABLE>
<S> <C> <C>
1........ Initial Cutoff Date. The Original Pool Balance will equal
the aggregate unpaid principal balance of the Receivables
as of the opening of business on this date.
1-31..... Collection Period. The Servicer will receive monthly
payments, prepayments and other proceeds on or in respect
of the Receivables.
8........ Determination Date. On this date, the Servicer will
notify the Trustee of, among other things, the amounts to
be distributed on the Distribution Date.
14....... The Business Day immediately preceding the Distribution
Date. On or before this date, the Servicer will make or
will cause to be made the required remittances to the
Certificate Account.
14....... Record Date. Distributions on the Distribution Date will
be made to Certificateholders of record at the close of
business on this date.
15....... Distribution Date. On this date, the Trustee will make
the distributions described above.
</TABLE>
SERVICING COMPENSATION
As described in the Prospectus under "Certain Information Regarding the
Securities -- Servicing Compensation", the Servicer will receive a monthly fee,
payable on each Distribution Date, equal to one-twelfth of the product of 1.0%
and the Pool Balance as of the first day of the related Collection Period. The
Servicer will also be entitled to receive additional compensation in the form of
certain late fees, prepayment charges and other administrative fees or similar
charges.
STATEMENTS TO CERTIFICATEHOLDERS
On each Distribution Date, the Trustee will include with each distribution
to each Class A Certificateholder and Class B Certificateholder of record a
statement, setting forth for the related Collection Period, the information
described under "The Securities -- Statements to Securityholders" in the
Prospectus.
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<PAGE> 58
THE TRUSTEE
will be the Trustee under the Agreement. The Trustee's Corporate
Trust Office is located at , telephone ( ) .
The Trustee will have the rights and duties set forth in the Prospectus
under "Certain Information Regarding the Securities -- The Trustees" and
"-- Duties of the Trustees".
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following general discussion of certain federal income tax consequences
of the purchase, ownership and disposition of the Certificates supplements the
discussion under "Certain Federal Income Tax Consequences -- Tax
Characterization of Grantor Trusts" in the Prospectus. Potential investors are
strongly urged to review the tax considerations discussed in the Prospectus in
their entirety and to consult their own tax advisors with respect to the tax
consequences of an investment in the Certificates.
TAX STATUS OF THE TRUST
In the opinion of Arter & Hadden LLP, special federal tax counsel to the
Seller, the Trust will be classified as a grantor trust under subpart E, part I
of subchapter J of the Internal Revenue Code of 1986, as amended (the "Code"),
and not as an association taxable as a corporation for federal income tax
purposes. As a result, each Certificateholder will be subject to federal income
taxation as if it owned directly the portion of the Trust's assets allocable to
its Certificates and as if it paid directly its share of the reasonable expenses
paid by the Trust, except as described in the Prospectus. The Certificateholders
will be considered to own stripped bonds and stripped coupons as described under
"Certain Federal Income Tax Consequences -- Tax Characterization of Grantor
Trusts -- General" and "-- Stripped Bonds and Stripped Coupons" in the
Prospectus.
ERISA CONSIDERATIONS
Any plan fiduciary which proposes to cause a Benefit Plan (as defined in
the Prospectus) to acquire the Certificates should consult with its counsel with
respect to the potential consequences of such an investment under ERISA, and/or
the Code. The following discussion of certain ERISA Considerations supplements
the discussion in the Prospectus under "ERISA Considerations". Potential
investors in the Certificates are strongly urged to review the ERISA
considerations discussed in the Prospectus and to consult their own counsel with
respect to the applicability of the "prohibited transactions" rules of ERISA and
the Code and the "plan assets" provisions of ERISA to any such investment.
THE CLASS A CERTIFICATES
The Department of Labor (the "DOL") has granted an administrative exemption
to (Prohibited Transaction Exemption ) (the "Exemption") from
certain of the prohibited transaction rules of ERISA with respect to the initial
purchase, the holding and the subsequent resale by Benefit Plans of certificates
in pass-through trusts that consist of certain receivables, loans and other
obligations that meet the conditions and requirements of the Exemption. The
receivables covered by the Exemption include recreational vehicle installment
obligations such as the Receivables. The Exemption will apply to the
acquisition, holding and resale of Class A Certificates by a Benefit Plan,
provided that specific conditions (certain of which are described below) are
met. It is believed that the Exemption will apply to the acquisition, holding
and disposition in the secondary markets of Class A Certificates by Benefit
Plans and that all conditions of the Exemption other than those within the
control of the investors have been or will be met.
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<PAGE> 59
Among the conditions which must be satisfied for the Exemption to apply to
the acquisition by a Benefit Plan of the Class A Certificates are the following
(each of which has been or will be met in connection with the Class A
Certificates):
(i) The acquisition of the Class A Certificates by a Benefit Plan is
on terms (including the price for the Class A Certificates) that are at
least as favorable to the Benefit Plan as they would be in an arm's-length
transaction with an unrelated party.
(ii) The rights and interests evidenced by the Class A Certificates
acquired by the Benefit Plan are not subordinated to the rights and
interests evidenced by other Certificates of the Trust.
(iii) The Class A Certificates acquired by the Benefit Plan have
received a rating at the time of such acquisition that is in one of the
three highest generic rating categories from any of Standard & Poor's,
Moody's, Duff & Phelps Credit Rating Co. or Fitch Investors Service, L.P.
(iv) The Trustee must not be an affiliate of any other member of the
Restricted Group (as defined below).
(v) The sum of all payments made to the Underwriters in connection
with the distribution of the Class A Certificates represents not more than
reasonable compensation for underwriting the Class A Certificates. The sum
of all payments made to and retained by the Seller pursuant to the sale of
the Receivables to the Trust represents not more than the fair market value
of such Receivables. The sum of all payments made to and retained by the
Servicer represents not more than reasonable compensation for the
Servicer's services under the Agreement and reimbursement of the Servicer's
reasonable expenses in connection therewith.
In addition, it is a condition that any Benefit Plan investing in the Class
A Certificates be an "accredited investor" as defined in Rule 501(a)(1) of
Regulation D of the Commission under the Securities Act of 1933, as amended.
The Exemption does not apply to Benefit Plans sponsored by the Seller, the
Underwriters, the Trustee, the Servicer, any Obligor with respect to the
Receivables included in the Trust constituting more than 5% of the aggregate
unamortized principal balance of the assets in the Trust or any affiliate of
such parties (the "Restricted Group"). As of the date hereof, no Obligor with
respect to the Receivables included in the Trust constitutes more than 5% of the
aggregate unamortized principal balance of the Trust (i.e., the initial
principal amount of the Certificates). Moreover, the Exemption provides relief
from certain self-dealing/conflict of interest prohibited transactions, only if,
among other requirements (i) a Benefit Plan's investment in the Class A
Certificates does not exceed 25% of all of the Class A Certificates outstanding
at the time of the acquisition and (ii) immediately after the acquisition, no
more than 25% of the assets of a Benefit Plan with respect to which the person
who has discretionary authority or renders investment advice are invested in the
Class A Certificates representing an interest in a trust containing assets sold
or serviced by the same entity.
Due to the complexities of the foregoing rules and the penalties imposed
upon persons involved in prohibited transactions, it is important that the
fiduciary of an employee benefit plan considering the purchase of Class A
Certificates consult with its counsel regarding the applicability of the
prohibited transaction provisions of ERISA and the Code to such investment.
The DOL issued Prohibited Transaction Class Exemption ("PTCE") 95-60 on
July 12, 1995 in response to the United States Supreme Court decision John
Hancock Mutual Life Insurance Co. v. Harris Trust and Savings Bank 114 S.Ct. 517
(1993), in which the Supreme Court held that assets held in an insurance
company's general account may be deemed to be "plan assets" for ERISA purposes
under certain circumstances. Subject to certain conditions, PTCE 95-60 provides
general relief from the prohibited transaction rules that would otherwise be
applicable to assets held in an insurance company's general account. Prospective
insurance company purchasers should consult with their counsel to determine
whether the decision in John Hancock, as modified by PTCE 95-60, affects their
ability to make purchases of the Certificates.
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<PAGE> 60
THE CLASS B CERTIFICATES
The Exemption will not be available for Class B Certificates because the
Class B Certificates are subordinate interests. Accordingly, no Plan will be
eligible to purchase or otherwise hold Class B Certificates and no beneficial
interest therein may be sold or otherwise transferred to a Plan.
UNDERWRITING
Under the terms and subject to the conditions contained in an Underwriting
Agreement dated , 199 (the "Underwriting Agreement"), the
Underwriters named below (the "Underwriters"), for whom is acting as
representative (the "Representative") have severally but not jointly agreed to
purchase from the Seller the following respective principal amounts of the Class
A Certificates and the Class B Certificates:
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
OF CLASS A OF CLASS B
UNDERWRITERS CERTIFICATES CERTIFICATES
------------ ---------------- ----------------
<S> <C> <C>
[Names of Underwriters].............................. $ $
---------- ----------
Total...................................... $ $
========== ==========
</TABLE>
The Underwriting Agreement provides that the obligations of the
Underwriters are subject to certain conditions precedent and that the
Underwriters will be obligated to purchase all of the Certificates if any are
purchased.
The Underwriters have advised the Seller that the Underwriters propose
initially to offer the Class A Certificates and Class B Certificates to the
public at the respective public offering prices set forth on the cover page of
this Prospectus Supplement, and to certain dealers at such prices less a
concession not in excess of % of the Class A Certificate denominations
and % of the Class B Certificate denominations. The Underwriters may allow
and such dealers may reallow a concession not in excess of % of the Class A
Certificate denominations and % of the Class B Certificate denominations.
After the initial public offering, the public offering prices and such
concessions may be changed.
The Underwriting Agreement provides that the Seller and Fleetwood Credit
will jointly and severally indemnify the Underwriters against certain
liabilities, including liabilities under applicable securities laws, or
contribute to payments the Underwriters may be required to make in respect
thereof.
Upon receipt of a request by an investor who has received an electronic
Prospectus from an Underwriter or a request by such investor's representative
within the period during which there is an obligation to deliver a Prospectus,
the Seller or the Underwriters will promptly deliver, or cause to be delivered,
without charge, a paper copy of this Prospectus Supplement and the Prospectus.
Until the distribution of the Certificates is completed, rules of the
Commission may limit the ability of the Underwriters and certain selling group
members to bid for and purchase the Certificates. As an exemption to these
rules, the Underwriters are permitted to engage in certain transactions that
stabilize the price of the Certificates. Such transactions consist of bids or
purchases for the purpose of pegging, fixing or maintaining the price of the
Certificates.
Neither the Seller nor any Underwriter makes any representation or
prediction as to the direction or magnitude of any effect that the transactions
described above may have on the prices of the Certificates. In addition, neither
the Seller nor any Underwriter makes any representation that the Underwriters
will engage in such transactions or that such transactions, once commenced, will
not be discontinued without notice.
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<PAGE> 61
LEGAL OPINIONS
Certain legal matters relating to the Certificates will be passed upon for
the Seller by Timothy M. Hayes or Frederic C. Liskow, each a Vice President and
Assistant General Counsel to Associate First Capital Corporation, the parent
company of the Servicer. Mr. Hayes and Mr. Liskow each own shares of Class A
Common Stock of Associates First Capital Corporation, and each have options to
purchase additional shares of such Class A Common Stock. Arter & Hadden LLP,
Washington, D.C. will act as special counsel to the Seller with respect to
certain matters relating to the Certificates, including certain federal income
tax matters relating to the Certificates. Brown & Wood LLP, San Francisco,
California will act as counsel for the Underwriters. Brown & Wood LLP has from
time to time represented Fleetwood Credit in certain matters not related to the
offering of the Certificates.
S-26
<PAGE> 62
INDEX OF TERMS
Set forth below is a list of certain of the more significant terms used in
this Prospectus Supplement and the pages on which the definitions of such terms
may be found herein.
<TABLE>
<CAPTION>
TERM PAGE
---- ------
<S> <C>
Additional Yield Supplement Amount.............S-6, S-17
Agreement....................................... S-3
APR............................................. S-4
Available Funds................................. S-17
Cede............................................ S-15
Certificate Account............................S-3, S-11
Certificateholders.............................. S-6
Certificates....................................S-1, S-3
Class A Certificate Balance....................S-7, S-18
Class A Certificate Owner....................... S-16
Class A Certificateholders...................... S-6
Class A Certificates............................S-1, S-3
Class A Distributable Amount.................... S-18
Class A Interest Carryover Shortfall............ S-19
Class A Interest Distributable Amount........... S-18
Class A Pass-Through Rate....................... S-4
Class A Percentage.............................. S-4
Class A Pool Factor............................. S-15
Class A Principal Carryover Shortfall........... S-19
Class A Principal Distributable Amount.......... S-18
Class B Certificate Balance....................S-7, S-18
Class B Certificate Owner....................... S-16
Class B Certificateholders...................... S-6
Class B Certificates............................S-1, S-3
Class B Distributable Amount.................... S-18
Class B Interest Carryover Shortfall............ S-19
Class B Pass-Through Rate....................... S-4
Class B Percentage.............................. S-4
Class B Pool Factor............................. S-15
Class B Principal Carryover Shortfall........... S-19
Closing Date.................................... S-4
Code............................................ S-23
Collected Interest.............................. S-18
Collected Principal............................. S-18
Collection Period............................... S-7
Commission...................................... S-2
Dealers......................................... S-4
Determination Date.............................. S-17
Distribution Dates.............................. S-6
DOL............................................. S-23
DTC............................................. S-15
ERISA........................................... S-10
Exchange Act.................................... S-2
Exemption....................................... S-23
Final Scheduled Distribution Date............... S-6
Financed Vehicles...............................S-1, S-3
</TABLE>
<TABLE>
<CAPTION>
TERM PAGE
---- ------
<S> <C>
Fiscal Quarter.................................. S-21
Fleetwood Credit................................S-1, S-3
Funding Period.................................. S-5
Initial Cutoff Date.............................S-1, S-3
Initial Financed Vehicles.......................S-1, S-3
Initial Receivables.............................S-1, S-3
Mandatory Prepayment............................S-5, S-7
Maximum Initial Yield Supplement Amount........S-6, S-17
Maximum Subsequent Yield Supplement Amount.....S-6, S-17
Maximum Yield Supplement Amount................S-6, S-17
Monthly Principal Payment....................... S-18
Moody's......................................... S-10
Negative Carry Amount........................... S-17
Original Class A Certificate Balance...........S-7, S-18
Original Class B Certificate Balance...........S-7, S-18
Pool Balance.................................... S-12
Pre-Funded Amount............................... S-5
Pre-Funding Account.............................S-1, S-3
Prospectus...................................... S-3
Rating Agencies................................. S-10
Realized Losses................................. S-18
Receivables.....................................S-1, S-3
Receivables Purchase Agreement.................. S-4
Record Date..................................... S-6
Required Rate..................................S-5, S-16
Reserve Fund.................................... S-8
Restricted Group................................ S-24
Seller..........................................S-1, S-3
Servicer........................................S-1, S-3
Specified Reserve Fund Balance.................S-8, S-20
Standard & Poor's............................... S-10
Subsequent Cutoff Date.......................... S-4
Subsequent Financed Vehicles....................S-1, S-3
Subsequent Receivables..........................S-1, S-3
Subsequent Transfer Date........................ S-5
Transfer Agreement.............................. S-4
Trust...........................................S-1, S-3
Trustee......................................... S-3
Underwriting Agreement.......................... S-25
Yield Supplement Account........................ S-5
Yield Supplement Account Initial Deposit........ S-6
Yield Supplement Agreement...................... S-6
Yield Supplement Amount........................S-6, S-17
Yield Supplement Deposit Amount................. S-17
Yield Supplement Initial Deposit................ S-16
</TABLE>
S-27
<PAGE> 63
======================================================
NO DEALER, SALESMAN OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT IN
CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS AND THE PROSPECTUS
SUPPLEMENT. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE SELLER, THE SERVICER OR THE
UNDERWRITERS. NEITHER THIS PROSPECTUS NOR THE PROSPECTUS SUPPLEMENT CONSTITUTES
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES
OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Reports to Certificateholders................... S-3
Summary......................................... S-4
Formation of the Trust.......................... S-18
Property of the Trust........................... S-18
The Receivables................................. S-20
Yield Considerations............................ S-22
Pool Factors and Trading Information............ S-23
The Certificates................................ S-23
Certain Federal Income Tax Consequences......... S-35
ERISA Considerations............................ S-35
Underwriting.................................... S-38
Legal Opinions.................................. S-39
Index of Terms.................................. S-40
PROSPECTUS
PAGE
-----
Available Information........................... 2
Incorporation of Certain Documents by
Reference..................................... 2
Summary......................................... 3
Formation of the Trusts......................... 18
Property of the Trusts.......................... 19
The Receivables................................. 21
Yield Considerations............................ 25
Pool Factors and Trading Information ........... 26
Use of Proceeds................................. 27
The Seller...................................... 27
The Servicer.................................... 27
The Notes....................................... 28
The Owner Certificates.......................... 34
The Grantor Certificates........................ 35
Certain Information Regarding the Securities.... 37
Certain Legal Aspects of the Receivables........ 71
Certain Federal Income Tax Consequences......... 80
ERISA Considerations............................ 99
Plan of Distribution............................ 100
Legal Opinions.................................. 101
Index of Terms.................................. 102
</TABLE>
---------------
UNTIL , 199 , ALL DEALERS EFFECTING TRANSACTIONS IN THE
CERTIFICATES, WHETHER OR NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED
TO DELIVER A PROSPECTUS SUPPLEMENT AND THE PROSPECTUS. THIS IS IN ADDITION TO
THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS SUPPLEMENT AND THE PROSPECTUS
WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
======================================================
======================================================
FLEETWOOD CREDIT RV
RECEIVABLES
199 - GRANTOR TRUST
$
$
% ASSET BACKED
CERTIFICATES, CLASS A
$
% ASSET BACKED
CERTIFICATES, CLASS B
FLEETWOOD CREDIT
RECEIVABLES CORP.
SELLER
FLEETWOOD CREDIT CORP.
SERVICER AND
A WHOLLY OWNED SUBSIDIARY OF
ASSOCIATES FIRST CAPITAL
CORPORATION
------------------------------------
PROSPECTUS SUPPLEMENT
------------------------------------
[UNDERWRITERS]
, 199
======================================================
<PAGE> 64
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED APRIL 1, 1998
PROSPECTUS
FLEETWOOD CREDIT RV RECEIVABLES TRUSTS
ASSET BACKED NOTES
ASSET BACKED CERTIFICATES
---------------------
FLEETWOOD CREDIT RECEIVABLES CORP.
SELLER
FLEETWOOD CREDIT CORP.
SERVICER AND
A WHOLLY OWNED SUBSIDIARY OF
ASSOCIATES FIRST CAPITAL CORPORATION
---------------------
The Asset Backed Notes (the "Notes") and the Asset Backed Certificates (the
"Certificates" and, together with the Notes, the "Securities") described herein
may be sold from time to time in one or more series (each, a "Series"), in
amounts, at prices and on terms to be determined at the time of sale and to be
set forth in a supplement to this Prospectus (each, a "Prospectus Supplement").
Except as otherwise provided in the related Prospectus Supplement, the
Securities will be offered only in book-entry form. This Prospectus may not be
used to consummate sales of Securities of any Series unless accompanied by a
Prospectus Supplement.
Each Series of Securities will be issued by either an owner trust (each, an
"Owner Trust") or a grantor trust (each, a "Grantor Trust" and, together with
the Owner Trusts, the "Trusts") to be formed with respect to such Series. Each
Series of Securities issued by an Owner Trust will include one or more classes
of Notes representing indebtedness of the Owner Trust and one or more classes of
Certificates representing fractional undivided interests in such Owner Trust
(the "Owner Certificates" and, together with the related Notes, the "Owner
Securities"). Each Series of Securities issued by a Grantor Trust will consist
of one or more classes of Certificates representing fractional undivided
interests in such Grantor Trust (the "Grantor Certificates").
The property of each Trust will primarily include a pool of simple interest
retail installment sale contracts (the "Receivables") secured by the new and
used recreational vehicles financed thereby (the "Financed Vehicles"), certain
monies due under the Receivables on and after the Cutoff Date set forth in the
related Prospectus Supplement, security interests in the Financed Vehicles and
certain other property, as more fully described herein and in the related
Prospectus Supplement. In addition, if so specified in the related Prospectus
Supplement, after the date of initial issuance of the related Securities, all or
a portion of the Receivables may be purchased from the Seller from time to time
during the Funding Period specified in such Prospectus Supplement from monies on
deposit in a Pre-Funding Account. In each case, the Receivables, including the
security interests in the related Financed Vehicles and certain related
property, will be purchased by Fleetwood Credit Receivables Corp. (the "Seller")
from Fleetwood Credit Corp. ("Fleetwood Credit") concurrently with their
conveyance to a Trust. To the extent specified in the related Prospectus
Supplement, an insurance policy, surety bond, letter of credit, reserve fund,
spread account or other form of credit enhancement, or any combination thereof,
may be provided with respect to a Series of Securities, or one or more classes
of Securities of a Series.
Each class of Securities of any Series will represent the right to receive a
specified amount of payments of principal and interest on the related
Receivables, at the rates, on the dates and in the manner described herein and
in the related Prospectus Supplement. As more fully described herein and in the
related Prospectus Supplement, distributions on any class of Securities may be
senior or subordinated to distributions on one or more other classes of
Securities of the related Series, and payments on the Owner Certificates of any
Series may be subordinated in priority to payments on the related Notes of such
Series. If described in the related Prospectus Supplement, a Series of Owner
Securities may include one or more classes of Owner Securities entitled to
principal distributions with disproportionate, nominal or no distributions in
respect of interest, or to interest distributions with disproportionate, nominal
or no distributions in respect of principal.
Except as otherwise provided in the related Prospectus Supplement, the only
obligations of the Seller and Fleetwood Credit, as originator of the related
Receivables with respect to a Series of Securities, will be pursuant to certain
representations and warranties relating to the Receivables. Fleetwood Credit
will be the servicer (in such capacity, the "Servicer") for each Series of
Securities and its obligations as Servicer will be limited to its contractual
servicing obligations described herein and in the related Prospectus Supplement.
There will have been no secondary market for any Securities sold hereunder
prior to the offering thereof and there is no assurance that one will develop.
The Underwriters named in the Prospectus Supplement relating to a Series of
Securities will expect, but will not be obligated, to make a market in each
class of the related Securities. There can be no assurance that any such market
will develop, or if one does develop, that it will continue or provided
sufficient liquidity.
---------------------
EXCEPT AS OTHERWISE SPECIFIED IN THE RELATED PROSPECTUS SUPPLEMENT, EACH
SERIES OF NOTES WILL REPRESENT OBLIGATIONS OF, AND THE RELATED OWNER
CERTIFICATES WILL REPRESENT INTERESTS IN, THE RELATED OWNER TRUST ONLY, AND EACH
SERIES OF GRANTOR CERTIFICATES WILL REPRESENT INTERESTS IN THE RELATED GRANTOR
TRUST ONLY, AND IN EACH CASE WILL NOT REPRESENT OBLIGATIONS OF OR INTERESTS IN,
AND WILL NOT BE GUARANTEED OR INSURED BY, FLEETWOOD CREDIT RECEIVABLES CORP.,
FLEETWOOD CREDIT CORP., ASSOCIATES FIRST CAPITAL CORPORATION, THE TRUSTEES OR
ANY OF THEIR RESPECTIVE AFFILIATES.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
The date of this Prospectus is , 1998.
<PAGE> 65
AVAILABLE INFORMATION
The Seller has filed with the Securities and Exchange Commission (the
"Commission") on behalf of each Trust a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement"), of which this Prospectus is a part, under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the Securities being
offered hereby. This Prospectus does not contain all of the information set
forth in the Registration Statement, certain parts of which have been omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is made to the Registration Statement which is available
for inspection without charge at the public reference facilities maintained by
the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, and the regional offices of the Commission at Citicorp Center, Suite
1400, 500 West Madison Street, Chicago, Illinois 60661-2511, and Suite 1300,
Seven World Trade Center, New York, New York 10048. Copies of such information
can be obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission also
maintains a site on the World Wide Web (http://www.sec.gov) that contains
reports, proxy statements and other information regarding registrants that file
electronically with the Commission. The Servicer, on behalf of the Trusts, will
also file or cause to be filed with the Commission such periodic reports as are
required under the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder.
REPORTS TO SECURITYHOLDERS
The Trustee of each Trust will provide to Securityholders (which shall be
Cede & Co. as the nominee of The Depository Trust Company unless Definitive
Certificates are issued under the limited circumstances described herein)
unaudited monthly and annual reports concerning the Receivables. See "Certain
Information Regarding the Securities -- Statements to Securityholders" and "--
Evidence as to Compliance".
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
All reports and other documents filed by the Seller, on behalf of any
Trust, pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), subsequent to the date of this
Prospectus and prior to the termination of the offering of the Securities
offered hereby shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the respective dates of filing of such
documents. Any statement contained herein or in a document all or a portion of
which is incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Seller will provide without charge to each person, including any
beneficial owner of Securities, to whom a copy of this Prospectus is delivered,
on the written or oral request of any such person, a copy of any or all of the
documents incorporated herein by reference, except the exhibits to such
documents (unless such exhibits are specifically incorporated by reference in
such documents). Requests for such copies should be directed to Secretary,
Fleetwood Credit Receivables Corp., 22840 Savi Ranch Parkway, Yorba Linda,
California 92687 or by calling (714) 921-3400.
2
<PAGE> 66
SUMMARY
This Summary is qualified in its entirety by reference to the detailed
information appearing elsewhere in this Prospectus and in the related Prospectus
Supplement with respect to the Securities of any Series offered thereby. Certain
capitalized terms used and not otherwise defined herein shall have the meanings
ascribed thereto elsewhere in this Prospectus. See the Index of Terms for the
location herein of certain capitalized terms.
Issuer..................... With respect to any Series of Securities issued by
(i) an Owner Trust, the Trust to be formed pursuant
to a trust agreement (the "Trust Agreement")
between the Seller and the entity named as trustee
in the related Prospectus Supplement (the "Owner
Trustee") or (ii) a Grantor Trust, the Trust to be
formed pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement")
among the Seller, the Servicer and the entity named
as trustee in the related Prospectus Supplement
(the "Grantor Trustee").
Seller..................... Fleetwood Credit Receivables Corp. (the "Seller"),
a wholly owned, limited purpose subsidiary of
Fleetwood Credit Corp.
Servicer................... Fleetwood Credit Corp. ("Fleetwood Credit" or, in
its capacity as Servicer, the "Servicer"), a wholly
owned subsidiary of Associates First Capital
Corporation ("First Capital").
Securities Offered......... Each Series of Securities will be issued by either
an Owner Trust or a Grantor Trust. Each Series of
Securities issued by an Owner Trust will consist of
one or more classes of Notes and one or more
classes of Certificates. The Notes will be issued
and secured pursuant to an indenture (the
"Indenture") between the Owner Trust and the entity
named therein as trustee (the "Indenture Trustee"
and, together with the Owner Trustee and Grantor
Trustee, the "Trustees"). The Owner Certificates
will be issued and secured pursuant to the Trust
Agreement under which such Owner Trust will be
formed. Each Series of Securities issued by a
Grantor Trust will consist of one or more classes
of Grantor Certificates issued pursuant to the
Pooling and Servicing Agreement under which such
Grantor Trust will be formed.
Registration of the
Securities................. Unless otherwise specified in the related
Prospectus Supplement, each class of Securities
will initially be represented by one or more
certificates registered in the name of Cede & Co.
("Cede"), as the nominee of The Depository Trust
Company ("DTC"). No person acquiring an interest in
the related Securities (each, a "Security Owner")
will be entitled to receive a definitive
certificate representing such person's interest,
except in the event that Definitive Securities are
issued under the limited circumstances described
herein. Unless and until Securities are issued in
definitive form, all references herein to
distributions, notices, reports and statements to
and to actions by and effects upon the related
Securityholders will refer to the same actions and
effects with respect to DTC or Cede, as the case
may be, for the benefit of the related Security
Owners in accordance with DTC procedures.
If so provided in the related Prospectus
Supplement, Security Owners may elect to hold their
interests through DTC, in the United States, or
Cedel Bank, societe anonyme ("Cedel") or the
Euroclear System ("Euroclear"), in Europe.
Transfers within DTC, Cedel or Euroclear, as the
case may be, will be in accordance with the usual
rules and operating
3
<PAGE> 67
procedures of the relevant system. Cross-market
transfers between persons holding directly or
indirectly through DTC, on the one hand, and
counterparties holding directly or indirectly
through Cedel or Euroclear, on the other, will be
effected in DTC through Citibank, N.A. or The Chase
Manhattan Bank, the relevant depositaries
(collectively, the "Depositaries") of Cedel or
Euroclear, respectively, and each a participating
member of DTC. See "Certain Information Regarding
the Securities -- Book-Entry Registration" and "--
Definitive Securities".
Unless otherwise specified in the related
Prospectus Supplement, the Notes and Owner
Certificates will be issued in minimum
denominations of $1,000 and $20,000, respectively,
and integral multiples of $1,000 in excess thereof,
and the Grantor Certificates will be issued in
minimum denominations of $1,000 and integral
multiples thereof.
A. Owner Securities
The Notes.................. Unless otherwise specified in the related
Prospectus Supplement, each class of Notes will
have a stated principal amount and will bear
interest at a specified rate or rates (with respect
to each class of Notes, the "Interest Rate"). Each
class of Notes may have a different Interest Rate,
which may be fixed, variable, adjustable or any
combination of the foregoing. The related
Prospectus Supplement will specify the Interest
Rate, or the method for determining the Interest
Rate, for each class of Notes.
A Series of Owner Securities may include one or
more classes of Notes which differ as to Interest
Rate, the timing and priority of payments,
seniority, allocation of losses or amount of
payments of principal or interest. Additionally,
payments of principal or interest in respect of any
such class or classes may or may not be made upon
the occurrence of specified events or on the basis
of collections from designated portions of the
Receivables comprising assets of the related Trust
(the "Receivables Pool"). If specified in the
related Prospectus Supplement, one or more classes
of Notes ("Strip Notes") may be entitled to (i)
principal payments with disproportionate, nominal
or no interest payments or (ii) interest payments
with disproportionate, nominal or no principal
payments.
The Owner Certificates..... Unless otherwise specified in the related
Prospectus Supplement, each class of Owner
Certificates will have a stated certificate balance
specified in the related Prospectus Supplement (the
"Certificate Balance") and will accrue interest on
such Certificate Balance at a specified rate (with
respect to each class of Owner Certificates, the
"Pass-Through Rate"). Each class of Owner
Certificates may have a different Pass-Through
Rate, which may be fixed, variable, adjustable or
any combination of the foregoing. The related
Prospectus Supplement will specify the Pass-
Through Rate, or the method for determining the
Pass-Through Rate, for each class of Owner
Certificates.
Unless otherwise specified in the related
Prospectus Supplement, each class of Owner
Certificates will be entitled to monthly
distributions of a portion of all payments received
by the Servicer on or in respect of the Receivables
comprising the related Receivables Pool during the
immediately preceding calendar month (each, a
"Collection Period") allocable to principal.
4
<PAGE> 68
A Series of Owner Securities may include two or
more classes of Owner Certificates which differ as
to Pass-Through Rate, timing and priority of
distributions, seniority, allocations of losses or
amount of distributions in respect of principal or
interest. Additionally, distributions in respect of
principal or interest in respect of any such class
or classes may or may not be made upon the
occurrence of specified events or on the basis of
collections from designated portions of the related
Receivables Pool. If specified in the related
Prospectus Supplement, one or more classes of Owner
Certificates ("Strip Certificates") may be entitled
to (i) principal distributions with
disproportionate, nominal or no interest
distributions or (ii) interest distributions with
disproportionate, nominal or no principal
distributions.
Except as otherwise specified in the related
Prospectus Supplement, distributions in respect of
the Owner Certificates will be subordinated in
priority of payment to payments on the related
Notes.
B. Grantor Certificates.... Unless otherwise specified in the related
Prospectus Supplement, each class of Grantor
Certificates will have a stated Certificate Balance
specified in the related Prospectus Supplement and
will accrue interest on such Certificate Balance at
a specified Pass-Through Rate, which may be fixed,
variable, adjustable or any combination of the
foregoing. If one or more classes of Grantor
Certificates are issued, each class of Grantor
Certificates may have a different Pass-Through
Rate. The related Prospectus Supplement will
specify the Pass-Through Rate, or the method for
determining the Pass-Through Rate, for each class
of Grantor Certificates.
Unless otherwise specified in the related
Prospectus Supplement, each class of Grantor
Certificates will be entitled to monthly
distributions of a portion of all payments received
by the Servicer on or in respect of the Receivables
comprising the related Receivables Pool during the
related Collection Period allocable to principal.
If a Grantor Trust issues one or more classes of
Grantor Certificates, one or more classes will be
senior certificates (the "Senior Certificates") and
one or more classes will be subordinated
certificates (the "Subordinated Certificates"), in
each case to the extent described in the related
Prospectus Supplement.
Distribution Dates and
Payment Dates.............. Unless otherwise specified in the related
Prospectus Supplement, payments of interest and
principal, to the extent and in the manner
described therein, will be made on the Securities
of each Series, whether issued by an Owner Trust or
a Grantor Trust, on the 15th day of each month (or,
if such day is not a Business Day, the next
succeeding Business Day), to holders of record as
of the day immediately preceding such Distribution
Date or, if Definitive Certificates are issued, the
last day of the immediately preceding calendar
month (each such date, a "Record Date") beginning
on a Distribution Date specified in the related
Prospectus Supplement (each, a "Distribution
Date"). The respective final scheduled Distribution
Dates (each, a "Final Scheduled Distribution Date")
for each class of Securities will be specified in
the related Prospectus Supplement. Unless otherwise
specified in the related Prospectus Supplement, the
dates for payments of interest and principal on the
Notes of any Series will be the same as the
Distribution Dates for the related Owner
Certificates (each, a "Payment Date").
5
<PAGE> 69
Property of the Trusts..... The property of each Trust will primarily include a
pool of retail installment sale contracts which,
except as otherwise provided in the related
Prospectus Supplement, bear interest on the simple
interest method (the "Initial Receivables"),
secured by the new and used recreational vehicles
financed thereby (the "Initial Financed Vehicles"),
certain monies due under the Initial Receivables on
and after the Initial Cutoff Date set forth in the
related Prospectus Supplement (the "Initial Cutoff
Date"), security interests in the Initial Financed
Vehicles, certain accounts and the proceeds thereof
and proceeds from claims under certain insurance
policies in respect of individual Initial Financed
Vehicles or the related Obligors and certain rights
under the agreements described below. On the date
of initial issuance of a Series of Securities
specified in the related Prospectus Supplement (the
"Closing Date"), the Seller will sell the Initial
Receivables having an aggregate principal balance
specified in such Prospectus Supplement as of the
related Initial Cutoff Date to the related Trust
pursuant to (i) in the case of an Owner Trust, a
sale and servicing agreement among the Seller, the
Servicer and the Trust (each, a "Sale and Servicing
Agreement") or (ii) in the case of a Grantor Trust,
the related Pooling and Servicing Agreement. With
respect to each Series of Notes, the rights and
benefits of the Seller under the related
Receivables Purchase Agreement and of the Owner
Trust under the related Sale and Servicing
Agreement and all other related Transfer
Agreements, if any, will be assigned to the
Indenture Trustee as collateral for such Notes. The
property of each Trust will also include amounts on
deposit in certain trust accounts, including the
related Collection Account and any Pre-Funding
Account, the Distribution Accounts (in the case of
an Owner Trust) and, if so specified in the related
Prospectus Supplement, any Yield Supplement
Account, Reserve Fund or other account identified
therein.
The Receivables............ The Receivables arise from simple interest retail
installment sale contracts originated by dealers in
new and used recreational vehicles (the "Dealers")
which are purchased by Fleetwood Credit. All of the
Receivables will be selected from such contracts
owned by Fleetwood Credit based upon the criteria
described under "The Receivables" and "Certain
Information Regarding the Securities -- Sale and
Assignment of the Receivables".
On or before the related Closing Date, Fleetwood
Credit will sell the Initial Receivables with
respect to a Trust to the Seller pursuant to a
receivables purchase agreement (each, a
"Receivables Purchase Agreement") between the
Seller and Fleetwood Credit.
Pre-Funding Accounts....... If so specified in the related Prospectus
Supplement, from time to time during the Funding
Period specified therein, pursuant to the related
Receivables Purchase Agreement, Fleetwood Credit
will be obligated to sell, and the Seller will be
obligated to purchase, Subsequent Receivables (the
"Subsequent Receivables") at a purchase price equal
to the aggregate principal amount thereof as of the
related Subsequent Cutoff Date. Pursuant to the
related Sale and Servicing Agreement or Pooling and
Servicing Agreement and one or more transfer
agreements (each, a "Transfer Agreement" and,
together with the Sale and Servicing Agreement or
Pooling and Servicing Agreement, as the case may
be, the "Transfer and Servicing Agreements") among
the Seller, the Servicer
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and the related Owner Trustee or Grantor Trustee,
as the case may be, and subject to the satisfaction
of certain conditions described herein, the Seller
will in turn sell the Subsequent Receivables to the
related Trust at a purchase price equal to the
amount paid by the Seller to Fleetwood Credit for
such Receivables, which purchase price shall be
paid from monies on deposit in the Pre-Funding
Account. The aggregate principal balance of the
Subsequent Receivables to be conveyed to any Trust
during the related Funding Period will not exceed
the amount deposited in the Pre-Funding Account on
the related Closing Date (the "Pre-Funded Amount").
The aggregate principal balance of the Subsequent
Receivables to be conveyed to the related Trust
during the related Funding Period will not exceed
25% of the Original Principal Balance of the
Securities of the related Trust. The Subsequent
Receivables will be transferred from Fleetwood
Credit to the Seller and from the Seller to the
Trust on the Business Day specified by Fleetwood
Credit and the Seller in each month in which the
related Cutoff Date occurs. See "Property of the
Trusts" and "Certain Information Regarding the
Securities -- Pre-Funding Accounts".
Any Pre-Funding Account will be maintained with the
related Indenture Trustee or Grantor Trustee and
will be designed solely to hold funds to be applied
by such Trustee during the Funding Period to pay to
the Seller the purchase price for such Subsequent
Receivables. Monies on deposit in a Pre-Funding
Account will not be available to cover losses on or
in respect of the related Receivables.
Each Pre-Funding Account will be created with an
initial deposit by the Seller of the Pre-Funded
Amount. Each "Funding Period" will be the period
from the related Closing Date until the earliest to
occur of (i) the date on which the remaining
Pre-Funded Amount is less than $100,000, (ii) the
date on which an Event of Default or Servicer
Default (so long as Fleetwood Credit is the
Servicer) occurs or (iii) the close of business on
the Payment Date or Distribution Date specified in
the related Prospectus Supplement, but in no event
will the Funding Period be longer than 90 days.
During the Funding Period, on one or more Transfer
Dates, the Pre-Funded Amount will be applied to
purchase Subsequent Receivables from the Seller.
Any portion of the Pre-Funded Amount remaining on
deposit in a Pre-Funding Account at the end of the
related Funding Period, after giving effect to the
sale to the related Trust of all Subsequent
Receivables, will be payable as a partial
prepayment of principal to holders of the related
Securities in the amount and manner specified in
the related Prospectus Supplement. See "Certain
Information Regarding the Securities -- General"
and "-- Pre-Funding Accounts; Mandatory Prepayment
of Securities".
Yield Supplement Accounts
and Agreements............. If specified in the related Prospectus Supplement,
Fleetwood Credit will establish a yield supplement
account with the related Indenture Trustee or
Grantor Trustee for the benefit of the holders of
the related Securities (each, a "Yield Supplement
Account"). Each Yield Supplement Account will be
designed solely to hold funds to be applied by the
related Owner Trustee or Grantor Trustee, as the
case may be, to provide payments to the
Securityholders in respect of Receivables the APR
of which is less than the sum of (i) the weighted
average of the applicable
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Interest Rates and Pass-Through Rates of all
classes of Securities of such Series and (ii) the
related Servicing Fee Rate (the "Required Rate").
Unless otherwise specified in the related
Prospectus Supplement, each Yield Supplement
Account will be created with an initial deposit by
Fleetwood Credit (the "Yield Supplement Initial
Deposit") in an amount specified in the related
Prospectus Supplement. Except as otherwise provided
in the related Prospectus Supplement, the Yield
Supplement Initial Deposit will equal the net
present value (discounted at a per annum rate
specified in the related Pooling and Servicing
Agreement or Sale and Servicing Agreement, as the
case may be) of the aggregate amount by which
interest on the principal balance of each
Subsequent Receivable for the period commencing on
the Subsequent Cutoff Date and ending with the
scheduled maturity of each Receivable, assuming
that payments on such Receivables are made as
scheduled and no prepayments are made, at the
Required Rate exceeds interest on such principal
balances at the APR of each such Receivable (the
"Yield Supplement Amount" and, with respect to the
Subsequent Receivables, the "Maximum Initial Yield
Supplement Amount").
If a Yield Supplement Account and a Pre-Funding
Account are established with respect to any Trust,
Fleetwood Credit, the Seller and the related
Grantor Trustee or Owner Trustee and Indenture
Trustee, as the case may be, will enter into a
yield supplement agreement to be dated as of the
Initial Cutoff Date (the "Yield Supplement
Agreement") pursuant to which, on each Subsequent
Transfer Date, Fleetwood Credit will deposit into
the Yield Supplement Account an amount (the
"Additional Yield Supplement Amount") equal to the
net present value (discounted at the per annum rate
specified in the related Pooling and Servicing
Agreement or Sale and Servicing Agreement, as the
case may be) of the aggregate Yield Supplement
Amounts, if any, in respect of Subsequent
Receivables for periods commencing with the related
Subsequent Cutoff Date and ending with the
scheduled maturities of the related Subsequent
Receivables, assuming that payments on such
Receivables are made as scheduled and no
prepayments are made. The aggregate of the
Additional Yield Supplement Amounts in respect of
the Subsequent Receivables is referred to herein as
the "Maximum Subsequent Yield Supplement Amount"
and, together with the Maximum Initial Yield
Supplement Amount, the "Maximum Yield Supplement
Amount". See "Certain Information Regarding the
Securities -- Yield Supplement Accounts; Yield
Supplement Agreements".
Credit and Cash Flow
Enhancement.............. To the extent specified in the related Prospectus
Supplement, credit enhancement, if any, with
respect to a Trust or one or more classes of
Securities may include any one or more of the
following: subordination of one or more other
classes of Securities of the same Series, Reserve
Funds, Spread Accounts, surety bonds, insurance
policies, letters of credit, credit or liquidity
facilities, Cash Collateral Accounts, over-
collateralization, guaranteed investment contracts,
swaps or other interest rate protection agreements,
repurchase obligations, other agreements with
respect to third party payments or other support,
cash deposits or other arrangements. Unless
otherwise specified in the related Prospectus
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Supplement, each form of credit enhancement will
have certain limitations and exclusions from
coverage thereunder, which will be described in the
related Prospectus Supplement. See "Certain
Information Regarding the Securities -- Credit and
Cash Flow Enhancement".
Advances................... Unless otherwise specified in the related
Prospectus Supplement, on the Business Day
immediately preceding each Payment Date and
Distribution Date (each, a "Deposit Date"), the
Servicer will advance to a Trust, in respect of
each Receivable in the related Receivables Pool, an
amount equal to all accrued interest at the related
APR which accrued in respect of such Receivable
from the last day upon which a payment was made on
such Receivable through the last day of the related
Collection Period (each, an "Advance"). The
Servicer will be required to make an Advance only
to the extent it determines such Advance will be
recoverable from future payments and collections on
or in respect of the Receivables or otherwise. See
"Certain Information Regarding the
Securities -- Certain Payments by the Servicer".
Servicing Fee.............. Unless otherwise specified in the related
Prospectus Supplement, the Servicer will receive a
monthly fee, payable on each Distribution Date,
equal to one-twelfth of the product of 1.0% (the
"Servicing Fee Rate") and the Pool Balance as of
the first day of the related Collection Period.
Unless otherwise specified in the related
Prospectus Supplement, the Servicer will be
entitled to receive additional servicing
compensation in the form of certain late fees,
prepayment charges and other administrative fees or
similar charges. See "Certain Information Regarding
the Securities -- Servicing Compensation".
Termination................ Unless otherwise specified in the related
Prospectus Supplement, within ten days following
the last day of a Collection Period as of which the
Pool Balance of any Trust is 10% or less of the sum
of the Original Pool Balance and the aggregate
principal balance of all Subsequent Receivables
conveyed to such Trust as of the related Subsequent
Cutoff Dates, the related Indenture Trustee or
Grantor Trustee, as the case may be, shall solicit
bids for the purchase of the Receivables remaining
in such Trust. In the event that satisfactory bids
are received as described in the related Prospectus
Supplement, the sale proceeds will be distributed
to the related Securityholders on the Payment Date
or Distribution Date specified in the related
Prospectus Supplement. If satisfactory bids are not
received, the related Trustee shall decline to sell
such Receivables and shall not be under any
obligation to solicit any further bids or otherwise
negotiate any further sale of such Receivables. See
"Certain Information Regarding the
Securities -- Termination".
Tax Status................. Upon the issuance of each Series of Securities,
except as otherwise specified in the related
Prospectus Supplement, special federal income tax
counsel to the Seller will deliver an opinion to
the effect that (i) with respect to any Series of
Owner Securities, for federal income tax purposes
the Notes will constitute indebtedness and the
Owner Certificates will constitute interests in a
trust fund that will not be treated as an
association taxable as a corporation or as a
publicly traded partnership taxable as a
corporation or (ii) with respect to any Series of
Grantor Certificates, for federal income tax
purposes the related Grantor Trust will be treated
as a grantor trust and not as an association
taxable as a corporation. See "Certain Federal
Income Tax Consequences".
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ERISA Considerations....... Subject to the considerations described under
"ERISA Considerations" and in the related
Prospectus Supplement, the Notes of any Series
issued by an Owner Trust and the Senior
Certificates (or if only one class of Grantor
Certificates is issued thereby, the Grantor
Certificates) issued by any Grantor Trust may be
purchased by employee benefit plans that are
subject to the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") and other plans
or arrangements subject to Section 4975 of the Code
(each, a "Plan"). Unless otherwise specified in the
related Prospectus Supplement, neither the Owner
Certificates of any Series issued by an Owner Trust
nor any Subordinated Certificates issued by a
Grantor Trust may be purchased by Plans. Any Plan
fiduciary considering purchase of the Securities
should, among other things, consult with its
counsel in determining whether all required
conditions have been satisfied. See "ERISA
Considerations".
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FORMATION OF THE TRUSTS
With respect to each Series of Securities, the Seller will establish a
Trust pursuant to the related Trust Agreement or Pooling and Servicing Agreement
for the transactions described herein and in the related Prospectus Supplement.
The Seller will establish each Trust by selling and assigning the property of
such Trust to the related Owner Trustee or Grantor Trustee, as the case may be,
in exchange for the related Securities. The Servicer will service the
Receivables pursuant to the related Sale and Servicing Agreement or Pooling and
Servicing Agreement, as the case may be, and will be compensated for acting as
such. See "Certain Information Regarding the Securities -- Servicing
Compensation". To facilitate servicing and to minimize administrative burden and
expense, the Servicer will be authorized by the Seller and the related Grantor
Trustee or Owner Trustee and Indenture Trustee, as the case may be, to retain
physical possession of the Receivables comprising the related Receivables Pool
and other documents relating thereto as custodian for such Trust, and will
neither stamp or amend such Receivables to reflect the sale and assignment
thereof to the Trust, nor amend the certificates of title of the related
Financed Vehicles. In the absence of amendments to the certificates of title, a
Trust may not have a perfected security interest in the related Financed
Vehicles in all states, and such Trust will bear certain risks with respect to
its security interests in the Financed Vehicles in many states. See "Certain
Legal Aspects of the Receivables".
If the protection provided to (i) Noteholders by the subordination of the
related Owner Certificates and the other credit enhancement for the Notes, (ii)
Owner Certificateholders by the credit enhancement for the Owner Certificates or
(iii) Grantor Certificateholders by the credit enhancement for the Grantor
Certificates is insufficient, such Securityholders and the related Trust must
look to payments made by or on behalf of the Obligors on or in respect of the
related Receivables, the proceeds from the repossession and sale of Financed
Vehicles securing Defaulted Receivables and the proceeds of Dealer repurchase
obligations, if any, as more fully described herein under "Property of the
Trusts", to make distributions on the Securities. In such event, certain
factors, such as the failure of the related Owner Trustee or Grantor Trustee, as
the case may be, to possess first priority perfected security interests in the
Financed Vehicles, may limit the ability of a Trust to realize on the collateral
securing the related Receivables or may limit the amount realized to less than
the amount due by the related Obligors. Securityholders may thus be subject to
delays in payment and may incur losses on their investment in such Securities as
a result of defaults or delinquencies by Obligors and depreciation in the value
of the related Financed Vehicles. See "Certain Information Regarding the
Securities -- Credit and Cash Flow Enhancement" and "Certain Legal Aspects of
the Receivables".
Except as otherwise described in the related Prospectus Supplement, the
activities of each Trust will be limited to (i) acquiring, managing and holding
the related Receivables and the other assets contemplated herein and in the
related Prospectus Supplement and proceeds therefrom, (ii) issuing the related
Securities and making payments and distributions thereon and (iii) engaging in
other activities that are necessary, suitable or convenient to accomplish any of
the foregoing or are incidental thereto or connected therewith.
The principal offices of each Grantor Trustee or Owner Trustee and
Indenture Trustee, as the case may be, will be specified in the related
Prospectus Supplement.
PROPERTY OF THE TRUSTS
Except as otherwise provided in the related Prospectus Supplement, the
property of each Trust will primarily consist of a pool of simple interest
retail installment sale contracts, originated before the related Initial Cutoff
Date in the case of the Initial Receivables and before the related Subsequent
Cutoff Date in the case of the Subsequent Receivables, between dealers (the
"Dealers") in new and used recreational vehicles and retail purchasers (the
"Obligors"), and certain monies due thereunder on and after the related Cutoff
Date and amounts on deposit in the related Pre-Funding Account, if any. Except
as otherwise provided in the related Prospectus Supplement, the Financed
Vehicles will have been manufactured primarily by Fleetwood Enterprises, Inc.
The Receivables will be originated by Dealers and subsequently assigned to
Fleetwood Credit. All of the Receivables will be serviced by Fleetwood Credit
and will evidence the indirect financing made available by Fleetwood Credit to
the Obligors. On or before the Closing Date with respect to any Series of
Securities, Fleetwood Credit will sell the related Initial Receivables to the
Seller which will in turn
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sell such Initial Receivables to the related Trust. To the extent so provided in
the related Prospectus Supplement, Subsequent Receivables will be conveyed to
the Trust from time to time during the Funding Period. Any Subsequent
Receivables so conveyed will also be assets of the Trust, subject, in the case
of any Owner Trust, to the prior rights of the related Indenture Trustee and the
Noteholders therein. Neither the Seller nor the Servicer may substitute any
other retail installment sale contract for any Receivable sold to a Trust during
the term of the related Trust.
The assets of each Trust will also include: (i) such amounts as from time
to time may be held in separate trust accounts to be established and maintained
by the Servicer with the related Grantor Trustee or Owner Trustee and Indenture
Trustee pursuant to the related Pooling and Servicing Agreement or Sale and
Servicing Agreement and Indenture, as the case may be, and the monies on deposit
in such accounts as described in the related Prospectus Supplement; (ii)
security interests in the related Financed Vehicles and any accessions thereto;
(iii) the right to proceeds from physical damage, credit life and disability
insurance policies, if any, covering individual Financed Vehicles or Obligors,
as the case may be; (iv) the right to receive proceeds of Dealer repurchase
obligations, if any; (v) any Servicer Letter of Credit; (vi) the rights of the
Seller under the related Receivables Purchase Agreement and Yield Supplement
Agreement, if any; (vii) any property that shall have secured a Receivable and
that shall have been acquired by the related Trust; and (viii) any and all
proceeds of the foregoing; provided that, with respect to any Series of Notes,
the relevant rights and benefits with respect to such property will be assigned
by the Seller and the related Owner Trustee, as applicable, to the related
Indenture Trustee for the benefit of the related Noteholders. Any Yield
Supplement Account will be maintained with the related Indenture Trustee or
Grantor Trustee, as the case may be, for the benefit of the related
Securityholders. Unless otherwise specified in the related Prospectus
Supplement, any Yield Supplement Account will be part of the related Owner Trust
but will not be part of the related Grantor Trust. To the extent specified in
the related Prospectus Supplement, a Reserve Fund or other form of credit
enhancement may be a part of the property of any given Trust or may be held by
the related Trustee for the benefit of the related Securityholders.
With respect to each Receivables Pool, the "Pool Balance" as of the first
day of a Collection Period will represent the aggregate principal balance of the
related Receivables at the end of the immediately preceding Collection Period,
after giving effect to all payments of principal received from or on behalf of
Obligors and all payments of principal on Receivables to be repurchased remitted
by the Seller or the Servicer, as the case may be, all for such immediately
preceding Collection Period. The Pool Balance will be computed by allocating
payments on or in respect of the Receivables to principal and to interest using
the simple interest method.
With respect to each Receivables Pool, the Pool Balance as of the related
Initial Cutoff Date will equal the Original Pool Balance. With respect to any
Trust as to which a Pre-Funding Account has been established, the Pool Balance
will be increased during the Funding Period by the aggregate principal balance
of Subsequent Receivables conveyed to such Trust as of the related Subsequent
Cutoff Dates. Any such additions of Subsequent Receivables will be conditioned
on the compliance with the procedures described in the related Receivables
Purchase Agreement and Transfer and Servicing Agreement. While any Pre-Funding
Account will be established in an amount such that the aggregate principal
balance of the Subsequent Receivables to be added to the related Trust will
require application of the entire Pre-Funded Amount by the Distribution Date or
Payment Date on which the Funding Period is scheduled to terminate, there can be
no assurance that a sufficient amount of Subsequent Receivables will be
available for such purpose. If the Pre-Funded Amount has not been reduced to
zero by the end of any Funding Period, the remaining portion thereof will be
distributed to the related Securityholders as a prepayment of principal as
described under "Certain Information Regarding the Securities -- Pre-Funding
Accounts; Mandatory Prepayment of the Securities".
Pursuant to agreements between Fleetwood Credit and the Dealers, each
Dealer is obligated after origination to repurchase from Fleetwood Credit
recreational vehicle receivables that do not meet certain representations and
warranties made by such Dealer. Such representations and warranties relate
primarily to the origination of such receivables and the perfection of the
security interests in the related financed vehicles, and do not typically relate
to the creditworthiness of the related Obligors or the collectability of such
receivables. Although any Dealer agreements with respect to the Receivables will
not be assigned to the related Trustee, each Sale and Servicing Agreement and
Pooling and Servicing Agreement will require that
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any recovery by Fleetwood Credit pursuant to Dealer repurchase obligations be
deposited in an account established with respect to the related Trust in
satisfaction of the Servicer's repurchase obligations under the related Transfer
and Servicing Agreements. It is expected that the assignments of receivables to
Fleetwood Credit by Dealers do not generally provide for recourse to the Dealer
for unpaid amounts in the event of a default by an Obligor, other than in
connection with the breach of the Dealer's representations and warranties.
THE RECEIVABLES
GENERAL
The Receivables will be purchased by Fleetwood Credit from Dealers in the
ordinary course of business. Except as otherwise provided in the related
Prospectus Supplement, the Receivables will be selected from Fleetwood Credit's
portfolio of recreational vehicle retail installment sale contracts by several
criteria, including the following: (i) each Receivable will be originated in the
United States of America; (ii) each Receivable will have a fixed annual
percentage rate ("APR") equal to or greater than the minimum APR set forth in
the related Prospectus Supplement; (iii) each Receivable will provide for level
monthly payments which provide interest at the related APR and fully amortize
the amount financed over an original term no greater than 180 months; (iv) no
Receivable will be more than 30 days past due as of the related Cutoff Date; and
(v) in the case of Obligors in the military service (including an Obligor who is
a member of the National Guard or is in the reserves) whose Receivable is
subject to the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the
"Soldiers' and Sailors' Relief Act"), or the California Military Reservist
Relief Act of 1991 (the "Military Reservist Relief Act"), no such Obligor (each,
a "Relief Act Obligor") will have made a claim to Fleetwood Credit that (A) the
amount of interest on the related Receivable should be limited to 6% pursuant to
the Soldiers' and Sailors' Relief Act during the period of such Obligor's active
duty status or (B) payments on such Receivable should be delayed pursuant to the
Military Reservist Relief Act, in either case unless a court has ordered
otherwise upon application of Fleetwood Credit. Except as otherwise provided in
a Prospectus Supplement, interest in respect of the Receivables will accrue on
the simple interest method (i.e., the interest portion of each monthly payment
will equal the interest on the outstanding principal balance of the related
Receivable for the number of days since the most recent payment made on such
Receivable and the balance, if any, of such monthly payment will be applied to
principal). The Financed Vehicles will consist of motor homes and travel
trailers. It is expected that with respect to each Trust, a significant portion
of the Receivables will represent financings of recreational vehicles
manufactured by Fleetwood Enterprises, Inc. Except in the case of breach of
representations by the related Dealer, as described under "Property of the
Trusts", it is expected that none of the Receivables will provide for recourse
to the Dealer who originated the related Receivable.
Additional information with respect to each Receivables Pool will be set
forth in the related Prospectus Supplement, including, to the extent
appropriate, the composition, distribution by APR, states of origination and
portion of such Receivables Pool secured by new vehicles and by used vehicles.
DELINQUENCIES, REPOSSESSIONS AND NET LOSSES
Certain information concerning the experience of Fleetwood Credit
pertaining to delinquencies, repossessions and net losses with respect to new
and used recreational vehicle receivables will be set forth in each Prospectus
Supplement. There can be no assurance that the delinquency, repossession and net
loss experience on any Receivables Pool will be comparable to prior experience
or to such information.
MATURITY AND PREPAYMENT CONSIDERATIONS
Except as otherwise provided in the related Prospectus Supplement, all of
the Receivables will be prepayable at any time without any penalty. If
prepayments are received on the Receivables, the actual weighted average life of
the Receivables (and, accordingly, the weighted average life of the Securities)
can be shorter than the scheduled weighted average life, which is based on the
assumption that payments will be made as scheduled and that no prepayments will
be made. For this purpose the term "prepayments" includes, among other things,
voluntary prepayments by Obligors, regular installment payments made in advance
of
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their scheduled due dates, liquidations due to default, proceeds from physical
damage, credit life and credit disability insurance policies and repurchases by
the Seller or a Dealer or a purchase by the Servicer, as the case may be, of
certain Receivables as described herein. "Weighted average life" means the
average amount of time during which each dollar of principal on a Receivable is
outstanding. The rate of prepayments on the Receivables may be influenced by a
variety of economic, social and other factors, including the fact that an
Obligor may not sell or transfer a Financed Vehicle without the consent of the
Servicer. In addition, the weighted average life of the Securities of any Series
as to which a Pre-Funding Account has been created will be affected by any
Mandatory Prepayment under the circumstances described under "Certain
Information Regarding the Securities -- Pre-Funding Accounts; Mandatory
Prepayment of Securities" and early retirement of any Securities of any Series
may be effected by the exercise of the option of the Seller or the Servicer, or
any successor to the Servicer, to purchase all of the Receivables comprising the
related Receivables Pool when the Pool Balance is 10% or less of the sum of the
Original Pool Balance and the aggregate principal balance of all Subsequent
Receivables conveyed to the related Trust as of the related Subsequent Cutoff
Dates or, if no such entity exercises such option, the solicitation of bids for,
and the sale of, the Receivables by the Trustee. See "Certain Information
Regarding the Securities -- Termination".
Fleetwood Credit did not acquire recreational vehicle receivables prior to
July 1986. Because recreational vehicle receivables generally amortize over a
long period of time, only a small portion of its recreational vehicle
receivables portfolio has reached maturity. Accordingly, Fleetwood Credit's
experience with respect to recreational vehicle receivables is limited and .
No prediction can be made as to the rate of prepayments on the Receivables
comprising a Receivables Pool in either stable or changing interest rate
environments. Except as otherwise provided in the related Prospectus Supplement,
Fleetwood Credit is not aware of any publicly available industry statistics that
set forth principal prepayment experience for recreational vehicle retail
installment sale contracts similar to the Receivables over an extended period of
time, and its experience with respect to recreational vehicle receivables
included in its portfolio is insufficient to draw any conclusions with respect
to the expected prepayment rates of the Receivables.
In light of the foregoing, there can be no assurance as to the amount of
principal payments to be made on the Securities of any Series or class on any
Payment Date or Distribution Date since such amount will depend, in part, on the
amount of principal collected on the related Receivables Pool during the
applicable Collection Period. Any reinvestment risk resulting from a faster or
slower incidence of prepayment of Receivables and the distribution of such
prepayments to Securityholders will be borne entirely by the Securityholders.
The related Prospectus Supplement may set forth certain additional information
with respect to the maturity and prepayment considerations applicable to the
particular Receivables Pool and the related Series of Securities.
PAID-AHEAD RECEIVABLES
If an Obligor, in addition to making a regularly scheduled monthly payment,
makes one or more additional monthly payments in any Collection Period (for
example, because the Obligor intends to be on vacation the following month),
such additional payments will be treated as a prepayment of principal and
applied to reduce the principal balance of the related Receivable in such
Collection Period. Unless otherwise requested by the Obligor, the Obligor will
not be required to make any scheduled monthly payment in respect of such
Receivable (a "Paid-Ahead Receivable") for the number of months corresponding to
the number of such additional scheduled monthly payments that were made (the
"Paid-Ahead Period"). During the Paid-Ahead Period, interest will continue to
accrue on the principal balance of the related Receivable, as reduced by the
application of such additional scheduled monthly payments made in the Collection
Period in which such Receivable became a Paid-Ahead Receivable. A Paid-Ahead
Receivable will not be considered delinquent during the related Paid-Ahead
Period. An interest shortfall with respect to each Paid-Ahead Receivable will
exist during each Collection Period during the Paid-Ahead Period and the
Servicer may be required to make an Advance in respect of such shortfall, as
described under "Certain Information Regarding the Securities -- Certain
Payments by the Servicer". Notwithstanding the foregoing, no Advances will be
made in respect of principal in respect of a Paid-Ahead Receivable.
Because interest in respect of the Receivables will accrue on the simple
interest method, scheduled monthly payments on a Paid-Ahead Receivable paid by
an Obligor following the end of the Paid-Ahead
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Period may be insufficient to cover the interest that has accrued since the last
payment was made prior to the Paid-Ahead Period. Notwithstanding such
insufficiency, the related Receivable will be considered current. This situation
will continue until sufficient payments have been made to cover all accrued
interest on such Paid-Ahead Receivable since the beginning of the Paid-Ahead
Period and the principal balance of such Receivable is once again being
amortized. Depending on the principal balance and APR of the related Paid-Ahead
Receivables, and on the number of payments that were paid-ahead, there may be
extended periods of time during which Paid-Ahead Receivables that are current
are not amortizing. During such periods, no distributions in respect of
principal will be made to Securityholders with respect to such Receivables.
Paid-Ahead Receivables will affect the weighted average lives of the
Securities. The distribution of the paid-ahead amount on the Distribution Date
following the Collection Period in which such amount was received will generally
shorten the weighted average lives of the Securities. However, depending on the
length of time during which a Paid-Ahead Receivable is not amortized as
described above, the weighted average lives of the Securities may be extended.
In addition, to the extent the Servicer makes Advances with respect to a
Paid-Ahead Receivable which subsequently goes into default, because liquidation
proceeds with respect to such Receivable will be applied first to reimburse the
Servicer for such Advances, the loss with respect to such Receivable may be
larger than would have been the case had such Advances not been made.
Fleetwood Credit's portfolio of recreational vehicle installment sale
receivables has historically included receivables which have been paid-ahead by
one or more scheduled monthly payments. There can be no assurance as to the
number of Receivables which may become Paid-Ahead Receivables or the number or
the principal amount of the scheduled payments which may be paid-ahead.
RECREATIONAL VEHICLES
Motor homes are recreational camping and travel vehicles built on or as an
integral part of a self-propelled motor vehicle chassis. A motor home may
provide kitchen, sleeping and bathroom facilities, is equipped with the ability
to store and carry fresh water and sewage and may be one of the following types:
Motor Home: The living unit has been entirely constructed on a bare,
specially designed motor vehicle chassis.
Van Camper: A panel-type truck to which the manufacturer adds any two
of the following conveniences: sleeping, kitchen and toilet facilities. The
manufacturer also adds 110-volt hookup, fresh water storage, city water
hookup and top extension to provide more headroom.
Mini Motor Home: This unit is built on an automotive manufactured van
frame with an attached cab section having a gross vehicle weight rating of
6,500 pounds or more, with an overall height of less than eight feet. The
manufacturer completes the body section containing the living area and
attaches it to the cab section.
Compact Motor Home: This unit is built on an automotive manufactured
cab and chassis having a gross vehicle weight rating of less than 6,500
pounds. It may provide any or all of the conveniences of the larger units.
Travel trailers are trailers designed to be towed by a motorized vehicle
(e.g., automobile, van or pickup truck) and are of such size and weight as not
to require a special highway movement permit. A travel trailer is designed to
provide temporary living quarters for recreational, camping or travel use, does
not require permanent on-site hookup and can be one of the following types:
Conventional Travel Trailer: This unit ranges typically from 12 feet
to 35 feet in length, and is towed by means of a bumper or frame hitch
attached to the towing vehicle.
Park Trailer: These are designed for seasonal or temporary living.
When set up, the unit may be connected to utilities necessary for operation
of installed fixtures and appliances. The unit is built on a single chassis
mounted on wheels. Park trailers are no more than 40 feet in overall body
length and no more than 12 feet in overall body width when in the traveling
mode. The unit is designed for set-up by
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persons without special skills using only hand tools which may include
lifting, pulling or supporting devices.
Fifth-Wheel Travel Trailer: This unit can be equipped the same as the
conventional travel trailer, but is constructed with a raised forward
section that allows a bi-level floor plan. This style is designed to be
towed by a vehicle equipped with a device known as a fifth-wheel hitch.
Folding Camping Trailer: This is a vehicular portable unit mounted on
wheels and constructed with collapsible partial sidewalls which fold for
towing by another vehicle and unfold at the campsite to provide temporary
living quarters for recreational, camping or travel use.
Slide-In Camper: This is a portable unit designed to be loaded onto
and unloaded from the bed of a pickup truck, constructed to provide
temporary living quarters for recreational travel or camping use.
YIELD CONSIDERATIONS
Interest will be payable on the Notes of any Series or class at the related
Interest Rate, to the extent and on the Payment Dates specified in the related
Prospectus Supplement. Unless otherwise specified in the related Prospectus
Supplement, interest on the Receivables will be distributed to holders of Owner
Certificates or Grantor Certificates of any Series on each Distribution Date to
the extent set forth in the related Prospectus Supplement at the related
PassThrough Rate specified therein applied to the Certificate Balance of such
class, as of the first day of the immediately preceding Collection Period (after
giving effect to distributions of principal to be made on the Distribution Date
in such immediately preceding Collection Period) or, in the case of the first
Distribution Date, applied to the Original Certificate Balance of such class. In
the case of each payment of principal on a Receivable, the related Owner
Certificateholders and Grantor Certificateholders will receive interest for the
full month, in part from the Non-Reimbursable Payment by the Servicer. See
"Certain Information Regarding the Securities -- Certain Payments by the
Servicer".
The Receivables will have different APRs, and the APR of some of the
Receivables may be less than the Required Rate. Because any Yield Supplement
Account will be created with an initial deposit of an amount equal to the
Maximum Initial Yield Supplement Amount in respect of the Initial Receivables
and any related Yield Supplement Agreement will require Fleetwood Credit to
deposit an amount equal to the Maximum Subsequent Yield Supplement Amount in
respect of the Subsequent Receivables, if any, disproportionate rates of
prepayments between Receivables with higher and lower APRs should not affect the
yield to Securityholders on the principal balance of the outstanding Securities
of any Series.
Except as otherwise provided in the related Prospectus Supplement, the
effective yields to Securityholders will be below the yields otherwise produced
by the Interest Rate or Pass-Through Rate, as the case may be, for the related
class of Securities because the distribution of principal and of interest that
accrues on the underlying Receivables in respect of any Collection Period will
not be made until the related Payment Date or Distribution Date, as applicable,
which will not be earlier than the fifteenth day of the following month unless
otherwise specified in the related Prospectus Supplement.
Any class of subordinated Securities will provide limited protection
against losses on the Receivables to one or more other classes of Securities.
Accordingly, the yield on such subordinated Securities may be extremely
sensitive to the loss experience of the related Receivables Pool and the timing
of any such losses. If the actual rate and amount of losses experienced by such
Receivables Pool exceed the rate and amount of such losses assumed by an
investor, the yield to maturity on such subordinated Securities may be lower
than anticipated.
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POOL FACTORS AND TRADING INFORMATION
The "Note Pool Factor" for each class of Notes will be a seven-digit
decimal which the Servicer will compute prior to each distribution with respect
to such Notes indicating the remaining outstanding principal amount of such
class of Notes, as of the applicable Payment Date (after giving effect to
payments to be made on such Payment Date), as a fraction of the initial
outstanding principal amount of such class of Notes. The "Certificate Pool
Factor" for each class of Owner Certificates or Grantor Certificates, as the
case may be, will be a seven-digit decimal which the Servicer will compute prior
to each distribution with respect to such Certificates indicating the remaining
Certificate Balance of such class of Certificates, as of the related
Distribution Date (after giving effect to distributions to be made on such
Distribution Date), as a fraction of the initial Certificate Balance of such
class of Certificates. Each Note Pool Factor and each Certificate Pool Factor
will initially be 1.0000000 as of the related Closing Date, and thereafter will
decline to reflect reductions in the outstanding principal amount of the
applicable class of Notes, or the reduction of the Certificate Balance of the
applicable class of Owner Certificates or Grantor Certificates, as the case may
be. A Noteholder's portion of the aggregate outstanding principal amount of the
related class of Notes will be the product of (i) the original denomination of
such Noteholder's Note and (ii) the applicable Note Pool Factor at the time of
determination. A Certificateholder's portion of the aggregate outstanding
Certificate Balance for the related class of Owner Certificates or Grantor
Certificates, as the case may be, will be the product of (a) the original
denomination of such Certificateholder's Certificate and (b) the applicable
Certificate Pool Factor at the time of determination.
Unless otherwise provided in the related Prospectus Supplement, the
Noteholders, with respect to any Owner Trust, will receive reports on or about
each Payment Date concerning payments received on the Receivables, the Pool
Balance, each Note Pool Factor and various other items of information, and the
Owner Certificateholders or Grantor Certificateholders, as the case may be, with
respect to any Trust will receive reports on or about each Distribution Date
concerning payments received on the Receivables, the Pool Balance, each
Certificate Pool Factor and various other items of information. In addition,
Securityholders of record during any calendar year will be furnished information
for tax reporting purposes not later than the latest date permitted by law. See
"Certain Information Regarding the Securities -- Statements to Securityholders".
USE OF PROCEEDS
Unless otherwise provided in the related Prospectus Supplement, the net
proceeds to be received by the Seller from the sale of the Securities will be
applied to the purchase of the Initial Receivables from Fleetwood Credit
pursuant to the related Receivables Purchase Agreement and to the funding of any
Pre-Funding Account up to the Pre-Funded Amount, which monies will be applied to
purchase Subsequent Receivables pursuant to the related Transfer and Servicing
Agreements.
THE SELLER
The Seller was incorporated in the State of California on January 15, 1991
as a wholly owned, limited purpose subsidiary of Fleetwood Credit. The principal
executive offices of the Seller are located at 22840 Savi Ranch Parkway, Yorba
Linda, California 92687. Its telephone number is (714) 921-3400.
The Seller was organized principally for the purpose of purchasing
recreational vehicle retail installment sale contracts from Fleetwood Credit and
transferring such retail installment sale contracts to third parties in
connection with its activities as a limited purpose subsidiary of Fleetwood
Credit. The Seller's Articles of Incorporation limit the activities of the
Seller to the above purposes and to any activities incidental thereto.
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THE SERVICER
GENERAL
Fleetwood Credit was incorporated in the State of California on December
31, 1985, and is a wholly owned subsidiary of First Capital, which acquired
Fleetwood Credit from Fleetwood Enterprises, Inc. in May 1996. First Capital is
a majority indirect-owned subsidiary of Ford Motor Credit Company ("Ford"). On
October 8, 1997, Ford announced its intention to distribute to its stockholders
all of its shares in First Capital, subject to receipt of a favorable ruling
from the Internal Revenue Service. Upon consummation of such spinoff, which will
be reported by First Capital in a current report on Form 8-K, First Capital will
no longer be a subsidiary of Ford. Fleetwood Credit's principal activities are
the financing of the acquisition by Dealers for resale of various new
recreational vehicles, a significant portion of which to date have been
manufactured by Fleetwood Enterprises, and used recreational vehicles acquired
in the ordinary course of business and the acquisition from such Dealers of
installment obligations with respect to the sale of such recreational vehicles.
The principal executive offices of Fleetwood Credit are located at 22840
Savi Ranch Parkway, Yorba Linda, California 92687. Its telephone number is (714)
921-3400.
ORIGINATION AND SERVICING
Fleetwood Credit purchases retail installment sale contracts secured by new
and used recreational vehicles from Dealers located throughout the United
States. In keeping with the practice of Fleetwood Credit, the Receivables will
be originated by Dealers in accordance with Fleetwood Credit's requirements
under agreements with such Dealers. The Receivables will be purchased in
accordance with Fleetwood Credit's underwriting standards, which emphasize the
prospective purchaser's ability to pay and creditworthiness, as well as the
asset value of the recreational vehicle to be financed. Fleetwood Credit's
standards also require physical damage insurance to be maintained on each
Financed Vehicle.
THE NOTES
GENERAL
Each Owner Trust will issue one or more classes of Notes pursuant to an
Indenture, a form of which has been filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. A copy of the Indenture
(without exhibits) may be obtained by Noteholders upon request in writing to the
Indenture Trustee at its Corporate Trust Office. The following summary does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, the provisions of the related Notes and Indenture. Where
particular provisions or terms used in the Indenture are referred to, the actual
provisions (including definitions of terms) are incorporated by reference as
part of this summary.
Unless otherwise specified in the related Prospectus Supplement, each class
of Notes will initially be represented by one or more certificates registered in
the name of the nominee of DTC (together with any successor depository selected
by the Trust, the "Depository"). Unless otherwise specified in the related
Prospectus Supplement, the Notes will be available for purchase in minimum
denominations of $1,000 and integral multiples thereof in book-entry form only.
See "Certain Information Regarding the Securities -- Book-Entry Registration"
and "-- Definitive Securities".
DISTRIBUTIONS ON THE NOTES
The timing and priority of payment, seniority, allocations of losses,
Interest Rate and amount of or method of determining payments of principal and
interest on each class of Notes of a Series will be described in the related
Prospectus Supplement. The rights of holders of any class of Notes to receive
payments of principal and interest may be senior or subordinate to the rights of
holders of one or more other classes of Notes of such Series, as described in
the related Prospectus Supplement. Unless otherwise provided in the related
Prospectus Supplement, payments of interest on the Notes will be made prior to
payments of principal thereon. If so provided in the related Prospectus
Supplement, a Series of Notes may include one or more
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classes of Strip Notes entitled to (i) principal payments with disproportionate,
nominal or no interest payments or (ii) interest payments with disproportionate,
nominal or no principal payments. Each class of Notes may have a different
Interest Rate, which may be a fixed, variable or adjustable Interest Rate (and
which may be zero for certain classes of Strip Notes), or any combination of the
foregoing. The related Prospectus Supplement will specify the Interest Rate for
each class of Notes of a Series or the method for determining such Interest
Rate. Unless otherwise specified in the related Prospectus Supplement, interest
on the Notes will be calculated on the basis of a 360-day year consisting of
twelve 30-day months. If so specified in the related Prospectus Supplement, one
or more classes of Notes of a Series may have fixed principal payment schedules.
Noteholders will be entitled to receive as payments of principal on any Payment
Date the applicable amounts set forth on such schedule with respect to such
Notes, in the manner and to the extent set forth in the related Prospectus
Supplement. One or more classes of Notes of a Series may be redeemable in whole
or in part under the circumstances specified in the related Prospectus
Supplement, including from amounts on deposit in the Pre-Funding Account at the
end of the Funding Period, if any, or as a result of the sale of the related
Receivables Pool.
Unless otherwise specified in the related Prospectus Supplement, payments
to Noteholders of all classes within a Series in respect of interest will have
the same priority. Under certain circumstances, the amount available for such
payments could be less than the amount of interest payable on the Notes on a
Payment Date, in which case each class of Noteholders will receive its ratable
share (based upon the aggregate amount of interest due to such class of
Noteholders) of the aggregate amount available to be distributed in respect of
interest on the Notes of such Series. See "Certain Information Regarding the
Securities -- Distributions on the Securities" and "-- Credit and Cash Flow
Enhancement".
In the case of a Series of Notes that includes two or more classes of
Notes, the sequential order and priority of payment in respect of principal and
interest, and any schedule or formula or other provisions applicable to the
determination thereof, of each such class will be set forth in the related
Prospectus Supplement. Unless otherwise specified in the related Prospectus
Supplement, payments in respect of principal and interest of any class of Notes
will be made on a pro rata basis among all the Noteholders of such class.
CERTAIN PROVISIONS OF THE INDENTURE
Events of Default; Rights upon Event of Default. Unless otherwise specified
in the related Prospectus Supplement, "Events of Default" in respect of a Series
of Notes under the related Indenture will consist of: (i) a default for five
days or more in the payment of any interest on any such Note; (ii) a default in
the payment of the principal of or any installment of the principal of any such
Note when the same becomes due and payable; (iii) a default in the observance or
performance in any material respect of any covenant or agreement of the related
Trust made in such Indenture and the continuation of any such default for a
period of 60 days after notice thereof is given to the related Trust by the
applicable Indenture Trustee or to such Owner Trust and the related Indenture
Trustee by the holders of Notes representing more than 25% of the voting
interests thereof, voting together as a single class; (iv) any representation or
warranty made by such Owner Trust in the related Indenture or in any certificate
or other writing delivered pursuant thereto or in connection therewith having
been incorrect in any material respect as of the time made, and such breach not
having been cured within 30 days after notice thereof is given to such Owner
Trust by the applicable Indenture Trustee or to such Owner Trust and such
Indenture Trustee by the holders of Notes representing more than 25% of the
voting interests thereof, voting together as a single class; or (v) certain
events of bankruptcy, insolvency, receivership or liquidation of such Owner
Trust. The amount of principal required to be paid to Noteholders of any Series
under the related Indenture will generally be limited to amounts available to be
deposited in the applicable Note Distribution Account. Therefore, unless
otherwise specified in the related Prospectus Supplement, the failure to pay
principal on a class of Notes generally will not result in the occurrence of an
Event of Default until the Final Scheduled Distribution Date for such class of
Notes.
If an Event of Default should occur and be continuing with respect to the
Notes of any Series, the related Indenture Trustee or holders of not less than a
majority in principal amount of the outstanding Notes, voting together as a
single class, may declare the principal of such Notes to be immediately due and
payable. Such
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declaration may, under certain circumstances, be rescinded by the holders of not
less than a majority in principal amount of such outstanding Notes, voting
together as a single class.
If the Notes of any Series are declared due and payable following an Event
of Default, the related Indenture Trustee may institute proceedings to collect
amounts due or foreclose on the property of the related Owner Trust, exercise
remedies as a secured party, sell the related Receivables or elect to have the
applicable Owner Trust maintain possession of such Receivables and continue to
apply collections on such Receivables as if there had been no declaration of
acceleration. Unless otherwise specified in the related Prospectus Supplement,
however, the Indenture Trustee will be prohibited from selling the related
Receivables following an Event of Default, other than a default in the payment
of any principal of or a default for five days or more in the payment of any
interest on any Note of such Series, unless (i) the holders of all such
outstanding Notes consent to such sale, (ii) the proceeds of such sale are
sufficient to pay in full the principal of and the accrued interest on such
outstanding Notes at the date of such sale or (iii) such Indenture Trustee
determines that the proceeds of sale of the Receivables would not be sufficient
on an ongoing basis to make all payments on such Notes as such payments would
have become due if such obligations had not been declared due and payable, and
such Indenture Trustee obtains the consent of the holders of not less than
66 2/3% of the aggregate outstanding amount of such Notes. Following a
declaration of acceleration upon an Event of Default, (i) Noteholders will be
entitled to ratable repayment of principal on the basis of their respective
unpaid principal amounts and (ii) repayment in full of the accrued interest on
the Notes and any such payments will be made prior to any further payment of
interest on the related Owner Certificates or in respect of the Certificate
Balance of such Owner Certificates.
Subject to the provisions of the applicable Indenture relating to the
duties of the related Indenture Trustee, if an Event of Default occurs and is
continuing with respect to a Series of Notes, such Indenture Trustee will be
under no obligation to exercise any of the rights or powers under the Indenture
at the request or direction of any of the holders of such Notes, if it
reasonably believes it will not be adequately indemnified against the costs,
expenses and liabilities which might be incurred by it in complying with such
request. Subject to the provisions for indemnification and certain limitations
contained in the related Indenture, the holders of Notes of such Series
representing not less than 51% of the voting interests thereof, voting together
as a single class, will have the right to direct the time, method and place of
conducting any proceeding or any remedy available to the related Indenture
Trustee, and the holders of Notes representing not less than 51% of the voting
interests thereof, voting together as a single class, may, in certain cases,
waive any default with respect thereto, except a default in the payment of
principal or interest or a default in respect of a covenant or provision of such
Indenture that cannot be modified without the waiver or consent of the holders
of all outstanding Notes.
Unless otherwise specified in the related Prospectus Supplement, no holder
of a Note will have the right to institute any proceeding with respect to the
related Indenture, unless (i) such holder previously has given to the applicable
Indenture Trustee written notice of a continuing Event of Default; (ii) the
holders of not less than 25% in principal amount of the outstanding Notes of
such Series, voting together as a single class, have made written request to
such Indenture Trustee to institute such proceeding in its own name as Indenture
Trustee; (iii) such holder or holders have offered such Indenture Trustee
reasonable indemnity; (iv) such Indenture Trustee has for 60 days failed to
institute such proceeding; and (v) no direction inconsistent with such written
request has been given to such Indenture Trustee during such 60-day period by
the holders of a majority in principal amount of such outstanding Notes, voting
together as a single class.
If the Indenture Trustee knows that an Event of Default has occurred and is
continuing, the Indenture Trustee will mail to each related Noteholder notice of
the Event of Default within 30 days after obtaining knowledge of such Event of
Default. Except in the case of a failure to pay principal of or interest on any
Note, the Indenture Trustee may withhold such notice if and so long as it
determines in good faith that withholding the notice is in the interests of
Noteholders.
Certain Covenants. Each Indenture will provide that the related Owner Trust
may not consolidate with or merge into any other entity, unless, among other
things, (i) the entity formed by or surviving such consolidation or merger is
organized under the laws of the United States, any state or the District of
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Columbia; (ii) such entity expressly assumes such Owner Trust's obligation to
make due and punctual payments upon the Notes of the related Series and the
performance or observance of every agreement and covenant of such Owner Trust
under the Indenture; (iii) no Event of Default shall have occurred and be
continuing immediately after such merger or consolidation; (iv) such Owner Trust
has been advised by each Rating Agency that such merger or consolidation will
not result in the qualification, reduction or withdrawal of its then-current
rating of any class of the related Series of Notes or any class of the related
Owner Certificates; and (v) such Owner Trust has received an opinion of counsel
to the effect that such consolidation or merger would have no material adverse
tax consequence to the Owner Trust or to any related Noteholder or Owner
Certificateholder.
Each Owner Trust will not, among other things, (i) except as expressly
permitted by the related Indenture, the related Transfer and Servicing
Agreements or certain related documents with respect to such Owner Trust
(collectively, the "Related Documents"), sell, transfer, exchange or otherwise
dispose of any of the assets of such Owner Trust; (ii) claim any credit on or
make any deduction from the principal and interest payable in respect of the
related Notes (other than amounts withheld under the Code or applicable state
law) or assert any claim against any present or former holder of such Notes
because of the payment of taxes levied or assessed upon such Owner Trust; (iii)
dissolve or liquidate in whole or in part; (iv) permit the validity or
effectiveness of such Indenture to be impaired or permit any person to be
released from any covenants or obligations with respect to the related Notes
under such Indenture except as may be expressly permitted thereby; (v) permit
any lien, charge, excise, claim, security interest, mortgage or other
encumbrance to be created on or extend to or otherwise arise upon or burden the
assets of such Owner Trust or any part thereof, or any interest therein or the
proceeds thereof; or (vi) permit the lien of the related Indenture not to
constitute a valid first priority security interest in the assets of such Owner
Trust.
Each Indenture Trustee and the related Noteholders, by accepting the
related Notes, will covenant that they will not at any time institute against
the applicable Owner Trust any bankruptcy, reorganization or other proceeding
under any federal or state bankruptcy or similar law.
With respect to any Owner Trust, neither the related Indenture Trustee nor
the related Owner Trustee in its individual capacity, nor any holder of an Owner
Certificate representing an ownership interest in such Owner Trust nor any of
their respective owners, beneficiaries, agents, officers, directors, employees,
affiliates, successors or assigns will, in the absence of an express agreement
to the contrary, be personally liable for the payment of the principal of or
interest on the related Notes or for the agreements of such Owner Trust
contained in the related Indenture.
No Owner Trust may engage in any activity other than as described herein or
in the related Prospectus Supplement. No Owner Trust will incur, assume or
guarantee any indebtedness other than indebtedness incurred pursuant to the
related Notes and the related Indenture, pursuant to any Advances made to it by
the Servicer or otherwise in accordance with the Related Documents.
Satisfaction and Discharge of Indenture. Each Indenture will be discharged
with respect to the collateral securing the related Notes upon the delivery to
the related Indenture Trustee for cancellation of all such Notes or, with
certain limitations, upon deposit with such Indenture Trustee of funds
sufficient for the payment in full of all such Notes.
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THE OWNER CERTIFICATES
GENERAL
Each Owner Trust will issue one or more classes of Owner Certificates
pursuant to a Trust Agreement, a form of which has been filed as an exhibit to
the Registration Statement of which this Prospectus forms a part. The following
summary does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, the provisions of the related Owner Certificates
and Trust Agreement. Where particular provisions or terms used in the Trust
Agreement are referred to, the actual provisions (including definitions of
terms) are incorporated by reference as part of this Summary.
Unless otherwise specified in the related Prospectus Supplement, each class
of Owner Certificates will initially be represented by one or more certificates
registered in the name of the Depository. Unless otherwise specified in the
related Prospectus Supplement, the Owner Certificates will be available for
purchase in minimum denominations of $20,000 and integral multiples of $1,000 in
excess thereof in book-entry form only. See "Certain Information Regarding the
Securities -- Book-Entry Registration" and "-- Definitive Securities".
DISTRIBUTIONS ON THE OWNER CERTIFICATES
The timing and priority of distributions, seniority, allocations of losses,
Pass-Through Rate and amount of or method of determining distributions with
respect to principal and interest of each class of Owner Certificates of a
Series will be described in the related Prospectus Supplement. Distributions of
interest on such Owner Certificates will be made on the Distribution Dates
specified in the related Prospectus Supplement and will be made prior to
distributions with respect to principal of such Owner Certificates. To the
extent provided in the related Prospectus Supplement, a Series of Owner
Certificates may include one or more classes of Strip Certificates entitled to
(i) principal distributions with disproportionate, nominal or no interest
distributions or (ii) interest distributions with disproportionate, nominal or
no principal distributions. Each class of Owner Certificates may have a
different Pass-Through Rate, which may be a fixed, variable or adjustable
Pass-Through Rate (and which may be zero for certain classes of Strip
Certificates) or any combination of the foregoing. The related Prospectus
Supplement will specify the Pass-Through Rate for each class of Owner
Certificates of a Series or the method for determining such Pass-Through Rate.
Unless otherwise specified in the related Prospectus Supplement, interest on the
Owner Certificates will be calculated on the basis of a 360-day year consisting
of twelve 30-day months. Distributions in respect of any class of Owner
Certificates will be subordinated to payments in respect of the Notes as more
fully described in the related Prospectus Supplement.
In the case of a Series of Owner Certificates that includes two or more
classes, the timing, sequential order, priority of payment or amount of
distributions in respect of interest and principal, and any schedule or formula
or other provisions applicable to the determination thereof, of each such class
shall be as set forth in the related Prospectus Supplement. Unless otherwise
provided in the related Prospectus Supplement, distributions in respect of the
Owner Certificates of a Series will be subordinated to payments in respect of
the Notes of such Series as more fully described in the related Prospectus
Supplement. Distributions in respect of interest on and principal of any class
of Owner Certificates will be made on a pro rata basis among all the Owner
Certificates of such class.
Each Trust Agreement will provide that the applicable Owner Trustee does
not have the power to commence a voluntary proceeding in bankruptcy with respect
to the related Owner Trust without the unanimous prior approval of all Owner
Certificateholders and the delivery to such Owner Trustee by each such Owner
Certificateholder of a certificate certifying that such Owner Certificateholder
reasonably believes that such Owner Trust is insolvent.
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THE GRANTOR CERTIFICATES
GENERAL
Each Grantor Trust will issue one or more classes of Grantor Certificates
pursuant to a Pooling and Servicing Agreement, a form of which has been filed as
an exhibit to the Registration Statement of which this Prospectus forms a part.
A copy of the Pooling and Servicing Agreement (without exhibits) may be obtained
by Grantor Certificateholders upon request in writing to the Grantor Trustee at
its Corporate Trust Office. The following summary does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all the provisions of the related Grantor Certificates and Pooling and Servicing
Agreement. Where particular provisions or terms used in the Pooling and
Servicing Agreement are referred to, the actual provisions (including
definitions of terms) are incorporated by reference as part of this summary.
Unless otherwise specified in the related Prospectus Supplement, each class
of Grantor Certificates will initially be represented by one or more
certificates registered in the name of the Depository. Unless otherwise
specified in the related Prospectus Supplement, the Grantor Certificates will be
available for purchase in minimum denominations of $1,000 and integral multiples
of $1,000 in excess thereof in book-entry form only. See "Certain Information
Regarding the Securities -- Book-Entry Registration" and "-- Definitive
Securities".
DISTRIBUTIONS ON THE GRANTOR CERTIFICATES
The timing and priority of distributions, Pass-Through Rates and amount of
or method of determining distributions with respect to principal and interest on
the Grantor Certificates of any Series will be described in the related
Prospectus Supplement. Interest will be distributed to the holders of the
Grantor Certificates on the Distribution Dates specified in the related
Prospectus Supplement and will be made prior to distributions with respect to
principal unless otherwise specified therein. Each class of Grantor Certificates
may have a different Pass-Through Rate. The related Prospectus Supplement will
specify the Pass-Through Rate for each class of Grantor Certificates, or the
initial Pass-Through Rate and the method for determining such Pass-Through Rate.
Unless otherwise specified in the related Prospectus Supplement, interest on the
Grantor Certificates will be calculated on the basis of a 360-day year
consisting of twelve 30-day months. Distributions in respect of interest on and
principal of any class of Grantor Certificates will be made on a pro rata basis
among all of the Grantor Certificates of such class.
Unless otherwise specified in the related Prospectus Supplement, each class
of Grantor Certificates will be entitled to monthly distributions of a portion
of all payments received by the Servicer during the related Collection Period
allocable to principal on or in respect of the related Receivables. Each Grantor
Certificate will represent the fractional undivided interest in the related
Grantor Trust specified in the related Prospectus Supplement. Thus, if two
classes of Grantor Certificates are issued by a Grantor Trust, in general, the
Senior Certificateholders and Subordinated Certificateholders will be entitled
to receive, on each Distribution Date, specified percentages (respectively, the
"Senior Percentage" and the "Subordinated Percentage") of all payments allocated
to principal on or in respect of the related Receivables collected by the
Servicer during the related Collection Period plus a full month's interest at
the related Pass-Through Rate on the Certificate Balance of the Senior
Certificates or the Subordinated Certificates, as the case may be, in each case
as of the first day of such Collection Period (after giving effect to
distributions of principal to be made on the Distribution Date occurring during
such Collection Period).
Unless otherwise specified in the related Prospectus Supplement, if two or
more classes of Grantor Certificates are issued, the rights of the holders of
the Subordinated Certificates to receive distributions of principal will be
subordinated to the rights of the holders of the Senior Certificates to receive
distributions of interest and principal to the extent described in the related
Prospectus Supplement.
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CERTAIN INFORMATION REGARDING THE SECURITIES
BOOK-ENTRY REGISTRATION
Unless otherwise specified in the related Prospectus Supplement, each class
of Securities offered hereby will be represented by one or more certificates
registered in the name of Cede, as nominee of DTC. Unless otherwise specified in
the related Prospectus Supplement, Security Owners may hold beneficial interests
in Securities through DTC (in the United States) or Cedel or Euroclear (in
Europe) directly if they are participants of such systems, or indirectly through
organizations which are participants in such systems.
No Security Owner will be entitled to receive a certificate representing
such person's interest in the Securities, except as set forth below. Unless and
until Securities of a class are issued in fully registered certificated form
("Definitive Securities") under the limited circumstances described below, all
references herein to actions by Noteholders, Certificateholders or
Securityholders shall refer to actions taken by DTC upon instructions from DTC
Participants, and all references herein to distributions, notices, reports and
statements to Noteholders, Certificateholders or Securityholders shall refer to
distributions, notices, reports and statements to Cede, as the registered holder
of the Securities, for distribution to Securityholders in accordance with DTC
procedures. As such, it is anticipated that the only Noteholder,
Certificateholder or Securityholder will be Cede, as nominee of DTC. Security
Owners will not be recognized by the related Trustee as Noteholders,
Certificateholders or Securityholders as such terms will be used in the relevant
agreements, and Security Owners will only be permitted to exercise the rights of
holders of Securities of the related class indirectly through DTC and DTC
Participants, as further described below.
Cedel and Euroclear will hold omnibus positions on behalf of their
participants through customers' securities accounts in their respective names on
the books of their respective Depositaries which in turn will hold such
positions in customers' securities accounts in the Depositaries' names on the
books of DTC.
Transfers between DTC Participants will occur in accordance with DTC rules.
Transfers between Cedel Participants and Euroclear Participants will occur in
accordance with their applicable rules and operating procedures.
Cross-market transfers between persons holding directly or indirectly
through DTC, on the one hand, and directly or indirectly through Cedel or
Euroclear participants, on the other, will be effected in DTC in accordance with
DTC rules on behalf of the relevant European international clearing system by
its Depositary. However, each such cross-market transaction will require
delivery of instructions to the relevant European international clearing system
by the counterparty in such system in accordance with its rules and procedures
and within its established deadlines. The relevant European international
clearing system will, if the transaction meets its settlement requirements,
deliver instructions to its Depositary to take action to effect final settlement
on its behalf by delivering or receiving securities in DTC, and making or
receiving payment in accordance with normal procedures for same-day funds
settlement applicable to DTC. Cedel Participants and Euroclear Participants may
not deliver instructions directly to the Depositaries.
Because of time-zone differences, credits of securities received in Cedel
or Euroclear as a result of a transaction with a DTC Participant will be made
during subsequent securities settlement processing and dated the business day
following the DTC settlement date. Such credits or any transactions in such
securities settled during such processing will be reported to the relevant
Euroclear or Cedel participant on such business day. Cash received in Cedel or
Euroclear as a result of sales of Securities by or through a Cedel Participant
or a Euroclear Participant to a DTC Participant will be received with value on
the DTC settlement date but will be available in the relevant Cedel or Euroclear
cash account only as of the business day following settlement in DTC.
DTC is a limited-purpose trust company organized under the laws of the
State of New York, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the Uniform Commercial Code (the "UCC") in effect in the
State of New York and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Exchange Act. DTC was created to hold securities for its
participating members ("DTC Participants") and to
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facilitate the clearance and settlement of securities transactions between DTC
Participants through electronic book-entry changes in accounts of DTC
Participants, thereby eliminating the need for physical movement of
certificates. DTC Participants include securities brokers and dealers (including
the Underwriters), banks, trust companies and clearing corporations. Indirect
access to the DTC system also is available to banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a DTC
Participant, either directly or indirectly (the "Indirect DTC Participants").
The rules applicable to DTC and DTC Participants are on file with the
Commission.
Security Owners that are not DTC Participants or Indirect DTC Participants
but desire to purchase, sell or otherwise transfer ownership of, or an interest
in, the Securities may do so only through DTC Participants and Indirect DTC
Participants. DTC Participants will receive a credit for the Securities on DTC's
records. The ownership interest of each Security Owner will in turn be recorded
on respective records of the DTC Participants and Indirect DTC Participants.
Security Owners will not receive written confirmation from DTC of their
purchase, but Security Owners are expected to receive written confirmations
providing details of the transaction, as well as periodic statements of their
holdings, from the DTC Participant or Indirect DTC Participant through which the
Security Owner entered into the transaction. Transfers of ownership interests in
the Securities of any class will be accomplished by entries made on the books of
DTC Participants acting on behalf of Security Owners.
To facilitate subsequent transfers, all Securities deposited by DTC
Participants with DTC will be registered in the name of Cede, a nominee of DTC.
The deposit of Securities with DTC and their registration in the name of Cede
will effect no change in beneficial ownership. DTC will have no knowledge of the
actual Security Owners and its records will reflect only the identity of the DTC
Participants to whose accounts such Securities are credited, which may or may
not be the Security Owners. DTC Participants and Indirect DTC Participants will
remain responsible for keeping account of their holdings on behalf of their
customers. While the Securities of a Series are held in book-entry form,
Security Owners will not have access to the list of Security Owners of such
Series, which may impede the ability of Security Owners to communicate with each
other.
Conveyance of notices and other communications by DTC to DTC Participants,
by DTC Participants to Indirect DTC Participants and by DTC Participants and
Indirect DTC Participants to Certificate Owners will be governed by arrangements
among them, subject to any statutory or regulatory requirements as may be in
effect from time to time.
Under the rules, regulations and procedures creating and affecting DTC and
its operations, DTC is required to make book-entry transfers among DTC
Participants on whose behalf it acts with respect to the Securities and is
required to receive and transmit distributions of principal of and interest on
the Securities. DTC Participants and Indirect DTC Participants with which
Security Owners have accounts with respect to the Securities similarly are
required to make book-entry transfers and receive and transmit such payments on
behalf of their respective Security Owners.
DTC's practice is to credit DTC Participants' accounts on each Payment Date
or Distribution Date in accordance with their respective holdings shown on its
records, unless DTC has reason to believe that it will not receive payment on
such Distribution Date. Payments by DTC Participants and Indirect DTC
Participants to Security Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name", and will be the
responsibility of such DTC Participant and not of DTC, the related Owner
Trustee, Indenture Trustee or Grantor Trustee (or any paying agent appointed
thereby), the Seller or the Servicer, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of principal of and
interest on each class of Securities to DTC will be the responsibility of the
related Owner Trustee, Indenture Trustee or Grantor Trustee (or any paying
agent), disbursement of such payments to DTC Participants will be the
responsibility of DTC and disbursement of such payments to the related Security
Owners will be the responsibility of DTC Participants and Indirect DTC
Participants. As a result, under the book-entry format, Security Owners may
experience some delay in their receipt of payments. DTC will forward such
payments to its DTC Participants which thereafter will forward them to Indirect
DTC Participants or Security Owners.
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Because DTC can only act on behalf of DTC Participants, who in turn act on
behalf of Indirect DTC Participants and certain banks, the ability of a Security
Owner to pledge Securities to persons or entities that do not participate in the
DTC system, or otherwise take actions with respect to such Securities, may be
limited due to the lack of a physical certificate for such Securities.
DTC has advised the Seller that it will take any action permitted to be
taken by a Securityholder only at the direction of one or more DTC Participants
to whose account with DTC the Securities are credited. Additionally, DTC has
advised the Seller that it will take such actions with respect to specified
percentages of the Securityholders' interest only at the direction of and on
behalf of DTC Participants whose holdings include undivided interests that
satisfy such specified percentages. DTC may take conflicting actions with
respect to other undivided interests to the extent that such actions are taken
on behalf of DTC Participants whose holdings include such undivided interests.
Neither DTC nor Cede will consent or vote with respect to the Securities.
Under its usual procedures, DTC will mail an "Omnibus Proxy" to the related
Owner Trustee, Indenture Trustee or Grantor Trustee as soon as possible after
any applicable Record Date for such a consent or vote. The Omnibus Proxy will
assign Cede's consenting or voting rights to those DTC Participants to whose
accounts the related Securities are credited on that record date (which record
date will be identified in a listing attached to the Omnibus Proxy).
Cedel is incorporated under the laws of Luxembourg as a professional
depository. Cedel holds securities for its participating organizations ("Cedel
Participants") and facilitates the clearance and settlement of securities
transactions between Cedel Participants through electronic book entry changes in
accounts of Cedel Participants, thereby eliminating the need for physical
movement of certificates. Transactions may be settled in Cedel in any of 28
currencies, including United States dollars. Cedel provides to Cedel
Participants, among other things, services for safekeeping, administration,
clearance and settlement of internationally traded securities and securities
lending and borrowing. Cedel interfaces with domestic markets in several
countries. As a professional depository, Cedel is subject to regulation by the
Luxembourg Monetary Institute. Cedel Participants are recognized financial
institutions around the world including underwriters, securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations and may include any underwriters, agents or dealers with respect
to a Series of Securities offered hereby. Indirect access to Cedel is also
available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a Cedel Participant,
either directly or indirectly.
The Euroclear System was created in 1968 to hold securities for
participants of the Euroclear System ("Euroclear Participants") and to clear and
settle transactions between Euroclear Participants through simultaneous
electronic book-entry delivery against payment, thereby eliminating the need for
physical movement of certificates and any risk from lack of simultaneous
transfers of securities and cash. Transactions may now be settled in any of 27
currencies, including United States dollars. The Euroclear System includes
various other services, including securities lending and borrowing, and
interfaces with domestic markets in several countries generally similar to the
arrangements for cross-market transfers with DTC described above. The Euroclear
System is operated by The Chase Manhattan Bank Brussels, Belgium office (the
"Euroclear Operator" or "Euroclear"), under contract with Euroclear Clearance
System S.C., a Belgian cooperative corporation (the "Cooperative"). All
operations are conducted by the Euroclear Operator, and all Euroclear securities
clearance accounts and Euroclear cash accounts are accounts with the Euroclear
Operator, not the Cooperative. The Cooperative establishes policy for the
Euroclear System on behalf of Euroclear Participants. Euroclear Participants
include banks (including central banks), securities brokers and dealers and
other professional financial intermediaries and may include any underwriters,
agents or dealers with respect to a Series of Securities offered hereby.
Indirect access to the Euroclear System is also available to other firms that
clear through or maintain a custodial relationship with a Euroclear Participant,
either directly or indirectly.
The Euroclear Operator is the Belgian branch of a New York banking
corporation which is a member bank of the Federal Reserve System. As such, it is
regulated and examined by the Board of Governors of the Federal Reserve System
and the New York State Banking Department, as well as the Belgian Banking
Commission.
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Securities clearance accounts and cash accounts with the Euroclear Operator
are governed by the Terms and Conditions Governing Use of Euroclear and the
related Operating Procedures of the Euroclear System and applicable Belgian law
(collectively, the "Terms and Conditions"). The Terms and Conditions govern
transfers of securities and cash within the Euroclear System, withdrawals of
securities and cash from the Euroclear System and receipts of payments with
respect to securities in the Euroclear System. All securities in the Euroclear
System are held on a fungible basis without attribution of specific certificates
to specific securities clearance accounts. The Euroclear Operator acts under the
Terms and Conditions only on behalf of Euroclear Participants, and has no record
of or relationship with persons holding through Euroclear Participants.
Distributions with respect to Securities held through Cedel or Euroclear
will be credited to the cash accounts of Cedel Participants or Euroclear
Participants in accordance with the relevant system's rules and procedures, to
the extent received by its Depositary. Such distributions will be subject to tax
withholding in accordance with relevant United States tax laws and regulations.
See "Certain Federal Income Tax Consequences". Cedel or the Euroclear Operator,
as the case may be, will take any other action permitted to be taken by a
Securityholder on behalf of a Cedel Participant or Euroclear Participant only in
accordance with its relevant rules and procedures and subject to its
Depositary's ability to effect such actions on its behalf through DTC.
Although DTC, Cedel and Euroclear have agreed to the foregoing procedures
in order to facilitate transfers of Securities among participants of DTC, Cedel
and Euroclear, they are under no obligation to perform or continue to perform
such procedures and such procedures may be discontinued at any time.
Except as required by law, none of the Servicer, the Seller or the related
Owner Trustee, Indenture Trustee or Grantor Trustee will have any liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of Securities of any series held by DTC's nominee, or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
DEFINITIVE SECURITIES
Unless otherwise stated in the related Prospectus Supplement, Definitive
Securities representing the Securities of any Series or class will be issued to
Security Owners or their respective nominees only if (i) the related
Administrator, in the case of an Owner Trust, or the Seller, in the case of a
Grantor Trust, advises the related Trustee that DTC is no longer willing or able
to discharge properly its responsibilities as Depository with respect to the
related Securities, and the Administrator or the Seller, as the case may be, is
unable to locate a qualified successor, (ii) the Administrator or the Seller, as
the case may be, at its option, advises the related Trustee that it elects to
terminate the book-entry system through DTC or (iii) after the occurrence of an
Event of Default or Servicer Default, Security Owners evidencing not less than
51% of the voting interests of the related Securities, voting together as a
single class, advise DTC in writing that the continuation of a book-entry system
through DTC (or a successor thereto) is no longer in the best interests of the
related Security Owners.
Upon the occurrence of any of the events described in the immediately
preceding paragraph, the related Owner Trustee will be required to notify the
related Security Owners, through Participants, and the Indenture Trustee or
Grantor Trustee, as the case may be, of the availability of Definitive
Securities. Upon surrender by DTC of the certificates representing all
Securities of any affected class and the receipt of instructions for re-
registration, the applicable Trustee will issue Definitive Securities to the
related Security Owners.
Distributions on the Definitive Securities will thereafter be made by the
related Trustee directly to holders of the Definitive Securities in accordance
with the procedures set forth herein and to be set forth in the related
Indenture, Trust Agreement or Pooling and Servicing Agreement, as the case may
be. Interest payments and any principal payments on the related Securities on
each Distribution Date will be made to holders in whose names the Definitive
Securities were registered at the close of business on the Record Date with
respect to such Distribution Date. Distributions will be made by check mailed to
the address of such holders as they appear on the register specified in the
related Trust Agreement, Indenture or Pooling and Servicing Agreement, as the
case may be. The final payment on any Securities (whether Definitive Securities
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or Securities registered in the name of a Depository or its nominee), however,
will be made only upon presentation and surrender of such Securities at the
office or agency specified in the notice of final distribution to
Securityholders. The related Owner Trustee, Indenture Trustee or Grantor Trustee
(or the related paying agent) will provide such notice to registered
Securityholders prior to the date of such final distribution as will be provided
in the related Trust Agreement, Indenture or Pooling and Servicing Agreement.
Definitive Securities will be transferable and exchangeable at the offices
of the related Owner Trustee, Indenture Trustee or Grantor Trustee (or any
security registrar appointed thereby), as set forth in the related Trust
Agreement, Indenture or Pooling and Servicing Agreement, as the case may be. No
service charge will be imposed for any registration of transfer or exchange, but
such Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge imposed in connection therewith.
SALE AND ASSIGNMENT OF THE RECEIVABLES
The Initial Receivables. On or prior to the Closing Date pursuant to the
related Receivables Purchase Agreement, Fleetwood Credit will sell and assign to
the Seller, without recourse, its entire interest in and to the related Initial
Receivables, including its security interests in the related Initial Financed
Vehicles. At the time of initial issuance of the related Securities, the Seller
will sell and assign to the related Owner Trustee or Grantor Trustee, as the
case may be, without recourse, all of its right, title and interest in and to
such Initial Receivables, including its security interests in such Initial
Financed Vehicles. Each Initial Receivable will be identified in a schedule
appearing as an exhibit to the related Receivables Purchase Agreement and Sale
and Servicing Agreement or Pooling and Servicing Agreement, as the case may be
(the "Schedule of Receivables"). Concurrently with the sale and assignment of
such Initial Receivables to the related Owner Trustee or Grantor Trustee
pursuant to the related Sale and Servicing Agreement or Pooling and Servicing
Agreement, such Owner Trustee or Grantor Trustee will execute, authenticate and
deliver (or cause the Indenture Trustee to execute, authenticate and deliver)
the related Securities to the Seller in exchange therefor. The net proceeds
received by the Seller from the sale of the Securities will be applied to the
purchase of the Initial Receivables and to the deposit of the Pre-Funded Amount
into any Pre-Funding Account established with respect to the related Trust.
The Subsequent Receivables. With respect to any Trust as to which a
Pre-Funding Account is established, during the Funding Period, pursuant to the
related Receivables Purchase Agreement, Fleetwood Credit will be obligated to
sell and the Seller will be obligated to purchase, Subsequent Receivables having
an aggregate principal balance as of the related Subsequent Cutoff Dates not to
exceed the Pre-Funded Amount. On each Subsequent Transfer Date, Fleetwood Credit
will sell and assign to the Seller, without recourse, its entire right, title
and interest in and to the Subsequent Receivables, including its security
interests in the Subsequent Financed Vehicles. Each Subsequent Receivable will
be identified in a supplement to the Schedule of Receivables. Unless otherwise
specified in the related Prospectus Supplement, the purchase price to be paid to
Fleetwood Credit for each Subsequent Receivable will equal the principal amount
thereof as of the related Subsequent Cutoff Date. Pursuant to the related
Transfer and Servicing Agreements, the Seller will in turn sell the Subsequent
Receivables to the related Owner Trustee or Grantor Trust, as the case may be.
In connection with each purchase of Subsequent Receivables, such Trust will be
required to pay to the Seller an amount equal to the amount paid by the Seller
to Fleetwood Credit for such Subsequent Receivables, which purchase price will
be paid from monies on deposit in the related Pre-Funding Account. Upon the
conveyance of Subsequent Receivables to the Trust on a Subsequent Transfer Date,
the related Pool Balance will increase in an amount equal to the aggregate
principal balance of such Subsequent Receivables as of the related Subsequent
Cutoff Date. Coincident with each such transfer of Subsequent Receivables, the
related Yield Supplement Agreement, if any, will require Fleetwood Credit to
deposit into the related Yield Supplement Account an amount equal to the
Additional Yield Supplement Amount, if any, in respect of such Subsequent
Receivables.
Each conveyance of Subsequent Receivables will be subject to the following
conditions, among others: (i) such Subsequent Receivables must satisfy the
eligibility criteria described under "Representations and Warranties"; (ii) such
Subsequent Receivables will not have been selected by either Fleetwood Credit or
the Seller in a manner that it believes is adverse to the interests of the
related Securityholders; (iii) the weighted
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average APR of the Receivables (including the Subsequent Receivables) is not
less than the minimum APR specified in the related Prospectus Supplement; (iv)
the weighted average remaining term of the Receivables (including the Subsequent
Receivables) as of the related Subsequent Transfer Date is not greater than the
maximum weighted average remaining term specified in the related Prospectus
Supplement; (v) neither the Seller nor the related Owner Trustee or Grantor
Trustee, as the case may be, shall have been advised by any nationally
recognized statistical rating agency by whom a rating has been assigned to any
class of Securities of the related Series at the request of the Seller (each, a
"Rating Agency") that the conveyance of such Subsequent Receivables will result
in a qualification, modification or withdrawal of its then-current rating of any
such class of Securities; and (vi) the related Owner Trustee or Grantor Trustee,
as the case may be, shall have received certain opinions of counsel as to, among
other things, the enforceability and validity of the Transfer Agreement relating
to such conveyance of Subsequent Receivables. The Funding Period will not exceed
90 days, and the aggregate principal balance of the Subsequent Receivables to be
conveyed to the related Trust during the related Funding Period will not exceed
25% of the Original Principal Balance of the Securities of the related Trust.
Because in each case the Subsequent Receivables will be originated after
the Initial Receivables, following their conveyance to a Trust, the aggregate
characteristics of the Receivables Pool, including the Subsequent Receivables,
may vary from those of the Initial Receivables.
Representations and Warranties. In each Receivables Purchase Agreement,
Fleetwood Credit will represent and warrant to the Seller, and, in the related
Transfer and Servicing Agreements, the Seller will represent and warrant to the
related Owner Trustee or Grantor Trustee, as the case may be, among other
things, that, on the related Closing Date (with respect to the Initial
Receivables and Initial Financed Vehicles) and on each Subsequent Transfer Date
(with respect to the related Subsequent Receivables and Subsequent Financed
Vehicles): (i) the information set forth in the related Schedule of Receivables
with respect to the related Receivables is correct in all material respects;
(ii) the Obligor on each such Receivable is required to maintain physical damage
insurance covering the related Financed Vehicle in accordance with Fleetwood
Credit's normal requirements; (iii) to its knowledge, on the Closing Date or the
related Subsequent Transfer Date, as the case may be, the transferred
Receivables are free and clear of all security interests, liens, charges and
encumbrances and no offsets, defenses or counterclaims against Fleetwood Credit
or the Seller, as the case may be, have been asserted or threatened; (iv) on the
Closing Date or the related Subsequent Transfer Date, each of the transferred
Receivables is secured by a first priority perfected security interest in the
related Financed Vehicle in favor of Fleetwood Credit; (v) each transferred
Receivable, at the time it was originated, complied and, on the Closing Date or
the related Subsequent Transfer Date, as the case may be, complies, in all
material respects with applicable federal and state laws, including, without
limitation, consumer credit, truth-in-lending, equal credit opportunity and
disclosure laws; and (vi) the related Obligor has not been identified by
Fleetwood Credit as being a Relief Act Obligor.
Repurchase of Certain Receivables by the Seller. As of the second (or, if
the Seller so elects, the first) Record Date following the discovery by or
notice to the Seller of a breach of any such representation or warranty that
materially and adversely affects the interests of the related Securityholders in
a Receivable, the Seller, unless it cures the breach, will repurchase such
Receivable from the related Trust and, pursuant to the related Receivables
Purchase Agreement, Fleetwood Credit will purchase such Receivable from the
Seller, at a price equal to the unpaid principal balance owed by the Obligor
plus interest thereon at a rate equal to the Required Rate to the last day of
the month of repurchase (the "Repurchase Amount"). This repurchase obligation
will constitute the sole remedy available to the Securityholders, the related
Owner Trustee or Grantor Trustee, as the case may be, and, in the case of Owner
Securities, the related Indenture Trustee, for any such uncured breach. The
obligation of the Seller to repurchase a Receivable will not be conditioned on
performance by Fleetwood Credit of its obligation to repurchase such Receivable
from the Seller pursuant to the related Receivables Purchase Agreement.
SERVICING PROCEDURES
To assure uniform quality in servicing the Receivables and the Servicer's
own portfolio of recreational vehicle receivables and to reduce administrative
costs, each Owner Trustee, Indenture Trustee and Grantor
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Trustee will appoint the Servicer as custodian of the Receivables for the
related Trust. The Receivables will not be physically segregated from other
recreational vehicle retail installment sale contracts of the Servicer, or those
which the Servicer services for others, to reflect the transfer to the Trust.
However, the Servicer's accounting records and computer systems will reflect the
sale and assignment of the Receivables to the related Trust, and UCC financing
statements reflecting each such sale and assignment will be filed. See "Certain
Legal Aspects of the Receivables -- General".
The Servicer will in each case make reasonable efforts to collect all
payments due with respect to the Receivables and, in a manner consistent with
the related Transfer and Servicing Agreements, will continue such collection
procedures as it follows with respect to comparable recreational vehicle retail
installment sale contracts it services for itself and others. See "Certain Legal
Aspects of the Receivables". Consistent with its normal procedures, the Servicer
may, in its discretion, arrange with an Obligor to extend or modify the payment
schedule on any Receivable. Notwithstanding the foregoing, the Servicer may not
extend the stated maturity of such Receivable beyond the scheduled maturity of
the Receivable having the latest scheduled maturity as of the related Subsequent
Cutoff Date. Such arrangements may result in the Servicer being required to
repurchase such Receivable for the Repurchase Amount, or to make an Advance in
respect of such Receivable, without any reimbursement therefor. The Servicer
will follow such normal collection practices and procedures as it deems
necessary or advisable to realize upon any Receivable with respect to which it
determines that eventual payment in full is unlikely. The Servicer may sell the
related Financed Vehicle securing any such Receivable at a public or private
sale, or take any other action permitted by applicable law.
THE TRUST ACCOUNTS
With respect to each Owner Trust, the Servicer will establish and maintain
with (i) the related Indenture Trustee one or more accounts, in the name of the
Indenture Trustee on behalf of the related Owner Securityholders, into which all
payments made on or in respect of the related Receivables will be deposited (the
"Owner Collection Account"), (ii) such Indenture Trustee an account, in the name
of the Indenture Trustee on behalf of the related Noteholders, into which
amounts released from the Owner Collection Account and any related Trust Account
or other credit enhancement for payment to such Noteholders will be deposited
and from which all distributions to such Noteholders will be made (the "Note
Distribution Account") and (iii) the related Owner Trustee an account, in the
name of the Owner Trustee on behalf of the related Owner Certificateholders,
into which amounts released from the Owner Collection Account and any Trust
Account or other credit enhancement for distribution to such Owner
Certificateholders will be deposited and from which all distributions to such
Owner Certificateholders will be made (the "Owner Certificate Distribution
Account"). With respect to each Grantor Trust, the Servicer will establish and
maintain with the related Grantor Trustee an account, in the name of the Grantor
Trustee on behalf of the related Grantor Certificateholders, into which all
payments made on or in respect of the related Receivables and amounts released
from any related Trust Account or other credit enhancement for payment to such
Grantor Certificateholders will be deposited and from which all distributions to
such Grantor Certificateholders will be made (the "Grantor Collection Account"
and, together with the Owner Collection Account, the "Collection Accounts").
Any other accounts to be established with respect to a Trust, including any
Pre-Funding Account, Yield Supplement Account or Reserve Fund, will be described
in the related Prospectus Supplement.
For each Series of Securities, funds in any related Collection Account,
Note Distribution Account, Owner Certificate Distribution Account, Pre-Funding
Account, Reserve Fund, Yield Supplement Account or other accounts identified in
the related Prospectus Supplement (collectively, the "Trust Accounts") will be
invested as provided in the related Sale and Servicing Agreement or Pooling and
Servicing Agreement, as the case may be, in Permitted Investments. "Permitted
Investments" will generally be limited to investments acceptable to the Rating
Agencies as being consistent with the rating of the related Securities. Except
as described below or in the related Prospectus Supplement, Permitted
Investments will be limited to obligations or securities that mature on or
before the related Deposit Date. However, to the extent permitted by the Rating
Agencies, funds in any Reserve Fund may be invested in securities that will not
mature prior to the next Payment Date with respect to such Notes and will not be
sold to meet any shortfalls. Thus, the amount
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on deposit in any Reserve Fund at any time may be less than the balance of the
Reserve Fund. If the amount required to be withdrawn from any Reserve Fund to
cover shortfalls in collections on the related Receivables (as provided in the
related Prospectus Supplement) exceeds the amount on deposit in the Reserve
Fund, a temporary shortfall in the amounts distributed to the related
Noteholders or Certificateholders could result, which could, in turn, increase
the average life of the related Notes or Certificates. Except as otherwise
specified in the related Prospectus Supplement, investment earnings on funds
deposited in the Trust Accounts, other than the Pre-Funding Account, net of
losses and investment expenses (collectively, "Investment Earnings"), will be
deposited in the applicable Note Distribution Account or Owner Certificate
Distribution Account (with respect to each Owner Trust) or Grantor Collection
Account (with respect to each Grantor Trust) on each Deposit Date, as the case
may be, and shall be treated as collections of interest on the related
Receivables.
Except as otherwise provided in the related Prospectus Supplement, each
Trust Account shall be maintained with the related Indenture Trustee or Grantor
Trustee, as the case may be, so long as such Trustee has short-term credit
ratings (the "Required Deposit Ratings") at least equal to Prime-1 by Moody's
Investors Service, Inc. ("Moody's") and A-1+ by Standard & Poor's, a division of
The McGraw-Hill Companies, Inc. ("Standard & Poor's") or each Trust Account
shall be maintained in a non-interest bearing segregated trust account for the
benefit of the Securityholders, located in the corporate trust department of a
depository institution or trust company having corporate trust powers (which may
include such Trustee). If the short-term unsecured debt obligations of such
Trustee are not rated at least equal to the Required Deposit Ratings, the
Servicer will, with the assistance of such Trustee, as necessary, cause each
Trust Account to be moved to a depository institution or trust company whose
short-term unsecured debt obligations are rated at least equal to the Required
Deposit Ratings or moved to a segregated trust account located in a corporate
trust department of a depository institution or trust company as described
above.
COLLECTIONS
Unless otherwise specified in the related Prospectus Supplement, except
under the circumstances described in the immediately succeeding paragraph, the
Servicer will deposit all payments on or in respect of the Receivables
comprising a Receivables Pool received from or on behalf of the related Obligors
and all proceeds of such Receivables collected during each Collection Period
into the related Collection Account not later than two Business Days after
receipt thereof. Notwithstanding the foregoing, such deposits and collections in
respect of a Collection Period may be remitted to the related Collection Account
by the Servicer on a monthly basis not later than each Deposit Date if (i) so
long as Fleetwood Credit is the Servicer and its short-term unsecured debt
obligations are rated at least equal to Prime-1 by Moody's and A-1 by Standard &
Poor's (the "Required Servicer Ratings") or (ii) the Servicer obtains a letter
of credit, surety bond or insurance policy (the "Servicer Letter of Credit") as
provided in the related Sale and Servicing Agreement or Pooling and Servicing
Agreement, as the case may be, under which demands for payment will be made to
secure timely remittance of monthly collections to the related Collection
Account and, in the case of either clause (i) or (ii) above, the related Trustee
is provided with a letter from each Rating Agency to the effect that the
utilization of such alternative remittance schedule will not result in a
qualification, reduction or withdrawal of its then-current rating of any class
of Securities of such Series. In the event that the Servicer is permitted to
make remittances of collections to the related Collection Account on a monthly
basis pursuant to satisfaction of either of the conditions described above, the
related Sale and Servicing Agreement or Pooling and Servicing Agreement, as the
case may be, will be modified, to the extent necessary to reflect such change in
the timing of such remittances, without the consent of any Securityholder. The
Seller or the Servicer, as the case may be, will remit the aggregate Repurchase
Amount of any Receivables to be repurchased from the related Trust into the
related Collection Account on or before the related Deposit Date. Pending
deposit into a Collection Account, collections may be invested by the Servicer
at its own risk and for its own benefit and will not be segregated from its own
funds. If the Servicer were unable to remit such funds, the related
Securityholders might incur a loss.
To the extent set forth in the related Prospectus Supplement, the Servicer
may, in order to satisfy the requirements described above, obtain a letter of
credit or other security for the benefit of the related Trust to
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secure timely remittances of collections on the related Receivables and payment
of the aggregate Repurchase Amount with respect to Receivables repurchased by
the Servicer.
PRE-FUNDING ACCOUNTS; MANDATORY PREPAYMENT OF SECURITIES
Pre-Funding Accounts. In connection with any Trust, the Servicer may
establish an account in the name of the related Indenture Trustee or Grantor
Trustee, as the case may be, for the benefit of the holders of Securities of the
related Series into which the Pre-Funded Amount will be deposited on the Closing
Date from the net proceeds received from the sale of the Securities and from
which monies will be applied during the Funding Period to purchase Subsequent
Receivables from the Seller (each, a "Pre-Funding Account"). Each Pre-Funding
Account will be maintained with the same entity at which the related Collection
Account is maintained. The Pre-Funding Account will be part of such Trust but
monies on deposit therein will not be available to cover losses on or in respect
of the related Receivables. Any portion of the Pre-Funded Amount remaining on
deposit in the Pre-Funding Account at the end of the related Funding Period will
be payable as described below as a prepayment of principal to the related
Securityholders. Monies on deposit in the Pre-Funding Account may be invested in
Permitted Investments under the circumstances and in the manner described in the
related Sale and Servicing Agreement or Pooling and Servicing Agreement, as the
case may be. Except as otherwise specified in the related Prospectus Supplement,
Investment Earnings on investment of funds in a Pre-Funding Account will be
deposited into the related Collection Account and shall be treated as
collections of interest on the related Receivables.
Upon each conveyance of Subsequent Receivables to a Trust, an amount equal
to the purchase price paid by the Seller to Fleetwood Credit for such Subsequent
Receivables on the related Subsequent Transfer Date will be withdrawn from the
Pre-Funding Account and paid to the Seller.
Mandatory Prepayment of the Securities. Unless otherwise provided in the
related Prospectus Supplement, the Securities of any Series as to which a
Pre-Funding Account has been established will be subject to a "Mandatory
Prepayment" on the Distribution Date immediately succeeding the date on which
the Funding Period ends (or on the Distribution Date on which the Funding Period
ends if the Funding Period ends on a Distribution Date), in the event that any
portion of the Pre-Funded Amount, exclusive of any investment earnings thereon,
remains on deposit in the Pre-Funding Account after giving effect to the
purchase by the Seller and conveyance to the related Trust of all Subsequent
Receivables on the related Subsequent Transfer Dates, including any such
purchase and conveyance on the date on which the Funding Period ends.
Upon the occurrence of any such Mandatory Prepayment, the holders of
Securities of each class of such Series may receive as a prepayment a portion of
the Pre-Funded Amount remaining in the Pre-Funding Account as specified in the
related Prospectus Supplement. Although each Pre-Funding Account will be funded
in an amount that the Seller anticipates will allow the related Trust to acquire
Subsequent Receivables during the Funding Period in an aggregate principal
amount equal to the Pre-Funded Amount, it is unlikely that the aggregate
principal amount of Subsequent Receivables sold to such Trust will exactly equal
the Pre-Funded Amount, and therefore it is likely that there will be at least a
nominal amount of principal prepaid to Securityholders.
YIELD SUPPLEMENT ACCOUNTS; YIELD SUPPLEMENT AGREEMENTS
Yield Supplement Accounts. Each Yield Supplement Account will be designed
solely to hold funds to be applied by the related Grantor Trustee or Owner
Trustee and Indenture Trustee to provide payments to Securityholders in respect
of Receivables the APR of which is less than the Required Rate. Each Yield
Supplement Account will be maintained with the same entity at which the related
Collection Account is maintained and, unless otherwise specified in the related
Prospectus Supplement, will be created with an initial deposit by Fleetwood
Credit of the Yield Supplement Initial Deposit.
On each Distribution Date, the related Indenture Trustee or Grantor Trustee
will transfer to the related Collection Account from monies on deposit in the
Yield Supplement Account an amount equal to the Yield Supplement Deposit Amount
in respect of the Receivables for such Distribution Date. Unless otherwise
specified in the related Prospectus Supplement, amounts on deposit on any
Distribution Date in the Yield
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Supplement Account in excess of the Maximum Yield Supplement Amount, after
giving effect to all distributions to be made on such Distribution Date, will be
released to the Seller. Monies on deposit in the Yield Supplement Account may be
invested in Permitted Investments under the circumstances and in the manner
described in the related Sale and Servicing Agreement or Pooling and Servicing
Agreement, as the case may be. Except as otherwise specified in the related
Prospectus Supplement, Investment Earnings on investment of funds in a Yield
Supplement Account will be deposited into such Yield Supplement Account. Unless
otherwise specified in the related Prospectus Supplement, any monies remaining
on deposit in a Yield Supplement Account upon the termination of the related
Trust pursuant to its terms shall be released to the Seller. Except as otherwise
specified in the related Prospectus Supplement, each Yield Supplement Accounts
will not be part of or otherwise includible in the related Trusts.
Yield Supplement Agreements. If a Yield Supplement Account is established
with respect to any Trust as to which a Pre-Funding Account has been
established, Fleetwood Credit, the Seller and the related Grantor Trustee or
Owner Trustee and Indenture Trustee, as the case may be, will enter into a Yield
Supplement Agreement to be dated as of the related Cutoff Date pursuant to
which, on each Transfer Date, Fleetwood Credit will deposit into the Yield
Supplement Account the Additional Yield Supplement Amount calculated as
described under "Summary -- Yield Supplement Accounts; Yield Supplement
Agreements" in respect of the related Receivables. Each Yield Supplement
Agreement will affect only Receivables having APRs less than the related
Required Rate.
CERTAIN PAYMENTS BY THE SERVICER
With respect to each Trust, on each Deposit Date, the Servicer will be
required, subject to the limitations set forth below, to advance to the related
Trust an amount equal to all accrued interest, if any, on the unpaid principal
balance of each related Receivable at the related APR since the most recent date
upon which a payment was made in respect of such Receivable by or on behalf of
the related Obligor through the last day of the related Collection Period (each,
an "Advance"). The obligation of the Servicer to make an Advance will be limited
to circumstances in which the Servicer, in its reasonable discretion, determines
such Advance will ultimately be reimbursable from subsequent payments made by or
on behalf of the related Obligor, from insurance proceeds, from liquidation
proceeds or otherwise, except in the case of the waiver by the Servicer of any
scheduled interest on a Receivable, in which case the Servicer shall be required
to make an Advance of such interest amount without the right of subsequent
reimbursement. In making Advances, the Servicer will endeavor to maintain
monthly payments of interest at the related Interest Rates or Pass-Through Rates
to Securityholders, rather than to guarantee or insure against losses.
Accordingly, all Advances (except such waivers of scheduled interest and
Non-Reimbursable Payments) shall be reimbursable to the Servicer, without
interest, if and when a payment relating to a Receivable with respect to which
an Advance has previously been made is subsequently received. In addition,
Advances in respect of a Receivable (other than a Receivable repurchased by the
Seller) as to which (i) a scheduled payment is 180 days delinquent or (ii) the
Servicer has determined that eventual payment in full is unlikely and has
repossessed and liquidated the related Financed Vehicle within such 180-day
period (each, a "Defaulted Receivable") shall also be reimbursable (except with
respect to such waivers of scheduled interest) to the Servicer from collections
on or in respect of other Receivables comprising part of the related Receivables
Pool to the extent that the Servicer determines that such Advance will not be
recoverable from payments made on or in respect of such Defaulted Receivable.
When a prepayment of principal is made on or in respect of a Receivable,
interest is paid on the unpaid principal balance of such Receivable only to the
date of such payment. To ensure that Securityholders will not be adversely
affected by any shortfall in interest resulting from any such payment, the
related Sale and Servicing Agreement or Pooling and Servicing Agreement, as the
case may be, will require the Servicer to deposit into the related Collection
Account on each Deposit Date, without the right of subsequent reimbursement,
such amount as may be necessary to assure that the distributions made on the
related Payment Date or Distribution Date in respect of such Receivable to the
related Securityholders include an amount equal to interest at a rate equal to
the Required Rate on the amount of such principal payment from
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the date of payment through the last day of the related Collection Period (each,
a "Non-Reimbursable Payment").
The Servicer will remit to the related Collection Account an amount equal
to each Advance and Non-Reimbursable Payment to be made in respect of a
Collection Period not later than the related Deposit Date.
NET DEPOSITS
Unless otherwise specified in the related Prospectus Supplement, for
administrative convenience and with respect to each Trust, the Servicer will be
permitted to make deposits of collections, Advances, Non-Reimbursable Payments
and Repurchase Amounts for or in respect of each Collection Period net of
distributions to be made to the Servicer with respect to such Collection Period.
The Servicer, however, will account to each Trustee and to the related
Securityholders as if all deposits and distributions were made individually.
SERVICING COMPENSATION
Unless otherwise specified in the related Prospectus Supplement, with
respect to each Trust the Servicer will be entitled to receive, out of interest
collected on or in respect of the related Receivables, the Servicing Fee for
each Collection Period equal to one-twelfth of the product of the Servicing Fee
Rate, which, except as otherwise specified in the related Prospectus Supplement
will equal 1.0%, and the Pool Balance as of the first day of such Collection
Period. The Servicing Fee will be calculated and paid based upon a 360-day year
consisting of twelve 30-day months. The Servicer will also collect and retain
any late fees, prepayment charges and other administrative fees or similar
charges allowed by applicable law with respect to the Receivables.
The Servicing Fee will compensate the Servicer for performing the functions
of a third party servicer of recreational vehicle receivables as an agent for
the related Trust, including collecting and posting all payments, responding to
inquiries of Obligors on the Receivables, investigating delinquencies, sending
payment statements and reporting tax information to Obligors, paying costs of
disposition of Defaulted Receivables and policing the collateral. The Servicing
Fee payable with respect to any Trust also will compensate the Servicer for
administering the related Receivables Pool, including making Advances and
Non-Reimbursable Payments, accounting for collections, furnishing monthly and
annual statements to the Grantor Trustee or Owner Trustee and Indenture Trustee,
as the case may be, with respect to distributions, generating federal income tax
information and paying certain taxes, accounting fees, outside auditor fees,
data processing costs and other costs incurred in connection with administering
the related Receivables.
DISTRIBUTIONS ON THE SECURITIES
With respect to each Series of Securities, beginning on the Payment Date or
Distribution Date specified in the related Prospectus Supplement, distributions
of principal and interest (or, where applicable, in respect of principal only or
interest only) on each class of Securities entitled thereto will be made by the
related Trustee (or paying agent) to the Noteholders and the Certificateholders,
respectively, of such Series. The timing, calculation, allocation, order,
source, priorities of and requirements for all distributions to each class of
Owner Securities and Grantor Certificates will be set forth in the related
Prospectus Supplement.
With respect to each Owner Trust, on each Payment Date or Distribution
Date, as applicable, collections on or in respect of the related Receivables
will be transferred from the Owner Collection Account to the Note Distribution
Account and Certificate Distribution Account for distribution to the Noteholders
and Owner Certificateholders to the extent provided in the related Prospectus
Supplement. With respect to each Grantor Trust, on each Distribution Date
distributions to the related Certificateholders will be made from the Grantor
Collection Account directly. Credit enhancement, such as a Reserve Fund, will be
available to cover any shortfalls in the amount available for distribution on
such date to the related Securityholders to the extent specified in the related
Prospectus Supplement. As more fully described in the related Prospectus
Supplement, and unless otherwise specified therein, distributions in respect of
principal of a class of Securities of a Series will be subordinated to
distributions in respect of interest on such class, distributions in respect of
one or more classes of Owner Certificates may be subordinated to payments in
respect of the Notes of such
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Series and distributions in respect of principal of any class of Subordinated
Certificates will be subordinated to distributions in respect of interest and
principal of the related Senior Certificates.
CREDIT AND CASH FLOW ENHANCEMENT
The amounts and types of any credit enhancement arrangements and the
provider thereof, if applicable, with respect to each class of Securities of a
Series will be set forth in the related Prospectus Supplement. To the extent
provided in the related Prospectus Supplement, credit enhancement may be in the
form of subordination of one or more classes of Securities, Reserve Funds, Cash
Collateral Accounts, Spread Accounts, letters of credit, surety bonds, insurance
policies, over-collateralization, credit or liquidity facilities, surety bonds,
guaranteed investment contracts, swaps or other interest rate protection
agreements, repurchase obligations, other agreements with respect to third party
payments or other support, cash deposits or such other arrangements as may be
described in the related Prospectus Supplement, or any combination of the
foregoing. If specified in the applicable Prospectus Supplement, credit
enhancement for a class of Securities may cover one or more other classes of
Securities of the same Series, and credit enhancement for a Series of Securities
may cover one or more other Series of Securities. The type, characteristics and
amount of the credit enhancement with respect to any Series or class of
Securities will be determined based on several factors, including the
characteristics of the related Receivables Pool as of the related Cutoff Date,
and will be established on the basis of the requirements of each applicable
Rating Agency.
If credit enhancement is provided with respect to Securities of any Series,
the related Prospectus Supplement will include a description of (i) the amount
payable thereunder; (ii) any conditions to payment thereunder not otherwise
described herein; (iii) the conditions (if any) under which the amount payable
thereunder may be reduced, terminated or replaced; (iv) any material provisions
of any agreement relating to the credit enhancement; and (v) certain descriptive
information with respect to any third-party provider of credit enhancement. If
so described in the related Prospectus Supplement, credit enhancement with
respect to a Series of Securities may be available to pay principal of any class
of Securities of such Series following the occurrence of certain Events of
Default or Servicer Defaults with respect to such Securities. In such event, the
provider of such credit enhancement may have an interest in certain cash flows
from the related Receivables to the extent described in such Prospectus
Supplement and may be entitled to the benefit of the related Trust's interest in
such Receivables. Unless otherwise provided in the related Prospectus
Supplement, such interests will be subordinated to the interests of the related
Securityholders.
The presence of a Reserve Fund or other form of credit enhancement is
intended to enhance the likelihood of receipt by the Securityholders of such
class or Series of the full amount of principal or interest due thereon and to
decrease the likelihood that such Securityholders will experience losses. Unless
otherwise specified in the related Prospectus Supplement, the credit enhancement
for a class or Series of Securities will not provide protection against all
risks of loss and will not guarantee repayment of all principal and interest
thereon. If losses occur which exceed the amount covered by such credit
enhancement or which are not covered by such credit enhancement, such
Securityholders will bear their allocable share of such losses, as described in
the related Prospectus Supplement. In addition, if a form of credit enhancement
covers more than one Series of Securities, Securityholders of any such Series
will be subject to the risk that such credit enhancement may be exhausted by the
claims of Securityholders of other Series.
Subordination. If so specified in the related Prospectus Supplement, one or
more classes of Owner Securities may be subordinated to one or more other
classes of Owner Securities of such Series. If a Grantor Trust issues two or
more classes of Grantor Certificates, the Subordinated Grantor Certificates of
such Series will be subordinated to the related Senior Grantor Certificates. The
rights of the holders of subordinated Securities to receive distributions of
principal or interest on any Payment Date or Distribution Date will be
subordinated to the rights of the holders of the Securities which are senior to
such Securities to the extent set forth in the related Prospectus Supplement.
Such subordination may be limited in amount and may not be available to cover
certain types of losses. The related Prospectus Supplement will also set forth
information concerning the amount of subordination of any class or classes of
Securities in a Series, the circumstances under which the subordination will be
applicable, the manner, if any, in which the amount of subordination will
decrease over time and the conditions under which amounts available from
payments that
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would otherwise be made to holders of the subordinated Securities will be
distributed to holders of Securities which are senior thereto. Generally, the
amount of subordination available will be decreased by the amounts which are
otherwise payable to the holders of subordinated Securities and are paid to the
holders of the Securities which are senior thereto.
Reserve Fund. If so provided in the related Prospectus Supplement, pursuant
to the related Sale and Servicing Agreement or Pooling and Servicing Agreement,
as the case may be, the Seller will establish for any Series or one or more
classes of Securities of such Series an account (the "Reserve Fund"), which will
be maintained with the applicable Indenture Trustee or Grantor Trustee, as the
case may be. Unless otherwise provided in the related Prospectus Supplement, the
Reserve Fund will be maintained with the same entity at which the related
Collection Account is maintained and will be funded by an initial deposit by the
Seller on the related Closing Date in the amount specified in the related
Prospectus Supplement, if any. The amount on deposit in each Reserve Fund will
be increased on each Payment Date or Distribution Date up to the balance
specified in the related Prospectus Supplement by the deposit therein of
collections on or in respect of the related Receivables remaining on each such
Payment Date or Distribution Date after all other required payments and
distributions have been made. The related Prospectus Supplement will describe
the circumstances and manner under which distributions may be made out of the
Reserve Fund, to holders of the Securities covered thereby, to the Servicer or
to the Seller. Upon any distribution to the Servicer or Seller of amounts from
the Reserve Fund, the related Securityholders will not have any rights in, or
claims to, such amount. Each Reserve Fund will be a segregated trust account
held by the related Indenture Trustee or Grantor Trustee, as the case may be,
for the benefit of the holders of the class or classes of Securities specified
therein. Unless otherwise specified in the related Prospectus Supplement, the
Reserve Fund will be a part of the related Owner Trust but will not be a part of
or otherwise includible in the related Grantor Trust.
Letter of Credit. If so specified in the related Prospectus Supplement,
credit enhancement may be provided with respect to any Series or class of
Securities in the form of a letter of credit issued by a bank or financial
institution specified in such Prospectus Supplement (the "LOC Issuer"). Subject
to the terms and conditions specified in the related Prospectus Supplement, the
LOC Issuer will be obligated to honor drawings under a letter of credit in an
aggregate dollar amount (which may be fixed or may be reduced as described in
the related Prospectus Supplement), net of unreimbursed payments thereunder,
equal to the amount described in the related Prospectus Supplement. The amount
available under any letter of credit will be reduced to the extent of the
unreimbursed payments thereunder. A letter of credit may not cover all types of
losses.
Cash Collateral Account. If so specified in the related Prospectus
Supplement, the Securities of any class or Series may have the benefit of a cash
collateral account (each, a "Cash Collateral Account"). Unless otherwise
specified in the related Prospectus Supplement, a Cash Collateral Account with
respect to the Securities of any class or Series will be maintained with the
same entity at which the related Collection Account is located and will be
funded in full on the related Closing Date and the funds on deposit therein may
be invested in Permitted Investments. The amount available to be withdrawn from
a Cash Collateral Account will be the lesser of the amount on deposit in the
Cash Collateral Account and the amount specified in the Prospectus Supplement.
The related Prospectus Supplement will set forth the circumstances under which
withdrawals will be made from the Cash Collateral Account.
Spread Account. If so specified in the related Prospectus Supplement,
support for the Securities of any Series or class of Securities may be provided
by the periodic deposit of certain available excess cash flows from the related
Receivables Pool into an account (the "Spread Account") maintained with the same
entity at which the Collection Account is located. Funds on deposit from time to
time in a Spread Account are intended to assure the subsequent distributions of
interest and principal on such Securities in the manner specified in the related
Prospectus Supplement.
Surety Bond or Insurance Policy. If so specified in the related Prospectus
Supplement, a surety bond or insurance policy may be purchased for the benefit
of the holders of the Securities of any Series or class to assure distributions
of interest or principal with respect to such Securities in the manner and
amount specified in such Prospectus Supplement.
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STATEMENTS TO SECURITYHOLDERS
Unless otherwise provided in the related Prospectus Supplement, with
respect to each Series of Securities, on or prior to each Payment Date or
Distribution Date, the Servicer will prepare and forward to the related Trustee
to be included with each distribution to each Securityholder of record a
statement, setting forth for the related Collection Period, among other things,
the following information:
(i) the amount of the distribution allocable to principal on each
class of Securities of such Series;
(ii) the amount of the distribution allocable to interest on each
class of Securities of such Series;
(iii) the Securityholder's pro rata portion of the applicable
Servicing Fee and any additional servicing compensation paid to the
Servicer allocable to each class of Securities of such Series;
(iv) the Pool Balance and the Pool Factor applicable to each class of
Securities of such Series as of the related Record Date;
(v) the aggregate amount of unreimbursed Advances and the change in
such amount from the immediately preceding Collection Period;
(vi) the amount, if any, of proceeds received during the related
Collection Period in connection with any physical damage insurance policies
covering Financed Vehicles;
(vii) the amount, if any, of proceeds received during the related
Collection Period from Dealer or Seller repurchase obligations relating to
Defaulted Receivables or defective Receivables or Servicer repurchase
obligations relating to Receivables in respect of which certain servicing
covenants have been breached;
(viii) the amount, if any, distributed to Securityholders from any
Reserve Fund or other form of credit enhancement;
(ix) the balance of any Reserve Fund, letter of credit, Cash
Collateral Account or Spread Account established with respect to such
Series, expressed as a percentage of the Pool Balance and, in the event the
amount on deposit in each such account or the outstanding amount available
under such letter of credit has been reduced to zero, the number and
aggregate dollar amount of Defaulted Receivables;
(x) the amount of any shortfall in interest or principal distributions
on such Payment Date or Distribution Date, as applicable, and any change in
such shortfalls from the preceding Payment Date or Distribution Date;
(xi) the outstanding Principal Amount of each class of Notes and
Certificate Balance of each class of Owner Certificates or Grantor
Certificates, as the case may be, of such Series as of such Record Date,
after giving effect to payments allocated to principal reported under
clause (i) above;
(xii) the Interest Rate with respect to each class of Notes and the
Pass-Through Rate with respect to each class of Owner Certificates or
Grantor Certificates, as the case may be, of such Series in effect for the
next period, if such Securities have variable or adjustable Interest Rates
or Pass-Through Rates;
(xiii) the aggregate amount of realized losses in respect of
Receivables which became Defaulted Receivables during the related
Collection Period, if any, as of such Record Date and the change in such
amount from the immediately preceding Record Date;
(xiv) the amount otherwise distributable to any class of subordinated
Securities that is instead being distributed to any class of senior
Securities of such Series on such Distribution Date;
(xv) with respect to any Series of Securities as to which a
Pre-Funding Account has been established, for Payment Dates or Distribution
Dates during the Funding Period, the remaining Pre-Funded Amount on deposit
in the Pre-Funding Account, the amount, if any, withdrawn to purchase
Subsequent Receivables or the amount of any other reduction in the amount
on deposit therein during such Collection Period and the amount of any
Additional Yield Supplement Amounts deposited into the
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Yield Supplement Account in respect of Subsequent Receivables transferred
to the Trust during the related Collection Period;
(xvi) with respect to any Trust as to which a Yield Supplement Account
has been established, the Yield Supplement Amount, the Yield Supplement
Deposit Amount and the amount on deposit in the Yield Supplement Account
after giving effect to distributions made on such Distribution Date;
(xvii) for the Payment Date or Distribution Date that is or
immediately follows the end of the Funding Period, if any, the amount of
the Pre-Funded Amount that has not been used to purchase Subsequent
Receivables and is being or will be distributed as a prepayment of
principal to Securityholders; and
(xviii) such other information as may be specified in the related
Prospectus Supplement.
Items (i), (ii) and (iii) above will be expressed as a dollar amount per
Security with a denomination of $1,000. In addition, within the prescribed
period of time for tax reporting purposes after the end of each calendar year
during the term of each Trust, the related Trustee will mail to each Person who
at any time during such calendar year shall have been a registered
Securityholder a statement containing certain information for the purposes of
such Securityholder's preparation of federal income tax returns. See "Certain
Federal Income Tax Consequences".
EVIDENCE AS TO COMPLIANCE
The Owner Certificates and the Grantor Certificates. Each Sale and
Servicing Agreement or Pooling and Servicing Agreement will provide that a firm
of independent public accountants will furnish to the related Grantor Trustee or
Owner Trustee, as the case may be, on or before April 30 of each year a
statement as to compliance by the Servicer during the preceding 12 months ended
December 31 (or shorter period in the case of the first such statement) with
certain standards relating to the servicing of the related Receivables.
Each Sale and Servicing Agreement or Pooling and Servicing Agreement will
also provide for delivery to the related Grantor Trustee or Owner Trustee, as
the case may be, on or before April 30 of each year, of a certificate signed by
an officer of the Servicer stating that the Servicer has fulfilled its
obligations under the related Sale and Servicing Agreement or Pooling and
Servicing Agreement throughout the preceding 12 months ended December 31 (or
shorter period in the case of the first such statement) or, if there has been a
default in the fulfillment of any such obligation, describing each such default.
The Notes. Each Owner Trust will be required to file annually with the
related Indenture Trustee a written statement as to the fulfillment of its
obligations under the related Indenture.
The Indenture Trustee for each Owner Trust will be required to mail each
year to all related Noteholders a brief report relating to its eligibility and
qualification to continue as Indenture Trustee under the related Indenture, any
amounts advanced by it under such Indenture, the amount, interest rate and
maturity date of certain indebtedness owing by such Trust to the applicable
Indenture Trustee in its individual capacity, the property and funds physically
held by such Indenture Trustee as such and any action taken by it that
materially affects the related Notes and that has not been previously reported.
Copies of the foregoing statements and certificates may be obtained by
Securityholders by a request in writing addressed to the related Trustee.
CERTAIN MATTERS REGARDING THE SERVICER
Each Sale and Servicing Agreement or Pooling and Servicing Agreement will
provide that the Servicer may not resign from its obligations and duties as
Servicer thereunder, except upon determination that its performance of such
duties is no longer permissible under applicable law. No such resignation will
become effective until the related Indenture Trustee, Owner Trustee or Grantor
Trustee, as the case may be, or a successor servicer has assumed the Servicer's
servicing obligations and duties under the related Sale and Servicing Agreement
or Pooling and Servicing Agreement.
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Unless otherwise provided in the related Prospectus Supplement, each Sale
and Servicing Agreement and Pooling and Servicing Agreement will further provide
that neither the Servicer nor any of its directors, officers, employees and
agents will be under any liability to the related Trust or Securityholders for
taking any action or for refraining from taking any action pursuant to the
related Sale and Servicing Agreement or Pooling and Servicing Agreement;
provided, however, that neither the Servicer nor any such person will be
protected against any liability that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations and duties thereunder. The Servicer
will be under no obligation to appear in, prosecute or defend any legal action
that is not incidental to its servicing responsibilities under the related Sale
and Servicing Agreement or Pooling and Servicing Agreement and that, in its
opinion, may cause it to incur any expense or liability.
Any corporation into which the Servicer may be merged or consolidated, or
any corporation resulting from any merger or consolidation to which the Servicer
is a party, or any corporation succeeding to all or substantially all of the
business of the Servicer, which corporation assumes the obligations of the
Servicer, will be the successor to the Servicer under the related Sale and
Servicing Agreement or Pooling and Servicing Agreement.
SERVICER DEFAULTS
Unless otherwise provided in the related Prospectus Supplement, a "Servicer
Default" under each Sale and Servicing Agreement or Pooling and Servicing
Agreement will consist of: (i) any failure by the Servicer (or the Seller, so
long as Fleetwood Credit is the Servicer) to deliver to the related Trustee as
required by such agreement for distribution to the Securityholders any required
payment, or any failure by the Servicer to deliver a Servicer's Certificate with
respect to any Payment Date or Distribution Date, which failure continues
unremedied for three Business Days after discovery by an officer of the Servicer
(or the Seller, so long as Fleetwood Credit is the Servicer), or written notice
of such failure is given (a) to the Servicer or the Seller, as the case may be,
by the related Trustee or (b) to the Seller or the Servicer, as the case may be,
and to the related Trustee by, in the case of an Owner Trust, holders of Notes
evidencing not less than 25% of the voting interests thereof, voting together as
a single class, or, if the Notes have been paid in full, by the holders of Owner
Certificates evidencing not less than 25% of the voting interests thereof,
voting together as a single class, and, in the case of a Grantor Trust by the
holders of Grantor Certificates evidencing not less than 25% of the voting
interests of such Grantor Certificates, voting together as a single class; (ii)
any failure by the Servicer (or the Seller, so long as Fleetwood Credit is the
Servicer) duly to observe or perform in any material respect any covenant or
agreement in the related Sale and Servicing Agreement or Pooling and Servicing
Agreement which failure materially and adversely affects the rights of
Securityholders and which continues unremedied for 60 days after the giving of
written notice of such failure is given as described in clause (i) above; and
(iii) certain events of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings and certain actions
by the Servicer (or the Seller, so long as Fleetwood Credit is the Servicer)
indicating its insolvency, reorganization pursuant to bankruptcy proceedings or
inability to pay its obligations (each, an "Insolvency Event").
RIGHTS UPON SERVICER DEFAULT
Unless otherwise provided in the related Prospectus Supplement, as long as
a Servicer Default remains unremedied, (i) in the case of an Owner Trust, the
related Indenture Trustee or holders of Notes of the related Series representing
not less than 51% of the voting interests thereof (or, if the Notes have been
paid in full and the Indenture has been discharged in accordance with its terms,
by the Owner Trustee or holders of Owner Certificates evidencing not less than
51% of the voting interests thereof), voting together as a single class, or (ii)
in the case of a Grantor Trust, the related Grantor Trustee or holders of
Grantor Certificates evidencing not less than 51% of the voting interests
thereof, voting together as a single class, may terminate all the rights and
obligations of the Servicer under the related Sale and Servicing Agreement or
Pooling and Servicing Agreement, whereupon such Indenture Trustee or Grantor
Trustee, as the case may be, will succeed, without further action, to all the
responsibilities, duties and liabilities of the Servicer in its capacity as such
under such agreement and will be entitled to similar compensation arrangements.
If, however, a
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bankruptcy trustee or similar official has been appointed for the Servicer, and
no Servicer Default other than such appointment has occurred, such trustee or
official may have the power to prevent the Indenture Trustee or the Noteholders
(or Owner Certificateholders) or the Grantor Trustee or the Grantor
Certificateholders, as the case may be, from effecting a transfer of servicing.
In the event that the related Indenture Trustee or Grantor Trustee is unwilling
or unable so to act, it may appoint or petition a court of competent
jurisdiction to appoint a successor with a net worth of at least $100,000,000
and whose regular business includes the servicing of recreational vehicle or
motor vehicle receivables. The Indenture Trustee or Grantor Trustee, as the case
may be, may make such arrangements for compensation to be paid, which in no
event may be greater than the servicing compensation paid to the Servicer under
the related Sale and Servicing Agreement or Pooling and Servicing Agreement.
Notwithstanding such termination, the Servicer shall be entitled to payment of
certain amounts payable to it prior to such termination, for services rendered
prior to such termination.
WAIVER OF PAST DEFAULTS
Unless otherwise provided in the related Prospectus Supplement, in the case
of (i) each Owner Trust, the holders of related Notes evidencing not less than
51% of the voting interests thereof (or, if all of the Notes have been paid in
full and the Indenture has been discharged in accordance with its terms, the
holders of related Owner Certificates evidencing not less than 51% of the voting
interests thereof), voting together as a single class, or (ii) each Grantor
Trust, holders of Grantor Certificates evidencing not less than 51% of the
voting interest thereof, voting together as a single class, may, on behalf of
all such Securityholders, waive any default by the Servicer in the performance
of its obligations under the related Sale and Servicing Agreement or Pooling and
Servicing Agreement, as the case may be, and its consequences, except a default
in making any required deposits to or payments from the related Trust Accounts
in accordance with such agreement or in respect of a covenant or provision of
such agreement that cannot be modified or amended without the consent of each
Securityholder (in which event the related waiver will require the approval of
holders of all of the Securities of such Series). No such waiver will impair the
Securityholders' rights with respect to subsequent Servicer Defaults.
Except as otherwise provided in the related Prospectus Supplement, the
"voting interests" of each Series of (i) Notes will be allocated among the
Noteholders or related Security Owners, as the case may be, in accordance with
the unpaid principal amount of the related Notes; (ii) Owner Certificates will
be allocated among the Owner Certificateholders or related Security Owners, as
the case may be, in accordance with the Certificate Balance represented thereby;
and (iii) Grantor Certificates will be allocated among the Grantor
Certificateholders or related Security Owners, as the case may be, in accordance
with the Certificate Balance represented thereby; except that in certain
circumstances any Securities held by the Seller, the Servicer (so long as
Fleetwood Credit is the Servicer) or any of their respective affiliates shall be
excluded from such determination.
AMENDMENT
Amendment of the Trust Agreements and Pooling and Servicing Agreements.
Unless otherwise specified in the related Prospectus Supplement, each Trust
Agreement and Pooling and Servicing Agreement may be amended without the consent
of the related Owner Certificateholders or Grantor Certificateholders, as the
case may be, to cure any ambiguity, correct or supplement any provision therein
which may be inconsistent with any other provision therein, to add any other
provisions with respect to matters or questions arising under such agreement
which are not inconsistent with the provisions thereof, to add or provide for
any credit enhancement for any class of Securities of the related Series or to
permit certain changes with respect to the amount required to be maintained on
deposit in the Reserve Fund or any Servicer Letter of Credit, if any; provided,
that any such action will not, in the opinion of counsel satisfactory to the
related Owner Trustee or Grantor Trustee, as the case may be, materially and
adversely affect the interests of any such Securityholder; and provided further,
that in the case of a change with respect to the amount required to be
maintained on deposit in any Reserve Fund or Servicer Letter of Credit the Owner
Trustee or the Grantor Trustee, as the case may be, receives a letter from each
applicable Rating Agency to the effect that its then-current rating on
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any class of Securities of the related Series will not be qualified, reduced or
withdrawn due to such amendment.
Unless otherwise specified in the related Prospectus Supplement, each Trust
Agreement and Pooling and Servicing Agreement may also be amended from time to
time with the consent of the holders of Owner Certificates or Grantor
Certificates, as the case may be, evidencing not less than 51% of the voting
interests thereof, voting together as a single class, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of such agreement or of modifying in any manner the rights of the related
Securityholders of each class of such Series; provided, that no such amendment
may (i) except as described above, increase or reduce in any manner the amount
of or accelerate or delay the timing of collections of payments on or in respect
of the Receivables or distributions on the Notes or the Certificates or (ii)
reduce the aforesaid percentage of the voting interests of which the holders of
any class of Securities of such Series are required to consent to any such
amendment, without the consent of the holders of all of the relevant class of
Securities.
Amendment of the Indentures. Unless otherwise specified in the related
Prospectus Supplement with respect to a Series of Notes, each Owner Trust and
related Indenture Trustee (on behalf of such Owner Trust) may, without consent
of the related Noteholders, enter into one or more supplemental indentures for
any of the following purposes: (i) to correct or amplify the description of the
collateral or to add additional collateral; (ii) to provide for the assumption
of the Notes and the Indenture obligations by a permitted successor to the Owner
Trust; (iii) to add additional covenants for the benefit of the related
Noteholders and Owner Certificateholders, or to surrender any rights or powers
conferred upon the Owner Trust; (iv) to convey, transfer, assign, mortgage or
pledge any property to the Indenture Trustee; (v) to cure any ambiguity or
correct or supplement any provision in the Indenture or in any supplemental
indenture which may be inconsistent with any other provision in the Indenture,
any supplemental indenture or any Transfer and Servicing Agreement or certain
other agreements, provided that such action shall not adversely affect the
holders of the Notes; (vi) to provide for the acceptance of the appointment of a
successor Indenture Trustee or to add to or change any of the provisions of the
Indenture as shall be necessary and permitted to facilitate the administration
by more than one trustee; (vii) to modify, eliminate or add to the provisions of
the Indenture in order to comply with the Trust Indenture Act of 1939, as
amended; and (viii) to add any provisions to, change in any manner, or eliminate
any of the provisions of, the Indenture or modify in any manner the rights of
Noteholders under such Indenture; provided that any action specified in clause
(viii) shall not, as evidenced by any opinion of counsel, adversely affect in
any material respect the interests of any related Noteholder unless such
Noteholder's consent is otherwise obtained as described below.
Unless otherwise specified in the related Prospectus Supplement with
respect to a Series of Notes, each Owner Trust and related Indenture Trustee (on
behalf of such Owner Trust) may, with the consent of the Holders of the related
Notes evidencing not less than a majority of the voting interests thereof,
voting together as a single class, enter into one or more supplemental
indentures for the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, the related Indenture, or of
modifying in any manner the rights of the Holders of the related Notes
thereunder; provided, however, that no such supplemental indenture shall without
the consent of the holder of each such outstanding Note affected thereby, among
other things: (i) change the due date of any installment of principal of or
interest on any such Note or reduce the principal amount thereof, the interest
rate specified thereon (or the method by which such interest is calculated) or
the redemption price with respect thereto or change any place of payment where
or the coin or currency in which any such Note or any interest thereon is
payable; (ii) impair the right to institute suit for the enforcement of certain
provisions of the related Indenture regarding payment; (iii) reduce the
percentage of the aggregate amount of the outstanding Notes of such Series, the
consent of the holders of which is required for any such supplemental indenture
or the consent of the holders of which is required for any waiver of compliance
with certain provisions of the related Indenture or of certain defaults
thereunder and their consequences as provided for in such Indenture; (iv) modify
or alter the provisions of the related Indenture regarding the voting of Notes
held by the applicable Owner Trust, any other obligor on such Notes, the Seller
or any of their respective affiliates; (v) reduce the percentage of the voting
interests of such Notes, the consent of the holders of which is required to
direct the related Indenture Trustee to sell or liquidate the
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Receivables if the proceeds of such sale would be insufficient to pay the
principal amount and accrued but unpaid interest on the outstanding Notes of
such Series; (vi) decrease the percentage of the voting interests of such Notes
required to amend the provisions of the related Indenture which specify the
applicable percentage of voting interests of the Notes of such Series necessary
to amend such Indenture or certain other related agreements; or (vii) permit the
creation of any lien ranking prior to or on a parity with the lien of the
related Indenture with respect to any of the collateral for such Notes or,
except as otherwise permitted or contemplated in such Indenture, terminate the
lien of such Indenture on any such collateral or deprive the holder of any such
Note of the security afforded by the lien of such Indenture.
LIST OF SECURITYHOLDERS
Unless otherwise provided in the related Prospectus Supplement, upon the
written request of the Servicer, the related Owner Trustee, Indenture Trustee or
Grantor Trustee (or a registrar appointed thereby), as registrar of a class of
Securities, will provide to the Servicer within 15 days after receipt of such
request, a list of the names and addresses of all Securityholders of such Class.
In addition, three or more holders of such Securities or holders of Securities
evidencing not less than 25% of the voting interests of such class, upon
compliance by such Securityholders with certain provisions of the related Trust
Agreement, Indenture or Pooling and Servicing Agreement may request that such
registrar afford such Securityholders access during business hours to the
current list of Securityholders of Securities of the related Series for purposes
of communicating with other Securityholders with respect to their rights under
such Trust Agreement, Indenture or Pooling and Servicing Agreement.
Unless otherwise provided in the related Prospectus Supplement, each Trust
Agreement, Indenture and Pooling and Servicing Agreement will not provide for
the holding of any annual or other meetings of Securityholders.
OWNER TRUST; INSOLVENCY EVENT
Unless otherwise provided in the related Prospectus Supplement, with
respect to any Owner Trust, if an Insolvency Event occurs with respect to the
Seller, the Receivables comprising the related Receivables Pool will be
liquidated and such Owner Trust will be terminated 90 days after the date of
such Insolvency Event, unless, before the end of such period, the Owner Trustee
shall have received written instructions from (i) holders of the Owner
Certificates representing more than 51% of the voting interests thereof, voting
together as a single class, and (ii) holders of Notes representing more than 51%
of the voting interests thereof, voting together as a single class, to the
effect that each such party disapproves of the liquidation of such Receivables
and termination of such Owner Trust. Promptly after the occurrence of an
Insolvency Event with respect to the Seller, notice thereof is required to be
given to the related Owner Securityholders; provided, that any failure to give
such notice will not prevent or delay termination of such Owner Trust. Upon any
such termination of an Owner Trust, the related Owner Trustee shall direct the
related Indenture Trustee promptly to sell the assets of such Owner Trust (other
than the Certificate Distribution Account and any other Trust Account relating
solely to the Owner Certificates of such Series) in a commercially reasonable
manner and on commercially reasonable terms. The proceeds from any such sale,
disposition or liquidation of the Receivables of such Owner Trust will be
treated as collections on such Receivables and deposited in the related
Collection Account. With respect to any Owner Trust, if the proceeds from the
liquidation of the related Receivables and any amounts on deposit in the related
Trust Accounts are not sufficient to pay the related Notes and Owner
Certificates in full, the amount of principal returned to the holders thereof
will be reduced in the manner provided in the related Trust Agreement and
Indenture and some or all of the related Owner Securityholders will incur a
loss.
With respect to each Owner Trust, each Trust Agreement will provide that
the Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy with respect to the related Owner Trust without the unanimous prior
approval of all related Owner Certificateholders (including the Seller) and the
delivery to such Owner Trustee of a certificate certifying that each such Owner
Certificateholder reasonably believes that such Owner Trust is insolvent.
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TERMINATION
Unless otherwise specified in the related Prospectus Supplement, the
obligations of the Servicer, the Seller and any Owner Trustee, Indenture Trustee
or Grantor Trustee with respect to the related Securityholders pursuant to the
related Trust Agreement, Indenture or Pooling and Servicing Agreement, as the
case may be, will terminate upon the earliest to occur of (i) the maturity or
other liquidation of the last Receivable in the related Receivables Pool and the
disposition of any amounts received upon liquidation of any property remaining
in the related Trust, (ii) the payment to such Securityholders of all amounts
required to be paid to them pursuant to such agreement and (iii) the occurrence
of either event described below.
Unless otherwise specified in the related Prospectus Supplement, in order
to avoid excessive administrative expenses, the Seller or the Servicer (or any
successor to the Servicer) will be permitted at its option to purchase from any
Trust all remaining Receivables in the related Receivables Pool at a price equal
to the aggregate Repurchase Amounts for the Receivables (including Defaulted
Receivables), plus the appraised value of any other property then held by such
Trust (less liquidation expenses), on any Distribution Date following a Record
Date as of which the related Pool Balance is less than or equal to 10% of the
sum of the Original Pool Balance and, with respect to any Trust as to which a
Pre-Funding Account has been established, the aggregate principal balance of all
Subsequent Receivables conveyed to such Trust as of the related Subsequent
Cutoff Dates. In the event that both the Seller and the Servicer, or any
successor to the Servicer, elect to purchase the Receivables, the party first so
notifying the related Owner Trustee or Grantor Trustee (based on such Trustee's
receipt of such notice) shall be permitted to purchase the Receivables.
If and to the extent provided in the related Prospectus Supplement, within
ten days following a Record Date as of which the related Pool Balance is less
than or equal to the percentage specified in such Prospectus Supplement of the
sum of the Original Pool Balance and, with respect to any Trust as to which a
Pre-Funding Account has been established, the aggregate principal balance of all
Subsequent Receivables conveyed to such Trust as of the related Subsequent
Cutoff Dates, the related Owner Trustee or Grantor Trustee, as the case may be,
shall solicit bids for the purchase of the Receivables remaining in such Trust.
In the event that satisfactory bids are received as described below, the sale
proceeds will be distributed to Securityholders on the Payment Date or
Distribution Date specified in the related Prospectus Supplement. Any purchaser
of the Receivables must agree to the continuation of Fleetwood Credit as
Servicer on terms substantially similar to those in the related Sale and
Servicing Agreement or Pooling and Servicing Agreement, as the case may be.
The related Owner Trustee or Grantor Trustee, as the case may be, must
solicit bids for the purchase of the Receivables and other property then held in
such Trust in the manner and subject to the terms and conditions set forth in
the related Prospectus Supplement. If such Trustee receives satisfactory bids as
described in such Prospectus Supplement, then the Receivables remaining in such
Trust will be sold to the highest bidder and the Securities of such Series shall
be retired on such Distribution Date. If any of the foregoing conditions are not
met, such Trustee shall decline to consummate such sale and shall not be under
any obligation to solicit any further bids or otherwise negotiate any further
sale of Receivables remaining in such Trust. In such event, however, the
applicable Trustee may from time to time solicit bids in the future for the
purchase of such Receivables upon the same terms described above.
The related Owner Trustee and Indenture Trustee or Grantor Trustee, as the
case may be, will give written notice of termination to each related
Securityholder of record. The final distribution to each related Securityholder
will be made only upon surrender and cancellation of such holder's Securities at
the office or agency of such Trustee specified in the notice of termination. Any
funds remaining in such Trust, after such Trustee has taken certain measures to
locate a Securityholder and such measures have failed, will be distributed to
the United Way.
As more fully described in the related Prospectus Supplement, in the case
of (i) an Owner Trust, any outstanding Notes of the related Series will be
redeemed concurrently with either of the events specified above, and the
subsequent distribution to the related Owner Certificateholders of all amounts
required to be distributed to them pursuant to the related Trust Agreement will
effect early retirement of the Owner Certificates of such Series and (ii) a
Grantor Trust, the distribution to the related Grantor Certificateholders
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of all amounts required to be distributed to them pursuant to the related
Pooling and Servicing Agreement will effect early retirement of the Grantor
Certificates of such Series.
PAYMENT IN FULL OF NOTES
Except as otherwise provided in the related Prospectus Supplement, upon the
payment in full of all outstanding Notes of a given Series and the satisfaction
and discharge of the related Indenture, the related Owner Trustee will succeed
to all the rights of the Indenture Trustee, and the Owner Certificateholders of
such Series will succeed to all the rights of the Noteholders of such Series,
under the related Sale and Servicing Agreement, except as otherwise provided
therein.
THE TRUSTEES
The Grantor Trustee or Owner Trustee and Indenture Trustee, as the case may
be, for each Trust, in each case together with the address of its Corporate
Trust Office, will be identified in the related Prospectus Supplement. The
liability of the Owner Trustee or Grantor Trustee in connection with the
issuance and sale of the related Series of Securities will be limited solely to
the express obligations of such Trustee set forth in the related Transfer and
Servicing Agreement. The liability of the related Indenture Trustee in
connection with the issuance and sale of the Notes of any Series will be limited
solely to the express obligations of such Indenture Trustee set forth in the
related Indenture. A Trustee may resign at any time, in which event the
Servicer, or its successor, will be obligated to appoint a successor trustee.
The Servicer may also remove the Owner Trustee or Grantor Trustee, as the case
may be, and the Administrator may remove the Indenture Trustee, in each case if
such Trustee becomes insolvent or ceases to be eligible to continue as trustee
under the related Trust Agreement, Pooling and Servicing Agreement or Indenture,
as the case may be. In such event, the Servicer or Administrator, as the case
may be, will be obligated to appoint a successor trustee. Any resignation or
removal of a trustee and appointment of a successor trustee will not become
effective until acceptance of the appointment by the successor trustee.
Unless otherwise provided in the related Prospectus Supplement, each
Trustee and any of its affiliates may hold Securities in their own names or as
pledgees. For the purpose of meeting the legal requirements of certain
jurisdictions, the Servicer and the related Owner Trustee, Indenture Trustee or
Grantor Trustee, as the case may be, acting jointly (or in some instances, the
related Owner Trustee and Indenture Trustee or Grantor Trustee acting alone)
will have the power to appoint co-trustees or separate trustees of all or any
part of a Trust. In the event of such an appointment, all rights, powers, duties
and obligations conferred or imposed upon such Trustee by the related Indenture
or Transfer and Servicing Agreements will be conferred or imposed upon such
trustee and such separate trustee or co-trustee jointly, or, in any jurisdiction
in which such trustee will be incompetent or unqualified to perform certain
acts, singly upon such separate trustee or co-trustee who will exercise and
perform such rights, powers, duties and obligations solely at the direction of
such trustee.
Unless otherwise specified in the related Prospectus Supplement, each Trust
Agreement, Indenture and Pooling and Servicing Agreement will provide that the
Servicer will pay the fees of the related Owner Trustee, Indenture Trustee or
Grantor Trustee. Unless otherwise specified in the related Prospectus
Supplement, each Sale and Servicing Agreement and Pooling and Servicing
Agreement will further provide that the related Owner Trustee or Grantor Trustee
will be entitled to indemnification by the Servicer for, and will be held
harmless against, any loss, liability or expense incurred by such trustee not
resulting from is own willful misfeasance, bad faith or negligence (other than
by reason of a breach of any of its representations or warranties set forth in
such agreement).
DUTIES OF THE TRUSTEES
Unless otherwise provided in the related Prospectus Supplement, each
Trustee will make no representations as to the validity or sufficiency of any
Trust Agreement, Indenture or Pooling and Servicing Agreement, the Securities
issued pursuant thereto (other than the execution and authentication thereof),
or of any Receivables or related documents, and will not be accountable for the
use or application by the Seller or the
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Servicer of any funds paid to the Seller or the Servicer in respect of such
Securities or the related Receivables, or the investment of any monies by the
Servicer before such monies are deposited into the related Collection Account.
The Trustees will not independently verify the existence or characteristics of
the Receivables. If no Event of Default or Servicer Default has occurred and is
continuing, each Trustee will be required to perform only those duties
specifically required of it under the related Indenture or Transfer and
Servicing Agreement. Generally those duties will be limited to the receipt of
the various certificates and reports or other instruments required to be
furnished to such Trustee under such agreements, in which case it will only be
required to examine them to determine whether they conform to the requirements
of such agreements. No Trustee will be charged with knowledge of a failure by
the Servicer to perform its duties under the relevant agreements which failure
constitutes an Event of Default or a Servicer Default unless such Trustee
obtains actual knowledge of such failure as specified in such agreements.
Unless otherwise provided in the related Prospectus Supplement, no Trustee
will be under any obligation to exercise any of the rights or powers vested in
it by the related Indenture or Transfer and Servicing Agreement or to make any
investigation of matters arising thereunder or to institute, conduct or defend
any litigation thereunder or in relation thereto at the request, order or
direction of any of the relevant Securityholders, unless such Securityholders
have offered to such trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred therein or thereby. No
Securityholder will have any right under any such agreement to institute any
proceeding with respect to such agreement, unless such holder previously has
given to such Trustee written notice of default and (i) the default arises from
the Servicer's failure to remit payments when due or (ii) the holders of
Securities evidencing not less than 25% of the voting interests of all of the
Securities of such Series, voting together as a single class, have made written
request upon such Trustee to institute such proceeding in its own name as
Trustee thereunder and have offered to such Trustee reasonable indemnity and
such Trustee for 30 days has neglected or refused to institute any such
proceedings.
OWNER TRUST; SELLER LIABILITY
Unless otherwise provided in the related Prospectus Supplement, each Trust
Agreement will require the Seller to agree to be liable directly to an injured
party for the entire amount of any losses, claims, damages or liabilities (other
than those incurred by a Securityholder in the capacity of an investor with
respect to the related Owner Trust) arising out of or based on the arrangement
created by such Trust Agreement as though such arrangement created a partnership
under the Delaware Revised Uniform Limited Partnership Act in which the Seller
was a general partner.
ADMINISTRATION AGREEMENT
Unless otherwise provided in the related Prospectus Supplement, Fleetwood
Credit, in its capacity as administrator (the "Administrator"), will enter into
an agreement (each, an "Administration Agreement") with each Owner Trust and the
related Indenture Trustee pursuant to which the Administrator will agree, to the
extent provided in such Administration Agreement, to provide the notices and to
perform other administrative obligations required by the related Indenture.
Unless otherwise specified in the related Prospectus Supplement, as compensation
for the performance of the Administrator's obligations under the applicable
Administration Agreement and as reimbursement for its expenses related thereto,
the Administrator will be entitled to a monthly administration fee (the
"Administration Fee"), which fee will be paid by the Servicer.
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CERTAIN LEGAL ASPECTS OF THE RECEIVABLES
GENERAL
The transfer of Receivables to any Trust, the perfection of such Trust's
security interest in such Receivables and the enforcement of rights to realize
on the related Financed Vehicles as collateral for such Receivables are subject
to a number of federal and state laws, including the UCC as in effect in various
states. The Servicer and the Seller will take such action as is required to
perfect the rights of each Owner Trustee or Grantor Trustee, on behalf of the
related Trust, in the related Receivables. If, inadvertently or otherwise,
another party purchases (including the taking of a security interest in) the
Receivables transferred to any Trust for new value in the ordinary course of its
business, without actual knowledge of the related Trust's interests therein, and
takes possession of such Receivables, such purchaser would acquire an interest
in such Receivables superior to the interest of such Trust.
SECURITY INTERESTS IN THE FINANCED VEHICLES
General. Retail installment sale contracts such as the Receivables evidence
the credit sale of recreational vehicles by dealers to obligors; the contracts
also constitute personal property security agreements and include grants of
security interests in the related recreational vehicles under the UCC. In most
states, perfection rules relating to security interests in recreational vehicles
are generally governed under state certificate of title statutes or by the
vehicle registration laws of the state in which each recreational vehicle is
located. In states which have adopted the Uniform Motor Vehicle Certificate of
Title and Anti-Theft Act, security interests in recreational vehicles may be
perfected either by notation of the secured party's lien on the certificate of
title or by delivery of the certificate of title and payment of a fee to the
state motor vehicle authority, depending on particular state law. In states that
do not have a certificate of title statute or that make no provision for
notation of a security interest on a certificate of title, perfection is usually
accomplished by filing pursuant to the provisions of the UCC. In most states, a
security interest in a recreational vehicle is perfected by notation of the
secured party's lien on the vehicle's certificate of title. Each Receivable will
prohibit the sale or transfer of the related Financed Vehicle without the
consent of Fleetwood Credit.
All retail installment sale contracts that Fleetwood Credit originates or
acquires from Dealers name Fleetwood Credit as obligee or assignee and as the
secured party. Fleetwood Credit also takes all actions necessary under the laws
of the state in which the related recreational vehicles are located to perfect
its security interest in such recreational vehicles, including, where
applicable, having a notation of its lien recorded on the related certificate of
title or delivering the required documents and fees, and obtaining possession of
the certificate of title (if possible).
Perfection. Pursuant to each Receivables Purchase Agreement, Fleetwood
Credit will sell and assign its security interests in the Financed Vehicles
securing Receivables that will comprise a Receivables Pool to the Seller and,
pursuant to the related Transfer and Servicing Agreements, the Seller will
assign its security interests in such Financed Vehicles to the related Owner
Trustee or Grantor Trustee. However, because of the administrative burden and
expense, neither Fleetwood Credit, the Seller nor any Trustee will amend any
certificate of title to identify such Trustee as the new secured party on the
certificates of title relating to such Financed Vehicles. However, UCC financing
statements with respect to the transfer of Fleetwood Credit's security interest
in such Financed Vehicles to the Seller and the transfer to such Trustee of the
Seller's security interest in the Financed Vehicles will be filed. In addition,
the Servicer will continue to hold any certificates of title relating to the
Financed Vehicles in its possession as custodian for each Trustee pursuant to
the related Sale and Servicing Agreement or Pooling and Servicing Agreement. See
"Certain Information Regarding the Securities -- Sale and Assignment of the
Receivables".
A security interest in a motor vehicle registered in the State of
California (in which, except as otherwise provided in the related Prospectus
Supplement, the greatest number of Financed Vehicles will be registered) may be
perfected only by depositing with the Department of Motor Vehicles a properly
endorsed certificate of title for the vehicle showing the secured party as legal
owner thereon or if the vehicle has not been previously registered, an
application in usual form for an original registration together with an
application for registration of the secured party as legal owner. However, under
the California Vehicle Code, a transferee of a security
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interest in a motor vehicle is not required to reapply to the Department of
Motor Vehicles for a transfer of registration when the interest of the
transferee arises from the transfer of a security agreement by the legal owner
to secure payment or performance of an obligation. Accordingly, under California
law, an assignment such as that under each of the related Receivables Purchase
Agreement and the related Transfer and Servicing Agreement is an effective
conveyance of Fleetwood Credit's and the Seller's security interest, as the case
may be, without such re-registration, and under the Receivables Purchase
Agreement the Seller will succeed to Fleetwood Credit's, and under the related
Transfer and Servicing Agreement the related Trustee will succeed to the
Seller's rights as secured party. With respect to Financed Vehicles registered
in other states, such Trustee may not have a first perfected security interest
in such Financed Vehicles.
In most states, assignments such as those under the related Receivables
Purchase Agreement and Transfer and Servicing Agreements are an effective
conveyance of a security interest without amendment of any lien noted on a
vehicle's certificate of title, and the assignee succeeds thereby to the
assignor's rights as secured party. Although re-registration of the recreational
vehicle is not necessary to convey a perfected security interest in the related
Financed Vehicles to a Trust, because the related Trust will not be listed as
legal owner on the certificates of title to such Financed Vehicles, a Trust's
security interest could be defeated through fraud or negligence. However, in the
absence of fraud, forgery or administrative error, the notation of Fleetwood
Credit's lien on the certificates of title will be sufficient to protect a Trust
against the rights of subsequent purchasers of a Financed Vehicle or subsequent
creditors who take a security interest in a Financed Vehicle. In each
Receivables Purchase Agreement, Fleetwood Credit will represent and warrant, and
in each Transfer and Servicing Agreement, the Seller will represent and warrant
that it has, or has taken all action necessary to obtain, a perfected security
interest in each related Financed Vehicle. If there are any Financed Vehicles
securing a Receivable in the related Receivables Pool as to which Fleetwood
Credit failed to obtain a first-priority perfected security interest, a Trust's
security interest would be subordinate to, among others, subsequent purchasers
of such Financed Vehicles and holders of first-priority perfected security
interests therein. Such a failure, however, would constitute a breach of
Fleetwood Credit's representations and warranties under the related Receivables
Purchase Agreement and the Seller's representations and warranties under the
related Transfer and Servicing Agreements and, pursuant to the related Transfer
and Servicing Agreements, the Seller would be required to repurchase such
Receivable from the Trust and Fleetwood Credit would be required to purchase
such Receivable from the Seller, in each case unless the breach were cured. See
"Certain Information Regarding the Securities -- Sale and Assignment of the
Receivables". The Seller will assign its rights under each Receivables Purchase
Agreement to the related Trustee.
Continuity of Perfection. Under the laws of most states, a perfected
security interest in a recreational vehicle continues for four months after the
vehicle is moved to a new state from the one in which it is initially registered
and thereafter until the owner re-registers such recreational vehicle in the new
state. A majority of states require surrender of a certificate of title to
re-register a vehicle. In those states that require a secured party to hold
possession of the certificate of title to maintain perfection of the security
interest, the secured party would learn of the re-registration through the
request from the obligor under the related installment sale contract to
surrender possession of the certificate of title. In the case of vehicles
registered in states providing for the notation of a lien on the certificate of
title but not possession by the secured party, the secured party would receive
notice of surrender from the state of re-registration if the security interest
is noted on the certificate of title. Thus, the secured party would have the
opportunity to reperfect its security interest in the vehicles in the state of
relocation. However, these procedural safeguards will not protect the secured
party if through fraud, forgery or administrative error, the debtor somehow
procures a new certificate of title that does not list the secured party's lien.
Additionally, in states that do not require a certificate of title for
registration of a vehicle, re-registration could defeat perfection. In the
ordinary course of servicing the Receivables, Fleetwood Credit will take steps
to effect re-perfection upon receipt of notice of re-registration or information
from the Obligor as to relocation. Similarly, when an Obligor sells a Financed
Vehicle and the purchaser thereof attempts to re-register such vehicle,
Fleetwood Credit must surrender possession of the certificate of title or will
receive notice as a result of having its lien noted thereon before such
re-registration can be effected. Accordingly, in such states, Fleetwood Credit
will have an opportunity to require satisfaction of the related Receivable
before its lien is released. Under each Sale and Servicing Agreement and Pooling
and
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Servicing Agreement, the Servicer will be obligated to take appropriate steps,
at its own expense, to maintain perfection of a security interest in the related
Financed Vehicles.
Priority of Certain Liens by Operation of Law. Under the laws of most
states, liens for repairs performed on a recreational vehicle and liens for
unpaid taxes take priority over even a first perfected security interest in such
vehicle. The Internal Revenue Code of 1986, as amended, also grants priority to
certain federal tax liens over the lien of a secured party. The laws of certain
states and federal law permit the confiscation of motor vehicles by governmental
authorities under certain circumstances if used in unlawful activities, which
may result in the loss of a secured party's perfected security interest in a
confiscated recreational vehicle. Fleetwood Credit will represent and warrant to
the Seller in each Receivables Purchase Agreement and the Seller will represent
and warrant to the related Trustee in each Transfer and Servicing Agreement
that, as of the Closing Date or the related Transfer Date, as the case may be,
the security interest in each related Financed Vehicle is prior to all other
present liens upon and security interests in such Financed Vehicle. However,
liens for repairs or taxes could arise at any time during the term of a
Receivable. No notice need be given to the related Trustee or Securityholders in
the event such a lien or confiscation arises. Any such lien or confiscation
arising after the Closing Date will not give rise to Fleetwood Credit's
repurchase obligation under any Receivables Purchase Agreement or the Seller's
repurchase obligation under any Transfer and Servicing Agreement.
REPOSSESSION
In the event of default by an obligor, the holder of the related retail
installment sale contract has all the remedies of a secured party under the UCC,
except where specifically limited by other state laws. The UCC remedies of a
secured party include the right to repossession by self-help means, unless such
means would constitute a breach of the peace. Self-help repossession is the
method employed by the Servicer in most cases and is accomplished simply by
taking possession of the related recreational vehicle. In cases where the
obligor objects or raises a defense to repossession, or if otherwise required by
applicable state law, a court order must be obtained from the appropriate state
court, and the vehicle must then be recovered in accordance with that order. In
some jurisdictions, the secured party is required to notify the debtor of the
default and the intent to repossess the collateral and be given a time period
within which to cure the default prior to repossession. Generally, such right of
cure may only be exercised on a limited number of occasions during the term of
the related contract. In most states, under certain circumstances after the
vehicle has been repossessed, the obligor may reinstate the related contract by
paying the delinquent installments and other amounts due.
NOTICE OF SALE; REDEMPTION RIGHTS
In the event of default by the obligor, some jurisdictions (not including
California) require that the obligor be notified of the default and be given a
time period within which to cure the default prior to repossession. Generally,
this right of cure may only be exercised on a limited number of occasions during
the term of the related contract.
The UCC and other state laws require the secured party to provide the
obligor with reasonable notice of the date, time and place of any public sale
and/or the date after which any private sale of the collateral may be held. The
obligor has the right to redeem the collateral prior to actual sale by paying
the secured party the unpaid principal balance of the obligation, accrued
interest thereon plus reasonable expenses for repossessing, holding and
preparing the collateral for disposition and arranging for its sale, plus, in
some jurisdictions, reasonable attorneys' fees or in some states, by payment of
delinquent installments or the unpaid principal balance of the related
obligation.
DEFICIENCY JUDGMENTS AND EXCESS PROCEEDS
The proceeds of resale of the Financed Vehicles generally will be applied
first to the expenses of resale and repossession and then to the satisfaction of
the related indebtedness. While some states impose prohibitions or limitations
on deficiency judgments if the net proceeds from resale do not cover the full
amount of the indebtedness, a deficiency judgment can be sought in certain other
states that do not prohibit or limit such judgments. In addition to the notice
requirement, the UCC requires that every aspect of the sale or other
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disposition, including the method, manner, time, place and terms, be
"commercially reasonable". Generally, courts have held that when a sale is not
"commercially reasonable", the secured party loses its right to a deficiency
judgment. In addition, the UCC permits the debtor or other interested party to
recover for any loss caused by noncompliance with the provisions of the UCC.
Also, prior to a sale, the UCC permits the debtor or other interested person to
restrain the secured party from disposing of the collateral if it is established
that the secured party is not proceeding in accordance with the "default"
provisions under the UCC. However, the deficiency judgment would be a personal
judgment against the obligor for the shortfall, and a defaulting obligor can be
expected to have very little capital or sources of income available following
repossession. Therefore, in many cases, it may not be useful to seek a
deficiency judgment or, if one is obtained, it may be settled at a significant
discount or be uncollectible.
Occasionally, after the resale of a recreational vehicle and payment of all
related expenses and indebtedness, there is a surplus of funds. In that case,
the UCC requires the creditor to remit the surplus to any holder of a
subordinate lien with respect to such vehicle or, if no such lienholder exists,
to the former owner of the vehicle.
CERTAIN BANKRUPTCY CONSIDERATIONS
The Seller has taken steps in structuring the transactions described herein
that are intended to make it unlikely that the voluntary or involuntary
application for relief by Fleetwood Credit under the United States Bankruptcy
Code or similar applicable state laws (collectively, "Insolvency Laws") will
result in consolidation of the assets and liabilities of the Seller with those
of Fleetwood Credit. These steps include the creation of the Seller as a wholly
owned, limited purpose subsidiary pursuant to articles of incorporation
containing certain limitations (including requiring that the Seller must have at
least two "Independent Directors" and restrictions on the nature of the Seller's
business and on its ability to commence a voluntary case or proceeding under any
Insolvency Law without the affirmative vote of a majority of its directors,
including each Independent Director). In addition, to the extent that the Seller
has granted a security interest in any Receivables to a Trust which was validly
perfected before the bankruptcy or insolvency of Fleetwood Credit and which was
not taken or granted in contemplation of insolvency or with the intent to
hinder, delay or defraud Fleetwood Credit or its creditors, such security
interest should not be subject to avoidance, and payments to such Trust with
respect to the Receivables should not be subject to recovery by a creditor or
trustee in bankruptcy of Fleetwood Credit. If, notwithstanding the foregoing,
(i) a court concluded that the assets and liabilities of the Seller should be
consolidated with those of Fleetwood Credit in the event of the application of
applicable Insolvency Laws to Fleetwood Credit or following the bankruptcy or
insolvency of Fleetwood Credit the security interest in certain Receivables
granted by the Seller to a Trustee should be avoided, (ii) a filing were made
under any Insolvency Law by or against the Seller or (iii) an attempt were made
to litigate any of the foregoing issues, delays in payments on the related
Securities and possible reductions in the amount of such payments could occur.
At the time of initial issuance of the Securities of each Series, Arter & Hadden
LLP, special counsel to Fleetwood Credit and the Seller, will render an opinion
which concludes that following the bankruptcy of Fleetwood Credit, a court,
applying the principles set forth in such opinion, should not allow a creditor
or trustee in bankruptcy to consolidate the assets and liabilities of Fleetwood
Credit and the Seller on the basis of any applicable legal theory theretofore
recognized by a court of competent jurisdiction so as to adversely affect the
ultimate payment of all amounts owing under such Securities.
Fleetwood Credit and the Seller will treat each of the transactions
described herein as a separate sale of the Receivables comprising a Receivables
Pool to the Seller, such that the automatic stay provisions of the United States
Bankruptcy Code would not apply to the Receivables in the event that Fleetwood
Credit were to become a debtor in a bankruptcy case. A case decided by the
United States Court of Appeals for the Tenth Circuit in 1993 contains language
to the effect that under the UCC accounts sold by a debtor would remain property
of the debtor's bankruptcy estate, whether or not the sale of accounts was
perfected under the UCC. UCC Article 9 applies to the sale of chattel paper as
well as the sale of accounts and although the Receivables constitute chattel
paper under the UCC rather than accounts, perfection of a security interest in
both chattel paper and accounts may be accomplished by the filing of a UCC-1
financing statement. If, following a
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bankruptcy of Fleetwood Credit, a court were to follow the reasoning of the
Tenth Circuit reflected in the case described above, then the Receivables could
be included in the bankruptcy estate of Fleetwood Credit and delays in payments
of collections on or in respect of the Receivables could occur.
CONSUMER PROTECTION LAWS
Numerous federal and state consumer protection laws and related regulations
impose substantial requirements upon creditors and servicers involved in
consumer finance. These laws include the Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Federal Trade Commission Act, the Fair Credit Billing Act,
the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the
Magnuson-Moss Warranty Act, the Federal Reserve Board's Regulations B and Z, the
Soldiers' and Sailors' Relief Act, the Military Reservist Relief Act, state
adaptations of the National Consumer Act and of the Uniform Consumer Credit Code
and state motor vehicle retail installment sales acts, retail installment sales
acts and other similar laws. Also, the laws of certain states impose finance
charge ceilings and other restrictions on consumer transactions and require
contract disclosures in addition to those required under federal law. These
requirements impose specific statutory liabilities upon creditors who fail to
comply with their provisions. In some cases, this liability could affect the
ability of an assignee such as a Trustee to enforce consumer finance contracts
such as the Receivables.
The so-called "Holder-in-Due-Course Rule" of the Federal Trade Commission
(the "FTC Rule"), has the effect of subjecting any assignee of the seller in a
consumer credit transaction to all claims and defenses which the obligor in the
transaction could assert against the seller of the goods. Liability under the
FTC Rule is limited to the amounts paid by the obligor under the contract, and
the holder of the contract may also be unable to collect any balance remaining
due thereunder from the obligor. The FTC Rule is generally duplicated by the
Uniform Consumer Credit Code, other state statutes or the common law in certain
states. Most of the Receivables will be subject to the requirements of the FTC
Rule. Accordingly, the related Owner Trustee or Grantor Trustee, as holder of
the Receivables comprising a Receivables Pool, will be subject to any claims or
defenses that the purchasers of the related Financed Vehicles may assert against
the seller of such Financed Vehicles. Such claims are limited to a maximum
liability equal to the amounts paid by the Obligor under the related
Receivables.
Under most state vehicle dealer licensing laws, sellers of recreational
vehicles are required to be licensed to sell vehicles at retail sale. In
addition, with respect to used vehicles, the Federal Trade Commission's Rule on
Sale of Used Vehicles requires that all sellers of used vehicles prepare,
complete, and display a "Buyer's Guide" which explains the warranty coverage for
such vehicles. Furthermore, Federal Odometer Regulations promulgated under the
Motor Vehicle Information and Cost Savings Act requires that all sellers of used
vehicles furnish a written statement signed by the seller certifying the
accuracy of the odometer reading. If a seller is not properly licensed or if
either a Buyer's Guide or Odometer Disclosure Statement was not provided to the
purchaser of a Financed Vehicle, the Obligor may be able to assert a defense
against the seller of the Financed Vehicle. If an Obligor on a Receivable were
successful in asserting any such claim or defense, the Servicer would pursue on
behalf of the related Trust any reasonable remedies against the seller or
manufacturer of the vehicle, subject to certain limitations as to the expense of
any such action specified in the related Sale and Servicing Agreement or Pooling
and Servicing Agreement.
Courts have applied general equitable principles to secured parties
pursuing repossession or litigation involving deficiency balances. These
equitable principles may have the effect of relieving an obligor from some or
all of the legal consequences of a default.
In several cases, consumers have asserted that the self-help remedies of
secured parties under the UCC and related laws violate the due process
protections of the Fourteenth Amendment to the Constitution of the United
States. Courts have generally either upheld the notice provisions of the UCC and
related laws as reasonable or have found that the creditor's repossession and
resale do not involve sufficient state action to afford constitutional
protection to consumers.
Fleetwood Credit will represent and warrant under each Receivables Purchase
Agreement and the Seller will represent and warrant under the related Transfer
and Servicing Agreements that each related Receivable
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complies with all requirements of law in all material respects. Accordingly, if
an Obligor has a claim against a Trustee for violation of any law and such claim
materially and adversely affects the interests of the related Securityholders in
a Receivable, such violation would constitute a breach of such representation
and warranty under the related Receivables Purchase Agreement and Transfer and
Servicing Agreements and will create an obligation of Fleetwood Credit and the
Seller to repurchase such Receivable unless the breach is cured. See "Certain
Information Regarding the Securities -- Sale and Assignment of the Receivables".
Any shortfall in payments on or in respect of the Receivables described
under this subheading, to the extent not otherwise covered by a Reserve Fund or
other form of credit enhancement, could result in losses to the holders of the
related Securities.
OTHER LIMITATIONS
In addition to the laws limiting or prohibiting deficiency judgments,
numerous other statutory provisions, including federal bankruptcy laws and
related state laws, may interfere with or affect the ability of a creditor to
realize upon collateral or enforce a deficiency judgment. For example, in a
Chapter 13 proceeding under the federal bankruptcy law, a court may prevent a
creditor from repossessing a recreational vehicle, and, as part of the
rehabilitation plan, reduce the amount of the secured indebtedness to the market
value of the recreational vehicle at the time of bankruptcy (as determined by
the court), leaving the party providing financing as a general unsecured
creditor for the remainder of the indebtedness. A bankruptcy court may also
reduce the monthly payments due under the related contract or change the rate of
interest and time of repayment of the indebtedness.
Under the terms of the Soldiers' and Sailors' Relief Act, an Obligor who
enters the military service after the origination of such Obligor's Receivable
(including an Obligor who is a member of the National Guard or is in reserve
status at the time of the origination of the Receivable and is later called to
active duty) may not be charged interest above an annual rate of 6% during the
period of such Obligor's active duty status, unless a court orders otherwise
upon application of the lender. In addition, pursuant to the Military Reservist
Relief Act, under certain circumstances, California residents called into active
duty with the reserves can delay payments on retail installment contracts,
including the Receivables, for a period, not to exceed 180 days, beginning with
the order to active duty and ending 30 days after release. It is possible that
the foregoing could have an effect on the ability of the Servicer to collect
full amounts of interest on certain of the Receivables. In addition, the Relief
Acts impose limitations which would impair the ability of the Servicer to
repossess an affected Receivable during the Obligor's period of active duty
status. Thus, in the event that such a Receivable goes into default, there may
be delays and losses occasioned by the inability to realize upon the related
Financed Vehicle in a timely fashion.
Any shortfall pursuant to either of the two immediately preceding
paragraphs, to the extent not otherwise covered by a Reserve Fund or other form
of credit enhancement, could result in losses to the holders of the related
Securities.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a general discussion of the material federal income tax
consequences of the purchase, ownership and disposition of Securities. This
summary is based upon laws, regulations, rulings and decisions currently in
effect, all of which are subject to change, possibly on a retroactive basis. The
discussion does not deal with all federal tax consequences applicable to all
categories of investors, some of which may be subject to special rules. In
addition, this summary is generally limited to investors who will hold the
Securities as "capital assets" (generally, property held for investment) within
the meaning of Section 1221 of the Internal Revenue Code of 1986, as amended
(the "Code"), and who do not hold the Securities as part of a "straddle", a
"hedge" or a "conversion transaction". Furthermore, no authority exists
concerning the tax treatment of some aspects of the Securities or transactions
similar to those described herein. Accordingly, the ultimate federal income tax
treatment of the Securities may differ from that described below.
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Investors should consult their own tax advisors to determine the federal,
state, local and other tax consequences of the purchase, ownership and
disposition of the Securities. Prospective investors should note that no rulings
have been or will be sought from the Internal Revenue Service ("IRS") with
respect to any of the federal income tax consequences discussed below, and no
assurance can be given that the IRS will not take contrary positions. Arter &
Hadden LLP, counsel to the Seller, or such other counsel identified in the
related Prospectus Supplement ("Counsel"), has delivered an opinion regarding
the certain federal income tax matters described below and will deliver an
opinion regarding tax matters applicable to each Series of Securities. Such
opinion, however, will not be binding on the IRS or the courts. The opinion of
Counsel will address only those issues specifically identified below as being
covered by such opinion; however, the opinion of Counsel also will state that
additional discussion below accurately sets forth Counsel's advice with respect
to material tax issues.
TAX CHARACTERIZATION OF OWNER TRUSTS
In connection with the issuance of each Series of Owner Securities, Counsel
will deliver its opinion that the Owner Trust will not be classified as an
association (or publicly traded partnership) taxable as a corporation for
federal income tax purposes. This opinion will be based on, among other things,
the assumption that the terms of the Trust Agreement and related documents will
be complied with, and on Counsel's conclusions that (i) the Owner Trust will not
have certain characteristics necessary for a business trust to be classified as
an association taxable as a corporation and (ii) the nature of the income of the
Owner Trust will exempt it from the rule that certain publicly traded
partnerships are taxable as corporations.
If the Owner Trust were taxable as a corporation for federal income tax
purposes, it would be subject to corporate income tax on its taxable income. The
Owner Trust's taxable income would include all its income on the related
Receivables, which may be reduced by its interest expense on the Notes. Any such
corporate income tax could materially reduce cash available to make payments on
the Notes and distributions on the Owner Certificates, and Owner
Certificateholders could be liable for any such tax that is unpaid by the Owner
Trust.
TAX CONSEQUENCES TO HOLDERS OF THE NOTES
Treatment of the Notes as Indebtedness. The Seller will agree, and the
Noteholders will agree by their purchase of Notes, to treat the Notes as debt
for federal income tax purposes. Counsel will, except as otherwise provided in
the related Prospectus Supplement, render an opinion that the Notes will be
classified as debt for federal income tax purposes. The discussion below assumes
this characterization of the Notes is correct.
OID, Indexed Securities, etc. The discussion below assumes that all
payments on the Notes are denominated in U.S. dollars, and that the Notes are
not Indexed Securities or Strip Notes. Moreover, the discussion assumes that the
interest formula for the Notes meets the requirements for "qualified stated
interest" under Treasury regulations ("OID Regulations") relating to original
issue discount ("OID"), and that any OID on the Notes (i.e., any excess of the
principal amount of the Notes over their issue price) does not exceed a de
minimis amount (i.e., 1/4% of their principal amount multiplied by the number
of full years included in their term), all within the meaning of such OID
Regulations. If these conditions are not satisfied with respect to a Series of
Notes, additional tax considerations with respect to such Notes will be
disclosed in the applicable Prospectus Supplement.
Interest Income on the Notes. Based on the above assumptions, except as
discussed in the following paragraph, the Notes will not be considered issued
with OID. The stated interest thereon will be taxable to a Noteholder as
ordinary interest income when received or accrued in accordance with such
Noteholder's method of tax accounting. Under the OID regulations, a holder of a
Note issued with a de minimis amount of OID must include such OID in income, on
a pro rata basis, as principal payments are made on the Note. A purchaser who
buys a Note for more or less than its principal amount will generally be
subject, respectively, to the premium amortization or market discount rules of
the Code.
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However, because a failure to pay interest currently on the Notes is not a
default and the Notes do not contain terms and conditions that make the
likelihood of late payment or nonpayment a remote contingency, under the OID
Regulations the Notes might be viewed as having been issued with OID. This
interpretation would not significantly affect accrual basis holders of Notes,
although it would somewhat accelerate taxable income to cash basis holders by in
effect requiring them to report interest income on the accrual basis.
A holder of a Note that has a fixed maturity date of not more than one year
from the issue date of such Note (a "Short-Term Note") may be subject to special
rules. An accrual basis holder of a Short-Term Note (and certain cash method
holders, including regulated investment companies, as set forth in Section 1281
of the Code) generally would be required to report interest income as interest
accrues on a straight-line basis over the term of each interest period. Other
cash basis holders of a Short-Term Note would, in general, be required to report
interest income as interest is paid (or, if earlier, upon the taxable
disposition of the Short-Term Note). However, a cash basis holder of a
Short-Term Note reporting interest income as it is paid may be required to defer
a portion of any interest expense otherwise deductible on indebtedness incurred
to purchase or carry the Short-Term Note until the taxable disposition of the
Short-Term Note. A cash basis taxpayer may elect under Section 1281 of the Code
to accrue interest income on all nongovernment debt obligations with a term of
one year or less, in which case the taxpayer would include interest on the
Short-Term Note in income as it accrues, but would not be subject to the
interest expense deferral rule referred to in the preceding sentence. Certain
special rules apply if a Short-Term Note is purchased for more or less than its
principal amount.
Sale or Other Disposition. If a Noteholder sells a Note, the holder will
recognize gain or loss in an amount equal to the difference between the amount
realized on the sale and the holder's adjusted tax basis in the Note. The
adjusted tax basis of a Note to a particular Noteholder will equal the holder's
cost for the Note, increased by any market discount, acquisition discount, OID
and gain previously included by such Noteholder in income with respect to the
Note and decreased by the amount of bond premium (if any) previously amortized
and by the amount of principal payments previously received by such Noteholder
with respect to such Note. Any such gain or loss will be capital gain or loss if
the Note was held as a capital asset, except for gain representing accrued
interest and accrued market discount not previously included in income. Capital
losses generally may be used only to offset capital gains. Net capital gains of
individuals are subject to differing tax rates depending on the holding period
of the Note.
Foreign holders. Interest payments made (or accrued) to a Noteholder who is
a nonresident alien, foreign corporation or other non-United States person (a
"foreign person") generally will be considered "portfolio interest", and
generally will not be subject to United States federal income tax and
withholding tax, if the interest is not effectively connected with the conduct
of a trade or business within the United States by the foreign person and the
foreign person (i) is not actually or constructively a "10 percent shareholder"
of the Owner Trust or the Seller (including a holder of 10% of the outstanding
Owner Certificates of the related Series) or a "controlled foreign corporation"
with respect to which the Owner Trust or the Seller is a "related person" within
the meaning of the Code and (ii) provides the Owner Trustee or other person who
is otherwise required to withhold U.S. tax with respect to the Notes with an
appropriate statement (on Form W-8 or a similar form), signed under penalty of
perjury, certifying that the beneficial owner of the Note is a foreign person
and providing the foreign person's name and address. If a Note is held through a
securities clearing organization or certain other financial institutions, the
organization or institution may provide the relevant signed statement to the
withholding agent; in that case, however, the signed statement must be
accompanied by a Form W-8 or substitute form provided by the foreign person that
owns the Note. If such interest is not portfolio interest, then it will be
subject to United States federal income and withholding tax at a rate of 30%,
unless reduced or eliminated pursuant to an applicable tax treaty.
Any capital gain realized on the sale, redemption, retirement or other
taxable disposition of a Note by a foreign person will be exempt from United
States federal income and withholding tax, provided that (i) such gain is not
effectively connected with the conduct of a trade or business in the United
States by the foreign person and (ii) in the case of an individual foreign
person, the foreign person is not present in the United States for 183 days or
more in the taxable year.
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Backup Withholding. Each holder of a Note (other than an exempt holder such
as a corporation, tax exempt organization, qualified pension and profit-sharing
trust, individual retirement account or nonresident alien who provides
certification as to status as a nonresident) will be required to provide, under
penalty of perjury, a certificate containing the holder's name, address, correct
federal taxpayer identification number and a statement that the holder is not
subject to backup withholding. Should a nonexempt Noteholder fail to provide the
required certification, the Owner Trust will be required to withhold 31% of the
amount otherwise payable to the holder, and remit the withheld amount to the IRS
as a credit against the holder's federal income tax liability.
Possible Alternative Treatments of the Notes. If, contrary to the opinion
of Counsel, the IRS successfully asserted that one or more of the Notes did not
represent debt for federal income tax purposes, the Notes might be treated as
equity interests in the Owner Trust. If so treated, the Owner Trust might be
taxable as a corporation with the adverse consequences described above (and the
resulting taxable corporation would not be able to reduce its taxable income by
deductions for interest expense on Notes recharacterized as equity).
Alternatively, and most likely in the view of Counsel, the Owner Trust might be
treated as a publicly traded partnership that would not be taxable as a
corporation because it would meet certain qualifying income tests. Nonetheless,
treatment of the Notes as equity interests in such a publicly traded partnership
could have adverse tax consequences to certain holders. For example, income to
certain tax-exempt entities (including pension funds) would be "unrelated
business taxable income", income to foreign holders generally would be subject
to U.S. tax and U.S. tax return filing and withholding requirements, and
individual holders might be subject to certain limitations on their ability to
deduct their share of Owner Trust expenses.
TAX CONSEQUENCES TO HOLDERS OF THE OWNER CERTIFICATES
Treatment of Owner Trust as a Partnership. The Seller and the Servicer will
agree, and the related Owner Certificateholders will agree by their purchase of
Owner Certificates, to treat the Owner Trust as a partnership for purposes of
federal and state income tax, franchise tax and any other tax measured in whole
or in part by income, with the assets of the partnership being the assets held
by the Owner Trust, the partners of the partnership being the Owner
Certificateholders (and the Seller in its capacity as recipient of distributions
from any Reserve Fund), and the Notes being debt of the partnership. However,
the proper characterization of the arrangement involving the Owner Trust, the
Owner Certificates, the Notes, the Seller and the Servicer is not certain
because there is no authority on transactions closely comparable to that
contemplated herein.
A variety of alternative characterizations are possible. For example,
because the Owner Certificates have certain features characteristic of debt, the
Owner Certificates might be considered debt of the Seller or the Owner Trust.
Any such characterization would not result in materially adverse tax
consequences to Owner Certificateholders as compared to the consequences from
treatment of the Owner Certificates as equity in a partnership, described below.
The following discussion assumes that the Owner Certificates represent equity
interests in a partnership.
Indexed Securities, etc. The following discussion assumes that all payments
on the Owner Certificates are denominated in U.S. dollars, none of the Owner
Certificates are Indexed Securities or Strip Certificates, and that a Series of
Securities includes a single class of Owner Certificates. If these conditions
are not satisfied with respect to any given Series of Owner Certificates,
additional tax considerations with respect to such Owner Certificates will be
disclosed in the related Prospectus Supplement.
Partnership Taxation. As a partnership, the Owner Trust will not be subject
to federal income tax. Rather, each Owner Certificateholder will be required to
separately take into account such holder's allocated share of income, gains,
losses, deductions and credits of the Owner Trust. The Owner Trust's income will
consist primarily of interest and finance charges earned on the related
Receivables (including appropriate adjustments for market discount, OID and bond
premium) and any gain upon collection or disposition of such Receivables. The
Owner Trust's deductions will consist primarily of interest accruing with
respect to the Notes, servicing and other fees, and losses or deductions upon
collection or disposition of Receivables.
The tax items of a partnership are allocable to the partners in accordance
with the Code, Treasury regulations and the partnership agreement (i.e., the
Trust Agreement and related documents). However,
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inasmuch as the Owner Trust's payment of the Pass-Through Rates on each Owner
Certificate is payable to the related Owner Certificateholder without regard to
the income of the Owner Trust, the Owner Trust's payment of such amounts to each
Owner Certificateholder should be treated (and the Owner Trust intends to so
treat the amounts) as a "guaranteed payment" within the meaning of Section
707(c) of the Code, and not as a distributive share of the Owner Trust's income.
Such guaranteed payments will be considered ordinary income to an Owner
Certificateholder but may not be considered interest income for federal income
tax purposes. The Trust Agreement will provide, in general, that the Owner
Certificateholders will be allocated taxable income of the Owner Trust for each
month equal to the sum of (i) the interest that accrues on the Owner
Certificates in accordance with their terms for such month, including interest
accruing at the related Pass-Through Rate for such month and interest on amounts
previously due on the Owner Certificates but not yet distributed; (ii) any Owner
Trust income attributable to discount on the related Receivables that
corresponds to any excess of the principal amount of the Owner Certificates over
their initial issue price; (iii) prepayment premium payable to the Owner
Certificateholders for such month; and (iv) any other amounts of income payable
to the Owner Certificateholders for such month. Such allocation will be reduced
by any amortization by the Owner Trust of premium on Receivables that
corresponds to any excess of the issue price of Owner Certificates over their
principal amount. All remaining taxable income of the Owner Trust will be
allocated to the Seller. Based on the economic arrangement of the parties, this
approach for allocating Owner Trust income should be permissible under
applicable Treasury regulations, although no assurance can be given that the IRS
would not require a greater amount of income to be allocated to Owner
Certificateholders. Moreover, even under the foregoing method of allocation,
Owner Certificateholders may be allocated income equal to the entire
Pass-Through Rate plus the other items described above, even though the Owner
Trust might not have sufficient cash to make current cash distributions of such
amount. Thus, cash basis holders will in effect be required to report income
from the Owner Certificates on the accrual basis and Owner Certificateholders
may become liable for taxes on Owner Trust income even if they have not received
cash from the Owner Trust to pay such taxes. In addition, because tax
allocations and tax reporting will be done on a uniform basis for all Owner
Certificateholders but Owner Certificateholders may be purchasing Owner
Certificates at different times and at different prices, Owner
Certificateholders may be required to report on their tax returns taxable income
that is greater or less than the amount reported to them by the Owner Trust.
All of the taxable income allocated to an Owner Certificateholder that is a
pension, profit sharing or employee benefit plan or other tax-exempt entity
(including an individual retirement account) will constitute "unrelated business
taxable income" generally taxable to such a holder under the Code.
An individual Owner Certificateholder's share of expenses of the Owner
Trust (including fees to the Servicer but not interest expense) would be
miscellaneous itemized deductions. Such deductions might be disallowed to the
individual in whole or in part and might result in such holder being taxed on an
amount of income that exceeds the amount of cash actually distributed to such
holder over the life of the Owner Trust.
The Owner Trust intends to make all tax calculations relating to income and
allocations to Owner Certificateholders on an aggregate basis. If the IRS were
to require that such calculations be made separately for each Receivable, the
Owner Trust might be required to incur additional expense but it is believed
that there would not be a material adverse effect on Owner Certificateholders.
Discount and Premium. Except as otherwise provided in the related
Prospectus Supplement, it is believed that the Receivables were not issued with
OID, and, therefore, the Owner Trust should not have OID income. However, the
purchase price paid by the Owner Trust for the related Receivables may be
greater or less than the remaining principal balance of the Receivables at the
time of purchase. If so, the Receivables will have been acquired at a premium or
discount, as the case may be. As indicated above, the Owner Trust will make this
calculation on an aggregate basis, but might be required to recompute it on a
Receivable-by-Receivable basis.
If the Owner Trust acquires the related Receivables at a market discount or
premium, it will elect to include any such discount in income currently as it
accrues over the life of such Receivables or to offset any
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such premium against interest income on such Receivables. As indicated above, a
portion of such market discount income or premium deduction may be allocated to
Owner Certificateholders.
Section 708 Termination. Under Section 708 of the Code, the Owner Trust
will be deemed to terminate for federal income tax purposes if 50% or more of
the capital and profits interests in the Owner Trust are sold or exchanged
within a 12-month period. If such a termination occurs, the Owner Trust will be
considered to have transferred all of its assets and liabilities to a new
partnership and then to have immediately liquidated and distributed interests in
the new partnership to the continuing Owner Certificateholders. The Owner Trust
will not comply with certain technical requirements that might apply when such a
constructive termination occurs. As a result, the Owner Trust may be subject to
certain tax penalties and may incur additional expenses if it is required to
comply with those requirements. Furthermore, the Owner Trust might not be able
to comply due to lack of data.
Disposition of Owner Certificates. Generally, capital gain or loss will be
recognized on a sale of Owner Certificates in an amount equal to the difference
between the amount realized and the seller's tax basis in the Owner Certificates
sold. An Owner Certificateholder's tax basis in an Owner Certificate will
generally equal the holder's cost increased by the holder's share of Trust
income (includible in income) and decreased by any distributions received with
respect to such Owner Certificate. In addition, both the tax basis in the Owner
Certificates and the amount realized on a sale of an Owner Certificate would
include the holder's share of the Notes and other liabilities of the Owner
Trust. A holder acquiring Owner Certificates at different prices may be required
to maintain a single aggregate adjusted tax basis in such Owner Certificates,
and, upon sale or other disposition of some of the Owner Certificates, allocate
a portion of such aggregate tax basis to the Owner Certificates sold (rather
than maintaining a separate tax basis in each Owner Certificate for purposes of
computing gain or loss on a sale of that Owner Certificate).
Any gain on the sale of an Owner Certificate attributable to the holder's
share of unrecognized accrued market discount on the related Receivables would
generally be treated as ordinary income to the holder and would give rise to
special tax reporting requirements. The Owner Trust does not expect to have any
other assets that would give rise to such special reporting requirements. Thus,
to avoid those special reporting requirements, the Owner Trust will elect to
include market discount in income as it accrues.
If an Owner Certificateholder is required to recognize an aggregate amount
of income (not including income attributable to disallowed itemized deductions
described above) over the life of the Owner Certificates that exceeds the
aggregate cash distributions with respect thereto, such excess will generally
give rise to a capital loss upon the retirement of the Owner Certificates.
Allocations Between Transferors and Transferees. In general, the Owner
Trust's taxable income and losses will be determined monthly and the tax items
for a particular calendar month will be apportioned among the Owner
Certificateholders in proportion to the principal amount of Owner Certificates
owned by them as of the close of the last day of such month. As a result, a
holder purchasing Owner Certificates may be allocated tax items (which will
affect its tax liability and tax basis) attributable to periods before the
actual transaction.
The use of such a monthly convention may not be permitted by existing
regulations. If a monthly convention is not allowed (or only applies to
transfers of less than all of the partner's interest), taxable income or losses
of the Owner Trust might be reallocated among the Owner Certificateholders. The
Seller will be authorized to revise the Owner Trust's method of allocation
between transferors and transferees to conform to a method permitted by future
regulations.
Section 754 Election. In the event that an Owner Certificateholder sells
its Owner Certificates at a profit (loss), the purchasing Owner
Certificateholder will have a higher (lower) basis in the Owner Certificates
than the selling Owner Certificateholder had. The tax basis of the Owner Trust's
assets will not be adjusted to reflect that higher (or lower) basis unless the
Owner Trust were to file an election under Section 754 of the Code. In order to
avoid the administrative complexities that would be involved in keeping accurate
accounting records, as well as potentially onerous information reporting
requirements, the Owner Trust will not make such
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election. As a result, Owner Certificateholders might be allocated a greater or
lesser amount of Owner Trust income than would be appropriate based on their own
purchase price for Owner Certificates.
Administrative Matters. The Owner Trustee is required to keep or have kept
complete and accurate books of the Owner Trust. Such books will be maintained
for financial reporting and tax purposes on an accrual basis and the fiscal year
of the Owner Trust will be the calendar year. The Owner Trustee will file a
partnership information return (IRS Form 1065) with the IRS for each taxable
year of the Owner Trust and will report each Owner Certificateholder's allocable
share of items of Owner Trust income and expense to holders and the IRS on
Schedule K-1. The Owner Trust will provide the Schedule K-l information to
nominees that fail to provide the Owner Trust with the information statement
described below and such nominees will be required to forward such information
to the beneficial owners of the Owner Certificates. Generally, holders must file
tax returns that are consistent with the information return filed by the Trust
or be subject to penalties unless the holder notifies the IRS of all such
inconsistencies.
Under Section 6031 of the Code, any person that holds Owner Certificates as
a nominee at any time during a calendar year is required to furnish the Owner
Trust with a statement containing certain information on the nominee, the
beneficial owners and the Owner Certificates so held. Such information includes
(i) the name, address and taxpayer identification number of the nominee and (ii)
as to each beneficial owner (a) the name, address and identification number of
such person, (b) whether such person is a United States person, a tax-exempt
entity or a foreign government, an international organization, or any wholly
owned agency or instrumentality of either of the foregoing, and (c) certain
information on Owner Certificates that were held, bought or sold on behalf of
such person throughout the year. In addition, brokers and financial institutions
that hold Owner Certificates through a nominee are required to furnish directly
to the Trust information as to themselves and their ownership of Owner
Certificates. A clearing agency registered under Section 17A of the Exchange Act
is not required to furnish any such information statement to the Owner Trust.
The information referred to above for any calendar year must be furnished to the
Owner Trust on or before the following January 31. Nominees, brokers and
financial institutions that fail to provide the Owner Trust with the information
described above may bc subject to penalties.
The Seller will be designated as the tax matters partner for each Owner
Trust in the related Trust Agreement and, as such, will be responsible for
representing the Owner Certificateholders in any dispute with the IRS. The Code
provides for administrative examination of a partnership as if the partnership
were a separate and distinct taxpayer. Generally, the statute of limitations for
partnership items does not expire before three years after the date on which the
partnership information return is filed. Any adverse determination following an
audit of the return of the Owner Trust by the appropriate taxing authorities
could result in an adjustment of the returns of the Owner Certificateholders,
and, under certain circumstances, an Owner Certificateholder may be precluded
from separately litigating a proposed adjustment to the items of the Owner
Trust. An adjustment could also result in an audit of an Owner
Certificateholder's returns and adjustments of items not related to the income
and losses of the Owner Trust.
Tax Consequences to Foreign Owner Certificateholders. It is not clear
whether the Owner Trust would be considered to be engaged in a trade or business
in the United States for purposes of federal withholding taxes with respect to
non-U.S. persons because there is no clear authority dealing with that issue
under facts substantially similar to those described herein. Although it is not
expected that the Owner Trust would be engaged in a trade or business in the
United States for such purposes, the Owner Trust will withhold as if it were so
engaged in order to protect the Owner Trust from possible adverse consequences
of a failure to withhold. The Owner Trust expects to withhold on the portion of
its taxable income that is allocable to foreign Certificateholders pursuant to
Section 1446 of the Code, as if such income were effectively connected to a U.S.
trade or business, at a rate of 35% for foreign holders that are taxable as
corporations and 39.6% for all other foreign holders. Subsequent adoption of
Treasury regulations or the issuance of other administrative pronouncements may
require the Owner Trust to change its withholding procedures. In determining a
holder's withholding status, the Owner Trust may rely on IRS Form W-8, IRS Form
W-9 or the holder's certification of nonforeign status signed under penalty of
perjury.
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Backup Withholding. Distributions made on the Owner Certificates and
proceeds from the sale of the Owner Certificates will be subject to a "backup"
withholding tax of 31% if, in general, the Owner Certificateholder fails to
comply with certain identification procedures, unless the holder is an exempt
recipient under applicable provisions of the Code.
TAX CHARACTERIZATION OF GRANTOR TRUSTS
In connection with the issuance of each Series of Grantor Trust
Certificates, Counsel will deliver its opinion that the Grantor Trust will be
classified as a grantor trust under subpart E, part I of subchapter J of the
Code and not as an association taxable as a corporation for federal income tax
purposes. Grantor Certificateholders will be treated as the owners of the
Grantor Trust, except as described below.
General. For purposes of federal income tax, each Grantor Trust will be
deemed to have acquired the following assets: (i) the principal portion of each
Receivable comprising part of the related Receivables Pool plus a portion of the
interest due on each such Receivable (the "Trust Stripped Bond"), (ii) if such
Grantor Trust issues two or more classes of Grantor Certificates, a portion of
the interest due on each Receivable equal to the difference between the
Pass-Through Rate on the Subordinated Certificates and the Pass-Through Rate on
the Senior Certificates multiplied by a portion of each Receivable equal to the
product of the principal balance of such Receivable multiplied by a fraction,
the numerator of which is the aggregate Certificate Balance of the Subordinated
Certificates and the denominator of which is the sum of the aggregate
Certificate Balance of each class of Grantor Certificates of such Series (such
fraction, the "Subordinated Percentage", and one minus the Subordinated
Percentage, the "Senior Percentage") (herein the "Trust Stripped Coupon"), (iii)
the right, if any, to receive Yield Supplement Deposit Amounts and (iv) the
right, if any, to receive payments from a Reserve Fund or other source of credit
enhancement. All interest due on each Receivable in excess of that portion of
such interest included in either the Trust Stripped Bond or the Trust Stripped
Coupon above will have been retained by the Seller (the "Excess Receivable
Amounts").
The Senior Certificateholders in the aggregate will own the Senior
Percentage of the Trust Stripped Bond, and accordingly each Senior
Certificateholder will be treated as owning its pro rata share of such asset.
The Senior Certificateholders will not own any portion of the Trust Stripped
Coupon. The Subordinated Certificateholders in the aggregate own both the
Subordinated Percentage of the Trust Stripped Bond plus 100% of the Trust
Stripped Coupon, if any, and accordingly each Subordinated Certificateholder
will be treated as owning its pro rata share of both such assets.
Each Grantor Certificateholder will be required to report on its federal
income tax return, in a manner consistent with its method of accounting, its pro
rata share of the entire gross income of the Grantor Trust, including interest
or finance charges earned on the Receivables, certain amounts received from the
Reserve Fund, if any, any Yield Supplement Deposit Amounts, any other payment
from the Reserve Fund, if any, and any gain or loss upon collection or
disposition of the related Receivables. In computing its federal income tax
liability, a Grantor Certificateholder will be entitled to deduct, consistent
with its method of accounting, its pro rata share of reasonable fees payable to
the Servicer that are paid or incurred by the Grantor Trust as provided in
Sections 162 or 212 of the Code and any allowable amortization deductions with
respect to the foregoing Yield Supplement Deposit Amounts and payments from the
Reserve Fund, if any. If a Grantor Certificateholder is an individual, estate or
trust the deduction for its pro rata share of such fees will be allowed only to
the extent that all of its miscellaneous itemized deductions, including its
share of such fees, exceed 2% of its adjusted gross income. In addition, Code
Section 68 provides that itemized deductions otherwise allowable for a taxable
year of an individual taxpayer whose adjusted gross income exceeds a specified
amount will be reduced by the lesser of (i) 3% of the excess, if any, of
adjusted gross income over such amount, or (ii) 80% of the amount of itemized
deductions otherwise allowable for such year. As a result, such investors
holding Grantor Certificates, directly or indirectly through a pass-through
entity, may have aggregate taxable income in excess of the aggregate amount of
cash received on such Grantor Certificates with respect to interest at the
related Pass-Through Rate on such Certificates. A Grantor Certificateholder
using the cash method of accounting must take into account its pro rata share of
income and deductions as and when collected by or paid by the Grantor Trust. A
Grantor Certificateholder using the accrual method of accounting must take into
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account its pro rata share of income and deductions as and when such amounts
become due to or payable by the Grantor Trust.
The Trust Stripped Bond will be treated as a "stripped bond" within the
meaning of Section 1286 of the Code. The Trust Stripped Coupon will be treated
as a "stripped coupon" within the meaning of Section 1286 of the Code. As a
result, the Grantor Certificateholders will be deemed to hold interests in
"stripped bonds" and "stripped coupons." For purposes of Code Section 1271
through 1288, Code Section 1286 treats a stripped bond or a stripped coupon as
an obligation issued on the date that such stripped interest is created.
Guidance by the IRS suggests that a servicing fee in excess of reasonable
servicing ("excess servicing") will be treated under the stripped bond rules. It
is expected that for federal income tax purposes, the Seller will be viewed as
having retained a portion of each interest payment on each Receivable sold to
the related Grantor Trust. To the extent that the Receivables are characterized
as "stripped bonds," as described above, the income of the Trust allocable to
Grantor Certificateholders will not include the portion of the interest on the
Excess Receivable Amounts or the excess servicing treated as strips, and the
deductions allocable to Grantor Certificateholders will be limited to their
respective shares of reasonable servicing and other fees. In addition, a Grantor
Certificateholder will not be subject to the market discount and premium rules
discussed below with respect to the stripped Receivables, but instead will be
subject to the original issue discount rules contained in the Code. A Grantor
Certificateholder will be required to include any original issue discount in
income as it accrues, regardless of whether cash payments are received, using a
method reflecting a constant rate of interest on the related Receivables.
Stripped Bonds and Stripped Coupons. Although the tax treatment of stripped
bonds is not entirely clear, based on guidance by the IRS, each purchaser of a
Grantor Certificate will be treated as the purchaser of a stripped bond which
generally should be treated as a single debt instrument issued on the day it is
purchased for purposes of calculating any original issue discount. Generally,
under Treasury regulations issued with respect to section 1286 of the Code (the
"Section 1286 Treasury Regulations"), if the discount on a stripped bond
certificate is larger than a de minimis amount (as calculated for purposes of
the original issue discount rules of the Code) such stripped bond certificate
will be considered to have been issued with original issue discount. See
"Accrual of Original Issue Discount". Based on the preamble to the Section 1286
Treasury Regulations, Counsel is of the opinion that, although the matter is not
entirely clear, the interest income on the Senior Certificates and the
Subordinated Certificates (less the stripped coupon amount) at the sum of the
Pass-Through Rate for the Senior Certificates and the portion of the Servicing
Fee Rate that does not constitute excess servicing will be treated as "qualified
stated interest" within the meaning of the Section 1286 Treasury Regulations and
such income will be so treated in the Grantor Trustee's tax information
reporting.
Accrual of Original Issue Discount. In determining whether a Grantor
Certificateholder has purchased its interest in the related Receivables (or any
Receivable) at a discount, a portion of the purchase price for a Grantor
Certificate (i) will be allocated to any Yield Supplement Deposit Amounts and
any payments from the Reserve Fund or other form of credit enhancement and (ii)
may be allocated to the accrued interest on the Receivables at the time of
purchase as though such accrued interest were a separate asset, thus, in each
case, reducing the portion of the purchase price allocable to the Grantor
Certificateholder's undivided interest in the Receivables (the "Purchase
Price"). If the Grantor Certificates are considered to be issued with OID, the
rules described in this paragraph would apply. Generally, the owner of a
stripped bond issued or acquired with OID must include in gross income the sum
of the "daily portions", as defined below, of the OID on such Grantor
Certificate for each day on which it owns a Grantor Certificate, including the
date of purchase but excluding the date of disposition. In the case of an
original Grantor Certificateholder, the daily portions of OID with respect to a
Grantor Certificate generally would be determined as follows. A calculation will
be made of the portion of OID that accrues on the Grantor Certificate during
each successive monthly accrual period (or shorter period in respect of the date
of original issue or the final Distribution Date). This will be done, in the
case of each full monthly accrual period, by adding (i) the present value as of
the close of such accrual period of all remaining payments to be received on the
Grantor Certificate under the prepayment assumption used in respect of the
Grantor Certificates and (ii) any payments received during such accrual period,
and subtracting from that total the "adjusted issue price" of the Grantor
Certificate at the beginning of such accrual period. No representation is made
that the Receivables will prepay at any prepayment
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assumption. The "adjusted issue price" of a Grantor Certificate at the beginning
of the first accrual period is its issue price (as determined for purposes of
the OID rules of the Code) and the "adjusted issue price" of a Grantor
Certificate at the beginning of a subsequent accrual period is the "adjusted
issued price" at the beginning of the immediately preceding accrual period plus
the amount of OID allocable to that accrual period and reduced by the amount of
any payment made at the end of or during that accrual period. The OID accruing
during such accrual period will then be divided by the number of days in the
period to determine the daily portion of OID for each day in the period. With
respect to an initial accrual period shorter than a full monthly accrual period,
the daily portions of OID must be determined according to any reasonable method
set forth in the Treasury Regulations with respect to OID.
With respect to the Grantor Certificates of any Series issued by a Grantor
Trust, the method of calculating OID as described above will cause the accrual
of original issue discount to either increase or decrease (but never below zero)
in any given accrual period to reflect the fact that prepayments are occurring
at a faster or slower rate than the prepayment assumption used in respect of the
Grantor Certificates.
Subsequent purchasers that purchase Grantor Certificates at more than a de
minimis discount should consult their tax advisors with respect to the proper
method to accrue such OID.
Premium. The purchase of a Grantor Certificate at more than its adjusted
principal amount will result in the creation of a premium with respect to the
interest in the underlying Receivables represented by such Grantor Certificates.
In determining whether a Grantor Certificateholder has purchased its interest in
the related Receivables (or any Receivable) at a premium, a portion of the
purchase price for a Grantor Certificate (i) will be allocated to any Yield
Supplement Deposit Amounts and any payments from a Reserve Fund or other source
of credit enhancement and (ii) may be allocated to the accrued interest on the
Receivables at the time of purchase as though such accrued interest were a
separate asset, thus, in each case, reducing the portion of the purchase price
allocable to the Grantor Certificateholder's undivided interest in the
Receivables. A purchaser (who does not hold the Grantor Certificate for sale to
customers or in inventory) may elect under Section 171 of the Code to amortize
such premium. Under the Code, premium is allocated among the interest payments
on the Receivables to which it relates and is considered as an offset against
(and thus a reduction of) such interest payments. With certain exceptions, such
an election would apply to all debt instruments held or subsequently acquired by
the electing holder.
Holders of Grantor Certificates acquired at a premium are urged to consult
with their own tax advisors regarding the proper treatment of the Grantor
Certificates for federal income tax purposes.
Yield Supplement Deposit Amounts and Payments from Reserve Funds. The
manner in which income with respect to any Yield Supplement Deposit Amounts and
payments from any Reserve Fund should be accrued is not clear. Moreover, the sum
of the income and deductions properly reportable by a Grantor Certificateholder
in any taxable year may not equal the amounts that would be reportable if a
Grantor Certificateholder held, instead of an interest in the Receivables, such
Yield Supplement Deposit Amounts and payments from a Reserve Fund either, (i) a
debt instrument bearing interest at the related Pass-Through Rate or (ii) an
interest in a trust holding Receivables each of which bears interest at a rate
at least equal to the sum of the Pass-Through Rate for the Subordinated
Certificates plus the Servicing Fee Rate. It is possible that a Grantor
Certificateholder will be required to report as income on a current basis its
pro rata share of all amounts received by the Trust from the Yield Supplement
Account, if any, and the Reserve Fund. In such event, the Grantor
Certificateholder should be entitled to amortize in some manner the portion of
the purchase price paid for its Grantor Certificate that is allocable to its pro
rata interest in such Yield Supplement Deposit Amounts and payments from a
Reserve Fund. It is not clear whether such amortization deduction would be
computed on a method reflecting a constant rate of amortization, a straight-line
method of amortization, or some other method. Alternatively, it is possible that
income attributable to any Yield Supplement Deposit Amounts and payments from a
Reserve Fund could be accounted for as though the Grantor Certificateholder
purchased two original issue discount instruments having an "issue price" equal
to the portion of the purchase price allocable to such Yield Supplement Deposit
Amounts and payments from such Reserve Fund, respectively and a "stated
redemption price" equal to the total of all payments projected to be made
pursuant to such Yield Supplement Deposit Amounts and payments from such Reserve
Fund, respectively. It is not
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<PAGE> 124
clear whether, and to what extent, the amounts includible in income or
amortizable under any of these methods would be adjusted to take account of
prepayments on the Receivables. Moreover, it is possible that the IRS might
contend that none of the above methods is appropriate, and that income with
respect to any Yield Supplement Deposit Amounts and payments from a Reserve Fund
should be reported by a Grantor Certificateholder in some other manner. In
addition, to the extent that the amounts paid from any Yield Supplement Account
or from a Reserve Fund decline during any period by reason of prepayments on the
related Receivables, fewer than anticipated losses on the Receivables or greater
than anticipated earnings on any Pre-Funding Account, it is possible that a
portion of the amount amortizable by the Grantor Certificateholder during such
period would be treated as a capital loss (which would not offset ordinary
income), rather than as an ordinary deduction. It is expected that the annual
statement furnished to Grantor Certificateholders will report the net income
derived from any Yield Supplement Deposit Amounts and payments from any Reserve
Fund using a method that caused the total income attributable to a Grantor
Certificate to equal income at the applicable Pass-Through Rate on the related
Certificate Balance. Grantor Certificateholders are advised to consult their tax
advisors regarding the appropriate method of accounting for income attributable
to any Yield Supplement Deposit Amounts and payments from any Reserve Fund.
Sale of a Grantor Certificate. If a Grantor Certificate is sold, gain or
loss will be recognized equal to the difference between the amount realized on
the sale (exclusive of amounts attributable to accrued and unpaid interest,
which will be treated as ordinary income) allocable to each of the Receivables,
any Yield Supplement Deposit Amounts and payments from any Reserve Fund and the
Grantor Certificateholder's adjusted basis in each of the foregoing. A Grantor
Certificateholder's adjusted basis will equal the Grantor Certificateholder's
cost for the Grantor Certificate, increased by any discount previously included
in income, and decreased (but not below zero) by any previously amortized
premium and by the amount of payments previously received on the related
Receivables. Any gain or loss will be capital gain or loss if the Grantor
Certificate was held as a capital asset, except that gain will be treated in
whole or in part as ordinary interest income to the extent of the seller's
interest in accrued market discount not previously taken into income on
underlying Receivables having a fixed maturity date of more than one year from
the date of origination. Net capital gains of individuals are subject to
differing tax rates depending upon the holding period of the Grantor
Certificates.
SUBORDINATED CERTIFICATEHOLDERS
General. As stated above the Pass-Through Rate in respect of Subordinated
Certificates will be equal to the sum of (i) the Subordinated Percentage of the
Pool Balance multiplied by the Pass-Through Rate for the Senior Certificates,
(ii) a portion of the interest accrued on each Receivable (the "Trust Stripped
Coupon") and (iii) the right to receive Yield Supplement Deposit Amounts and
certain payments from any Reserve Fund. Because the purchase price paid by each
Subordinated Certificateholder will be allocated between that
Certificateholder's interest in the Trust Stripped Bond and the Trust Stripped
Coupon based on the relative fair market values of each asset on the date such
Grantor Certificate is purchased, the Trust Stripped Bond may be issued with
OID.
Trust Stripped Bond. Except to the extent modified below, the income on the
Trust Stripped Bond represented by the Grantor Certificate will be reported in
the same manner as described above for holders of the Certificates. The interest
income on the Subordinated Certificates at the Pass-Through Rate for the Senior
Certificates and the portion of the applicable Servicing Fee Rate that does not
constitute excess servicing will be treated as qualified stated interest.
Trust Stripped Coupon. The Trust Stripped Coupon will be treated as a debt
instrument with OID equal to the excess of the total amount payable with respect
to such Trust Stripped Coupon (based on the prepayment assumption used in
pricing the Grantor Certificates) over the portion of the purchase price
allocated thereto. The sum of the daily portions of OID on the Trust Stripped
Coupon for each day during a year in which the Subordinated Certificateholder
holds the Trust Stripped Coupon will be included in the Grantor
Certificateholder's income.
Effect of Subordination. If the Subordinated Certificateholders receive
distributions of less than their share of the Grantor Trust's receipts of
principal or interest (the "Shortfall Amount") because of the
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<PAGE> 125
subordination of the Subordinated Certificates, holders of Subordinated
Certificates would probably be treated for federal income tax purposes as if
they had (i) received as distributions their full share of such receipts, (ii)
paid over to the Senior Certificateholders an amount equal to such Shortfall
Amount and (iii) retained the right to reimbursement of such amounts to the
extent such amounts are otherwise available as a result of collections on the
related Receivables or amounts available in any Reserve Fund.
Under this analysis, (i) Subordinated Certificateholders would be required
to accrue as current income any interest or OID income of the Grantor Trust that
was a component of the Shortfall Amount, even though such amount was in fact
paid to the Senior Certificateholders, (ii) a loss would only be allowed to the
Subordinated Certificateholders when their right to receive reimbursement of
such Shortfall Amount became worthless (i.e., when it becomes clear that amount
will not be available from any source to reimburse such loss) and (iii)
reimbursement of such Shortfall Amount prior to such a claim of worthlessness
would not be taxable income to Subordinated Certificateholders because such
amount was previously included in income. Those results should not significantly
affect the inclusion of income for Subordinated Certificateholders on the
accrual method of accounting, but could accelerate inclusion of income to
Subordinated Certificateholders on the cash method of accounting by, in effect,
placing them on the accrual method. Moreover, the character and timing of loss
deductions on certificates such as the Subordinated Certificates is unclear.
Subordinated Certificateholders are strongly urged to consult their own tax
advisors regarding the appropriate timing, amount and character of any losses
sustained with respect to the Subordinated Certificates including any loss
resulting from the failure to recover previously accrued interest or discount
income.
FOREIGN GRANTOR CERTIFICATEHOLDERS
Interest attributable to Receivables which is received by a foreign Grantor
Certificateholder will generally not be subject to the normal 30% withholding
tax imposed with respect to such payments, provided that (i) the foreign Grantor
Certificateholder does not own, directly or indirectly, 10% or more of, and is
not a controlled foreign corporation related to, the Seller and (ii) such holder
fulfills certain certification requirements. Under such requirements, the holder
must certify, under penalty of perjury, that it is not a "United States person"
and provide its name and address. For this purpose, "United States person" means
a citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or any
political subdivision thereof or an estate or trust the income of which is
includible in gross income for United States federal income tax purposes,
regardless of its source. Gain realized upon the sale of a Grantor Certificate
by a foreign Grantor Certificateholder generally will not be subject to United
States withholding tax. If, however, such interest or gain is effectively
connected to the conduct of a trade or business within the United States by such
foreign Grantor Certificateholder, such holder will be subject to United States
federal income tax thereon at regular rates. Potential investors who are not
United States persons should consult their own tax advisors regarding the
specific tax consequences to them of owing a Grantor Certificate.
It is not clear whether amounts received by Grantor Certificateholders that
are attributable to payments received from any Yield Supplement Deposit Amounts
or from any Reserve Fund would be subject to withholding tax. Accordingly, a
Grantor Certificate may not be a suitable investment for non-United States
persons.
INFORMATION REPORTING AND BACKUP WITHHOLDING
The Grantor Trustee will furnish or make available, within the prescribed
period of time for tax reporting purposes after the end of each calendar year,
to each Grantor Certificateholder or each person holding a Grantor Certificate
on behalf of a Grantor Certificateholder at any time during such year, such
information as the Grantor Trustee deems necessary or desirable to assist
Grantor Certificateholders in preparing their federal income tax returns.
Payments made on the Grantor Certificates and proceeds from the sale of the
Grantor Certificates will not be subject to a "backup" withholding tax of 31%
unless, in general, a Grantor Certificateholder fails to comply with certain
reporting procedures and is not an exempt recipient under applicable provisions
of the Code.
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<PAGE> 126
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S PARTICULAR
SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE
SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER
TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL OR OTHER TAX LAWS.
STATE TAX CONSEQUENCES WITH RESPECT TO OWNER TRUSTS
The activities to be undertaken by the Master Servicer in servicing and
collecting the Receivables will take place in California. The State of
California imposes a state individual income tax and a corporate franchise tax
which is imposed on corporations, publicly traded partnerships, associations and
certain other entities doing business in the State of California. This
discussion is based upon present provisions of California statutes and the
regulations promulgated thereunder, and applicable judicial or ruling authority,
all of which are subject to change, which change may be retroactive.
Because of the variation in each state's tax laws based in whole or in part
upon income, it is impossible to predict tax consequences to holders of Notes
and Owner Certificates in all of the state taxing jurisdictions in which they
are already subject to tax. Noteholders and Owner Certificateholders are urged
to consult their own tax advisors with respect to state tax consequences arising
out of the purchase, ownership and disposition of Notes and Owner Certificates.
TAX CONSEQUENCES WITH RESPECT TO THE NOTES
It is expected that Counsel will advise each Trust that issues Notes that,
assuming the Notes will be treated as debt for federal income tax purposes, the
Notes will be treated as debt for California income and franchise tax purposes.
Accordingly, Noteholders not otherwise subject to taxation in California should
not become subject to taxation in California solely because of a holder's
ownership of Notes. However, a Noteholder already subject to California's income
tax or franchise tax could be required to pay additional California tax as a
result of the holder's ownership or disposition of Notes.
TAX CONSEQUENCES WITH RESPECT TO THE OWNER CERTIFICATES
Based on a ruling issued by the Franchise Tax Board with respect to the
California tax characterization of the Owner Trust as a partnership and not as
an association taxable as a corporation or other taxable entity, if the
arrangement created by the Trust Agreement is treated as a partnership (not
taxable as a corporation) for federal income tax purposes, Counsel will opine
that the same treatment should also apply for California tax purposes. In such
case, the resulting constructive partnership should not be treated as doing
business in California but rather should be viewed as a passive holder of
investments and, as a result, should not be subject to the California franchise
tax (which, if applicable, could possibly result in reduced distributions to
Owner Certificateholders). The Owner Certificateholders also should not be
subject to the California franchise tax on income received through the
partnership.
Under current law, Owner Certificateholders that are nonresidents of
California and are not otherwise subject to California income tax should not be
subject to California income tax on the income from the constructive
partnership. In any event, classification of the arrangement as a "partnership"
would not cause an Owner Certificateholder not otherwise subject to taxation in
California to pay California tax on income beyond that derived from the
Certificates.
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ERISA CONSIDERATIONS
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and Section 4975 of the Code prohibit a pension, profit
sharing or other employee benefit plan, as well as individual retirement
accounts and certain types of Keogh Plans (each, a "Plan"), from engaging in
certain transactions involving "plan assets" with persons that are "parties in
interest" under ERISA or "disqualified persons" under the Code with respect to
the Plan. ERISA also imposes certain duties on persons who are fiduciaries of
Plans subject to ERISA and prohibits certain transactions between a plan and
parties in interest with respect to such Plans. Under ERISA, any person who
exercises any authority or control with respect to the management or disposition
of the assets of a Plan is considered to be a fiduciary of such Plan (subject to
certain exceptions not here relevant). A violation of these "prohibited
transaction" rules may generate excise tax and other liabilities under ERISA and
the Code for such persons.
Employee benefit plans that are governmental plans (as defined in Section
3(32) of ERISA) and certain church plans (as defined in Section 3(33) of ERISA)
are not subject to ERISA requirements.
Under a regulation (the "Plan Assets Regulation") issued by the United
States Department of Labor ("Labor"), the assets of a Trust would be treated as
plan assets of a Plan for the purposes of ERISA and the Code if the Plan
acquired an "equity interest" in such Trust, and none of the exceptions
contained in the Plan Assets Regulation (and in subsequent administrative
exemptions issued by Labor) was applicable. An equity interest is defined under
the Plan Assets Regulation as an interest other than an instrument which is
treated as indebtedness under applicable local law and which has no substantial
equity features. The likely treatment in this context of the Securities of a
given series will be discussed in the related Prospectus Supplement.
Due to the complexities of the "prohibited transaction" rules and the
penalties imposed upon persons involved in prohibited transactions, it is
important that the fiduciary of any Plan considering the purchase of Securities
consult with its counsel regarding the applicability of the prohibited
transaction provisions of ERISA and the Code to such investment.
PLAN OF DISTRIBUTION
Unless otherwise provided in the related Prospectus Supplement, on the
terms and conditions set forth in the separate underwriting agreements with
respect to the Securities of any Series or class issued by a Trust (each, an
"Underwriting Agreement"), the Seller will agree to cause the related Trust to
sell to the underwriters named therein and in the related Prospectus Supplement,
and each of such underwriters will severally agree to purchase, the principal
amount of each class of Securities of the related Series set forth therein and
in the related Prospectus Supplement.
In each Underwriting Agreement, the several underwriters will agree,
subject to the terms and conditions set forth therein, to purchase all the
Securities described therein which are offered hereby and by the related
Prospectus Supplement if any of such Securities are purchased. Pursuant to each
Underwriting Agreement, the closing of the sale of any class of Securities
subject thereto will be conditioned on the closing of the sale of all other
classes of such series that are subject to such Underwriting Agreement or any
other Underwriting Agreement or Purchase Agreement covering Securities of such
Series.
Each Prospectus Supplement will either (i) set forth the price at which
each class of Securities offered thereby will be offered to the public and any
concessions that may be offered to certain dealers participating in the offering
of such Securities or (ii) specify that the related Securities are to be resold
by the underwriters in negotiated transactions at varying prices to be
determined at the times of such sales. After the initial public offering of any
such Securities, such public offering prices and such concessions may be
changed.
Each Underwriting Agreement will provide that the Seller and Fleetwood
Credit will jointly and severally indemnify the related underwriters against
certain civil liabilities, including liabilities under the Securities Act, or
contribute to payments the several underwriters may be required to make in
respect thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officer or persons controlling the registrant
pursuant to the foregoing provisions, the registrant has been
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informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
The place and time of delivery for the Securities in respect of which this
Prospectus is delivered will be set forth in the related Prospectus Supplement.
LEGAL OPINIONS
Certain legal matters relating to the Securities will be passed upon for
the Seller by Timothy M. Hayes or Frederic C. Liskow, each a Vice President and
Assistant General Counsel to First Capital, the parent company of the Servicer.
Mr. Hayes and Mr. Liskow each own shares of Class A Common Stock of First
Capital, and each have options to purchase additional shares of such Class A
Common Stock. Arter & Hadden LLP, Washington, D.C. will act as special counsel
to the Seller with respect to certain matters relating to the Securities,
including certain federal income tax matters relating to the Securities. Brown &
Wood LLP, San Francisco, California will act as counsel for the Underwriters.
Brown & Wood LLP has from time to time represented Fleetwood Credit in certain
matters not related to the offering of the Securities.
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INDEX OF TERMS
Set forth below is a list of certain of the more significant terms used in
this Prospectus and the pages on which the definitions of such terms may be
found herein.
<TABLE>
<CAPTION>
TERM PAGE
---- ----
<S> <C>
Additional Yield Supplement Amount............... 8
Administration Agreement......................... 44
Administration Fee............................... 45
Administrator.................................... 44
Advance.......................................... 9
Advance.......................................... 32
Cash Collateral Account.......................... 35
Certificate Balance.............................. 4
Certificates..................................... 1
Closing Date..................................... 6
Code............................................. 50
Collection Accounts.............................. 30
Collection Period................................ 5
Commission....................................... 2
Commission....................................... II-4
Cooperative...................................... 26
Corporation...................................... II-6
Corporations Code................................ II-1
Cutoff Date...................................... 6
Dealers.......................................... 6
Dealers.......................................... 11
Defaulted Receivable............................. 33
Deposit Date..................................... 9
Distribution Date................................ 5
Euroclear........................................ 26
Euroclear Operator............................... 26
Excess Receivable Amounts........................ 57
Exchange Act..................................... 2
Final Scheduled Distribution Date................ 6
Financed Vehicles................................ 1
FTC Rule......................................... 49
Grantor Certificates............................. 1
Grantor Collection Account....................... 30
Grantor Trust.................................... 1
Grantor Trustee.................................. 3
Indenture........................................ 3
Indenture Trustee................................ 3
Indirect DTC Participants........................ 24
Initial Financed Vehicles........................ 6
Insolvency Event................................. 39
LOC Issuer....................................... 35
Maximum Initial Yield Supplement Amount.......... 8
Military Reservist Relief Act.................... 13
Non-Reimbursable Payment......................... 33
Note Distribution Account........................ 30
Notes............................................ 1
Obligors......................................... 11
Owner Certificate Distribution Account........... 30
Owner Certificates............................... 1
Owner Collection Account......................... 29
Owner Securities................................. 1
Owner Trust...................................... 1
Owner Trustee.................................... 3
</TABLE>
<TABLE>
<CAPTION>
TERM PAGE
---- ----
<S> <C>
Paid-Ahead Period................................ 14
Paid-Ahead Receivable............................ 14
Payment Date..................................... 6
Plan............................................. 10
Plan............................................. 62
Plan Assets Regulation........................... 62
Pooling and Servicing Agreement.................. 3
Pre-Funding Account.............................. 31
Pre-Funded Amount................................ 7
Prospectus Supplement............................ 1
Purchase Price................................... 58
Rating Agency.................................... 28
Receivables...................................... 6
Receivables...................................... 1
Receivables Pool................................. 4
Receivables Purchase Agreement................... 6
Record Date...................................... 5
Relief Act Obligor............................... 13
Repurchase Amount................................ 29
Required Deposit Ratings......................... 30
Required Rate.................................... 8
Required Servicer Ratings........................ 31
Reserve Fund..................................... 35
Sale and Servicing Agreement..................... 6
Schedule of Receivables.......................... 27
Section 1286 Treasury Regulations................ 58
Securities....................................... 1
Securities Act................................... 2
Securities Act................................... II-3
Security Owner................................... 3
Seller........................................... 3
Seller........................................... 1
Senior Certificates.............................. 5
Series........................................... 1
Servicer Letter of Credit........................ 31
Servicing Fee Rate............................... 9
Shortfall Amount................................. 60
Soldiers' and Sailors' Relief Act................ 13
Spread Account................................... 36
Subordinated Certificates........................ 5
Transfer Agreement............................... 7
Transfer and Servicing Agreements................ 7
Trust Agreement.................................. 3
Trust Stripped Bond.............................. 56
Trust Stripped Coupon............................ 60
Trustees......................................... 3
Trusts........................................... 1
UCC.............................................. 24
Underwriting Agreement........................... 63
Yield Supplement Account......................... 8
Yield Supplement Agreement....................... 8
Yield Supplement Amount.......................... 8
Yield Supplement Initial Deposit................. 8
</TABLE>
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses to be incurred in connection
with the offering of the Securities being registered herein:
<TABLE>
<S> <C>
SEC registration fee........................................ $ 590,008.03
Legal fees and expenses..................................... 150,000.00
Accounting fees and expenses................................ 50,000.00
Blue sky fees and expenses.................................. 5,000.00
Rating agency fees.......................................... 500,000.00
Trustee's fees and expenses................................. 25,000.00
Printing.................................................... 85,000.00
Miscellaneous............................................... 25,000.00
-------------
Total............................................. $1,525,008.03
=============
</TABLE>
All of the above amounts, other than the Securities and Exchange Commission
filing fee, are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 317(b) of the California Corporations Code (the "Corporations
Code") provides that a corporation shall have power to indemnify any person who
was or is a party or is threatened to be made a party to any "proceeding" (as
defined in Section 317(a) of the Corporations Code), other than an action by or
in the right of the corporation to procure a judgment in its favor, by reason of
the fact that such person is or was a director, officer, employee or other agent
of the corporation (collectively, an "Agent"), against expenses, judgments,
fines, settlements and other amounts actually and reasonably incurred in
connection with such proceeding if the Agent acted in good faith and in a manner
the Agent reasonably believed to be in the best interest of the corporation and,
in the case of a criminal proceeding, had no reasonable cause to believe the
conduct was unlawful.
Section 317(c) of the Corporations Code provides that a corporation shall
have power to indemnify any Agent who was or is a party or is threatened to be
made a party to any threatened, pending or completed action by or in the right
of the corporation to procure a judgment in its favor by reason of the fact that
such person is or was an Agent, against expenses actually and reasonably
incurred by the Agent in connection with the defense or settlement of such
action if the Agent acted in good faith and in a manner such Agent believed to
be in the best interest of the corporation and its shareholders.
Section 317(c) further provides that no indemnification may be made
thereunder for any of the following: (i) in respect of any matter as to which an
Agent shall have been adjudged to be liable to the corporation, unless the court
in which such proceeding is or was pending shall determine that such Agent is
fairly and reasonably entitled to indemnity for expenses, (ii) of amounts paid
in settling or otherwise disposing of a pending action without court approval
and (iii) of expenses incurred in defending a pending action which is settled or
otherwise disposed of without court approval.
Section 317(d) of the Corporations Code requires that an Agent be
indemnified against expenses actually and reasonably incurred to the extent the
Agent has been successful on the merits in the defense of proceedings referred
to in subdivisions (b) or (c) of Section 317.
Except as provided in Section 317(d), and pursuant to Section 317(e),
indemnification under Section 317 shall be made by the corporation only if
specifically authorized and upon a determination that indemnification is proper
in the circumstances because the Agent has met the applicable standard of
conduct, by any of the following: (i) a majority vote of a quorum consisting of
directors who are not parties to the proceeding, (ii) if such a quorum of
directors is not obtainable, by independent legal counsel in a written
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opinion, (iii) approval of the shareholders, provided that any shares owned by
the Agent may not vote thereon, or (iv) the court in which such proceeding is or
was pending.
Pursuant to Section 317(f) of the Corporations Code, the corporation may
advance expenses incurred in defending any proceeding upon receipt of an
undertaking by the Agent to repay such amount if it is ultimately determined
that the Agent is not entitled to be indemnified.
Section 317(h) provides, with certain exceptions, that no indemnification
shall be made under Section 317 where it appears that it would be inconsistent
with a provision of the corporation's articles, bylaws, a shareholder resolution
or an agreement which prohibits or otherwise limits indemnification, or where it
would be inconsistent with any condition expressly imposed by a court in
approving a settlement.
Section 317(i) authorizes a corporation to purchase and maintain insurance
on behalf of an Agent for liabilities arising by reason of the Agent's status,
whether or not the corporation would have the power to indemnify the Agent
against such liability under the provisions of Section 317.
Reference is also made to Section 7 of the Form of Underwriting Agreement
to be executed by the Registrant, Fleetwood Credit Corp. and any Underwriter of
the Securities offered hereby (see Exhibit 1.1), which provides for
indemnification of the Registrant under certain circumstances.
Article IX of the Articles of Incorporation of the Registrant provides for
the indemnification of the officers and directors of the Registrant to the
fullest extent permissible under California law.
Article IV, Section 4.01 of the Bylaws of the Registrant requires that the
Registrant indemnify, and, in certain instances, advance expenses to, its
agents, with respect to certain costs, expenses, judgments, fines, settlements
and other amounts incurred in connection with any proceeding, to the full extent
permitted by applicable law.
In addition, Article IV, Section 4.03 of the Bylaws of the Registrant
authorizes the Registrant to purchase and maintain insurance to the extent
provided by Section 3.17(i) of the Corporations Code.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1.1 -- Form of Underwriting Agreement for Grantor Certificates
1.2 -- Form of Underwriting Agreement for Owner Securities
4.1 -- Form of Trust Agreement (including form of Owner
Certificates issued by Owner Trusts)
4.2 -- Form of Indenture (including form of Notes issued by
Owner Trusts)
4.3 -- Form of Pooling and Servicing Agreement (including forms
of Grantor Certificates issued by Grantor Trusts)
4.4 -- Form of Standard Terms and Conditions of Pooling and
Servicing Agreement
5.1 -- Opinion of Frederic C. Liskow, Esq. with respect to
legality
8.1 -- Opinion of Arter & Hadden LLP with respect to tax matters
10.1 -- Form of Receivables Purchase Agreement
10.2 -- Form of Sale and Servicing Agreement
10.3 -- Form of Transfer Agreement
10.4 -- Form of Yield Supplement Agreement
10.5 -- Form of Administration Agreement
23.1 -- Consent of Timothy M. Hayes, Esq. (included in Exhibit
5.1)
23.2 -- Consent of Arter & Hadden LLP (included in Exhibit 8.1)
24.1 -- Powers of Attorney of Directors and Officers of
Registrant (included on Page II-7)
25.1 -- Statement of Eligibility and Qualification of Indenture
Trustee*
</TABLE>
- ---------------
* To be filed by amendment.
II-2
<PAGE> 132
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes as follows:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i) to
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933; (ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement, provided, however, that paragraphs (a)(i) and
(a)(ii) do not apply if the information required to be included in a
posteffective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement;
(b) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "Securities Act"), each such post-effective
amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(d) For purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated
by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(e) To provide to the Underwriters at the closing dates specified in
the Underwriting Agreements certificates in such denominations and
registered in such names as required by the Underwriters to provide prompt
delivery to each purchaser.
(f) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission (the "Commission") such indemnification
is against public policy as expressed in the Securities Act and is
therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of such
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
(g) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act will be deemed to be part of this
registration statement as of the time it was declared effective.
(h) For purposes of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus will
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time will be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 133
(i) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the Indenture
Trustee to act under subsection (a) of Section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Securities Act.
II-4
<PAGE> 134
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to the Registration Statement on Form S-3 to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Irving, State of
Texas, on the 1st day of April, 1998.
FLEETWOOD CREDIT RECEIVABLES CORP.
By: /s/ MARVIN T. RUNYON, III
----------------------------------
Marvin T. Runyon, III
Senior Vice President
II-5
<PAGE> 135
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, being an
officer or director or both, of Fleetwood Credit Receivables Corp., a California
corporation (the "Corporation"), hereby make John F. Hughes, Timothy M. Hayes,
Marvin T. Runyon, III and Chester D. Longenecker, and each of them,
attorneys-in-fact and agents of the undersigned with full power and authority of
substitution and resubstitution, in any and all capacities, to execute for and
on behalf of the undersigned the Registration Statement on Form S-3 relating to
which this power of attorney is filed as an exhibit, and any and all
pre-effective and post-effective amendments or supplements to the foregoing
Registration Statement and any other documents and instruments incidental
thereto, and to deliver and file the same, with all exhibits thereto, and all
documents and instruments in connection therewith, with the Securities and
Exchange Commission, and with each exchange on which any class of securities of
the Corporation is registered, granting unto said attorneys-in-fact and agents,
and each of them, full power and authority to do and perform each and every act
and thing that said attorneys-in-fact and agents, and each of them, deem
advisable or necessary to enable the Corporation to effectuate the intents and
purposes hereof, and the undersigned hereby fully ratify and confirm all that
said attorneys-in-fact and agents, or any of them, or their respective
substitutes, if any, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ DOY B. HENLEY Director April 1, 1998
- -----------------------------------------------------
Doy B. Henley
/s/ HAROLD D. MARSHALL Director and President April 1, 1998
- ----------------------------------------------------- (Principal Executive
Harold D. Marshall Officer)
/s/ JAMES W. PARKER Director April 1, 1998
- -----------------------------------------------------
James W. Parker
/s/ LAWRENCE F. PITTROFF Director and Senior Vice April 1, 1998
- ----------------------------------------------------- President
Lawrence F. Pittroff
/s/ JOHN F. HUGHES Executive Vice President April 1, 1998
- ----------------------------------------------------- and Treasurer (Principal
John F. Hughes Financial Officer)
/s/ DENNIS J. MANDICK Executive Vice President April 1, 1998
- ----------------------------------------------------- and Controller (Principal
Dennis J. Mandick Accounting Officer)
</TABLE>
II-6
<PAGE> 136
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT DESCRIPTION
------------ -----------
<C> <S>
1.1 -- Form of Underwriting Agreement for Grantor Certificates
1.2 -- Form of Underwriting Agreement for Owner Securities
4.1 -- Form of Trust Agreement (including form of Owner
Certificates issued by Owner Trusts)
4.2 -- Form of Indenture (including form of Notes issued by
Owner Trusts)
4.3 -- Form of Pooling and Servicing Agreement (including forms
of Grantor Certificates issued by Grantor Trusts)
4.4 -- Form of Standard Terms and Conditions of Pooling and
Servicing Agreement
5.1 -- Opinion of Frederic C. Liskow, Esq. with respect to
legality
8.1 -- Opinion of Arter & Hadden LLP with respect to tax matters
10.1 -- Form of Receivables Purchase Agreement
10.2 -- Form of Sale and Servicing Agreement
10.3 -- Form of Transfer Agreement
10.4 -- Form of Yield Supplement Agreement
10.5 -- Form of Administration Agreement
23.1 -- Consent of Timothy M. Hayes, Esq. (included in Exhibit
5.1)
23.2 -- Consent of Arter & Hadden LLP (included in Exhibit 8.1)
24.1 -- Powers of Attorney of Directors and Officers of
Registrant (included on Page II-7)
25.1 -- Statement of Eligibility and Qualification of Indenture
Trustee*
</TABLE>
- ---------------
* To be filed by amendment.
<PAGE> 1
EXHIBIT 1.1
$_____________
FLEETWOOD CREDIT RV RECEIVABLES 199__-__ GRANTOR TRUST
____% ASSET BACKED CERTIFICATES, CLASS A
____% ASSET BACKED CERTIFICATES, CLASS B
UNDERWRITING AGREEMENT
____________, 199__
______________________,
as Representative of
the several Underwriters
______________________
______________________
Dear Sirs:
1. Introductory. Fleetwood Credit Receivables Corp., a
California corporation (the "Seller") and a wholly owned subsidiary of
Fleetwood Credit Corp., a California corporation ("Fleetwood Credit"), proposes
to sell to ____________ and __________ (the "Underwriters"), acting severally
and not jointly, for whom ___________ is acting as representative (in such
capacity, the "Representative"), $___________ aggregate principal amount of
____% Asset Backed Certificates, Class A (the "Class A Certificates") and
$___________ aggregate principal amount of ____% Asset Backed Certificates,
Class B (the "Class B Certificates" and, together with the Class A
Certificates, the "Certificates") of the Fleetwood Credit RV Receivables
199__-__ Grantor Trust (the "Trust"). The Certificates will be issued pursuant
to a pooling and servicing agreement, dated as of __________ 1, 199__ (the
"Pooling and Servicing Agreement"), among the Seller, Fleetwood Credit, as
servicer (in such capacity, the "Servicer"), and ______________, as trustee
(the "Trustee"). The Class B Certificates will be subordinated to the Class A
Certificates to the limited extent described in the Pooling and Servicing
Agreement. This Underwriting Agreement shall hereinafter be referred to as
"this Agreement." Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in the Pooling and Servicing
Agreement.
<PAGE> 2
Each Certificate will represent a fractional undivided interest in the
Trust. The assets of the Trust will include, among other things, a pool of
simple interest retail installment sale contracts (the "Initial Receivables")
secured by the new and used recreational vehicles financed thereby (the
"Initial Financed Vehicles"), certain monies due under the Receivables on and
after __________ 1, 199__ (the "Initial Cutoff Date") and amounts on deposit in
a trust account (the "Pre-Funding Account"), in each case as more fully
described in the Prospectus, as defined below. The Initial Receivables will be
sold by Fleetwood Credit to the Seller pursuant to a receivables purchase
agreement, dated as of __________ 1, 199__ (the "Receivables Purchase
Agreement"), between Fleetwood Credit and the Seller, and the Seller in turn
will sell the Initial Receivables to the Trust pursuant to the Pooling and
Servicing Agreement. From time to time during the Funding Period pursuant to
the Receivables Purchase Agreement, to the extent available, Fleetwood Credit
will be obligated to sell, and the Seller will be obligated to purchase,
additional simple interest retail installment sale contracts (the "Subsequent
Receivables" and, together with the Initial Receivables, the "Receivables")
secured by the new and used recreational vehicles financed thereby (the
"Subsequent Financed Vehicles" and, together with the Initial Financed
Vehicles, the "Financed Vehicles"), which Subsequent Receivables will be
described in one or more agreements among Fleetwood Credit, the Seller and the
Trustee (each, a "Transfer Agreement"), dated as of the related date of
transfer (each, a "Subsequent Transfer Date"). The Subsequent Receivables will
in turn be sold by the Seller to the Trust pursuant to the Pooling and
Servicing Agreement and the related Transfer Agreement. The maximum aggregate
principal amount of Subsequent Receivables to be sold during the Funding Period
by Fleetwood Credit to the Seller and by the Seller to the Trust is
$_____________.
2. Representations and Warranties of the Seller and Fleetwood
Credit.
(a) The Seller represents and warrants to, and agrees with, each
Underwriter that:
(i) A registration statement on Form S-3 (No. 333-91848),
including a form of prospectus, relating to the Certificates has been
filed with the Securities and Exchange Commission (the "Commission")
and either (1) has been declared effective under the Securities Act of
1933, as amended (the "Act"), and is not proposed to be amended or (2)
is proposed to be amended by amendment or post-effective amendment.
If the Seller does not propose to amend the registration statement and
if any post-effective amendment to such registration statement has
been filed with the Commission prior to the execution and delivery of
this Agreement, the most recent post-effective amendment has been
declared effective by the Commission. For purposes of this Agreement,
"Effective Time" means (1) if the Seller has advised the Underwriters
that it does not propose to amend the registration statement, the date
and time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or (2) if the Seller has advised the Underwriters that it
proposes to file an amendment or post-effective amendment to the
registration statement, the date and time as of which such
registration
2
<PAGE> 3
statement, as amended by such amendment or post-effective amendment,
as the case may be, is declared effective by the Commission.
"Effective Date" means the date of the Effective Time. The
registration statement, as amended at the Effective Time, including
all information (if any) deemed to be a part of such registration
statement as of the Effective Time pursuant to Rule 430A(b) under the
Act, and including the exhibits thereto, is hereinafter referred to as
the "Registration Statement," and the form of prospectus relating to
the Certificates, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) under the Act ("Rule 424(b)"), or (if
no such filing is required) as included in the Registration Statement,
is hereinafter referred to as the "Prospectus."
(ii) If the Effective Time is prior to the execution and
delivery of this Agreement: (A) on the Effective Date, the
Registration Statement conformed, and on the date of this Agreement
the Registration Statement conforms, in all material respects with the
requirements of the Act and the rules and regulations of the
Commission promulgated under the Act (the "Rules and Regulations"),
and at such times 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 not misleading, and (B) on
the date of this Agreement, at the time of filing of the Prospectus
pursuant to Rule 424(b) and at the Closing Date, the Prospectus will
conform in all material respects to the requirements of the Act and
the Rules and Regulations, and does not include and will not include
any untrue statement of a material fact and does not omit and will not
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. If the Effective Time is subsequent to the
execution and delivery of this Agreement: (A) on the Effective 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 the Registration Statement will 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 not misleading, (B) at the Effective Date and at the Closing
Date the Prospectus will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (C) the Prospectus delivered
to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system, except to the extent permitted by Regulation S-T.
The two immediately preceding sentences do not apply to statements in
or omissions from the Registration Statement or Prospectus in reliance
upon and in conformity with written information furnished to the
Seller by the Underwriters specifically for use therein.
(iii) This Agreement has been duly authorized, executed
and delivered by the Seller.
3
<PAGE> 4
(iv) As of the Closing Date, the representations and
warranties of the Seller in the Pooling and Servicing Agreement will
be true and correct and as of each Subsequent Transfer Date, the
representations and warranties of the Seller in the Pooling and
Servicing Agreement and in the related Transfer Agreement will be true
and correct.
(b) Fleetwood Credit represents and warrants to, and agrees with,
each Underwriter that:
(i) This Agreement has been duly authorized, executed and
delivered by Fleetwood Credit.
(ii) As of the Closing Date, the representations and
warranties of the Servicer in the Pooling and Servicing Agreement will
be true and correct and as of each Subsequent Transfer Date, the
representations and warranties of the Servicer in the Pooling and
Servicing Agreement and in the related Transfer Agreement will be true
and correct.
3. Purchase, Sale and Delivery of Certificates. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Seller agrees to sell to the
Underwriters, and the Underwriters, acting severally and not jointly, agree to
purchase from the Seller, the respective principal amounts of Class A
Certificates and Class B Certificates set forth opposite the names of the
Underwriters in Schedule A hereto. The Certificates are to be purchased at a
purchase price equal to, in the case of (i) the Class A Certificates,
__________% of the aggregate principal amount thereof and (ii) the Class B
Certificates, ________% of the aggregate principal amount thereof.
The Seller will deliver the Certificates to the Underwriters against
payment of the respective purchase prices therefor in immediately available
funds to the order of the Seller at the office of Brown & Wood LLP, 555
California Street, San Francisco, California, at ___:00 __.M., ________ time,
on ___________, 199__, or at such other time not later than seven full Business
Days thereafter as the Underwriters and the Seller determine, such time being
herein referred to as the "Closing Date." Each Class of Certificates will be
initially represented by one certificate (the "DTC Certificates") registered in
the name of Cede & Co., the nominee of The Depository Trust Company ("DTC").
The interests of beneficial owners of the DTC Certificates will be represented
by book entries on the records of DTC and participating members thereof.
Definitive certificates evidencing the Class A Certificates or the Class B
Certificates will be available only under the limited circumstances specified
in the Pooling and Servicing Agreement.
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), the Seller and the Underwriters have agreed
that the Closing Date will be not less than seven Business Days following the
date hereof.
4
<PAGE> 5
4. Offering by the Underwriters. It is understood that the
Underwriters propose to offer the Certificates for sale to the public as set
forth in the Prospectus.
5. Certain Agreements of the Seller and Fleetwood Credit. Each
of the Seller and Fleetwood Credit, as the case may be, covenants and agrees
with each Underwriter that:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Seller will file the Prospectus with
the Commission pursuant to and in accordance with subparagraph (1)
(or, if applicable and if consented to by the Underwriters,
subparagraph (4)) of Rule 424(b) not later than the earlier of (i) the
second business day following the execution and delivery of this
Agreement or (ii) the fifth business day after the Effective Date.
The Seller will advise the Underwriters promptly of any such filing
pursuant to Rule 424(b).
(b) The Seller will advise the Underwriters promptly of
any proposal to amend or supplement the registration statement as
filed or the related prospectus or the Registration Statement or the
Prospectus and will not effect any such amendment or supplement
without the consent of the Underwriters, which consent will not
unreasonably be withheld; and the Seller will advise the Underwriters
promptly of the effectiveness of the Registration Statement (if the
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplement of the Registration
Statement or the Prospectus and of the institution by the Commission
of any stop order proceedings in respect of the Registration Statement
and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend
or supplement the Prospectus to comply with the Act, the Seller
promptly will prepare and file, or cause to be prepared and filed,
with the Commission an amendment or supplement which will correct such
statement or omission, or an amendment or supplement which will effect
such compliance. Neither the consent of the Underwriters to, nor the
delivery by the Underwriters of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in
Section 6 hereof.
(d) As soon as practicable, but not later than ________,
____, the Seller will cause the Trustee to make generally available to
holders of the Certificates an earnings statement with respect to the
Trust covering a period of at least 12 months beginning after
5
<PAGE> 6
the Effective Date which will satisfy the provisions of Section 11(a)
of the Act (including, at the option of the Seller, Rule 158
promulgated thereunder).
(e) The Seller will furnish to the Underwriters copies of
the Registration Statement (at least two of which will be signed and
will include all exhibits), each related preliminary prospectus, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the
Underwriters may reasonably request.
(f) The Seller will use its best efforts to arrange for
the qualification of the Certificates for sale under the laws of such
jurisdictions in the United States as the Underwriters may reasonably
designate and will continue such qualifications in effect so long as
required for the distribution of the Certificates, provided that the
Seller shall not be obligated to qualify to do business nor become
subject to service of process generally, but only to the extent
required for such qualification, in any jurisdiction in which it is
not currently so qualified.
(g) For a period from the date of this Agreement until
the retirement of all of the Certificates, or until such time as the
Underwriters shall cease to maintain a secondary market in either
Class of Certificates, whichever occurs first, the Seller will deliver
to the Underwriters the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the
Trustee pursuant to Article Thirteen of the Pooling and Servicing
Agreement, as soon as such statements and reports are furnished to the
Trustee.
(h) So long as any of the Certificates are outstanding,
the Seller or Fleetwood Credit, as the case may be, shall furnish to
the Underwriters, as soon as practicable, (i) all documents required
to be distributed to holders of either Class of Certificates (or
available at such holders' request) or filed with the Commission
pursuant to the Exchange Act, or any order of the Commission
thereunder and (ii) from time to time, any other information
concerning the Seller or Fleetwood Credit filed with any government or
regulatory authority which is otherwise publicly available, as the
Underwriters may reasonably request.
(i) Whether or not the transactions contemplated by this
Agreement are consummated other than as a result of a failure by the
Underwriters to perform hereunder, the Seller and Fleetwood Credit
will, subject to the provisions of Section 9 hereof, pay all expenses
incident to the performance of their respective obligations under this
Agreement, including without limitation, expenses incident to the
printing, reproduction and distribution of the registration statement
as originally filed with the Commission and all amendments thereto,
any fees charged by Moody's Investors Service, Inc. ("Moody's") and
Standard & Poor's, a division of The McGraw-Hill Companies, Inc.
("Standard &
6
<PAGE> 7
Poor's" and, together with Moody's, the "Rating Agencies") for the
rating of the Class A Certificates and the Class B Certificates, the
fees of DTC in connection with the book-entry registration of the
Class A Certificates and the Class B Certificates and reasonable
expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) and will
reimburse the Underwriters for all reasonable expenses incurred in
connection with the initial qualification of the Certificates for sale
under the laws of such jurisdictions in the United States as the
Underwriters may designate, including, but not limited to, fees of
counsel and disbursements incurred by such counsel in connection
therewith.
(j) On or before the Closing Date with respect to the
Initial Receivables, and on or before each Subsequent Transfer Date
with respect to the Subsequent Receivables to be transferred to the
Trust on such date, the Seller and Fleetwood Credit shall cause their
respective computer records to be marked relating to the Receivables
to show the Trust's absolute ownership of the Receivables, and from
and after the Closing Date or such Subsequent Transfer Date, as the
case may be, Fleetwood Credit Receivables Corp., as Seller, and
Fleetwood Credit, as Servicer, shall not take any action inconsistent
with the Trust's ownership of the Receivables, other than as permitted
by the Pooling and Servicing Agreement.
(k) To the extent, if any, that the rating provided with
respect to the Class A Certificates or the Class B Certificates by
either Rating Agency is conditional upon the furnishing of documents
or the taking of any other actions by the Seller or Fleetwood Credit,
the Seller or Fleetwood Credit, as the case may be, shall furnish such
documents and take any such other actions.
(l) In the event the Servicer obtains a Servicer Letter
of Credit pursuant to the Pooling and Servicing Agreement, the Seller
and the Servicer shall cause the Underwriters to receive:
(i) A copy of the Servicer Letter of Credit.
(ii) An original of the servicer letter of credit
reimbursement agreement (the "Reimbursement Agreement")
between the Servicer and the letter of credit bank named
therein (the "Letter of Credit Bank") pursuant to which the
Servicer Letter of Credit was issued.
(iii) An original of any amendment to the Pooling
and Servicing Agreement relating to the obtaining of the
Servicer Letter of Credit.
(iv) An opinion of Timothy M. Hayes, Esq., Senior
Vice President and Assistant General Counsel of Fleetwood
Credit, dated the date of issuance of the
7
<PAGE> 8
Servicer Letter of Credit (the "Issuance Date") and
satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, and substantially to the effect
of clauses (i), (v), (viii), (ix) and (x) of Section 6(f)
hereof, appropriately modified to relate to the Reimbursement
Agreement.
(v) An opinion of counsel to the Letter of Credit
Bank, satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, dated the Issuance Date and
substantially to the effect that:
(A) The Letter of Credit Bank is duly
organized as a corporation and is validly existing
under the laws of the country of its organization,
and has the full power and authority (corporate and
other) to issue, and to take all action required of
it under, the Servicer Letter of Credit.
(B) The execution, delivery and
performance by the Letter of Credit Bank of the
Servicer Letter of Credit and the Reimbursement
Agreement have been duly authorized by all necessary
corporate action on the part of the Letter of Credit
Bank.
(C) The execution, delivery and
performance by the Letter of Credit Bank of the
Servicer Letter of Credit and the Reimbursement
Agreement do not require the consent or approval of,
the giving of notice to, the registration with, or
the taking of any other action in respect of any
state or other governmental agency or authority which
has not previously been effected.
(D) The Servicer Letter of Credit and
the Reimbursement Agreement have been duly
authorized, executed and delivered by the Letter of
Credit Bank and constitute legal, valid and binding
obligations of the Letter of Credit Bank, enforceable
against the Letter of Credit Bank in accordance with
their respective terms (subject, as to enforcement,
to bankruptcy, reorganization, insolvency, moratorium
and other laws affecting creditors' rights generally
and to general equity principles).
(E) The Servicer Letter of Credit is not
required to be registered under the Act in connection
with the offer and sale of the Certificates in the
manner contemplated by the Prospectus.
In rendering such opinion, such counsel may rely as to all
matters of the law of the country of organization of the
Letter of Credit Bank upon counsel satisfactory to the
Underwriters and counsel for the Underwriters.
8
<PAGE> 9
(vi) A certificate, dated the Issuance Date, of
the President or any Vice President of the Letter of Credit
Bank to the effect that, among other things, since the date of
this Agreement, there has been no material adverse change in
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects, of the Letter of
Credit Bank.
(vii) A letter from each Rating Agency, to the
extent required by the Pooling and Servicing Agreement, to the
effect that the obtaining of the Servicer Letter of Credit, in
and of itself, would not cause its rating of either Class of
Certificates to be reduced, withdrawn or modified.
6. Conditions of the Obligations of the Underwriters. The
obligation of the Underwriters to purchase and pay for the Certificates will be
subject to the accuracy of the respective representations and warranties on the
part of the Seller and Fleetwood Credit herein, to the accuracy of the
statements of the respective officers of the Seller and Fleetwood Credit made
pursuant to the provisions hereof, to the performance by the Seller and
Fleetwood Credit of their respective obligations hereunder and to the following
additional conditions precedent:
(a) The Underwriters and the Seller shall have received
from Coopers & Lybrand L.L.P., independent public accountants
("Coopers & Lybrand") (i) on the date of this Agreement, a letter,
dated as of such date, substantially in the form of the draft to which
the Underwriters have previously agreed, and (ii) on the Closing Date,
a letter, dated as of the Closing Date, updating the letter referred
to in clause (i) above, which letters shall in each case be in form
and substance satisfactory to the Underwriters and counsel for the
Underwriters.
(b) If the Effective Time is not prior to the execution
and delivery of this Agreement, the Effective Time shall have occurred
not later than 10:00 P.M., New York City time, on the date of this
Agreement or such later date as shall have been consented to by the
Underwriters. If the Effective Time is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and
Section 5(a) hereof. Prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Seller or the Underwriters,
shall be contemplated by the Commission.
(c) The Underwriters shall have received an officer's
certificate dated the Closing Date by the President, any Vice
President, the Treasurer or the Secretary of (i) the Seller
representing and warranting to the Underwriters that, as of the
Closing Date, the representations and warranties of the Seller in the
Pooling and Servicing Agreement are true and correct and (ii)
Fleetwood Credit representing and warranting that, as of the
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<PAGE> 10
Closing Date, the representations and warranties of Fleetwood Credit
in the Pooling and Servicing Agreement are true and correct.
(d) The Underwriters shall have received an opinion of
Timothy M. Hayes, Esq., Senior Vice President and Assistant General
Counsel to the Seller, or, insofar as such matters relate to
California law, Mitchell, Silberberg & Knupp LLP, addressed to the
Underwriters, the Rating Agencies and the Trustee, dated the Closing
Date and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, substantially to the effect that:
(i) The Seller has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of California with full power and authority
(corporate and other), and has obtained all necessary licenses
and approvals, to own its properties and conduct its business
as presently conducted by it, and to enter into and perform
its obligations under the Pooling and Servicing Agreement and
the Receivables Purchase Agreement (collectively, the "Basic
Documents"), this Agreement and the Certificates, and,
assuming no change in law or factual circumstance (as
confirmed in the Officer's Certificates to be delivered as of
each Subsequent Transfer Date), will have such power and
authority with regard to each Transfer Agreement, and had at
all relevant times, now has, and on each Subsequent Transfer
Date will have, the power, authority and legal right to
acquire, own and sell the Initial Receivables and the
Subsequent Receivables.
(ii) The Seller has obtained all necessary
licenses and approvals to conduct its business as presently
conducted in California and does not currently conduct
business in any other state in which a Receivable was
originated and does not need any licenses or approvals from
any of such other states for purposes of the transactions
contemplated by the Basic Documents, each Transfer Agreement
and this Agreement.
(iii) This Agreement has been duly authorized,
executed and delivered by the Seller and constitutes the
legal, valid and binding agreement of the Seller, enforceable
in accordance with its terms, except that (A) the
enforceability hereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights, (B)
the remedies of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding
therefor may be brought and (C) rights to indemnity and
contribution hereunder may be limited by federal or state
securities laws or the public policies underlying such laws.
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<PAGE> 11
(iv) Each Basic Document has been and, assuming no
change in law or factual circumstance (as confirmed in the
Officer's Certificates to be delivered as of each Subsequent
Transfer Date), each Transfer Agreement will be, duly
authorized, executed and delivered by the Seller and
constitutes the legal, valid and binding obligation of the
Seller, enforceable in accordance with its terms, except that
(A) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights and
(B) the remedies of specific performance and injunctive and
other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(v) At the time of execution and delivery of the
Pooling and Servicing Agreement, the Seller had the power and
authority to transfer the Initial Receivables and such other
property being transferred to the Trust pursuant to the
Pooling and Servicing Agreement and to cause the Certificates
to be sold and transferred to the Underwriters.
(vi) The Registration Statement has become
effective under the Act, 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 their respective effective or issue dates, complied as to
form in all material respects with the requirements of the Act
and the Rules and Regulations; such counsel has no reason to
believe that either the Registration Statement, at the
Effective Time, or any such amendment or supplement, as of its
effective date, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, at the date of this
Agreement, or any such amendment or supplement, as of its
respective date, or at the Closing Date, included or includes
an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; it being understood that
such counsel need express no opinion as to the financial
statements or other financial or statistical data contained in
the Registration Statement or the Prospectus.
(vii) Neither the transfer of the Initial
Receivables or, assuming no change in law or factual
circumstance (as confirmed in the Officer's Certificates to be
delivered as of each Subsequent Transfer Date), the Subsequent
Receivables to the Trust, nor the assignment of the security
interest of the Seller in the Financed
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<PAGE> 12
Vehicles, nor the issuance and delivery of the Certificates,
nor the sale of the Certificates, nor the execution and
delivery of the Basic Documents, this Agreement, or, assuming
no change in law or factual circumstance (as confirmed in the
Officer's Certificates to be delivered as of each Subsequent
Transfer Date), any Transfer Agreement, nor the consummation
of any other of the transactions contemplated herein or in the
Basic Documents or in any Transfer Agreement, or the
fulfillment of the terms of the Certificates, the Basic
Documents or this Agreement by the Seller will conflict with,
or result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the
articles of incorporation or bylaws of the Seller or, to the
best knowledge of such counsel, of any indenture or other
agreement or instrument to which the Seller is a party or by
which it is bound or any of its properties may be subject, or
result in a violation of or contravene the terms of any
statute, order or regulation applicable to the Seller of any
court, regulatory body, administrative agency or governmental
body having jurisdiction over the Seller or its properties.
(viii) The Certificates have been duly and validly
authorized and, when executed, authenticated and delivered to
the Underwriters as specified in the Pooling and Servicing
Agreement against payment of the consideration therefor
determined in accordance with this Agreement, will be duly and
validly issued and outstanding and will be entitled to the
benefits of the Pooling and Servicing Agreement.
(ix) The Seller has, and pursuant to the Pooling
and Servicing Agreement is transferring to the Trust,
ownership of the Initial Receivables, in each case free and
clear of any and all other assignments, encumbrances, options,
rights, claims, liens or security interests that may affect
the rights of the Seller or the Trustee in and to such
Receivables; provided, however, that (A) such counsel need
express no opinion with respect to the enforceability of any
individual Receivable or the existence of any claims, rights
or other matters that are not of record in favor of the
related Obligor or the owner of the related Financed Vehicle,
(B) such opinion may be limited to the extent that any one or
more of the Initial Receivables could be subject to claims of
creditors of the dealers that may have originated certain of
the Initial Receivables to the extent such creditors can claim
the benefits of a security interest in such Receivables either
by reason of the filing of a financing statement with respect
to chattel paper of such dealer or as proceeds from the sale
of inventory in which such creditor had a security interest,
(C) such opinion may be further limited to the extent that any
such transfer may be subject to the rights of other persons
who take, or have taken, possession of any of the Initial
Receivables without knowledge of the transfer to the Trust and
(D) such counsel need express no opinion as to the existence
of tax liens, mechanics' liens or other security interests and
liens that are not of record.
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<PAGE> 13
(x) The Certificates, each Basic Document, the
form of Transfer Agreement attached as an exhibit to the
Pooling and Servicing Agreement and this Agreement each
conform in all material respects with the description thereof
contained in the Registration Statement and the Prospectus.
(xi) The statements in the Registration Statement
and Prospectus under the heading "Certain Legal Aspects of the
Receivables," to the extent that they constitute matters of
law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and are correct in all
material respects.
(xii) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended, and the Trust created by the Pooling and
Servicing Agreement is not required to be registered under the
Investment Company Act of 1940, as amended.
(xiii) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation by the Seller of the transactions
contemplated in this Agreement, the Basic Documents or any
Transfer Agreement except such as may be required under
federal or state securities laws in connection with the
purchase by the Underwriters of the Certificates, filings with
respect to the transfer of the Receivables to Fleetwood
Credit, filings with respect to the transfer of the
Receivables by Fleetwood Credit to the Seller pursuant to the
Receivables Purchase Agreement and the related Transfer
Agreement, and by the Seller to the Trustee pursuant to the
Pooling and Servicing Agreement and the related Transfer
Agreement and such other approvals as have been obtained.
(xiv) There are no actions, proceedings or
investigations pending or, to the best knowledge of such
counsel after due inquiry, threatened before any court,
administrative agency or other tribunal (A) asserting the
invalidity of this Agreement, any Basic Document, any Transfer
Agreement or the Certificates, (B) seeking to prevent the
issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Basic
Documents or any Transfer Agreement, (C) that might materially
and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this
Agreement, any Basic Document, any Transfer Agreement or the
Certificates or (D) seeking to adversely affect the federal
income tax attributes of the Certificates as described in the
Prospectus under the heading "Certain Federal Income Tax
Consequences."
(e) The Underwriters shall have received an opinion of
Timothy M. Hayes, Esq., Senior Vice President and Assistant General
Counsel of Fleetwood Credit, or,
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<PAGE> 14
insofar as such matters relate to California law, Mitchell, Silberberg
& Knupp LLP, addressed to the Underwriters, the Rating Agencies and
the Trustee, dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, and
substantially to the effect that:
(i) Fleetwood Credit has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of California with full power and
authority (corporate and other), and has obtained all
necessary licenses and approvals, to own its properties and
conduct its business as presently conducted by it, and to
enter into and perform its obligations under the Basic
Documents, this Agreement and the Certificates and, assuming
no change in law or factual circumstance (as confirmed in the
Officer's Certificates to be delivered as of each Subsequent
Transfer Date), any Transfer Agreement, and had at all
relevant times, now has, and on each Subsequent Transfer Date
will have, the power, authority and legal right to acquire,
own, sell and service the Receivables.
(ii) Fleetwood Credit is duly qualified to do
business and in good standing, and has obtained all necessary
licenses and approvals to conduct its business as presently
conducted in California and each other state in which an
Initial Receivable was originated.
(iii) At the time of the execution and delivery of
the Receivables Purchase Agreement, Fleetwood Credit had the
power and authority to transfer to the Seller the Initial
Receivables and other property of the Trust being transferred
to the Seller.
(iv) Neither the transfer of the Initial
Receivables or, assuming no change in law or factual
circumstance (as confirmed in the Officer's Certificates to be
delivered as of each Subsequent Transfer Date), the Subsequent
Receivables to the Seller, nor the assignment of the security
interest of Fleetwood Credit in the Financed Vehicles, nor the
issuance and delivery of the Certificates, nor the sale of the
Certificates to the Underwriters, nor the execution and
delivery of the Basic Documents, this Agreement or, assuming
no change in law or factual circumstance (as confirmed in the
Officer's Certificates to be delivered as of each Subsequent
Transfer Date), any Transfer Agreement, nor the consummation
of any other of the transactions contemplated herein, in the
Basic Documents or any Transfer Agreement, nor the fulfillment
of the terms of the Certificates, the Basic Documents, this
Agreement or the Transfer Agreement by Fleetwood Credit will
conflict with, or result in a breach, violation or
acceleration of, or constitute a default under, any term or
provision of the articles of incorporation or bylaws of
Fleetwood Credit or, to the best knowledge of such counsel, of
any indenture or other agreement or instrument to which
Fleetwood Credit is a party or by which it
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<PAGE> 15
is bound or any of its properties may be subject, or result in
a violation of, or contravene the terms of any statute, order
or regulation, applicable to Fleetwood Credit of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over it or its properties.
(v) Fleetwood Credit has, and is transferring to
the Seller, ownership of the Initial Receivables and, assuming
no change in law or factual circumstance and the performance
of certain specified procedures (as confirmed in the Officer's
Certificates to be delivered as of each Subsequent Transfer
Date), will transfer to the Seller ownership of the Subsequent
Receivables, in each case, free and clear of any and all other
assignments, encumbrances, options, rights, claims, liens or
security interests that may affect the rights of Fleetwood
Credit or the Seller in and to such Receivables; provided,
however, that (A) such counsel need express no opinion with
respect to the enforceability of any individual Receivable or
the existence of any claims, rights or other matters that are
not of record in favor of the related Obligor or the owner of
the related Financed Vehicle, (B) such opinion may be limited
to the extent that any one or more of the Receivables could be
subject to claims of creditors of the dealers that may have
originated certain of the Receivables to the extent such
creditors can claim the benefits of a security interest in
such Receivables either by reason of the filing of a financing
statement with respect to chattel paper of such dealer or as
proceeds from the sale of inventory in which such creditor had
a security interest, (C) such opinion may be further limited
to the extent that any such transfer may be subject to the
rights of other persons who take, or have taken, possession of
any of the Receivables without knowledge of the transfer to
the Seller and (D) such counsel need express no opinion as to
the existence of tax liens, mechanics' liens or other security
interests and liens that are not of record.
(vi) This Agreement has been duly authorized,
executed and delivered by Fleetwood Credit and constitutes the
legal, valid and binding agreement of Fleetwood Credit,
enforceable in accordance with its terms, except that (A) the
enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights, (B)
the remedies of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding
therefor may be brought and (C) rights to indemnity and
contribution thereunder may be limited by federal or state
securities laws or the public policies underlying such laws.
(vii) Each Basic Document has been and, assuming no
change in law or factual circumstance and the performance of
certain specified procedures (as confirmed in the Officer's
Certificates to be delivered as of each Subsequent
15
<PAGE> 16
Transfer Date), the related Transfer Agreement will be duly
authorized, executed and delivered by Fleetwood Credit and
constitutes the legal, valid and binding obligation of
Fleetwood Credit, enforceable in accordance with its terms,
except that (A) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights and (B) the remedies of specific performance and
injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(viii) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation by Fleetwood Credit of the transactions
contemplated in this Agreement, the Basic Documents or any
Transfer Agreement except filings with respect to the transfer
of the Receivables by Fleetwood Credit to the Seller pursuant
to the Receivables Purchase Agreement and each Transfer
Agreement, and such other approvals as have been obtained.
(ix) There are no actions, proceedings or
investigations pending or, to the best of such counsel's
knowledge after due inquiry, threatened before any court,
administrative agency or other tribunal (A) asserting the
invalidity of this Agreement, any Basic Document, any Transfer
Agreement or the Certificates, (B) seeking to prevent the
issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Basic
Documents or any Transfer Agreement, (C) that might materially
and adversely affect the performance by Fleetwood Credit of
its obligations under, or the validity or enforceability of,
this Agreement, any Basic Document, any Transfer Agreement or
the Certificates or (D) seeking to affect adversely the
federal income tax attributes of the Certificates as described
in the Prospectus under the heading "Certain Federal Income
Tax Consequences."
(f) The Underwriters shall have received an opinion of
Arter & Hadden LLP, special counsel to the Seller, addressed to the
Underwriters, the Rating Agencies and the Trustee, dated the Closing
Date and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, to the effect that the Trust 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.
(g) The Underwriters shall have received an opinion of
Arter & Hadden LLP, special income tax counsel to the Seller, dated
the Closing Date and satisfactory in form and substance to the
Underwriters, to the effect that the statements in the Registration
16
<PAGE> 17
Statement and Prospectus under the headings "Certain Federal Income
Tax Considerations" and "ERISA Considerations," to the extent that
they constitute matters of law or legal conclusions with respect
thereto, have been prepared or reviewed by such counsel and are
correct in all material respects.
(h) The Underwriters shall have received an opinion of
Arter & Hadden LLP, special counsel to the Seller, addressed to the
Underwriters and the Rating Agencies, dated the Closing Date, with
respect to the characterization of the transfer of the Initial
Receivables and, assuming no change in law or factual circumstance (as
confirmed in the Officer's Certificate to be delivered as of each
Subsequent Transfer Date), the Subsequent Receivables, as a sale, in
substantially a form acceptable to the Underwriters.
(i) The Underwriters shall have received the opinion of
Mitchell, Silberberg & Knupp LLP, special California counsel to the
Seller and Fleetwood Credit, addressed to the Underwriters, the Rating
Agencies and the Trustee, dated the Closing Date and satisfactory in
form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
(i) As to each security interest in a Financed
Vehicle created by a Receivable originated in California
(each, a "California Receivable"), notwithstanding that each
such California Receivable may not be stamped to reflect its
transfer to the Trustee, nor will the certificate of ownership
be so stamped or re-registered to reflect the transfer of the
California Receivable to the Trustee, the Trustee will have a
perfected security interest in each such Financed Vehicle
which will be prior in right to any other security interest in
a Financed Vehicle that is or would be perfected solely by
notation of such security interest on the certificate of
ownership for the Financed Vehicle, and no filing or other
action is necessary to perfect or continue the priority status
of such security interest as against creditors of or
transferees from the Obligor under such California Receivable
or the Trustee, so long as such Financed Vehicle is not
removed from the State of California for a period longer than
four months or before the end of such four-month period, such
security interest is duly perfected under applicable law.
(ii) The California Receivables constitute
"chattel paper" as such term is defined in the California UCC.
(iii) The California Receivables, assuming each is
full and correctly completed as required by applicable law,
constitutes the valid, legal and binding obligation of the
Obligor as to each such California Receivable enforceable
against each such Obligor in accordance with its term, to the
extent the
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<PAGE> 18
enforcement of remedies is reasonably necessary to protect the
interests of the parties.
(iv) Assuming the validity, binding effect and
enforceability in all other respects, the preprinted parts of
the California Receivables are in sufficient compliance with
federal and California consumer protection laws so as not to
be rendered void or voidable at the election of the related
Obligor.
(v) The Trust will not be classified as an
association (or a publicly traded partnership) taxable as a
corporation for California income tax purposes
(j) The Underwriters shall have received the opinion of
_____________, special Texas counsel to the Seller and Fleetwood
Credit, or such other counsel acceptable to the Underwriters,
addressed to the Underwriters, the Rating Agencies and the Trustee,
dated the Closing Date and satisfactory in form and substance to the
Underwriters and counsel for the Underwriters to the effect that:
(i) As to each security interest in a Financed
Vehicle created by an Initial Receivable originated in Texas
(each, a "Texas Receivable"), notwithstanding that each such
Texas Receivable may not be stamped to reflect its transfer to
the Trust, nor will the certificate of ownership be so stamped
or re-registered to reflect the transfer of the Texas
Receivable to the Trust, the Trustee will have a perfected
security interest in each such Financed Vehicle which will be
prior in right to any other security interest in a Financed
Vehicle that is or would be perfected solely by notation of
such security interest on the certificate of ownership for the
Financed Vehicle, and no filing or other action is necessary
to perfect or continue the priority status of such security
interest as against creditors of or transferees from the
Obligor under such Texas Receivable or the Trustee, so long as
such Financed Vehicle is not removed from the State of Texas
for a period longer than four months or before the end of such
four-month period, such security interest is duly perfected
under applicable law.
(ii) The Texas Receivables constitute "chattel
paper" as such term is defined in the Texas UCC.
(iii) The Texas Receivables, assuming each is full
and correctly completed as required by applicable law,
constitutes the valid, legal and binding obligation of the
Obligor as to each such Texas Receivable enforceable against
each such Obligor in accordance with its terms, subject to
applicable bankruptcy and equitable principle exceptions, to
the extent the enforcement of remedies is reasonably necessary
to protect the interests of the parties.
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<PAGE> 19
(iv) Assuming the validity, binding effect and
enforceability in all other respects, the preprinted parts of
the Texas Receivables are in sufficient compliance with
federal and Texas consumer protection laws so as not to be
rendered void or voidable at the election of the related
Obligor.
(k) The Underwriters shall have received an opinion of
counsel to the Trustee, addressed to the Underwriters, the Seller and
Fleetwood Credit, dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters to the
effect that:
(i) The Trustee has been duly incorporated and is
validly existing as a ____________ in good standing under the
laws of _________ with full power and authority (corporate and
other) to own its properties and conduct its business, as
presently conducted by it, and to enter into and perform its
obligations under the Pooling and Servicing Agreement and,
assuming no change in law or factual circumstance, will have
such power and authority to enter into and to perform its
obligations under each Transfer Agreement.
(ii) The Pooling and Servicing Agreement has been,
and each Transfer Agreement will be, duly authorized, executed
and delivered by the Trustee, and constitutes a legal, valid
and binding obligation of the Trustee, enforceable in
accordance with its terms, except that (A) the enforceability
thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and (B) the
remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and
to the discretion of the court before which any proceeding
therefor may be brought.
(iii) The Certificates have been duly executed,
authenticated and delivered by the Trustee.
(iv) Neither the execution or delivery by the
Trustee of the Pooling and Servicing Agreement and each
Transfer Agreement, nor the consummation of any of the
transactions by the Trustee contemplated thereby, require the
consent or approval of, the giving of notice to, the
registration with or the taking of any other action with
respect to, any governmental authority or agency under any
existing federal or state law governing the banking or trust
powers of the Trustee.
(l) The Underwriters shall have received an opinion of
Brown & Wood LLP, addressed to the Underwriters and dated the Closing
Date, with respect to the validity of the Certificates and such other
related matters as the Underwriters shall request, and the Seller and
Fleetwood Credit shall have furnished or caused to be furnished to
such
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<PAGE> 20
counsel such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters.
(m) The Underwriters shall have received a reliance
letter to each opinion rendered to either Rating Agency in connection
with the rating of the Certificates, to the extent that any such
opinion is not otherwise addressed to the Underwriters and covered by
Section 6(d) through 6(l).
(n) The Underwriters shall have received a certificate
dated the Closing Date of the President, any Vice President, the
Treasurer or the Secretary of (i) the Seller, in which such officer
shall state that, to the best of his knowledge after reasonable
investigation, the representations and warranties of the Seller in
this Agreement are true and correct, the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date and that no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted
or are contemplated by the Commission, and (ii) Fleetwood Credit, in
which such officer shall state that, to the best of his knowledge
after reasonable investigation, the representations and warranties of
Fleetwood Credit in this Agreement are true and correct and that
Fleetwood Credit has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder.
(o) The Class A Certificates shall be rated "Aaa" by
Moody's and "AAA" by Standard & Poor's.
(p) The Class B Certificates shall be rated at least
"Baa2" by Moody's and "A" by Standard & Poor's.
The Seller will provide or cause to be provided to the Underwriters
such conformed copies of such opinions, certificates, letters and documents as
the Underwriters may reasonably request, including those delivered to the
Rating Agencies.
7. Indemnification.
(a) Each of the Seller and Fleetwood Credit agrees, jointly and
severally, to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act
as follows:
(i) against any and all loss, liability, claim, damage
and expense, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant
to Rule 430A(b) of
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<PAGE> 21
the Rules and Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage
and expense, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Seller and Fleetwood Credit;
and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(c) hereof, the fees and disbursements
of counsel chosen by the Underwriters), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clause
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Seller by the
Underwriters expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided further, that neither the Seller nor
Fleetwood Credit shall be liable to any Underwriter under the indemnity
agreement in this subsection with respect to any Preliminary Prospectus to the
extent that any such loss, liability, claim, damage or expense of such
Underwriter results from the fact that such Underwriter sold Certificates to a
person as to whom it shall be established that there was not sent or given, at
or prior to written confirmation of such sale, a copy of the Prospectus or of
the Prospectus as then amended or supplemented in any case where such delivery
is required by the Act if the Seller or Fleetwood Credit previously furnished
copies thereof in the quantity requested in accordance with Section 5(e) hereof
to such Underwriter and the loss, liability, claim, damage or expense of such
Underwriter results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus and corrected in the Prospectus or the
Prospectus as then amended or supplemented.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Seller and Fleetwood Credit, each of their respective directors,
each of their respective officers who signed
21
<PAGE> 22
the Registration Statement, and each person, if any, who controls either the
Seller or Fleetwood Credit within the meaning of Section 15 of the Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), in reliance upon and in conformity with written information furnished
to the Seller by the Underwriters expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it with respect to which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnified party
from any liability which it may have other than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 7 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Seller, Fleetwood
Credit and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Seller, Fleetwood Credit and the
Underwriters, as incurred, in such proportions that the Underwriters are
responsible for that portion represented by the percentage that the aggregate
underwriting discounts appearing on the cover page of the Prospectus bears to
the aggregate initial public offering prices of the Certificates appearing
thereon and the Seller and Fleetwood Credit are responsible for the balance.
Notwithstanding the provisions of this Section, no Underwriter shall 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 which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission and 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. For purposes of this Section, each person,
if any, who controls an Underwriter within the meaning of Section 15 of the Act
shall have the same rights to contribution as such Underwriter, and each
director of the Seller and Fleetwood Credit, each officer of the Seller who
signed the Registration Statement and each person, if any, who controls either
the Seller or Fleetwood Credit within the meaning of Section 15 of the Act
shall have the same rights to contribution as the Seller or Fleetwood Credit,
as the case may be.
22
<PAGE> 23
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller and Fleetwood Credit or their respective officers and
of the Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation or statement as to
the results thereof, made by or on behalf of any Underwriter, the Seller,
Fleetwood Credit or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Certificates. If for any reason the purchase of the Certificates by
the Underwriters is not consummated, the Seller and Fleetwood Credit shall
remain responsible for the expenses to be paid or reimbursed by the Seller and
Fleetwood Credit pursuant to Section 5(i) hereof and the respective obligations
of the Seller, Fleetwood Credit and the Underwriters pursuant to Section 7
hereof shall remain in effect. The indemnification and contribution agreements
contained in Section 7 hereof shall survive the termination and cancellation of
this Agreement. If for any reason (other than solely by reason of the
termination of this Agreement because of a failure to satisfy the conditions
set forth in items (iii), (iv) or (v) of Section 9 hereof), the purchase of the
Certificates by the Underwriters is not consummated, the Seller and Fleetwood
Credit will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Certificates.
10. Termination of Agreement. The Underwriters may terminate
this Agreement, by notice to the Seller and Fleetwood Credit, at any time prior
to or at the Closing Date (i) if there has been, since the date of this
Agreement or since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Seller or Fleetwood Credit, whether or not arising in the ordinary course of
business; (ii) if there has occurred any downgrading in the rating of the debt
securities of the Seller or Fleetwood Credit by any "nationally recognized
statistical rating organization" (as such term is 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 debt securities of the
Seller or Fleetwood Credit (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or other calamity or crisis, the effect of which is such as to make
it, in the reasonable judgment of the Underwriters, impracticable to market the
Certificates or to enforce contracts for the sale of the Certificates; (iv) if
trading generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by
either of said Exchanges or by order of the Commission or any other
governmental authority; or (v) if a banking moratorium has been declared by
federal, New York or California authorities.
11. Default By an Underwriter. If one of the Underwriters shall
fail at the Closing Date to purchase the Certificates which it is obligated to
purchase under this Agreement (the
23
<PAGE> 24
"Defaulted Securities"), the Representative shall have the right, but not the
obligation, within 24 hours thereafter, to make arrangements for the
non-defaulting Underwriter, or any other underwriter, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, the Representative shall
not have completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the total aggregate principal amount
of the Certificates, the non-defaulting Underwriter shall be obligated
to purchase the full amount thereof, or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the total aggregate principal amount of the
Certificates, this Agreement shall terminate without liability on the
part of the non-defaulting Underwriter.
No action pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Seller shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangement.
12. Notices. All communications hereunder will be in writing and,
if sent to (i) the Underwriters, will be mailed, delivered or sent by facsimile
and confirmed to them at ______________, Attention: __________ (facsimile
number (___) ___-____); (ii) the Seller, will be mailed, delivered or sent by
facsimile and confirmed to it at Fleetwood Credit Receivables Corp., 22840 Savi
Ranch Parkway, Yorba Linda, California 92687, Attention: Senior Vice
President (facsimile number (714) 921-3490); or (iii) Fleetwood Credit, will be
mailed, delivered or sent by facsimile and confirmed to it at Fleetwood Credit
Corp., 22840 Savi Ranch Parkway, Yorba Linda, California 92687, Attention:
Senior Vice President (facsimile number (714) 921-3490).
13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
24
<PAGE> 25
15. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California.
25
<PAGE> 26
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts duplicate
hereof, whereupon it will become a binding agreement between the Seller and
Fleetwood Credit and the Underwriters in accordance with its terms.
Very truly yours,
FLEETWOOD CREDIT CORP.
By:
-------------------------------------
Name:
Title:
FLEETWOOD CREDIT RECEIVABLES CORP.
By:
-------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
- -----------------.
For itself and as Representative of the Underwriters
By:
------------------------------------------
Name:
Title:
<PAGE> 27
SCHEDULE A
<TABLE>
<CAPTION>
Principal Principal
Amount of Amount of
Class A Class B
Underwriter Certificates Certificates
----------- ------------ ------------
<S> <C> <C>
_______________ . . . . . . . . . . . . . . . . . . . $___________ $___________
_______________ . . . . . . . . . . . . . . . . . . .
------------ -----------
Total $___________ $___________
============ ============
</TABLE>
A-1
<PAGE> 1
EXHIBIT 1.2
$___________________
FLEETWOOD CREDIT RV RECEIVABLES 199__-__ OWNER TRUST
____% ASSET BACKED NOTES, CLASS A-1
____% FLOATING RATE ASSET BACKED NOTES, CLASS A-2
____% ASSET BACKED NOTES, CLASS A-3
____% ASSET BACKED CERTIFICATES
UNDERWRITING AGREEMENT
___________, 199__
_______________________,
as Representative of
the several Underwriters
_________________
_________________
Dear Sirs:
1. Introductory. Fleetwood Credit Receivables Corp., a
California corporation (the "Seller") and a wholly owned subsidiary of
Fleetwood Credit Corp., a California corporation ("Fleetwood Credit"), proposes
to sell to _____________ and _______________ (the "Underwriters"), acting
severally and not jointly, for whom ___________ is acting as representative (in
such capacity, the "Representative"), $_______________ aggregate principal
amount of ____% Asset Backed Notes, Class A-1 (the "Class A-1 Notes"),
$____________ aggregate principal amount of ____% Floating Rate Asset Backed
Notes, Class A-2 (the "Class A-2 Notes"), $____________ aggregate principal
amount of ____% Asset Backed Notes, Class A-3 (the "Class A-3 Notes" and,
together with the Class A-1 Notes and the Class A-2 Notes, the "Notes"), and
$_____________ aggregate principal amount of ____% Asset Backed Certificates
(the "Certificates" and, together with the Notes, the "Securities") of the
Fleetwood Credit RV Receivables 199__-__ Owner Trust (the "Trust" or the
"Issuer"). The Notes will be issued pursuant to an indenture, dated as of
__________ 1, 199__ (the "Indenture"), among the Seller, Fleetwood Credit, as
servicer (in such capacity, the "Servicer"), and _____________, as trustee (the
"Indenture Trustee"). The Certificates will be issued pursuant to a trust
agreement, dated as of __________, 199__ (the "Trust Agreement"), among the
Seller, the Servicer and ___________, as trustee (the "Owner Trustee"). The
Certificates will be subordinated to the
<PAGE> 2
Notes to the extent described in the Basic Documents. This Underwriting
Agreement shall hereinafter be referred to as "this Agreement." Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in that certain sale and servicing agreement, dated as of
_________ 1, 199__ (the "Sale and Servicing Agreement"), among the Seller, the
Servicer and the Issuer.
Each Note will represent an obligation of the Trust, and each
Certificate will represent a fractional undivided interest in the Trust. The
assets of the Trust will include, among other things, a pool of simple interest
retail installment sale contracts (the "Initial Receivables") secured by the
new and used recreational vehicles financed thereby (the "Initial Financed
Vehicles"), certain monies due under the Receivables on and after ___________
1, 199__ (the "Initial Cutoff Date") and amounts on deposit in the Pre-Funding
Account and the Yield Supplement Account, in each case as more fully described
in the Prospectus, as defined below. The Initial Receivables will be sold by
Fleetwood Credit to the Seller pursuant to a receivables purchase agreement,
dated as of __________ 1, 199__ (the "Receivables Purchase Agreement"), between
Fleetwood Credit and the Seller, and the Seller in turn will sell the Initial
Receivables to the Trust pursuant to the Sale and Servicing Agreement. From
time to time during the Funding Period pursuant to the Receivables Purchase
Agreement, to the extent available, Fleetwood Credit will be obligated to sell,
and the Seller will be obligated to purchase, additional simple interest retail
installment sale contracts (the "Subsequent Receivables" and, together with the
Initial Receivables, the "Receivables") secured by the new and used
recreational vehicles financed thereby (the "Subsequent Financed Vehicles" and,
together with the Initial Financed Vehicles, the "Financed Vehicles"), which
Subsequent Receivables will be described in one or more agreements among
Fleetwood Credit, the Seller and the Owner Trustee (each, a "Transfer
Agreement"), dated as of the related date of transfer (each, a "Subsequent
Transfer Date"). The Subsequent Receivables will in turn be sold by the Seller
to the Trust pursuant to the Sale and Servicing Agreement and the related
Transfer Agreement. The maximum aggregate principal amount of Subsequent
Receivables to be sold during the Funding Period by Fleetwood Credit to the
Seller and by the Seller to the Trust is $_______________.
2. Representations and Warranties of the Seller and Fleetwood
Credit.
(a) The Seller represents and warrants to, and agrees with, each
Underwriter that:
(i) A registration statement on Form S-3 (No. 333-_____),
including a prospectus, and such amendments thereto as may have been
required to the date hereof, relating to the Securities and the
offering thereof from time to time in accordance with Rule 415 under
the Securities Act of 1933, as amended (the "Act"), has been filed
with the Securities and Exchange Commission (the "Commission"), and
such registration statement, as amended, has become effective. For
purposes of this Agreement, "Effective Time" means the date and time
as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission. "Effective Date" means the date of the Effective Time.
The registration statement as amended and the prospectus and related
prospectus supplement that the Seller has filed with the Commission
pursuant to
2
<PAGE> 3
Rule 424(b) under the Act ("Rule 424(b)") relating to the sale of the
Securities offered thereby constituting a part thereof, as from time
to time amended or supplemented (including any prospectus filed with
the Commission pursuant to Rule 424(b) of the rules and regulations of
the Commission promulgated under the Act (the "Rules and
Regulations"), including all documents incorporated therein by
reference, are respectively referred to as the "Registration
Statement" and the "Prospectus"; provided, however, that a supplement
to the Prospectus prepared pursuant to Section 5(a) shall be deemed to
have supplemented the Prospectus only with respect to the offering to
which it relates. The conditions to the use of a registration
statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, and the conditions of Rule 415 under the
Act, have been satisfied with respect to the Registration Statement.
(ii) If the Effective Time is prior to the execution and
delivery of this Agreement: (A) on the Effective Date, the
Registration Statement conformed, and on the date of this Agreement
the Registration Statement conforms, in all material respects with the
requirements of the Act and the Rules and Regulations, and at such
times 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 not misleading, and (B) on the date of
this Agreement, at the time of filing of the Prospectus pursuant to
Rule 424(b) and at the Closing Date, the Prospectus will conform in
all material respects to the requirements of the Act and the Rules and
Regulations, and does not include and will not include any untrue
statement of a material fact and does not omit and will not omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If the Effective Time is subsequent to the execution
and delivery of this Agreement: (A) on the Effective 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 the Registration Statement will 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 not
misleading, (B) at the Effective Date and at the Closing Date, the
Prospectus will not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and (C) the Prospectus delivered to the
Underwriters for use in connection with this offering was identical to
the electronically transmitted copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval
system, except to the extent permitted by Regulation S-T. The two
immediately preceding sentences do not apply to statements in or
omissions from the Registration Statement or Prospectus in reliance
upon and in conformity with written information furnished to the
Seller by the Underwriters specifically for use therein.
(iii) This Agreement has been duly authorized, executed and
delivered by the Seller.
(iv) As of the Closing Date, the representations and
warranties of the Seller in the Pooling and Servicing Agreement will
be true and correct and as of each Subsequent
3
<PAGE> 4
Transfer Date, the representations and warranties of the Seller in the
Sale and Servicing Agreement and in the related Transfer Agreement
will be true and correct.
(b) Fleetwood Credit represents and warrants to, and agrees with,
each Underwriter that:
(i) This Agreement has been duly authorized, executed and
delivered by Fleetwood Credit.
(ii) As of the Closing Date, the representations and
warranties of the Servicer in the Sale and Servicing Agreement will be
true and correct and as of each Subsequent Transfer Date, the
representations and warranties of the Servicer in the Sale and
Servicing Agreement and in the related Transfer Agreement will be true
and correct.
3. Purchase, Sale and Delivery of Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Seller agrees to sell to the
Underwriters, and the Underwriters, acting severally and not jointly, agree to
purchase from the Seller, the respective principal amounts of Securities set
forth opposite the names of the Underwriters in Schedule A hereto. The
Securities are to be purchased at a purchase price equal to, in the case of (i)
the Class A-1 Notes, ________% of the aggregate principal amount thereof, (ii)
the Class A-2 Notes, ________% of the aggregate principal amount thereof, (iii)
the Class A-3 Notes, ________% of the aggregate principal amount thereof and
(iv) the Certificates, _________% of the aggregate principal amount thereof.
The Seller will deliver the Securities to the Underwriters against
payment of the respective purchase prices therefor in immediately available
funds to the order of the Seller at the office of Brown & Wood LLP, 555
California Street, San Francisco, California, at ___:00 __.M., __________ time,
on __________, 199__, or at such other time not later than seven full Business
Days thereafter as the Underwriters and the Seller determine, such time being
herein referred to as the "Closing Date." Each Class of Notes and the
Certificates will be initially represented by one certificate (the "DTC
Certificates") registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of the
DTC Certificates will be represented by book entries on the records of DTC and
participating members thereof. Definitive Notes and Definitive Certificates
evidencing the Notes and the Certificates will be available only under the
limited circumstances specified in the Indenture and the Trust Agreement,
respectively.
Pursuant to Rule 15c6-1(d) under the Exchange Act, the Seller and the
Underwriters have agreed that the Closing Date will be not less than seven
Business Days following the date hereof.
4. Offering by the Underwriters. It is understood that the
Underwriters propose to offer the Securities for sale to the public as set
forth in the Prospectus.
5. Certain Agreements of the Seller and Fleetwood Credit. Each
of the Seller and Fleetwood Credit, as the case may be, covenants and agrees
with each Underwriter that:
4
<PAGE> 5
(a) Immediately following the execution of this
Agreement, the Seller will prepare a supplement to the Prospectus
setting forth the amount of Securities covered thereby and the terms
thereof not otherwise specified in the Prospectus, the price at which
such Securities are to be purchased by the Underwriters from the
Seller, either the initial public offering price or the method by
which the price at which such Securities are to be sold will be
determined, the selling concessions and reallowances, if any, and such
other information as the Seller and the Representative deem
appropriate in connection with the offering of such Securities, but
the Seller will not file, for so long as the delivery of a Prospectus
is required in connection with the offering or sale of such
Securities, any amendments to the Registration Statement as in effect
with respect to such Securities, or any amendments or supplements to
the Prospectus, unless it shall first have delivered copies of such
amendments or supplements to the Representative, or if the
Representative shall have reasonably objected thereto promptly after
receipt thereof; the Seller will, during such period, immediately
advise the Representative or its counsel (i) when notice is received
from the Commission that any post-effective amendment to the
Registration Statement has become or will become effective and (ii) of
any order or communication suspending or preventing, or threatening to
suspend or prevent, the offer and sale of the Securities or of any
proceedings or examinations that may lead to such an order or
communication, whether by or of the Commission or any authority
administering any state securities or Blue Sky law, as soon as the
Seller is advised thereof, and will use its best efforts to prevent
the issuance of any such order or communication and to obtain as soon
as possible its lifting, if issued.
(b) The Seller will advise the Underwriters promptly of
any proposal to amend or supplement the registration statement as
filed or the related prospectus or the Registration Statement or the
Prospectus and will not effect any such amendment or supplement
without the consent of the Underwriters, which consent will not
unreasonably be withheld; and the Seller will advise the Underwriters
promptly of the effectiveness of the Registration Statement (if the
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplement of the Registration
Statement or the Prospectus and of the institution by the Commission
of any stop order proceedings in respect of the Registration Statement
and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend or supplement
the Prospectus to comply with the Act, the Seller promptly will
prepare and file, or cause to be prepared and filed, with the
Commission an amendment or supplement which will correct such
statement or omission, or an amendment or supplement which will effect
such compliance. Neither the consent of the
5
<PAGE> 6
Underwriters to, nor the delivery by the Underwriters of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than _________,
____, the Seller will cause the Owner Trustee or the Indenture
Trustee, as the case may be, to make generally available to the
holders of Securities an earnings statement with respect to the Trust
covering a period of at least 12 months beginning after the Effective
Date which will satisfy the provisions of Section 11(a) of the Act
(including, at the option of the Seller, Rule 158 promulgated
thereunder).
(e) The Seller will furnish to the Underwriters copies of
the Registration Statement (at least two of which will be signed and
will include all exhibits), each related preliminary prospectus, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the
Underwriters may reasonably request.
(f) The Seller will use its best efforts to arrange for
the qualification of the Securities for sale under the laws of such
jurisdictions in the United States as the Underwriters may reasonably
designate and will continue such qualifications in effect so long as
required for the distribution of the Securities, provided that the
Seller shall not be obligated to qualify to do business nor become
subject to service of process generally, but only to the extent
required for such qualification, in any jurisdiction in which it is
not currently so qualified.
(g) For a period from the date of this Agreement until
the retirement of all of the Securities, or until such time as the
Underwriters shall cease to maintain a secondary market in any Class
of Notes or the Certificates, whichever occurs first, the Seller will
deliver to the Underwriters the annual statements of compliance and
the annual independent certified public accountants' reports furnished
to the Owner Trustee pursuant to the Basic Documents, as soon as such
statements and reports are furnished to the Owner Trustee.
(h) So long as any of the Securities are outstanding, the
Seller or Fleetwood Credit, as the case may be, shall furnish to the
Underwriters, as soon as practicable, (i) all documents required to be
distributed to holders of any Class of Notes or the Certificates (or
available at such holders' request) or filed with the Commission
pursuant to the Exchange Act, or any order of the Commission
thereunder and (ii) from time to time, any other information
concerning the Seller or Fleetwood Credit filed with any government or
regulatory authority which is otherwise publicly available, as the
Underwriters may reasonably request.
(i) Whether or not the transactions contemplated by this
Agreement are consummated other than as a result of a failure by the
Underwriters to perform hereunder, the Seller and Fleetwood Credit
will, subject to the provisions of Section 9 hereof, pay all expenses
incident to the performance of their respective obligations under this
6
<PAGE> 7
Agreement, including without limitation, expenses incident to the
printing, reproduction and distribution of the registration statement
as originally filed with the Commission and all amendments thereto,
any fees charged by Moody's Investors Service, Inc. ("Moody's") and
Standard & Poor's, a division of The McGraw-Hill Companies, Inc.
("Standard & Poor's" and, together with Moody's, the "Rating
Agencies") for the rating of the Securities, the fees of DTC in
connection with the book-entry registration of the Securities and
reasonable expenses incurred in distributing preliminary prospectuses
and the Prospectus (including any amendments and supplements thereto)
and will reimburse the Underwriters for all reasonable expenses
incurred in connection with the initial qualification of the
Securities for sale under the laws of such jurisdictions in the United
States as the Underwriters may designate, including, but not limited
to, fees of counsel and disbursements incurred by such counsel in
connection therewith.
(j) On or before the Closing Date with respect to the
Initial Receivables, and on or before each Subsequent Transfer Date
with respect to the Subsequent Receivables to be transferred to the
Trust on such date, the Seller and Fleetwood Credit shall cause their
respective computer records to be marked relating to the Receivables
to show the Trust's absolute ownership of the Receivables, and from
and after the Closing Date or such Subsequent Transfer Date, as the
case may be, Fleetwood Credit Receivables Corp., as Seller, and
Fleetwood Credit, as Servicer, shall not take any action inconsistent
with the Trust's ownership of the Receivables, other than as permitted
by the Sale and Servicing Agreement.
(k) To the extent, if any, that the rating provided with
respect to any Class of Notes or the Certificates by either Rating
Agency is conditional upon the furnishing of documents or the taking
of any other actions by the Seller or Fleetwood Credit, the Seller or
Fleetwood Credit, as the case may be, shall furnish such documents and
take any such other actions.
(l) In the event the Servicer obtains a Servicer Letter
of Credit pursuant to the Sale and Servicing Agreement, the Seller and
the Servicer shall cause the Underwriters to receive:
(i) A copy of the Servicer Letter of Credit.
(ii) An original of the servicer letter of credit
reimbursement agreement (the "Reimbursement Agreement")
between the Servicer and the letter of credit bank named
therein (the "Letter of Credit Bank") pursuant to which the
Servicer Letter of Credit was issued.
(iii) An original of any amendment to the Sale and
Servicing Agreement relating to the obtaining of the Servicer
Letter of Credit.
(iv) An opinion of Timothy M. Hayes, Esq., Senior
Vice President and Assistant General Counsel of Fleetwood
Credit, dated the date of issuance of the
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<PAGE> 8
Servicer Letter of Credit (the "Issuance Date") and
satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, and substantially to the effect
of clauses (i), (v), (viii), (ix) and (x) of Section 6(f)
hereof, appropriately modified to relate to the Reimbursement
Agreement.
(v) An opinion of counsel to the Letter of Credit
Bank, satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, dated the Issuance Date and
substantially to the effect that:
(A) The Letter of Credit Bank is duly
organized as a corporation and is validly existing
under the laws of the country of its organization,
and has the full power and authority (corporate and
other) to issue, and to take all action required of
it under, the Servicer Letter of Credit.
(B) The execution, delivery and
performance by the Letter of Credit Bank of the
Servicer Letter of Credit and the Reimbursement
Agreement have been duly authorized by all necessary
corporate action on the part of the Letter of Credit
Bank.
(C) The execution, delivery and
performance by the Letter of Credit Bank of the
Servicer Letter of Credit and the Reimbursement
Agreement do not require the consent or approval of,
the giving of notice to, the registration with, or
the taking of any other action in respect of any
state or other governmental agency or authority which
has not previously been effected.
(D) The Servicer Letter of Credit and
the Reimbursement Agreement have been duly
authorized, executed and delivered by the Letter of
Credit Bank and constitute legal, valid and binding
obligations of the Letter of Credit Bank, enforceable
against the Letter of Credit Bank in accordance with
their respective terms (subject, as to enforcement,
to bankruptcy, reorganization, insolvency, moratorium
and other laws affecting creditors' rights generally
and to general equity principles).
(E) The Servicer Letter of Credit is not
required to be registered under the Act in connection
with the offer and sale of the Securities in the
manner contemplated by the Prospectus.
In rendering such opinion, such counsel may rely as to all
matters of the law of the country of organization of the
Letter of Credit Bank upon counsel satisfactory to the
Underwriters and counsel for the Underwriters.
(vi) A certificate, dated the Issuance Date, of
the President or any Vice President of the Letter of Credit
Bank to the effect that, among other things, since
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<PAGE> 9
the date of this Agreement, there has been no material adverse
change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects, of the
Letter of Credit Bank.
(vii) A letter from each Rating Agency, to the
extent required by the Sale and Servicing Agreement, to the
effect that the obtaining of the Servicer Letter of Credit, in
and of itself, would not cause its rating of any Class of
Notes or the Certificates to be reduced, withdrawn or
modified.
6. Conditions of the Obligations of the Underwriters. The
obligation of the Underwriters to purchase and pay for the Securities will be
subject to the accuracy of the respective representations and warranties on the
part of the Seller and Fleetwood Credit herein, to the accuracy of the
statements of the respective officers of the Seller and Fleetwood Credit made
pursuant to the provisions hereof, to the performance by the Seller and
Fleetwood Credit of their respective obligations hereunder and to the following
additional conditions precedent:
(a) The Underwriters and the Seller shall have received
from Coopers & Lybrand L.L.P., independent public accountants
("Coopers & Lybrand") (i) on the date of this Agreement, a letter,
dated as of such date, substantially in the form of the draft to which
the Underwriters have previously agreed, and (ii) on the Closing Date,
a letter, dated as of the Closing Date, updating the letter referred
to in clause (i) above, which letters shall in each case be in form
and substance satisfactory to the Underwriters and counsel for the
Underwriters.
(b) If the Effective Time is not prior to the execution
and delivery of this Agreement, the Effective Time shall have occurred
not later than 10:00 P.M., New York City time, on the date of this
Agreement or such later date as shall have been consented to by the
Underwriters. If the Effective Time is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and
Section 5(a) hereof. Prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Seller or the Underwriters,
shall be contemplated by the Commission.
(c) The Underwriters shall have received an officer's
certificate dated the Closing Date by the President, any Vice
President, the Treasurer or the Secretary of (i) the Seller
representing and warranting to the Underwriters that, as of the
Closing Date, the representations and warranties of the Seller in the
Sale and Servicing Agreement are true and correct and (ii) Fleetwood
Credit representing and warranting that, as of the Closing Date, the
representations and warranties of Fleetwood Credit in the Sale and
Servicing Agreement are true and correct.
(d) The Underwriters shall have received an opinion of
Timothy M. Hayes, Esq., Senior Vice President and Assistant General
Counsel to the Seller, or, insofar as such matters relate to
California law, Mitchell, Silberberg & Knupp LLP, addressed to
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<PAGE> 10
the Underwriters, the Rating Agencies and the Trustees, dated the
Closing Date and satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, substantially to the
effect that:
(i) The Seller has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of California with full power and authority
(corporate and other), and has obtained all necessary licenses
and approvals, to own its properties and conduct its business
as presently conducted by it, and to enter into and perform
its obligations under the Sale and Servicing Agreement, the
Receivables Purchase Agreement, the Indenture and the Trust
Agreement (collectively, the "Basic Documents"), this
Agreement and the Securities and, assuming no change in law or
factual circumstance (as confirmed in the Officer's
Certificates to be delivered as of each Subsequent Transfer
Date), will have such power and authority with regard to each
Transfer Agreement, and had at all relevant times, now has,
and on each Subsequent Transfer Date will have, the power,
authority and legal right to acquire, own and sell the Initial
Receivables and the Subsequent Receivables.
(ii) The Seller has obtained all necessary
licenses and approvals to conduct its business as presently
conducted in California and does not currently conduct
business in any other state in which a Receivable was
originated and does not need any licenses or approvals from
any of such other states for purposes of the transactions
contemplated by the Basic Documents, each Transfer Agreement
and this Agreement.
(iii) This Agreement has been duly authorized,
executed and delivered by the Seller and constitutes the
legal, valid and binding agreement of the Seller, enforceable
in accordance with its terms, except that (A) the
enforceability hereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights, (B)
the remedies of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding
therefor may be brought and (C) rights to indemnity and
contribution hereunder may be limited by federal or state
securities laws or the public policies underlying such laws.
(iv) Each Basic Document has been and, assuming no
change in law or factual circumstance (as confirmed in the
Officer's Certificates to be delivered as of each Subsequent
Transfer Date), each Transfer Agreement will be, duly
authorized, executed and delivered by the Seller and
constitutes the legal, valid and binding obligation of the
Seller, enforceable in accordance with its terms, except that
(A) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights and
(B) the remedies of specific performance and injunctive and
other forms of equitable relief may be subject to equitable
10
<PAGE> 11
defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(v) At the time of execution and delivery of the
Sale and Servicing Agreement, the Seller had the power and
authority to transfer the Initial Receivables and such other
property being transferred to the Trust pursuant to the Sale
and Servicing Agreement and to cause the Securities to be sold
and transferred to the Underwriters.
(vi) The Registration Statement has become
effective under the Act, 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 their respective effective or issue dates, complied as to
form in all material respects with the requirements of the Act
and the Rules and Regulations; such counsel has no reason to
believe that either the Registration Statement, at the
Effective Time, or any such amendment or supplement, as of its
effective date, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, at the date of this
Agreement, or any such amendment or supplement, as of its
respective date, or at the Closing Date, included or includes
an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; it being understood that
such counsel need express no opinion as to the financial
statements or other financial or statistical data contained in
the Registration Statement or the Prospectus.
(vii) Neither the transfer of the Initial
Receivables or, assuming no change in law or factual
circumstance (as confirmed in the Officer's Certificates to be
delivered as of each Subsequent Transfer Date), the Subsequent
Receivables to the Trust, nor the assignment of the security
interest of the Seller in the Financed Vehicles, nor the
issuance and delivery of the Securities, nor the sale of the
Securities, nor the execution and delivery of the Basic
Documents, this Agreement, or, assuming no change in law or
factual circumstance (as confirmed in the Officer's
Certificates to be delivered as of each Subsequent Transfer
Date), any Transfer Agreement, nor the consummation of any
other of the transactions contemplated herein or in the Basic
Documents or in any Transfer Agreement, or the fulfillment of
the terms of the Securities, the Basic Documents or this
Agreement by the Seller will conflict with, or result in a
breach, violation or acceleration of, or constitute a default
under, any term or provision of the articles of incorporation
or bylaws of the Seller or, to the best knowledge of such
counsel, of any indenture or other agreement or instrument to
which the Seller is a party or by which it is bound or any of
its properties may be subject, or result in a
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<PAGE> 12
violation of or contravene the terms of any statute, order or
regulation applicable to the Seller of any court, regulatory
body, administrative agency or governmental body having
jurisdiction over the Seller or its properties.
(viii) The Securities have been duly and validly
authorized and, when executed, authenticated and delivered to
the Underwriters against payment of the consideration therefor
determined in accordance with this Agreement, will be duly and
validly issued and outstanding and will be entitled to the
benefits of the Basic Documents.
(ix) The Seller has, and pursuant to the Sale and
Servicing Agreement is transferring to the Trust ownership of
the Initial Receivables, in each case free and clear of any
and all other assignments, encumbrances, options, rights,
claims, liens or security interests that may affect the rights
of the Seller or the Owner Trustee in and to such Receivables;
provided, however, that (A) such counsel need express no
opinion with respect to the enforceability of any individual
Receivable or the existence of any claims, rights or other
matters that are not of record in favor of the related Obligor
or the owner of the related Financed Vehicle, (B) such opinion
may be limited to the extent that any one or more of the
Initial Receivables could be subject to claims of creditors of
the dealers that may have originated certain of the Initial
Receivables to the extent such creditors can claim the
benefits of a security interest in such Receivables either by
reason of the filing of a financing statement with respect to
chattel paper of such dealer or as proceeds from the sale of
inventory in which such creditor had a security interest, (C)
such opinion may be further limited to the extent that any
such transfer may be subject to the rights of other persons
who take, or have taken, possession of any of the Initial
Receivables without knowledge of the transfer to the Trust and
(D) such counsel need express no opinion as to the existence
of tax liens, mechanics' liens or other security interests and
liens that are not of record.
(x) The Securities, each Basic Document, the form
of Transfer Agreement attached as an exhibit to the Sale and
Servicing Agreement and this Agreement each conform in all
material respects with the description thereof contained in
the Registration Statement and the Prospectus.
(xi) The statements in the Registration Statement
and Prospectus under the heading "Certain Legal Aspects of the
Receivables," to the extent that they constitute matters of
law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and are correct in all
material respects.
(xii) The Sale and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended, and the Trust created by the Trust Agreement
is not required to be registered under the Investment Company
Act of 1940, as amended.
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<PAGE> 13
(xiii) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation by the Seller of the transactions
contemplated in this Agreement, the Basic Documents or any
Transfer Agreement except such as may be required under
federal or state securities laws in connection with the
purchase by the Underwriters of the Securities, filings with
respect to the transfer of the Receivables to Fleetwood
Credit, filings with respect to the transfer of the
Receivables by Fleetwood Credit to the Seller pursuant to the
Receivables Purchase Agreement and the related Transfer
Agreement, and by the Seller to the Trust pursuant to the Sale
and Servicing Agreement and the related Transfer Agreement and
such other approvals as have been obtained.
(xiv) There are no actions, proceedings or
investigations pending or, to the best knowledge of such
counsel after due inquiry, threatened before any court,
administrative agency or other tribunal (A) asserting the
invalidity of this Agreement, any Basic Document, any Transfer
Agreement or the Securities, (B) seeking to prevent the
issuance of the Securities or the consummation of any of the
transactions contemplated by this Agreement, the Basic
Documents or any Transfer Agreement, (C) that might materially
and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this
Agreement, any Basic Document, any Transfer Agreement or the
Securities or (D) seeking to adversely affect the federal
income tax attributes of the Securities as described in the
Prospectus under the heading "Certain Federal Income Tax
Consequences."
(e) The Underwriters shall have received an opinion of
Timothy M. Hayes, Esq., Senior Vice President and Assistant General
Counsel of Fleetwood Credit, or, insofar as such matters relate to
California law, Mitchell, Silberberg & Knupp LLP, addressed to the
Underwriters, the Rating Agencies and the Trustees, dated the Closing
Date and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, and substantially to the effect that:
(i) Fleetwood Credit has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of California with full power and
authority (corporate and other), and has obtained all
necessary licenses and approvals, to own its properties and
conduct its business as presently conducted by it, and to
enter into and perform its obligations under the Basic
Documents, this Agreement and the Securities and, assuming no
change in law or factual circumstance (as confirmed in the
Officer's Certificates to be delivered as of each Subsequent
Transfer Date), any Transfer Agreement, and had at all
relevant times, now has, and on each Subsequent Transfer Date
will have, the power, authority and legal right to acquire,
own, sell and service the Receivables.
(ii) Fleetwood Credit is duly qualified to do
business and in good standing, and has obtained all necessary
licenses and approvals to conduct its
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<PAGE> 14
business as presently conducted in California and each other
state in which an Initial Receivable was originated.
(iii) At the time of the execution and delivery of
the Receivables Purchase Agreement, Fleetwood Credit had the
power and authority to transfer to the Seller the Initial
Receivables and other property of the Trust being transferred
to the Seller.
(iv) Neither the transfer of the Initial
Receivables or, assuming no change in law or factual
circumstance (as confirmed in the Officer's Certificates to be
delivered as of each Subsequent Transfer Date), the Subsequent
Receivables to the Seller, nor the assignment of the security
interest of Fleetwood Credit in the Financed Vehicles, nor the
issuance and delivery of the Securities, nor the sale of the
Securities to the Underwriters, nor the execution and delivery
of the Basic Documents, this Agreement or, assuming no change
in law or factual circumstance (as confirmed in the Officer's
Certificates to be delivered as of each Subsequent Transfer
Date), any Transfer Agreement, nor the consummation of any
other of the transactions contemplated herein, in the Basic
Documents or any Transfer Agreement, nor the fulfillment of
the terms of the Securities, the Basic Documents, this
Agreement or the Transfer Agreement by Fleetwood Credit will
conflict with, or result in a breach, violation or
acceleration of, or constitute a default under, any term or
provision of the articles of incorporation or bylaws of
Fleetwood Credit or, to the best knowledge of such counsel, of
any indenture or other agreement or instrument to which
Fleetwood Credit is a party or by which it is bound or any of
its properties may be subject, or result in a violation of, or
contravene the terms of any statute, order or regulation,
applicable to Fleetwood Credit of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over it or its properties.
(v) Fleetwood Credit has, and is transferring to
the Seller, ownership of the Initial Receivables and, assuming
no change in law or factual circumstance and the performance
of certain specified procedures (as confirmed in the Officer's
Certificates to be delivered as of each Subsequent Transfer
Date), will transfer to the Seller ownership of the Subsequent
Receivables, in each case, free and clear of any and all other
assignments, encumbrances, options, rights, claims, liens or
security interests that may affect the rights of Fleetwood
Credit or the Seller in and to such Receivables; provided,
however, that (A) such counsel need express no opinion with
respect to the enforceability of any individual Receivable or
the existence of any claims, rights or other matters that are
not of record in favor of the related Obligor or the owner of
the related Financed Vehicle, (B) such opinion may be limited
to the extent that any one or more of the Receivables could be
subject to claims of creditors of the dealers that may have
originated certain of the Receivables to the extent such
creditors can claim the benefits of a security interest in
such Receivables either by reason of the filing of a financing
statement with respect to chattel paper of such dealer or as
proceeds from the sale of
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<PAGE> 15
inventory in which such creditor had a security interest, (C)
such opinion may be further limited to the extent that any
such transfer may be subject to the rights of other persons
who take, or have taken, possession of any of the Receivables
without knowledge of the transfer to the Seller and (D) such
counsel need express no opinion as to the existence of tax
liens, mechanics' liens or other security interests and liens
that are not of record.
(vi) This Agreement has been duly authorized,
executed and delivered by Fleetwood Credit and constitutes the
legal, valid and binding agreement of Fleetwood Credit,
enforceable in accordance with its terms, except that (A) the
enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights, (B)
the remedies of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding
therefor may be brought and (C) rights to indemnity and
contribution thereunder may be limited by federal or state
securities laws or the public policies underlying such laws.
(vii) Each Basic Document has been and, assuming no
change in law or factual circumstance and the performance of
certain specified procedures (as confirmed in the Officer's
Certificates to be delivered as of each Subsequent Transfer
Date), the related Transfer Agreement will be duly authorized,
executed and delivered by Fleetwood Credit and constitutes the
legal, valid and binding obligation of Fleetwood Credit,
enforceable in accordance with its terms, except that (A) the
enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights and
(B) the remedies of specific performance and injunctive and
other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(viii) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation by Fleetwood Credit of the transactions
contemplated in this Agreement, the Basic Documents or any
Transfer Agreement except filings with respect to the transfer
of the Receivables by Fleetwood Credit to the Seller pursuant
to the Receivables Purchase Agreement and each Transfer
Agreement, and such other approvals as have been obtained.
(ix) There are no actions, proceedings or
investigations pending or, to the best of such counsel's
knowledge after due inquiry, threatened before any court,
administrative agency or other tribunal (A) asserting the
invalidity of this Agreement, any Basic Document, any Transfer
Agreement or the Securities, (B) seeking to prevent the
issuance of the Securities or the consummation of any of the
transactions contemplated by this Agreement, the Basic
Documents or any
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<PAGE> 16
Transfer Agreement, (C) that might materially and adversely
affect the performance by Fleetwood Credit of its obligations
under, or the validity or enforceability of, this Agreement,
any Basic Document, any Transfer Agreement or the Securities
or (D) seeking to affect adversely the federal income tax
attributes of the Securities as described in the Prospectus
under the heading "Certain Federal Income Tax Consequences."
(f) The Underwriters shall have received an opinion of
Arter & Hadden LLP, special counsel to the Seller, addressed to the
Underwriters, the Rating Agencies and the Trustees, dated the Closing
Date and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, to the effect that the Trust 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.
(g) The Underwriters shall have received an opinion of
Arter & Hadden LLP, special income tax counsel to the Seller, dated
the Closing Date and satisfactory in form and substance to the
Underwriters, to the effect that the statements in the Registration
Statement and Prospectus under the headings "Certain Federal Income
Tax Considerations" and "ERISA Considerations," to the extent that
they constitute matters of law or legal conclusions with respect
thereto, have been prepared or reviewed by such counsel and are
correct in all material respects.
(h) The Underwriters shall have received an opinion of
Arter & Hadden LLP, special counsel to the Seller, addressed to the
Underwriters and the Rating Agencies, dated the Closing Date, with
respect to the characterization of the transfer of the Initial
Receivables and, assuming no change in law or factual circumstance (as
confirmed in the Officer's Certificate to be delivered as of each
Subsequent Transfer Date), the Subsequent Receivables, as a sale, in
substantially a form acceptable to the Underwriters.
(i) The Underwriters shall have received the opinion of
Mitchell, Silberberg & Knupp LLP, special California counsel to the
Seller and Fleetwood Credit, addressed to the Underwriters, the Rating
Agencies and the Trustees, dated the Closing Date and satisfactory in
form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
(i) As to each security interest in a Financed
Vehicle created by a Receivable originated in California
(each, a "California Receivable"), notwithstanding that each
such California Receivable may not be stamped to reflect its
transfer to the Trust, nor will the certificate of ownership
be so stamped or re-registered to reflect the transfer of the
California Receivable to the Trust, the Owner Trustee will
have a perfected security interest in each such Financed
Vehicle which will be prior in right to any other security
interest in a Financed Vehicle that is or would be perfected
solely by notation of such security interest on the
certificate of ownership for the Financed Vehicle, and no
filing or other
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<PAGE> 17
action is necessary to perfect or continue the priority status
of such security interest as against creditors of or
transferees from the Obligor under such California Receivable
or the Owner Trustee, so long as such Financed Vehicle is not
removed from the State of California for a period longer than
four months or before the end of such four-month period, such
security interest is duly perfected under applicable law.
(ii) The California Receivables constitute
"chattel paper" as such term is defined in the California UCC.
(iii) The California Receivables, assuming each is
full and correctly completed as required by applicable law,
constitutes the valid, legal and binding obligation of the
Obligor as to each such California Receivable enforceable
against each such Obligor in accordance with its term, to the
extent the enforcement of remedies is reasonably necessary to
protect the interests of the parties.
(iv) Assuming the validity, binding effect and
enforceability in all other respects, the preprinted parts of
the California Receivables are in sufficient compliance with
federal and California consumer protection laws so as not to
be rendered void or voidable at the election of the related
Obligor.
(v) The Trust will not be classified as an
association (or a publicly traded partnership) taxable as a
corporation for California income tax purposes
(j) The Underwriters shall have received the opinion of
________, special Texas counsel to the Seller and Fleetwood Credit, or
such other counsel acceptable to the Underwriters, addressed to the
Underwriters, the Rating Agencies and the Trustees, dated the Closing
Date and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters to the effect that:
(i) As to each security interest in a Financed
Vehicle created by an Initial Receivable originated in Texas
(each, a "Texas Receivable"), notwithstanding that each such
Texas Receivable may not be stamped to reflect its transfer to
the Trust, nor will the certificate of ownership be so stamped
or re-registered to reflect the transfer of the Texas
Receivable to the Trust, the Owner Trustee will have a
perfected security interest in each such Financed Vehicle
which will be prior in right to any other security interest in
a Financed Vehicle that is or would be perfected solely by
notation of such security interest on the certificate of
ownership for the Financed Vehicle, and no filing or other
action is necessary to perfect or continue the priority status
of such security interest as against creditors of or
transferees from the Obligor under such Texas Receivable or
the Owner Trustee, so long as such Financed Vehicle is not
removed from the State of Texas for a period longer than four
months or before the end of such four-month period, such
security interest is duly perfected under applicable law.
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<PAGE> 18
(ii) The Texas Receivables constitute "chattel
paper" as such term is defined in the Texas UCC.
(iii) The Texas Receivables, assuming each is full
and correctly completed as required by applicable law,
constitutes the valid, legal and binding obligation of the
Obligor as to each such Texas Receivable enforceable against
each such Obligor in accordance with its terms, subject to
applicable bankruptcy and equitable principle exceptions, to
the extent the enforcement of remedies is reasonably necessary
to protect the interests of the parties.
(iv) Assuming the validity, binding effect and
enforceability in all other respects, the preprinted parts of
the Texas Receivables are in sufficient compliance with
federal and Texas consumer protection laws so as not to be
rendered void or voidable at the election of the related
Obligor.
(k) The Underwriters shall have received an opinion of
counsel to the Owner Trustee, addressed to the Underwriters, the
Seller and Fleetwood Credit, dated the Closing Date and satisfactory
in form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
(i) The Owner Trustee has been duly incorporated
and is validly existing as a _______________ in good standing
under the laws of the State of Delaware with full power and
authority (corporate and other) to own its properties and
conduct its business, as presently conducted by it, and to
enter into and perform its obligations under the Basic
Documents to which it is a party and, assuming no change in
law or factual circumstance, will have such power and
authority to enter into and to perform its obligations under
each Transfer Agreement.
(ii) The Sale and Servicing Agreement has been,
and each Transfer Agreement will be, duly authorized, executed
and delivered by the Owner Trustee, and constitutes a legal,
valid and binding obligation of the Owner Trustee, enforceable
in accordance with its terms, except that (A) the
enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights and
(B) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(iii) The Certificates have been duly executed,
authenticated and delivered by the Owner Trustee.
(iv) Neither the execution or delivery by the
Owner Trustee of the Sale and Servicing Agreement and each
Transfer Agreement, nor the consummation of any of the
transactions by the Owner Trustee contemplated thereby,
require the
18
<PAGE> 19
consent or approval of, the giving of notice to, the
registration with or the taking of any other action with
respect to, any governmental authority or agency under any
existing federal or state law governing the banking or trust
powers of the Owner Trustee.
(l) The Underwriters shall have received an opinion of
Brown & Wood LLP, addressed to the Underwriters and dated the Closing
Date, with respect to the validity of the Securities and such other
related matters as the Underwriters shall request, and the Seller and
Fleetwood Credit shall have furnished or caused to be furnished to
such counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(m) The Underwriters shall have received a reliance
letter to each opinion rendered to either Rating Agency in connection
with the rating of the Securities, to the extent that any such opinion
is not otherwise addressed to the Underwriters and covered by Section
6(d) through 6(l).
(n) The Underwriters shall have received a certificate
dated the Closing Date of the President, any Vice President, the
Treasurer or the Secretary of (i) the Seller, in which such officer
shall state that, to the best of his knowledge after reasonable
investigation, the representations and warranties of the Seller in
this Agreement are true and correct, the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date and that no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted
or are contemplated by the Commission, and (ii) Fleetwood Credit, in
which such officer shall state that, to the best of his knowledge
after reasonable investigation, the representations and warranties of
Fleetwood Credit in this Agreement are true and correct and that
Fleetwood Credit has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder.
(o) The Notes shall be rated "Aaa" by Moody's and "AAA"
by Standard & Poor's.
(p) The Certificates shall be rated at least "A2" by
Moody's and "A" by Standard & Poor's.
The Seller will provide or cause to be provided to the Underwriters
such conformed copies of such opinions, certificates, letters and documents as
the Underwriters may reasonably request, including those delivered to the
Rating Agencies.
19
<PAGE> 20
7. Indemnification.
(a) Each of the Seller and Fleetwood Credit agrees, jointly and
severally, to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act
as follows:
(i) against any and all loss, liability, claim, damage
and expense, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant
to Rule 430A(b) of the Rules and Regulations, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Seller and Fleetwood Credit;
and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(c) hereof, the fees and disbursements
of counsel chosen by the Underwriters), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clause
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Seller by the
Underwriters expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided further, that neither the Seller nor
Fleetwood Credit shall be liable to any Underwriter under the indemnity
agreement in this subsection with respect to any Preliminary Prospectus to the
extent that any such loss, liability, claim, damage or expense of such
Underwriter results from the fact that such Underwriter sold Securities to a
person as to whom it shall be established that there was not sent or given, at
or prior to written confirmation of such sale, a copy of the Prospectus or of
the Prospectus as then amended or supplemented in any case where such delivery
is required by the Act if the Seller or Fleetwood Credit previously
20
<PAGE> 21
furnished copies thereof in the quantity requested in accordance with Section
5(e) hereof to such Underwriter and the loss, liability, claim, damage or
expense of such Underwriter results from an untrue statement or omission of a
material fact contained in the Preliminary Prospectus and corrected in the
Prospectus or the Prospectus as then amended or supplemented.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Seller and Fleetwood Credit, each of their respective directors,
each of their respective officers who signed the Registration Statement, and
each person, if any, who controls either the Seller or Fleetwood Credit within
the meaning of Section 15 of the Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Seller by the Underwriters
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it with respect to which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnified party
from any liability which it may have other than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 7 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Seller, Fleetwood
Credit and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Seller, Fleetwood Credit and the
Underwriters, as incurred, in such proportions that the Underwriters are
responsible for that portion represented by the percentage that the aggregate
underwriting discounts appearing on the cover page of the Prospectus bears to
the aggregate initial public offering prices of the Securities appearing
thereon and the Seller and Fleetwood Credit are responsible for the balance.
Notwithstanding the provisions of this Section, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission and 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. For purposes of this Section, each person,
if any, who controls an Underwriter within the meaning of Section 15 of the Act
shall have the same rights to
21
<PAGE> 22
contribution as such Underwriter, and each director of the Seller and Fleetwood
Credit, each officer of the Seller who signed the Registration Statement and
each person, if any, who controls either the Seller or Fleetwood Credit within
the meaning of Section 15 of the Act shall have the same rights to contribution
as the Seller or Fleetwood Credit, as the case may be.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller and Fleetwood Credit or their respective officers and
of the Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation or statement as to
the results thereof, made by or on behalf of any Underwriter, the Seller,
Fleetwood Credit or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Securities. If for any reason the purchase of the Securities by the
Underwriters is not consummated, the Seller and Fleetwood Credit shall remain
responsible for the expenses to be paid or reimbursed by the Seller and
Fleetwood Credit pursuant to Section 5(i) hereof and the respective obligations
of the Seller, Fleetwood Credit and the Underwriters pursuant to Section 7
hereof shall remain in effect. The indemnification and contribution agreements
contained in Section 7 hereof shall survive the termination and cancellation of
this Agreement. If for any reason (other than solely by reason of the
termination of this Agreement because of a failure to satisfy the conditions
set forth in items (iii), (iv) or (v) of Section 9 hereof), the purchase of the
Securities by the Underwriters is not consummated, the Seller and Fleetwood
Credit will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Securities.
10. Termination of Agreement. The Underwriters may terminate
this Agreement, by notice to the Seller and Fleetwood Credit, at any time prior
to or at the Closing Date (i) if there has been, since the date of this
Agreement or since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Seller or Fleetwood Credit, whether or not arising in the ordinary course of
business; (ii) if there has occurred any downgrading in the rating of the debt
securities of the Seller or Fleetwood Credit by any "nationally recognized
statistical rating organization" (as such term is 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 debt securities of the
Seller or Fleetwood Credit (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or other calamity or crisis, the effect of which is such as to make
it, in the reasonable judgment of the Underwriters, impracticable to market the
Securities or to enforce contracts for the sale of the Securities; (iv) if
trading generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by
either of said Exchanges or by order of the Commission or any other
governmental authority; or (v) if a banking moratorium has been declared by
federal, New York or California authorities.
22
<PAGE> 23
11. Default By an Underwriter. If one of the Underwriters shall
fail at the Closing Date to purchase the Securities which it is obligated to
purchase under this Agreement (the "Defaulted Securities"), the Representative
shall have the right, but not the obligation, within 24 hours thereafter, to
make arrangements for the non-defaulting Underwriter, or any other underwriter,
to purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if, however,
the Representative shall not have completed such arrangements within such
24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the total aggregate principal amount
of the Securities, the non-defaulting Underwriter shall be obligated
to purchase the full amount thereof, or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the total aggregate principal amount of the
Securities, this Agreement shall terminate without liability on the
part of the non-defaulting Underwriter.
No action pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Seller shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangement.
12. Notices. All communications hereunder will be in writing and,
if sent to (i) the Underwriters, will be mailed, delivered or sent by facsimile
and confirmed to them at ____________, Attention: _______________ (facsimile
number (___) ___-____); (ii) the Seller, will be mailed, delivered or sent by
facsimile and confirmed to it at Fleetwood Credit Receivables Corp., 22840 Savi
Ranch Parkway, Yorba Linda, California 92687, Attention: Senior Vice President
(facsimile number (714) 921-3490); or (iii) Fleetwood Credit, will be mailed,
delivered or sent by facsimile and confirmed to it at Fleetwood Credit Corp.,
22840 Savi Ranch Parkway, Yorba Linda, California 92687, Attention: Senior
Vice President (facsimile number (714) 921-3490).
13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California.
23
<PAGE> 24
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts duplicate
hereof, whereupon it will become a binding agreement between the Seller and
Fleetwood Credit and the Underwriters in accordance with its terms.
Very truly yours,
FLEETWOOD CREDIT CORP.
By:
-------------------------------------
Name:
Title:
FLEETWOOD CREDIT RECEIVABLES CORP.
By:
-------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
,
- ----------------------------
For itself and as Representative of
the Underwriters
By:
------------------------------
Name:
Title:
<PAGE> 25
SCHEDULE A
<TABLE>
<CAPTION>
Principal Amount of Principal Amount of
Underwriter Class A-1 Notes Class A-2 Notes
- ----------- ------------------- -------------------
<S> <C> <C>
. . . . . . . . . . . $ $
- ------------------ ------------------ ------------------
. . . . . . . . . . .
- ------------------ ------------------ ------------------
Total $ $
================== ==================
</TABLE>
<TABLE>
<CAPTION>
Principal Amount of Principal Amount of
Class A-3 Notes Certificates
------------------- -------------------
<S> <C> <C>
. . . . . . . . . . . $ $
- ------------------ ------------------ ------------------
. . . . . . . . . . .
- ------------------ ------------------ ------------------
Total $ $
================== ==================
</TABLE>
A-1
<PAGE> 1
EXHIBIT 4.1
================================================================================
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Seller,
and
______________________,
as Owner Trustee
_________________________________________________
TRUST AGREEMENT
Dated as of ____________, 199
_________________________________________________
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Interpretive Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE TWO
ORGANIZATION
Section 2.01. Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.02. Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.03. Purposes and Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.04. Appointment of Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.05. Initial Capital Contribution of Owner Trust Estate . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.06. Declaration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.07. Title to Trust Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.08. Situs of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.09. Representations and Warranties of the Seller . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.10. Federal Income Tax Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE THREE
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.02. The Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.03. Authentication and Delivery of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.04. Registration of Transfer and Exchange of Certificates . . . . . . . . . . . . . . . . . . . . . 9
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.06. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.07. Access to List of Certificateholders' Names and Addresses . . . . . . . . . . . . . . . . . . . . 11
Section 3.08. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.09. Temporary Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.10. Appointment of Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.11. Ownership by the Seller of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.12. Book-Entry Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.13. Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.14. Definitive Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
(i)
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 3.15. Repayment of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Owners with Respect to Certain Matters . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.02. Action by Owners with Respect to Certain Matters . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.03. Action by Owners with Respect to Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.04. Restrictions on Owners' Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.05. Majority Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Certificate Distribution Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.02. Application of Trust Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.03. Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.04. No Segregation of Monies; No Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.05. Accounting and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.06. Signature on Returns; Tax Matters Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.02. General Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.03. Action Upon Instruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.04. No Duties Except as Specified in this Agreement or in Instructions . . . . . . . . . . . . . . . . 21
Section 6.05. No Action Except Under Specified Documents or Instructions . . . . . . . . . . . . . . . . . . . . 22
Section 6.06. Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.02. Furnishing of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 7.03. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.04. Reliance; Advice of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.05. Not Acting in Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.06. Owner Trustee Not Liable for Securities or Receivables . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.07. Owner Trustee May Own Certificates and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.02. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.03. Payments to the Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 9.02. Insolvency Event with Respect to Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE TEN
SUCCESSOR AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 10.02. Resignation or Removal of Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 10.03. Successor Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 10.04. Merger or Consolidation of Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 10.05. Appointment of Co-Trustee or Separate Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 11.02. No Legal Title to Trust Estate in Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 11.03. Limitations on Rights of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 11.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
</TABLE>
(iii)
<PAGE> 5
<TABLE>
<CAPTION>
Page
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<S> <C>
Section 11.05. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 11.06. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.07. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.08. No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.09. No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.10. Certificates Nonassessable and Fully Paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.11. Table of Contents and Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 11.12. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 11.13. Seller Payment Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
EXHIBITS
Exhibit A - Form of Certificate Depository Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B - Form of Certificate of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Exhibit C - Form of Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
</TABLE>
(iv)
<PAGE> 6
This Trust Agreement, dated as of ___________, 199 , is among
Fleetwood Credit Receivables Corp., a California corporation ("FCRC"), as
Seller, and __________, a ___________, as trustee of the Fleetwood Credit RV
Receivables 199 - Owner Trust, a Delaware business trust.
WITNESSETH:
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used herein that are
not otherwise defined shall have the meanings ascribed thereto in the Sale and
Servicing Agreement or, if not defined therein, in the Indenture. Whenever
used herein, unless the context otherwise requires, the following words and
phrases shall have the following meanings:
"Agreement" means this Trust Agreement, as the same may be amended or
supplemented from time to time.
"Applicants" has the meaning set forth in Section 3.07.
"Benefit Plan" means (i) an employee benefit plan (as such term is
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity.
"Book-Entry Certificate" means a beneficial interest in the
Certificates, the ownership of which shall be evidenced, and transfers of which
shall be made, through book entries by a Clearing Agency as described in
Section 3.12.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801 et seq., as the same may be amended from time to
time.
"Certificate Depository Agreement" means the agreement dated
Clearing Agency, substantially in the form attached as Exhibit A hereto,
relating to all Certificates other than the Seller Certificate, as the same may
be amended and supplemented from time to time.
"Certificate of Trust" means the Certificate of Trust filed for the
Trust pursuant to Section 3810(a) of the Business Trust Statute, substantially
in the form of Exhibit B hereto.
<PAGE> 7
"Certificate Owner" means (i) with respect to a Book-Entry
Certificate, the Person who is the owner of such Book-Entry Certificate, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in either case in accordance with the rules of such Clearing
Agency) and (ii) with respect to a Definitive Certificate, the related
Certificateholder.
"Certificate Register" and "Certificate Registrar" mean the register
maintained and the registrar (or any successor thereto) appointed pursuant to
Section 3.04.
"Certificateholder" means the Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purposes of
giving any consent, waiver, request or demand pursuant to this Agreement or the
other Basic Documents, the interest evidenced by any Certificate registered in
the name of the Seller, Fleetwood Credit or any of their respective Affiliates
shall not be taken into account in determining whether the requisite percentage
necessary to effect such consent, waiver, request or demand in respect of the
Certificates shall have been obtained.
"Certificates" means the trust certificates evidencing the beneficial
interest of an Owner in the Trust, substantially in the form of Exhibit C
hereto.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" means __________, 199 .
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
"Definitive Certificates" has the meaning set forth in Section 3.12.
"DTC" means The Depository Trust Company, and its successors.
"ERISA" means the Employment Retirement Income Security Act of 1974,
as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Indemnified Parties" has the meaning set forth in Section 8.02.
"Indenture" means the indenture dated as of __________ 1, 199 ,
between the Trust and the Indenture Trustee.
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<PAGE> 8
"Mandatory Prepayment" has the meaning set forth in Section 3.15(b).
"Original Certificate Balance" means $____________.
"Owner" means each Holder of a Certificate.
"Owner Trustee" means ______________, a ____________, as trustee under
this Agreement, and any successor Owner Trustee hereunder.
"Owner Trustee Corporate Trust Office" means the office of the Owner
Trustee at which its corporate trust business shall be administered, which
initially shall be ______________, Attention: _______________, or such other
office at such other address as the Owner Trustee may designate from time to
time by notice to the Certificateholders, the Servicer and the Seller. The
foregoing address of ___________ shall be its address for purposes of its
acting as Certificate Registrar and as agent of the Owner Trustee pursuant to
Sections 3.04 and 3.08, or such other office at such other address as the Owner
Trustee may designate from time to time by notice to the Certificateholders,
the Servicer and the Seller.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 3.10.
"Pre-Funded Percentage" means, with respect to the Certificates, the
percentage derived from the fraction, the numerator of which is the Original
Certificate Balance, and the denominator of which is the sum of the Original
Note Balance and the Original Certificate Balance.
"Sale and Servicing Agreement" means the sale and servicing agreement,
dated as of ____________ 1, 199 , among the Issuer, the Seller and the
Servicer, as the same may be amended or supplemented from time to time.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Seller Certificate" means the Certificate purchased by the Seller on
the Closing Date pursuant to Section 3.11, having an initial principal balance
equal to $_________.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust Estate" means (i) the Receivables (other than Repurchased
Receivables) and all payments due thereunder on and after the Initial Cutoff
Date or any Subsequent Cutoff Date, as the case may be, other than Accrued
Interest as of the opening of business on the Initial Cutoff Date or any
Subsequent Cutoff Date, as the case may be; (ii) security interests in the
Financed Vehicles; (iii) such monies as are from time to time on deposit in the
Collection Account, the
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<PAGE> 9
Distribution Accounts, the Pre-Funding Account, the Yield Supplement Account
and the Reserve Fund (including Investment Earnings thereon) and all proceeds
thereof; (iv) the Servicer Letter of Credit, if any; (v) the right to realize
upon any property (including the right to receive future Liquidation Proceeds)
that shall have secured a Receivable and have been repossessed by or on behalf
of the Owner Trustee; (vi) proceeds from claims on any physical damage, credit
life or disability Insurance Policies covering the Financed Vehicles or the
Obligors; (vii) the Seller's rights under the Receivables Purchase Agreement;
(viii) the right of the Seller to receive payments pursuant to repurchase
obligations of Dealers relating to the Receivables; and (ix) all proceeds of
the foregoing.
"Underwriters" means ___________________.
Section 1.02. Interpretive Provisions. For all purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, (i) terms used herein include, as appropriate, all genders
and the plural as well as the singular, (ii) references to this Agreement
include all Exhibits hereto, (iii) references to words such as "herein",
"hereof" and the like shall refer to this Agreement as a whole and not to any
particular part, Article or Section herein, (iv) references to an Article or
Section such as "Article One" or "Section 1.01" shall refer to the applicable
Article or Section of this Agreement, (v) the term "include" and all variations
thereof shall mean "include without limitation", (vi) the term "or" shall
include "and/or", (vii) the term "proceeds" shall have the meaning ascribed to
such term in the UCC, (viii) references to "writing" include printing, typing,
lithography and other means of reproducing words in a visible form, (ix)
references to agreements and other contractual instruments include all
amendments, modifications and supplements thereto or any changes therein
entered into in accordance with their respective terms and not prohibited by
this Agreement, (x) references to Persons include their permitted successors
and assigns and (xi) all accounting terms used but not defined herein shall be
construed in accordance with generally accepted accounting principles in the
United States.
4
<PAGE> 10
ARTICLE TWO
ORGANIZATION
Section 2.01. Name. The Trust created hereby shall be known as the
"Fleetwood Credit RV Receivables 199 - Owner Trust", in which name the Owner
Trustee may conduct the activities of the Trust, make and execute contracts and
other instruments on behalf of the Trust and sue and be sued.
Section 2.02. Office. The principal office of the Trust shall be
in care of the Owner Trustee at the Owner Trustee Corporate Trust Office or at
such other address in the State of Delaware as the Owner Trustee may designate
from time to time by written notice to the Owners and the Seller. Copies of
this Agreement (without exhibits) may be obtained by Certificateholders upon
request in writing to the Owner Trustee at the Owner Trustee Corporate Trust
Office.
Section 2.03. Purposes and Powers.
(a) The sole purpose of the Trust is to conserve the Trust Estate
and collect and disburse the periodic income therefrom for the use and benefit
of the Owners, and in furtherance of such purpose to engage in the following
ministerial activities:
(i) to acquire, hold and manage the Receivables and the
other assets of the Trust and proceeds therefrom;
(ii) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement and to sell the Notes and the
Certificates;
(iii) to make payments on the Notes and the Certificates; and
(iv) to engage in those activities, including entering
into agreements, that are necessary to accomplish the foregoing or are
incidental thereto or connected therewith.
The Trust shall not engage in any activities other than in connection with the
foregoing. Nothing contained herein shall be deemed to authorize the Owner
Trustee, on behalf of the Trust, to engage in any business operations or any
activities other than those set forth in the introductory sentence of this
Section. Specifically, the Owner Trustee, on behalf of the Trust, shall have
no authority to engage in any business operations, acquire any assets other
than those specifically included in the Trust Estate or otherwise vary the
assets held by the Trust. Similarly, the Owner Trustee shall have no
discretionary duties other than performing those ministerial acts set forth
above necessary to accomplish the purpose of the Trust as set forth in the
introductory sentence of this Section.
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<PAGE> 11
Section 2.04. Appointment of Owner Trustee. The Seller hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein, and the
Owner Trustee hereby accepts such appointment.
Section 2.05. Initial Capital Contribution of Owner Trust Estate.
The Seller hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, on behalf of the Trust, as of the date hereof, the sum of $1.00. The
Owner Trustee hereby acknowledges receipt in trust from the Seller, as of the
date hereof, of the foregoing contribution, which shall constitute the initial
Trust Estate and shall be deposited in the Certificate Distribution Account.
The Seller shall pay organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust. The Owner Trustee hereby
declares that it will hold the Trust Estate in trust upon and subject to the
conditions set forth herein for the sole purpose of conserving the Trust Estate
and collecting and disbursing the periodic income therefrom for the use and
benefit of the Owners, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute
a business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. It is the
intention of the parties hereto that, solely for income and franchise tax
purposes, the Trust shall be treated as a partnership, with the assets of the
partnership being the Receivables and other assets held by the Trust and with
the partners of the partnership being the Certificateholders (including the
Seller) and the Notes being debt of the partnership. The parties agree that,
unless otherwise required by appropriate tax authorities, the Trust will file
or cause to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as a partnership for such tax
purposes. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and in the Business Trust Statute
for the sole purpose and to the extent necessary to accomplish the purpose of
the Trust as set forth in the introductory sentence of Section 2.03.
Section 2.07. Title to Trust Property. Legal title to the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Owner Trustee, a co-trustee or a separate
trustee, as the case may be.
Section 2.08. Situs of Trust. The Trust shall be located and
administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of
California, the State of Delaware or the State of New York. The Trust shall
not have any employees in any State other than Delaware; provided, however,
that nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware. Payments shall be received
by the Trust only in Delaware or New York and payments shall be made by the
Trust only from Delaware or New York. The only office of the Trust will be at
the Owner Trustee Corporate Trust Office.
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<PAGE> 12
Section 2.09. Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to the Owner Trustee
that:
(i) The Seller is duly organized and validly existing as
a corporation organized and existing and in good standing under the
laws of the State of California, with power and authority to own its
properties and to conduct its business and had at all relevant times,
and has, power, authority and legal right to acquire and own the
Receivables.
(ii) The Seller is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such
qualifications.
(iii) The Seller has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Seller has full
power and authority to sell and assign the property to be sold and
assigned to and deposited with the Owner Trustee on behalf of the
Trust as part of the Trust Estate and has duly authorized such sale
and assignment and deposit with the Owner Trustee on behalf of the
Trust by all necessary corporate action; and the execution, delivery
and performance of this Agreement have been duly authorized by the
Seller by all necessary corporate action.
(iv) The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict
with, result in the breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of the Seller, or any
indenture, agreement or other instrument to which the Seller is a
party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of the properties of the Seller
pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents); nor violate
any law or any order, rule or regulation applicable to the Seller of
any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Seller or its properties.
(v) There are no Proceedings or investigations pending,
or to the Seller's best knowledge threatened, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties:
(A) asserting the invalidity of this Agreement, any of the other Basic
Documents or the Certificates, (B) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by this Agreement or any other Basic Document, (C)
seeking any determination or ruling that might materially and
adversely affect the performance by the Seller of its obligations
under, or the validity or enforceability of, this Agreement, any other
Basic Document or the Certificates or (D) involving the Seller and
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<PAGE> 13
that might adversely affect the federal income tax or other federal,
state or local tax attributes of the Certificates.
Section 2.10. Federal Income Tax Allocations. The
Certificateholders shall be allocated taxable income of the Trust for each
month equal to the sum of (i) the interest that accrues on the Certificates for
such month, including interest accruing at the Pass-Through Rate for such month
and interest at the Pass-Through Rate on amounts previously due on the
Certificates but not yet distributed; (ii) any Trust income attributable to
discount on the related Receivables that corresponds to any excess of the
principal amount of the Certificates over their initial issue price; (iii)
prepayment premium payable to the Certificateholders for such month; and (iv)
any other amounts of income payable to the Certificateholders for such month.
Such allocation shall be reduced by any amortization by the Trust of premium on
the Receivables that corresponds to any excess of the issue price of
Certificates over their principal amount. All remaining taxable income of the
Trust will be allocated to the Seller. The Seller is authorized to modify the
allocations in this paragraph if necessary or appropriate, in its sole
discretion, for the allocations to fairly reflect the income, gain, loss and
deduction to the Seller or to the Certificate Owners, or as otherwise required
by the Code.
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<PAGE> 14
ARTICLE THREE
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership. Upon the formation of the Trust
by the contribution by the Seller pursuant to Section 2.05 and until the
issuance of the Certificates, the Seller shall be the sole beneficiary of the
Trust.
Section 3.02. The Certificates. The Certificates shall be
substantially in the form of Exhibit C hereto. The Certificates shall be
issuable in minimum denominations of $20,000 and integral multiples of $1,000
in excess thereof. The Certificates shall be executed by the Owner Trustee on
behalf of the Trust by manual or facsimile signature of an authorized officer
of the Owner Trustee and attested on behalf of the Owner Trustee by the manual
or facsimile signature of an authorized officer of the Owner Trustee and shall
be deemed to have been validly issued when so executed. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures were affixed, authorized to sign on behalf of the Owner Trustee
shall be valid and binding obligations of the Trust, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of such Certificates. All Certificates shall be dated the date of
their authentication.
Section 3.03. Authentication and Delivery of Certificates. The
Owner Trustee shall cause to be authenticated and delivered upon the order of
the Seller, in exchange for the Initial Receivables and the other assets of the
Trust, simultaneously with the sale, assignment and transfer to the Trust of
the Initial Receivables, and the constructive delivery to the Owner Trustee of
the Receivable Files and the other assets of the Trust, Certificates duly
authenticated by the Owner Trustee, in authorized denominations equaling in the
aggregate the Original Certificate Balance evidencing the entire ownership of
the Trust. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form set forth
in the form of Certificate attached hereto as Exhibit C, executed by the Owner
Trustee or its authenticating agent, by manual signature, and such certificate
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. Upon
issuance, authentication and delivery pursuant to the terms hereof, the
Certificates will be entitled to the benefits of this Agreement.
Section 3.04. Registration of Transfer and Exchange of
Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, a
Certificate Register, subject to such reasonable regulations as it may
prescribe. The Certificate Register shall provide for the registration of
Certificates and transfers and exchanges of Certificates as provided herein.
_____________, Attention: ________________, as agent for the Owner Trustee, is
hereby initially appointed Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided.
In the event that, subsequent to the Closing Date, the Owner Trustee notifies
the Servicer that ___________ is unable to act as Certificate
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<PAGE> 15
Registrar, the Servicer shall appoint another bank or trust company, having an
office or agency located in The City of New York, agreeing to act in accordance
with the provisions of this Agreement applicable to it, and otherwise
acceptable to the Owner Trustee, to act as successor Certificate Registrar
hereunder.
(b) Upon surrender for registration of transfer of any Certificate
at the office of the Certificate Registrar, the Owner Trustee shall execute,
authenticate and deliver (or shall cause its authenticating agent to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a like
aggregate principal amount.
(c) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates in authorized denominations of a like
aggregate principal amount, upon surrender of the Certificates to be exchanged
at the office of the Certificate Registrar. Whenever any Certificates are so
surrendered for exchange, the Owner Trustee on behalf of the Trust shall
execute, authenticate and deliver (or shall cause its authenticating agent to
authenticate and deliver) the Certificates that the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Owner Trustee and
the Certificate Registrar duly executed by the Holder thereof or his attorney
duly authorized in writing.
(d) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Owner Trustee may require payment
of a sum sufficient to cover any Tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(e) The Certificates may not be acquired by or for the account of
a Benefit Plan. By accepting and holding a Certificate, the Holder thereof
shall be deemed to have represented and warranted that it is not a Benefit Plan
nor will it hold such Certificate for the account of a Benefit Plan.
(f) All Certificates surrendered for registration of transfer or
exchange shall be promptly cancelled by the Owner Trustee, and no Certificates
shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Agreement. The Owner Trustee shall dispose of cancelled
Certificates in accordance with the normal industry practice.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate Registrar,
or the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (ii) there is delivered to
the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to hold each of them harmless, then, in the absence of
notice that such Certificate has been acquired by a bona fide purchaser, the
Owner Trustee on behalf of the Trust shall execute and the Owner Trustee or its
authenticating agent shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and fractional undivided interest. In connection with the
issuance of any new Certificate under this Section, the Owner Trustee may
require the payment by the related
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<PAGE> 16
Holder of a sum sufficient to cover any Tax or other governmental charge that
may be imposed in relation thereto. Any duplicate Certificate issued pursuant
to this Section shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Prior to due presentation of
a Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar, any Paying Agent and any of their respective agents may treat the
Person in whose name such Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 5.02
and for all other purposes whatsoever, and none of the Owner Trustee, the
Certificate Registrar, any Paying Agent or any of their respective agents shall
be affected by any notice to the contrary.
Section 3.07. Access to List of Certificateholders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer, within 15 days after receipt by the Certificate Registrar of a
written request therefor from the Servicer, a list, in such form as the
Servicer may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders, or one or more Certificateholders evidencing not less than
25% of the Voting Interest thereof (hereinafter referred to as "Applicants"),
apply in writing to the Owner Trustee, and such application states that the
Applicants desire to communicate with other Certificateholders with respect to
their rights hereunder or under the Certificates and such application is
accompanied by a copy of the communication that such Applicants propose to
transmit, then the Owner Trustee shall, within five Business Days after the
receipt of such application, afford such Applicants access, during normal
business hours, to the current list of Certificateholders. Every
Certificateholder, by receiving and holding a Certificate, agrees with the
Servicer, the Seller and the Owner Trustee that none of the Servicer, the
Seller or the Owner Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 3.08. Maintenance of Office or Agency. ________________,
as agent for the Owner Trustee, shall maintain in the Borough of Manhattan, The
City of New York, an office or offices or agency or agencies where Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Owner Trustee in respect of the Certificates and the
Basic Documents may be served. The Owner Trustee hereby designates the office
of ______________ at the address provided under the definition of the term
"Owner Trustee Corporate Trust Office" as its office for such purposes. The
Owner Trustee shall give prompt written notice to the Seller, the Servicer and
to Certificateholders of any change in the location of the Certificate Register
or any such office or agency.
Section 3.09. Temporary Certificates. Pending the preparation of
Definitive Certificates, the Owner Trustee, on behalf of the Trust, may
execute, authenticate and deliver, temporary Certificates that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the Definitive
Certificates in lieu of which they are issued. If temporary Certificates are
issued, the Seller shall cause Definitive Certificates to be prepared without
unreasonable delay. After the preparation of Definitive Certificates, the
temporary Certificates shall be exchangeable for Definitive Certificates upon
surrender of the temporary Certificates at the office or agency to be
maintained
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<PAGE> 17
as provided in Section 3.08, without charge to the Holder thereof. Upon
surrender for cancellation of any one or more temporary Certificates, the Owner
Trustee shall execute and authenticate and deliver in exchange therefor a like
principal amount of Definitive Certificates in authorized denominations. Until
so exchanged, the temporary Certificates shall in all respects be entitled to
the same benefits hereunder as Definitive Certificates.
Section 3.10. Appointment of Paying Agent. The Paying Agent shall
make distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.02(a) and shall report the amounts of such
distributions to the Owner Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. The Owner Trustee may
revoke such power and remove the Paying Agent if the Owner Trustee determines
in its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent
initially shall be ______________ and any co-paying agent chosen by the Paying
Agent that is acceptable to the Owner Trustee. Each Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Owner
Trustee. In the event that ______________ shall no longer be the Paying Agent,
the Owner Trustee shall appoint a successor to act as Paying Agent (which shall
be a bank or trust company). The Owner Trustee shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Owner Trustee to
execute and deliver to the Owner Trustee an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the Owner Trustee
that, as Paying Agent, such successor Paying Agent or additional Paying Agent
will hold all sums, if any, held by it for payment to the Certificateholders in
trust for the benefit of the Certificateholders entitled thereto until such
sums shall be paid to such Certificateholders. The Paying Agent shall return
all unclaimed funds to the Owner Trustee and upon removal of a Paying Agent
such Paying Agent shall also return all funds in its possession to the Owner
Trustee. The provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall apply to
the Owner Trustee also in its role as Paying Agent, for so long as the Owner
Trustee shall act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise. If the long term debt rating of the Paying Agent shall not be at
least Baa3 from Moody's and BBB- from Standard & Poor's, the Rating Agencies
shall be given notice of such lower long term debt rating.
Section 3.11. Ownership by the Seller of Certificates.
(a) The Seller shall on the Closing Date purchase from the
Underwriters Certificates representing at least 1% of the Original Certificate
Balance and shall thereafter retain beneficial and record ownership of
Certificates representing at least 1% of the Certificate Balance. Any
attempted transfer of any Certificate that would reduce such interest of the
Seller below 1% of the Certificate Balance shall be void. The Owner Trustee
shall cause any Certificate issued to the Seller on the Closing Date (and any
Certificate issued in exchange therefor) to contain a legend stating "THIS
CERTIFICATE IS NON-TRANSFERABLE".
(b) The Seller hereby agrees to be liable directly to any injured
Person for the entire amount of any Losses (other than those incurred by a
Securityholder in the capacity of an investor with respect to the Trust)
arising out of or based on the arrangement created by this
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Agreement as though such arrangement created a partnership under the Delaware
Revised Uniform Limited Partnership Act in which the Seller was a general
partner.
Section 3.12. Book-Entry Certificates. The Certificates upon
original issuance will be issued in the form of one or more typewritten
certificates representing the Book-Entry Certificates, to be delivered to DTC,
the initial Clearing Agency, by, or on behalf of, the Trust; provided, however,
that one Definitive Certificate (as defined below) may be issued to the Seller
pursuant to Section 3.11. The certificate or certificates delivered to DTC
evidencing such Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Certificate Owner (other than the Seller) shall receive a Definitive
Certificate representing such Certificate Owner's interest in the Certificates,
except as provided in Section 3.14. Unless and until definitive, fully
registered Certificates ("Definitive Certificates") have been issued to
Certificate Owners pursuant to Section 3.14:
(a) the provisions of this Section shall be in full force
and effect;
(b) the Seller, the Servicer, the Certificate Registrar
and the Owner Trustee, subject to the provisions and limitations of
Sections 2.03 and 2.06, may deal with the Clearing Agency for all
purposes (including the making of distributions on the Certificates)
as the authorized representative of the Certificate Owners;
(c) to the extent that the provisions of this Section
conflict with any other provisions of this Agreement, the provisions
of this Section shall control;
(d) the rights of Certificate Owners shall be exercised
only through the Clearing Agency (or through procedures established by
the Clearing Agency) and shall be limited to those established by law
and agreements between such Certificate Owners and the Clearing Agency
or the Clearing Agency Participants; pursuant to the Certificate
Depository Agreement, unless and until Definitive Certificates are
issued pursuant to Section 3.14, the Clearing Agency shall make
book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on the
Certificates to such Clearing Agency Participants; and
(e) whenever this Agreement requires or permits actions
to be taken based upon instructions or directions of
Certificateholders evidencing a specified percentage of the
Certificate Balance, the Clearing Agency shall be deemed to represent
such percentage only to the extent that it has received instructions
to such effect from Certificate Owners or Clearing Agency Participants
owning or representing, respectively, such required percentage and has
delivered such instructions to the Owner Trustee.
Section 3.13. Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders is required hereunder, unless and until
Definitive Certificates shall have been issued to Certificate Owners pursuant
to Section 3.14, the Owner Trustee and the Servicer shall give all such notices
and communications specified herein to be given to Certificateholders to the
Clearing Agency.
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Section 3.14. Definitive Certificates. If (i)(A) the Administrator
advises the Owner Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities as described in the
Certificate Depository Agreement and (B) the Trustee or the Administrator is
unable to locate a qualified successor, (ii) the Administrator, at its option,
advises the Owner Trustee in writing that it elects to terminate the book-entry
system through the Clearing Agency or (iii) after the occurrence of an Event of
Default or a Servicer Default, Certificate Owners representing beneficial
interests aggregating not less than 51% of the Voting Interest thereof advise
the Owner Trustee and the Clearing Agency through the Clearing Agency
Participants in writing that the continuation of a book-entry system through
the Clearing Agency is no longer in the best interests of the Certificate
Owners, then the Clearing Agency shall notify all Certificate Owners and the
Owner Trustee of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Owner Trustee by the Clearing Agency of the Certificates
evidencing the Book-Entry Certificates, accompanied by registration
instructions from the Clearing Agency for registration, the Owner Trustee shall
issue the Definitive Certificates and deliver such Definitive Certificates in
accordance with the instructions of the Clearing Agency. Neither the Seller,
the Certificate Registrar nor the Owner Trustee shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, the Owner Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder. The Owner Trustee shall not be
liable if the Owner Trustee or the Administrator is unable to locate a
qualified successor Clearing Agency. The Definitive Certificates shall be
printed, lithographed or engraved or may be produced in any manner as is
reasonably acceptable to the Owner Trustee, as evidenced by its execution
thereof.
Section 3.15. Repayment of Certificates.
(a) In the event of an Optional Purchase or an Auction, the
Certificates will be prepaid in whole, but not in part, at a prepayment price
equal to the Certificate Balance plus accrued interest thereon at the
Pass-Through Rate.
(b) The Certificates will be subject to prepayment in part on the
Distribution Date on or immediately following the last day of the Funding
Period in the event that more than $100,000 of the Pre-Funded Amount remains on
deposit in the Pre-Funding Account, after giving effect to the purchase of any
Subsequent Receivables on such date (a "Mandatory Prepayment"). The aggregate
principal amount of Certificates to be prepaid will be an amount equal to the
Pre-Funded Percentage of the Certificates multiplied by the Pre-Funded Amount
then on deposit in the Pre-Funding Account.
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Owners with Respect to Certain
Matters. Subject to the provisions and limitations of Section 4.04, with
respect to the following matters, the Owner Trustee shall not take action
unless at least 30 days before the taking of such action, the Owner Trustee
shall have notified the Certificateholders in writing of the proposed action
and the Owners shall not have notified the Owner Trustee in writing prior to
the 30th day after such notice is given that such Owners have withheld consent
or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the collection
of the Receivables) and the compromise of any action, claim or lawsuit
brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of the Receivables);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Business Trust Statute);
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is
required;
(d) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is not
required and such amendment materially adversely affects the interest
of the Owners;
(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner or add any provision that would
not materially adversely affect the interests of the Owners; or
(f) the appointment pursuant to the Indenture of a
successor Note Registrar, Paying Agent for the Notes or Indenture
Trustee or pursuant to this Agreement of a successor Certificate
Registrar, or the consent to the assignment by the Note Registrar,
Paying Agent, Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
Section 4.02. Action by Owners with Respect to Certain Matters.
Subject to the provisions and limitations of Section 4.04, the Owner Trustee
shall not have the power, except upon the direction of the Owners, to (i)
remove the Administrator pursuant to Section 8 of the Administration Agreement,
(ii) appoint a successor Administrator pursuant to Section 8 of the
Administration Agreement, (iii) remove the Servicer pursuant to Section 9.01 of
the Sale and Servicing Agreement, (iv) except as expressly provided in the
Basic Documents, sell the Receivables after the termination of the Indenture,
(v) initiate any claim, suit or proceeding by the Trust or compromise any
claim, suit or proceeding brought by or against the Trust, (vi) authorize the
merger or consolidation of the Trust with or into any other business trust or
other Person or entity (other than in accordance with Section 3.10 of the
Indenture) or
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(vii) amend the Certificate of Trust. The Owner Trustee shall take the actions
referred to in the preceding sentence only upon written instructions signed by
the Owners.
Section 4.03. Action by Owners with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary Proceeding in
bankruptcy with respect to the Trust without the unanimous prior approval of
all Certificateholders (including the Seller) and the delivery to the Owner
Trustee by each Certificateholder certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
Section 4.04. Restrictions on Owners' Power. The Owners shall not
direct the Owner Trustee to take or to refrain from taking any action if such
action or inaction would be contrary to any obligation of the Trust or the
Owner Trustee under this Agreement or any of the other Basic Documents or would
be contrary to the purpose of this Trust as set forth in Section 2.03, nor
shall the Owner Trustee be obligated to follow any such direction, if given.
Section 4.05. Majority Control. Except as expressly provided
herein, any action that may be taken by the Owners under this Agreement may be
taken by Certificateholders evidencing not less than a majority of the
Certificate Balance. Except as expressly provided herein, any written notice
of the Owners delivered pursuant to this Agreement shall be effective if signed
by Certificateholders evidencing not less than a majority of the Certificate
Balance at the time of the delivery of such notice.
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ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Certificate Distribution Account. The Owner Trustee
shall possess all right, title and interest in funds on deposit from time to
time in the Certificate Distribution Account and in the proceeds thereof.
Except as otherwise expressly provided herein, the Certificate Distribution
Account shall be under the sole dominion and control of the Owner Trustee for
the benefit of the Certificateholders. If, at any time, the Certificate
Distribution Account ceases to be an Eligible Account, the Owner Trustee (or
the Seller on behalf of the Owner Trustee, if the Certificate Distribution
Account is not then held by the Owner Trustee or an Affiliate thereof) shall
within ten Business Days (or such longer period, not to exceed 30 calendar
days, as to which each Rating Agency must consent) establish a new Certificate
Distribution Account as an Eligible Account and shall transfer any cash or any
investments to such new Certificate Distribution Account.
Section 5.02. Application of Trust Funds.
(a) On each Distribution Date, the Owner Trustee shall distribute
to the Certificateholders, pro rata, amounts deposited in the Certificate
Distribution Account pursuant to Section 6.07 of the Sale and Servicing
Agreement with respect to such Distribution Date.
(b) On each Distribution Date, the Owner Trustee shall send to
each Certificateholder the statement or statements provided to the Owner
Trustee by the Servicer pursuant to Section 6.12 of the Sale and Servicing
Agreement with respect to such Distribution Date.
(c) In the event that any withholding Tax is imposed on the
Trust's payment (or allocations of income) to an Owner, such Tax shall reduce
the amount otherwise distributable to such Owner in accordance with this
Section. The Owner Trustee is hereby authorized and directed to retain, from
amounts otherwise distributable to the Owners, sufficient funds for the payment
of any Tax that is legally owed by the Trust (but such authorization shall not
prevent the Owner Trustee from contesting any such Tax in appropriate
Proceedings, and withholding payment of such Tax, if permitted by law, pending
the outcome of such Proceedings). The amount of any withholding Tax imposed
with respect to an Owner shall be treated as cash distributed to such Owner at
the time it is withheld by the Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding Tax is payable with
respect to a distribution, the Owner Trustee may in its sole discretion
withhold such amounts in accordance with this paragraph.
Section 5.03. Method of Payment. Subject to Section 9.01(c)
respecting the final payment upon retirement of each Certificate, distributions
required to be made to each Certificateholder on the related Record Date shall
be made by check mailed to such Certificateholder at the address of such
Certificateholder appearing in the Certificate Register (or, if DTC, its
nominee or a Clearing Agency is the relevant Certificateholder, by wire
transfer of immediately available funds or pursuant to other arrangements), the
amount to be distributed to such Certificateholder pursuant to such
Certificateholder's Certificates.
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Section 5.04. No Segregation of Monies; No Interest. Subject to
Sections 5.01 and 5.02, monies received by the Owner Trustee hereunder need not
be segregated in any manner except to the extent required by law or the Sale
and Servicing Agreement, and may be deposited under such general conditions as
may be prescribed by law, and the Owner Trustee shall not be liable for any
interest thereon.
Section 5.05. Accounting and Reports. The Owner Trustee shall (i)
maintain (or cause to be maintained) the books of the Trust on a calendar year
basis and the accrual method of accounting, (ii) deliver to each Owner, as may
be required by the Code and applicable Treasury Regulations, such information
as may be required (including Schedule K-1) to enable each Owner to prepare its
federal and state income tax returns, (iii) file such tax returns relating to
the Trust (including a partnership information return, IRS Form 1065) and make
such elections as from time to time may be required or appropriate under any
applicable state or federal statute or any rule or regulation thereunder so as
to maintain the Trust's characterization as a partnership for federal income
tax purposes, (iv) cause such tax returns to be signed in the manner required
by law and (v) collect or cause to be collected any withholding Tax as
described in and in accordance with Section 5.02(c) with respect to income or
distributions to Owners. The Owner Trustee shall elect under Section 1278 of
the Code to include in income currently any market discount that accrues with
respect to the Receivables. The Owner Trustee shall not make the election
provided under Section 754 of the Code.
Section 5.06. Signature on Returns; Tax Matters Partner.
(a) The Seller shall sign on behalf of the Trust the tax returns
of the Trust.
(b) The Seller shall be the "tax matters partner" of the Trust
pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
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ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party, each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and any
amendment or other agreement, as evidenced conclusively by the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Owner Trustee is further authorized
from time to time to take such action as the Administrator recommends with
respect to the Basic Documents.
Section 6.02. General Duties. Subject to the provisions and
limitations of Sections 2.03 and 2.06, it shall be the duty of the Owner
Trustee to discharge (or cause to be discharged through the Administrator or
such agents as shall be appointed) all of its responsibilities pursuant to the
terms of this Agreement and the other Basic Documents to which the Trust is a
party and to administer the Trust in the interest of the Owners, subject to the
other Basic Documents and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the other Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any other Basic Document, and the Owner Trustee shall not be
held liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
Section 6.03. Action Upon Instruction.
(a) Subject to Article Four, in accordance with the terms of the
Basic Documents, the Owners may by written instruction direct the Owner Trustee
in the management of the Trust. Such direction may be exercised at any time by
written instruction of the Owners pursuant to Article Four.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any other Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in Liability on the part of the Owner Trustee, is contrary
to the terms hereof or of any other Basic Document or is otherwise contrary to
law.
(c) If the Owner Trustee shall be unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any other Basic Document, the Owner Trustee shall promptly
give notice (in such form as shall be appropriate under the circumstances) to
the Owners requesting instruction as to the course of action to be adopted, and
to the extent the Owner Trustee acts in good faith in accordance with any
written instruction of the Owners received, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall not
have received appropriate instruction within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such notice
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or may be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action not inconsistent with this
Agreement and the other Basic Documents, as it shall deem to be in the best
interests of the Owners, and shall have no Liability to any Person for such
action or inaction.
(d) In the event the Owner Trustee is unsure as to the application
of any provision of this Agreement or any other Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or
incomplete as to the course of action the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice
(in such form as shall be appropriate under the circumstances) to the Owners
requesting instruction and, to the extent the Owner Trustee acts or refrains
from acting in good faith in accordance with any such instruction received, the
Owner Trustee shall have no Liability, on account of such action or inaction,
to any Person. If the Owner Trustee shall not have received appropriate
instruction within ten days of such notice (or within such shorter period of
time as reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Agreement or the other Basic
Documents, as it shall deem to be in the best interests of the Owners, and
shall have no Liability to any Person for such action or inaction.
Section 6.04. No Duties Except as Specified in this Agreement or in
Instructions.
(a) The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee is a party, except as expressly provided by
the terms of this Agreement or in any document or written instruction received
by the Owner Trustee pursuant to Section 6.03; and no implied duties or
obligations shall be read into this Agreement or any other Basic Document
against the Owner Trustee. With respect to receipt of certificates and reports
or other instruments required to be furnished to the Owner Trustee under this
Agreement, the Owner Trustee shall only be required to examine them to
determine whether they conform to the requirements of this Agreement. The
Owner Trustee shall not be charged with knowledge of a failure by the Servicer
to perform its duties under the relevant agreements which failure constitutes
an Event of Default or a Servicer Default unless the Owner Trustee obtains
actual knowledge of such failure as specified in this Agreement.
(b) The Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or Lien
granted to it hereunder or to prepare or file any Commission filing for the
Trust or to record this Agreement or any other Basic Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any Liens (other than the Lien
of the Indenture) on any part of the Trust Estate that result from actions by,
or claims against, the Owner Trustee that are not related to the ownership or
the administration of the Trust Estate.
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Section 6.05. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Trust Estate except in accordance
with (i) the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) the other Basic Documents and (iii)
any document or instruction delivered to the Owner Trustee pursuant to Section
6.03.
Section 6.06. Restrictions. The Owner Trustee shall not take any
action that (i) is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (ii) to the actual knowledge of the Owner Trustee, would result
in the Trust's becoming taxable as a corporation for federal or state income
tax purposes. The Owners shall not direct the Owner Trustee to take action
that would violate the provisions of this Section.
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ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Trust Estate upon the terms of this Agreement and the
other Basic Documents. The Owner Trustee shall not be answerable or
accountable hereunder or under any other Basic Document under any
circumstances, except (i) for its own willful misconduct or negligence or (ii)
in the case of the inaccuracy of any representation or warranty contained in
Section 7.03 expressly made by the Owner Trustee. In particular, but not by
way of limitation, and subject to the exceptions set forth in the preceding
sentence:
(a) the Owner Trustee shall not be liable for any error
in judgment made by a Responsible Officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in accordance with the
instructions of the Administrator or any Owner;
(c) no provision of this Agreement or any other Basic
Document shall require the Owner Trustee to expend or risk funds or
otherwise incur any financial Liability in the performance of any of
its rights or powers hereunder or under any other Basic Document if
the Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
Liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes or the
Certificates;
(e) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement, for the due
execution hereof by the Seller or for the form, character,
genuineness, sufficiency, value or validity of any of the Trust
Estate, or for or in respect of the validity or sufficiency of the
Basic Documents, other than the certificate of authentication on the
Certificates, and the Owner Trustee shall in no event assume or incur
any Liability, duty or obligation to any Noteholder or any Owner,
other than as expressly provided for herein or expressly agreed to in
the other Basic Documents;
(f) the Owner Trustee shall have no obligation or
Liability (i) for the default or misconduct of the Administrator, the
Seller, the Indenture Trustee or the Servicer under any of the Basic
Documents or otherwise, (ii) to perform the obligations of the Trust
under this Agreement or the other Basic Documents that are required to
be performed by the Administrator under the Administration Agreement,
the Indenture Trustee under the Indenture or the Servicer or the
Seller under the Sale and Servicing
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Agreement, (iii) for the use or application by the Seller or the
Servicer of any funds paid to the Seller or the Servicer in respect of
the Securities or the Receivables or the investment of any monies by
the Servicer before such monies are deposited into the Collection
Account or (iv) to independently verify the existence or
characteristics of the Receivables; and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement,
or to institute, conduct or defend any litigation under this Agreement
or otherwise or in relation to this Agreement or any other Basic
Document, at the request, order or direction of the Owners, unless
such Owners have offered the Owner Trustee security or indemnity
satisfactory to it against the Liabilities that may be incurred by the
Owner Trustee therein or thereby; the right of the Owner Trustee to
perform any discretionary act enumerated in this Agreement or in any
other Basic Document shall not be construed as a duty, and the Owner
Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act.
Section 7.02. Furnishing of Documents. The Owner Trustee shall
furnish to the Owners promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
Section 7.03. Representations and Warranties. The Owner Trustee
hereby represents and warrants to the Seller and the Owners that:
(a) It is a ____________ duly organized and validly
existing in good standing under the laws of the State of Delaware. It
has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement, and this
Agreement will be executed and delivered by one of its officers who is
duly authorized to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee
or any judgment or order binding on it, or constitute any default
under its charter documents or bylaws or any indenture, mortgage,
contract, agreement or instrument to which it is a party or by which
any of its properties may be bound or result in the creation or
imposition of any Lien on the Trust Estate resulting from Proceedings
by or Claims against the Owner Trustee individually that are unrelated
to this Agreement or the other Basic Documents.
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Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no Liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of determination of
which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and
in the performance of its duties and obligations under this Agreement or the
other Basic Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by the
Owner Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled persons to be selected with reasonable care and
employed by it. The Owner Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the written opinion
or advice of any such counsel, accountants or other such persons and not
contrary to this Agreement or any other Basic Document.
Section 7.05. Not Acting in Individual Capacity. Except as
otherwise provided in this Article, in accepting the trusts hereby created,
______________ acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Agreement or any other Basic Document
shall look only to the Trust Estate for payment or satisfaction thereof.
Section 7.06. Owner Trustee Not Liable for Securities or
Receivables. The recitals contained herein and in the Certificates (other than
the signature of the Owner Trustee and the certificate of authentication on the
Certificates) shall be taken as the statements of the Seller, and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner
Trustee makes no representations as to the validity or sufficiency of this
Agreement, any other Basic Document, the Certificates (other than the signature
of the Owner Trustee and the certificate of authentication on the Certificates
and the representations and warranties in Section 7.03), the Notes or any
Receivable or related document. The Owner Trustee shall at no time have any
responsibility or Liability for or with respect to the legality, validity and
enforceability of any Receivable, or the perfection and priority of any
security interest created by any Receivable in any Financed Vehicle or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Trust Estate or its ability to generate the payments to be
distributed to Certificateholders under this Agreement or the Noteholders under
the Indenture, including the existence, condition and ownership of any Financed
Vehicle; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or other record
thereof; the validity of the assignment of any Receivable to the Trust or
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<PAGE> 30
of any intervening assignment; the completeness of any Receivable; the
performance or enforcement of any Receivable; the compliance by the Seller or
the Servicer with any representation or warranty made under any Basic Document
or in any related document or the accuracy of any such warranty or
representation; or any action of the Administrator, the Indenture Trustee or
the Servicer taken in the name of the Owner Trustee.
Section 7.07. Owner Trustee May Own Certificates and Notes. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates or Notes and may deal with the Seller, the
Administrator, the Indenture Trustee and the Servicer in banking transactions
with the same rights as it would have if it were not Owner Trustee.
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ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Servicer and the
Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed by the
Servicer for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder.
Section 8.02. Indemnification. The Servicer shall be liable as
primary obligor for, and shall indemnify the Owner Trustee and its successors,
assigns, agents and servants (collectively, the "Indemnified Parties") from and
against, any Loss that may at any time be imposed on, incurred by or asserted
against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of this Agreement, the other Basic Documents, the Trust Estate, the
administration of the Trust Estate or the action or inaction of the Owner
Trustee hereunder, except only that the Servicer shall not be liable for or
required to indemnify an Indemnified Party from and against any Loss arising or
resulting from such Indemnified Party's own willful misfeasance, bad faith or
negligence (other than by reason of a breach of any of its representations or
warranties set forth in this Agreement). The indemnities contained in this
Section shall survive the resignation or termination of the Owner Trustee or
the termination of this Agreement. In the event of any Claim or Proceeding for
which indemnity is sought pursuant to this Section, the Owner Trustee's choice
of legal counsel shall be subject to the approval of the Servicer, which
approval shall not be unreasonably withheld.
Section 8.03. Payments to the Owner Trustee. Any amounts paid to
the Owner Trustee pursuant to this Article shall be deemed not to be a part of
the Trust Estate immediately after such payment.
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ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
(a) This Agreement (other than Article Eight) shall terminate (and
the Trust shall be deemed dissolved) and be of no further force or effect upon
the earlier of (i) the maturity or liquidation of the last Receivable and the
disposition of any amounts received upon liquidation of any property remaining
in the Trust, (ii) payment to the Certificateholders of all amounts required to
be paid to them pursuant to the terms hereof, (iii) the occurrence of an event
described in Section 9.02, (iv) an Optional Purchase or an Auction or (v) the
expiration of 21 years from the death of the last survivor of the descendants
of Joseph P. Kennedy, the late Ambassador of the United States to the Court of
St. James's, living on the date hereof. The bankruptcy, liquidation,
dissolution, death or incapacity of any Owner shall not (i) operate to
terminate this Agreement or the Trust, (ii) entitle such Owner's legal
representatives or heirs to claim an accounting or to take any Proceeding in
any court for a partition or winding up of all or any part of the Trust or the
Trust Estate or (iii) otherwise affect the rights, obligations and Liabilities
of the parties hereto.
(b) Notice of any termination of the Trust Agreement, specifying
the Distribution Date upon which Certificateholders shall surrender their
Certificates to the Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days after receipt of notice
thereof by the Owner Trustee, stating (i) the Distribution Date upon or with
respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Paying
Agent in the City of New York therein designated, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the Paying Agent therein
specified. The Owner Trustee shall give such notice to the Certificate
Registrar (if other than the Owner Trustee) and the Paying Agent at the time
such notice is given to Certificateholders. Upon presentation and surrender of
the Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Distribution Date pursuant to
Section 5.02. In addition, the Owner Trustee shall notify each Rating Agency
upon the final payment of the Certificates.
(c) In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all Certificates shall not
have been surrendered for cancellation, the Owner Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact the
remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Any funds remaining in the Trust after
exhaustion of such remedies shall be distributed by the Owner Trustee to the
United Way.
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(d) Upon the winding up of the Trust and its dissolution, the
Owner Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810(d) of the Business Trust Statute.
Section 9.02. Insolvency Event with Respect to Seller.
(a) If an Insolvency Event occurs with respect to the Seller, the
Receivables comprising the related Receivables Pool will be liquidated, this
Agreement will terminate and the Trust will be deemed dissolved 90 days after
the date of such Insolvency Event; unless, before the end of such 90 day
period, the Owner Trustee shall have received written instructions from (i)
Certificateholders representing more than 51% of the Voting Interest thereof,
and (ii) Noteholders representing more than 51% of the Voting Interest thereof,
voting together as a single Class; in each case to the effect that each such
Person disapproves of the liquidation of the Receivables and dissolution of the
Trust. Promptly after the occurrence of an Insolvency Event with respect to
the Seller, notice thereof shall be given to the Securityholders by the Owner
Trustee; provided, that any failure to give such notice shall not prevent or
delay dissolution of the Trust. Upon any such dissolution of the Trust, the
Owner Trustee shall direct the Indenture Trustee promptly to sell the assets of
the Trust (other than the Certificate Distribution Account) in a commercially
reasonable manner and on commercially reasonable terms.
(b) The proceeds from any such sale, disposition or liquidation of
the Receivables will be treated as collections on such Receivables and
deposited into the Collection Account. If the proceeds from the liquidation of
the Receivables and any amounts on deposit in the Trust Accounts are not
sufficient to pay the Securities in full, such amounts shall be applied in the
priorities set forth in Section 5.06(a) of the Indenture.
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ARTICLE TEN
SUCCESSOR AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements. The Owner Trustee shall at
all times be a corporation satisfying the provisions of Section 3807(a) of the
Business Trust Statute; authorized to exercise corporate trust powers; having a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal or state authorities; and having (or having a parent
that has) a rating of at least Baa3 by Moody's and A-1 by Standard & Poor's.
If such corporation shall publish reports of condition at least annually
pursuant to law or to the requirements of the foregoing supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Owner Trustee shall resign immediately
in the manner and with the effect specified in Section 10.02.
Section 10.02. Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Servicer. Upon receiving such notice
of resignation, the Servicer shall promptly appoint a successor Owner Trustee
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign after
written request therefor by the Administrator, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Servicer may remove the Owner Trustee.
If the Servicer shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Servicer shall promptly appoint a successor
Owner Trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the outgoing Owner Trustee so removed and one copy to the
successor Owner Trustee, and shall pay all fees owed to the outgoing Owner
Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Servicer shall provide notice of such
resignation or removal of the Owner Trustee to each Rating Agency.
Section 10.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and
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thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective, and such successor Owner Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like
effect as if originally named as Owner Trustee. The predecessor Owner Trustee
shall, upon payment of its fees and expenses, deliver to the successor Owner
Trustee all documents and statements and monies held by it under this
Agreement; and the Administrator and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Administrator shall mail notice thereof to the
Securityholders, the Indenture Trustee and each Rating Agency. If the
Administrator shall fail to mail such notice within ten days after acceptance
of such appointment by the successor Owner Trustee, the successor Owner Trustee
shall cause such notice to be mailed at the expense of the Administrator.
Section 10.04. Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee may be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, without the execution or filing of any instrument or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, that such corporation shall meet the eligibility
requirements of Section 10.01; and provided, further, that the Owner Trustee
shall mail notice of such merger or consolidation to each Rating Agency.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate or any Financed Vehicle may at the time be located, the
Administrator and the Owner Trustee, acting jointly, shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Administrator and Owner Trustee to act as co-trustee, jointly
with the Owner Trustee, or as separate trustee or separate trustees, of all or
any part of the Trust Estate, and to vest in such Person, in such capacity,
such title to the Trust or any part thereof and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Administrator and the Owner Trustee may consider necessary or desirable.
If the Administrator shall not have joined in such appointment within 15 days
after the receipt by it of a request so to do, the Owner Trustee alone shall
have the power to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor Owner Trustee pursuant to Section 10.01, except that such co-trustee
or successor trustee shall have (or have a parent that has) a rating of at
least Baa3 by Moody's and A-1 by Standard & Poor's, and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 10.03.
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Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) all rights, powers, duties and obligations conferred
or imposed upon the Owner Trustee shall be conferred upon and
exercised or performed by the Owner Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Trust Estate or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(b) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(c) the Administrator and the Owner Trustee acting
jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the Liability of or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Owner Trustee, to the extent permitted by law, without the appointment
of a new or successor co-trustee or separate trustee.
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ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Supplements and Amendments.
(a) This Agreement may be amended without the consent of the
Certificateholders to cure any ambiguity, correct or supplement any provision
herein that may be inconsistent with any other provision herein, to add any
other provisions with respect to matters or questions arising under this
Agreement that are not inconsistent with the provisions hereof or to add or
provide for any credit enhancement for the Certificates; provided, that any
such action will not, in an Opinion of Counsel satisfactory to the Owner
Trustee, materially and adversely affect the interests of any Securityholder.
(b) This Agreement may also be amended from time to time with the
consent of Certificateholders evidencing not less than 51% of the Voting
Interest thereof, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Certificateholders; provided, that no
such amendment may (i) except as described above, increase or reduce in any
manner the amount of or accelerate or delay the timing of collections of
payments on or in respect of the Receivables or distributions on the
Certificates or (ii) reduce the aforesaid percentage of the Certificate Balance
of which the Certificateholders are required to consent to any such amendment,
without the consent of all Certificateholders.
(c) Prior to the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent, together with a copy thereof, to the Indenture Trustee,
the Administrator and each Rating Agency.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder. It shall not be necessary for
the consent of Certificateholders pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of Certificateholders provided
for in this Agreement or in any other Basic Document) and of evidencing the
authorization of the execution thereof by the Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
(e) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such
amendment with the Secretary of State.
(f) In connection with the execution of any amendment to this
Agreement or any other Basic Document to which the Issuer is a party and for
which amendment the Owner Trustee's consent is sought, the Owner Trustee shall
be entitled to receive and conclusively rely upon an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the Basic Documents
and that all conditions precedent in the Basic Documents for the execution and
delivery thereof by the Issuer or the Owner Trustee, as the case may be, have
been satisfied. The
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Owner Trustee may, but shall not be obligated to, enter into any such amendment
that affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
Section 11.02. No Legal Title to Trust Estate in Owners. The Owners
shall not have legal title to any part of the Trust Estate. The Owners shall
be entitled to receive distributions with respect to their undivided ownership
interest therein only in accordance with Articles Five and Nine. No transfer,
by operation of law or otherwise, of any right, title or interest of the Owners
in and to their ownership interest in the Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to
an accounting or to the transfer to it of legal title to any part of the Trust
Estate.
Section 11.03. Limitations on Rights of Others. Except for Section
2.07, the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Seller, the Owners, the Administrator and, to the extent expressly
provided herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement (other than Section 2.07), whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
Claim in the Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
Section 11.04. Notices. All demands, notices and communications
under this Agreement or any Supplement shall be in writing and shall be
delivered or mailed by registered or certified first class United States mail
(postage prepaid, return receipt requested), hand delivery, prepaid courier
service or telecopier, and addressed in each case as follows: (i) if to the
Owner Trustee, at the Owner Trustee Corporate Trust Office; (ii) if to the
Seller, at 22840 Savi Ranch Parkway, Yorba Linda, California 92687, Attention:
Senior Vice President; (iii) if to the Certificate Registrar or the agent for
the Owner Trustee, at the address indicated under the definition of "Owner
Trustee Corporate Trust Office"; or (iv) with respect to any of the foregoing
Persons, at such other address as shall be designated by such Person in a
written notice to the other foregoing Persons. Delivery shall occur only upon
actual receipt or rejected tender of such communication by an officer of the
recipient entitled to receive such notices located at the address of such
recipient for notices hereunder. Any notice required or permitted to be mailed
to a Certificateholder shall be given by first class mail, postage prepaid, at
the address of such Certificateholder as shown in the Certificate Register.
Any notice so mailed within the time prescribed by this Agreement shall be
conclusively presumed to have been duly given, whether or not the related
Certificateholder receives such notice.
Section 11.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement, including any
supplement or amendment hereto, shall be for any reason whatsoever held invalid
or unenforceable, then such covenants, agreements, provisions and terms shall
be deemed severable from the remaining covenants, agreements, provisions or
terms of this Agreement, as the same may be supplemented or amended, and shall
in no way affect the validity or enforceability of the other covenants,
agreements, provisions or terms of this Agreement or any Supplement or
amendment hereto or of the Certificates or the rights of the Holders thereof.
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Section 11.06. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original, but all of which counterparts shall together constitute but
one and the same instrument.
Section 11.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
parties hereto and each Owner and their respective permitted successors and
assigns. Any request, notice, direction, consent, waiver or other instrument
or action by an Owner shall bind the permitted successors and assigns of such
Owner.
Section 11.08. No Petition.
(a) The Seller shall not at any time institute against the Trust
any bankruptcy Proceedings under any United States federal or state bankruptcy
or similar law in connection with any obligations relating to the Certificates,
the Notes, this Agreement or any of the other Basic Documents.
(b) The Owner Trustee, by entering into this Agreement, each
Certificateholder, by accepting a Certificate, and the Indenture Trustee and
each Noteholder, by accepting the benefits of this Agreement, hereby covenant
and agree that they will not at any time institute against the Seller, the
Servicer or the Trust, or join in any institution against the Seller, the
Servicer or the Trust of, any bankruptcy Proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Securities, this Agreement or any of the other Basic Documents.
Section 11.09. No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Seller, the Servicer, the Seller, the Administrator, the
Owner Trustee, the Indenture Trustee or any of their respective Affiliates and
no recourse may be had against such Persons or their assets, except as may be
expressly set forth or contemplated in this Agreement, the Certificates or the
other Basic Documents.
Section 11.10. Certificates Nonassessable and Fully Paid. The
Certificateholders shall not be personally liable for the obligations of the
Trust. The interests represented by the Certificates shall be nonassessable
for any Losses of the Trust or for any reason whatsoever and, upon
authentication thereof pursuant to Section 3.03, the Certificates shall be
deemed fully paid.
Section 11.11. Table of Contents and Headings. The Table of Contents
and Article and Section headings herein are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Section 11.12. Governing Law. This Agreement shall be created under
and governed by and construed under the internal laws of the State of Delaware,
without regard to any otherwise applicable principles of conflicts of laws.
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Section 11.13. Seller Payment Obligation. The Seller shall be
responsible for payment of the Administrator's compensation pursuant to Section
3 of the Administration Agreement and shall reimburse the Administrator for all
Liabilities of the Administrator incurred thereunder.
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<PAGE> 41
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Seller
By:
-------------------------------
Name:
Title:
---------------------------------.
as Owner Trustee
By:
-------------------------------
Name:
Title:
<PAGE> 42
EXHIBIT A
FORM OF CERTIFICATE DEPOSITORY AGREEMENT
A-1
<PAGE> 43
EXHIBIT B
CERTIFICATE OF TRUST OF
FLEETWOOD CREDIT RV RECEIVABLES 199 - OWNER TRUST
This Certificate of Trust of Fleetwood Credit RV Receivables 199 -
Owner Trust (the "Trust"), dated as of ______________, 199 , is being duly
executed and filed by ________________, a ______________, as trustee (the
"Trustee"), to form a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is
Fleetwood Credit RV Receivables 199 - Owner Trust.
2. Delaware Trustee. The name and business address of the
Trustee in the State of Delaware is _________________, Attention:
________________.
IN WITNESS WHEREOF, the undersigned, being the sole Trustee, has
executed this Certificate of Trust as of the date first above written.
----------------------------,
as Trustee
By:
------------------------------
Name:
Title:
B-1
<PAGE> 44
EXHIBIT C
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[TO BE INSERTED ON SELLER CERTIFICATE --
THIS CERTIFICATE IS NON-TRANSFERABLE]
FLEETWOOD CREDIT RV RECEIVABLES 199__ -__ OWNER TRUST
____% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes, among other things, a pool of simple interest
retail installment sale contracts secured by new and used recreational vehicles
sold to the Trust by Fleetwood Credit Receivables Corp. The Certificate Final
Distribution Date is _________ ___, ____.
(This Certificate does not represent an interest in or obligation of Fleetwood
Credit Receivables Corp., Fleetwood Credit Corp., Associates First Capital
Corporation or any of their respective affiliates, and is not a deposit and is
not insured by the Federal Deposit Insurance Corporation.)
NUMBER C-1 $_________________
CUSIP NO. ___________
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a __________
Dollar ($___________) nonassessable, fully-paid, fractional undivided interest
in the Fleetwood Credit RV Receivables 199__-__ Owner Trust (the "Trust") formed
by Fleetwood Credit Receivables Corp., a California corporation (the "Seller").
The Trust was created pursuant to a Trust Agreement, dated as of
____________, 199__, (as amended, restated or supplemented from time to time,
the "Trust Agreement"), among the Seller and ____________, a __________, as
owner trustee (the "Owner Trustee"), a summary of certain of the pertinent
provisions of which is set forth below. Capitalized terms used herein that are
not otherwise defined shall have the meanings ascribed thereto in the Trust
Agreement.
This Certificate is one of the duly authorized Certificates designated
as "____% Asset Backed Certificates" (the "Certificates"). Also issued by the
Trust, under an indenture, dated as of ____________ 1, 199__ (the "Indenture"),
between the Trust and ____________, a
C-1
<PAGE> 45
___________, as Indenture Trustee, are three Classes of Notes designated as
"____% Asset Backed Notes, Class A-1", "____% Floating Rate Asset Backed Notes,
Class A-2" and "____% Asset Backed Notes, Class A-3" (collectively, the
"Notes"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of its acceptance hereof assents and by
which such Holder is bound.
Under the Trust Agreement, there will be distributed on the fifteenth
day of each month or, if any such day is not a Business Day, the next
succeeding Business Day (each, a "Distribution Date"), commencing on _______,
199 and ending no later than ______, ____, to the Person in whose name
this Certificate is registered at the close of business on the last calendar
day immediately preceding the related Distribution Date or, if Definitive
Certificates are issued, the last day of the immediately preceding calendar
month (each, a "Record Date"), such Certificateholder's fractional undivided
interest in the amount to be distributed to Certificateholders on such
Distribution Date.
The Holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders to the extent described in the Sale and Servicing
Agreement and the Indenture.
It is the intent of the Seller, the Servicer and the
Certificateholders that, for federal, state and local income, single business
and any other income tax purposes, the Trust will be treated as a partnership
and the Certificateholders (including the Seller) will be treated as partners
in such partnership. The Seller and the other Certificateholders, by
acceptance of a Certificate, agree to treat, and to take no action inconsistent
with the treatment of, the Certificates for such tax purposes as partnership
interests in the Trust.
Each Certificateholder or Certificate Owner, by its acceptance of a
Certificate or, in the case of a Certificate Owner, a beneficial interest in a
Certificate, covenants and agrees that such Certificateholder or Certificate
Owner, as the case may be, will not at any time institute against the Trust,
the Servicer or the Seller, or join in any institution against the Trust, the
Servicer or the Seller of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation Proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Securities, the Trust Agreement or any of the other
Basic Documents.
Distributions on this Certificate will be made as provided in the
Trust Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon, except that with respect to Certificates registered on the Record Date
in the name of the nominee of the Clearing Agency (initially, such nominee to
be Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Except as otherwise provided
in the Trust Agreement and notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Owner Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office of the Paying Agent or the office or agency
maintained for that purpose by the Owner Trustee in The City of New York.
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<PAGE> 46
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Certificate shall not entitle the holder hereof to any benefit under the
Trust Agreement or any other Basic Document or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
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[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, the Owner Trustee or any of their respective
Affiliates and no recourse may be had against such parties or their assets,
except as expressly set forth or contemplated herein or in the Trust Agreement
or the other Basic Documents. In addition, this Certificate is not guaranteed
by any governmental agency or instrumentality and is limited in right of
payment to certain collections and recoveries with respect to the Receivables
(and certain other amounts), in each case as more specifically set forth herein
and in the Sale and Servicing Agreement.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Trust
Agreement at any time by the parties thereto with the consent of
Certificateholders evidencing not less than 51% of the Voting Interest thereof.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and on all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent is made upon this Certificate.
The Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of any Certificateholders.
As provided in the Trust Agreement and subject to certain limitations
set forth therein, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained in
The City of New York, accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed
by the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be issued to the designated
transferee. The initial Certificate Registrar appointed under the Trust
Agreement is ______________.
Except as provided in the Trust Agreement, the Certificates are
issuable only as registered Certificates without coupons in minimum
denominations of $20,000 and integral multiples of $1,000 in excess thereof.
As provided in the Trust Agreement and subject to certain limitations set forth
therein, Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any Tax or
governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar, the Paying Agent and any
of their respective agents may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Owner
Trustee, the Certificate Registrar, the Paying Agent or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the Sale and Servicing Agreement and the
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disposition of all property held as part of the Trust Estate. The Seller may
at its option purchase the Trust Estate at a price specified in the Sale and
Servicing Agreement, and such purchase of the Receivables and other property of
the Trust Estate will effect early retirement of the Certificates; however,
such right of purchase is exercisable only as of any Distribution Date as of
which (i) the Aggregate Scheduled Balance is less than or equal to 10% of the
Cut-Off Date Aggregate Scheduled Balance and (ii) the aggregate outstanding
principal amount of the Securities is less than 5% of the aggregate outstanding
principal amount of the Securities as of the Closing Date.
The Certificates may not be acquired by a Benefit Plan. By accepting
and holding this Certificate, the Holder hereof or, in the case of Book-Entry
Certificate, by accepting a beneficial interest in this Certificate, the
related Certificate Owner, shall be deemed to have represented and warranted
that it is not a Benefit Plan and is not acquiring this Certificate or an
interest therein for the account of a Benefit Plan.
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IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
Dated: 199 FLEETWOOD CREDIT RV RECEIVABLES
----------------, 199 - OWNER TRUST
By:
-----------------------------------
as Owner Trustee
By:
---------------------------------
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
- ----------------------------, --------------------------------,
as Certificate Registrar as Owner Trustee
OR
By: By:
------------------------ ------------------------------
Authorized Signatory Authorized Signatory
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<PAGE> 50
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
to transfer such Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
---------------
Signature Guaranteed:
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- --------------------------------------------------- ---------------------------------------------------
NOTICE: Signature(s) must be guaranteed by an NOTICE: The signature to this assignment must
eligible guarantor institution. correspond with the name of the registered owner
as it appears on the face of the within
Certificate in every particular, without
alteration or enlargement or any change whatever.
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EXHIBIT 4.2
================================================================================
FLEETWOOD CREDIT RV RECEIVABLES 199 - OWNER TRUST,
as Issuer,
and
___________________,
as Trustee
____________________________________
INDENTURE
Dated as of _________ 1, 199
____________________________________
$__________________________
Asset Backed Notes
================================================================================
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TABLE OF CONTENTS
Page
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<CAPTION>
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
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Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.02. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . 8
Section 1.03. Interpretive Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE TWO
THE NOTES
Section 2.01. Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.02. Execution, Authentication and Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.03. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.04. Registration; Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . 11
Section 2.05. Mutilated, Destroyed, Lost or Stolen Notes . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.06. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.07. Payment of Principal and Interest; Defaulted Interest . . . . . . . . . . . . . . . . . . . 13
Section 2.08. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.09. Book-Entry Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.10. Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.11. Definitive Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.12. Release of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.13. Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.14. Calculation of LIBOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.15. Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE THREE
COVENANTS
Section 3.01. Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 3.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 3.03. Money for Payments to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 3.04. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.05. Protection of Indenture Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.06. Opinions as to Indenture Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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Section 3.07. Performance of Obligations; Servicing of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.08. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.09. Annual Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.10. Issuer May Consolidate Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 3.11. Successor or Transferee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.12. No Other Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.13. No Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.14. Servicer's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.15. Guarantees, Loans, Advances and Other Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.16. Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.17. Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.18. Notice of Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.19. Further Instruments and Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.20. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.21. Amendments of Sale and Servicing Agreement
and Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.22. Removal of Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 4.02. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 4.03. Repayment of Monies Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 5.02. Rights upon Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 5.04. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.05. Preservation of the Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 5.06. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 5.07. Limitation of Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 5.08. Unconditional Rights of Noteholders to Receive
Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.09. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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Section 5.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.11. Delay or Omission Not a Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.12. Control by Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.15. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.16. Action on Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.17. Performance and Enforcement of Certain Obligations . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE SIX
THE TRUSTEE
Section 6.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 6.02. Optional Purchase; Auction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 6.03. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 6.04. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.05. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.06. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.07. Reports by Trustee to Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.08. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.09. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.10. Successor Trustee by Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.11. Appointment of Co-Trustee or Separate Trustee . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.12. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.13. Preferential Collection of Claims Against Issuer . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.14. Representations and Warranties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE SEVEN
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer to Furnish Trustee Names and Addresses of Noteholders . . . . . . . . . . . . . . . . . 47
Section 7.02. Preservation of Information; Communications to Noteholders . . . . . . . . . . . . . . . . . . 47
Section 7.03. Reports by Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 7.04. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
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ARTICLE EIGHT
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 8.02. Trust Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 8.03. General Provisions Regarding Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 8.04. Release of Indenture Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 8.05. Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders . . . . . . . . . . . . . . . . . . . . 52
Section 9.02. Supplemental Indentures With Consent of Noteholders . . . . . . . . . . . . . . . . . . . . . 53
Section 9.03. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.04. Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.05. Conformity With Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 9.06. Reference in Notes to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE TEN
REDEMPTION OF NOTES
Section 10.01. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 10.02. Form of Redemption Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 10.03. Notes Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 11.02. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 11.03. Acts of Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 11.04. Notices to Trustee, Issuer and Rating Agencies . . . . . . . . . . . . . . . . . . . . . . . 61
Section 11.05. Notices to Noteholders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 11.06. Alternate Payment and Notice Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 11.07. Conflict With Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 11.08. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 11.09. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 11.10. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.11. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
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Section 11.12. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.13. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.14. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.15. Recording of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.16. Trust Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.17. No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 11.18. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 11.19. Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
EXHIBITS
Schedule A - Schedule of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA-1
Exhibit A - Form of Sale and Servicing Agreement . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B - Form of Note Depository Agreement . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Exhibit C - Form of Class A-1 Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
Exhibit D - Form of Class A-2 Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
Exhibit E - Form of Class A-3 Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-1
Exhibit F - Form of Note Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G-1
</TABLE>
(v)
<PAGE> 7
This Indenture, dated as of ___________ 1, 199 , is between the
Fleetwood Credit RV Receivables 199 - Owner Trust, a Delaware business trust
(the "Issuer"), and ____________, a ____________, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the holders of the Issuer's ____% Asset
Backed Notes, Class A-1 (the "Class A-1 Notes"), ____% Floating Rate Asset
Backed Notes, Class A-2 (the "Class A-2 Notes"), and ____% Asset Backed Notes,
Class A-3 (the "Class A-3 Notes" and, together with the Class A-1 Notes and the
Class A-2 Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Trustee on behalf of the Trust on the
Closing Date, on behalf of and for the benefit of the Noteholders, without
recourse, all of the Issuer's right, title and interest in, to and under (i)
the Receivables secured by the Financed Vehicles (which Receivables will be
listed in the Schedule of Receivables); (ii) certain monies due under the
Initial Receivables on and after ____________ 1, 199 and under the Subsequent
Receivables on and after the related Subsequent Cutoff Date, including all
payments with respect to any Financed Vehicle to which an Initial Receivable
relates received on or after ____________ 1, 199 and with respect to any
Financed Vehicle to which a Subsequent Receivable relates received on or after
the related Subsequent Cutoff Date, and all other proceeds received on or in
respect of such Receivables (other than payments due, in the case of the
Initial Receivables, prior to ____________ 1, 199 or, in the case of the
Subsequent Receivables, prior to ___________, 199__); (iii) security interests
in the Financed Vehicles; (iv) the Collection Account, the Distribution
Accounts, the Pre- Funding Account, the Reserve Fund and the Yield Supplement
Account and all amounts, securities, investments, financial assets, investment
property and other property from time to time deposited or credited thereto,
including all net income from the investment of funds therein and all proceeds
therefrom; (v) proceeds from claims under certain Insurance Policies in respect
of Financed Vehicles or Obligors under the Receivables; (vi) the rights and
benefits of the Seller under the Receivables Purchase Agreement and of the
Issuer under the Sale and Servicing Agreement and all other related Transfer
Agreements; (vii) the protective security interest in certain of the foregoing
property granted by the Seller in favor of the Issuer; (viii) all present and
future claims, demands, causes and choses in action in respect of any or all of
the foregoing; and (ix) all payments on or under and all proceeds of every kind
and nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property that at any time
constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without
<PAGE> 8
prejudice, priority or distinction, and to secure compliance with the
provisions of this Indenture, all as provided in this Indenture.
The Trustee, as Trustee on behalf of the Noteholders, acknowledges
such Grant, accepts the trusts under this Indenture in accordance with the
provisions of this Indenture and agrees to perform its duties required in this
Indenture to the best of its ability to the end that the interests of the
Noteholders may be adequately and effectively protected. Capitalized terms
used in this Granting Clause that are not otherwise defined shall have the
meanings ascribed thereto in this Indenture.
2
<PAGE> 9
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions. Capitalized terms used herein that are
not otherwise defined shall have the meanings ascribed thereto in the Sale and
Servicing Agreement. Whenever used herein, unless the context otherwise
requires, the following words and phrases shall have the following meanings:
"Act" has the meaning set forth in Section 11.03(a).
"Administration Agreement" means the Administration Agreement, dated
as of ________ 1, 199 , between the Administrator and the Trustee.
"Administrator" means the Servicer, or any successor Administrator
under the Administration Agreement.
"Authorized Officer" means, with respect to the Issuer, any officer of
the Owner Trustee who is authorized to act for the Owner Trustee in matters
relating to the Issuer and who is identified on the list of Authorized Officers
delivered by the Owner Trustee to the Trustee on the Closing Date (as such list
may be modified or supplemented from time to time thereafter) and, so long as
the Administration Agreement is in effect, any Vice President or more senior
officer of the Administrator who is authorized to act for the Administrator in
matters relating to the Issuer and to be acted upon by the Administrator
pursuant to the Administration Agreement and who is identified on the foregoing
list of Authorized Officers.
"Basic Documents" means the Certificate of Trust, the Trust Agreement,
the Sale and Servicing Agreement, the Administration Agreement, the Receivables
Purchase Agreement, the Note Depository Agreement, the Certificate Depository
Agreement and this Indenture.
"Book-Entry Note" means a beneficial interest in a Note, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.09.
"Calculation Agent" has the meaning set forth in Section 2.14.
"Certificate Depository Agreement" has the meaning set forth in the
Trust Agreement.
"Certificate of Trust" means the Certificate of Trust of the Issuer
substantially in the form of Exhibit B to the Trust Agreement.
"Class A-1 Noteholder" means the Person in whose name a Class A-1 Note
is registered in the Note Register.
"Class A-1 Notes" means the ____% Asset Backed Notes, Class A-1,
substantially in the form of Exhibit C.
3
<PAGE> 10
"Class A-2 Noteholder" means the Person in whose name a Class A-2 Note
is registered in the Note Register.
"Class A-2 Notes" means the ____% Floating Rate Asset Backed Notes,
Class A-2, substantially in the form of Exhibit D.
"Class A-3 Noteholder" means the Person in whose name a Class A-3 Note
is registered in the Note Register.
"Class A-3 Notes" means the ____% Asset Backed Notes, Class A-3,
substantially in the form of Exhibit E.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning set forth in the Granting Clause of this
Indenture.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Definitive Notes" has the meaning set forth in Section 2.09.
"DTC" means The Depository Trust Company, and its successors.
"ERISA" means the Employment Retirement Income Security Act of 1974,
as amended.
"Event of Default" has the meaning set forth in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation or bank,
the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President, any Vice President, the Secretary or the
Treasurer of such corporation or bank; and with respect to any partnership, any
general partner thereof.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create and grant a Lien upon and a
security interest in and right of set-off against, deposit, set over and
confirm pursuant to this Indenture. A Grant of the Collateral or of any other
agreement or instrument shall include all rights, powers and options (but none
of the
4
<PAGE> 11
obligations) of the granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other monies payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the granting party or otherwise and generally to do
and receive anything that the granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Indebtedness" means, with respect to any Person at any time, (i)
indebtedness or liability of such Person for borrowed money whether or not
evidenced by bonds, debentures, notes or other instruments, or for the deferred
purchase price of property or services (including trade obligations); (ii)
obligations of such Person as lessee under leases that should have been or
should be, in accordance with generally accepted accounting principles,
recorded as capital leases; (iii) current liabilities of such Person in respect
of unfunded vested benefits under Benefit Plans covered by Title IV of ERISA;
(iv) obligations issued for or liabilities incurred on the account of such
Person; (v) obligations or liabilities of such Person arising under acceptance
facilities; (vi) obligations of such Person under any guaranties, endorsements
(other than for collection or deposit in the ordinary course of business) and
other contingent obligations to purchase, to provide funds for payment, to
supply funds to invest in any Person or otherwise to assure a creditor against
loss; (vii) obligations of such Person secured by any Lien on property or
assets of such Person, whether or not the obligations have been assumed by such
Person; or (viii) obligations of such Person under any interest rate or
currency exchange agreement.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indenture Trust Estate" means the Collateral Granted to the Trustee
under this Indenture, including all proceeds thereof.
"Independent" means, when used with respect to any specified Person,
that the Person (i) is in fact independent of the Issuer, any other obligor
upon the Notes, the Seller and any of their respective Affiliates, (ii) does
not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller or any of their
respective Affiliates, and (iii) is not connected with the Issuer, any such
other obligor, the Seller or any of their respective Affiliates as an officer,
employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01, made by an
Independent appraiser or other expert appointed by an Issuer Order and approved
by the Trustee in the exercise of reasonable care, and such opinion or
certificate shall state that the signer has read the definition of
"Independent" in this Indenture and that the signer is Independent within the
meaning thereof.
"Issuer" has the meaning set forth on the Sale and Servicing Agreement
and, for purposes of any provision contained herein and required by the TIA,
each other obligor on the Notes.
5
<PAGE> 12
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of the Issuer by an Authorized Officer and delivered to the
Trustee.
"LIBOR" means the London interbank offered rate.
"LIBOR Determination Date" has the meaning set forth in Section 2.14.
"LIBOR Reuters" has the meaning set forth in Section 2.14.
"LIBOR Telerate" has the meaning set forth in Section 2.14.
"London Banking Day" means any Business Day on which dealings in
deposits in United States dollars are transacted in the London interbank
market.
"Mandatory Redemption" means redemption in part of the Notes pursuant
to Section 10.01(b).
"Note Depository Agreement" means the agreement dated ____________,
199 , among the Issuer, the Trustee and DTC, as the initial Clearing Agency,
relating to the Notes, substantially in the form of Exhibit B hereto.
"Note Final Scheduled Distribution Date" means the Class A-1 Final
Scheduled Distribution Date, the Class A-2 Final Scheduled Distribution Date or
the Class A-3 Final Scheduled Distribution Date, as the context may require.
"Note Owner" means, with respect to a Book-Entry Note, the Person who
is the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with such Clearing
Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing
Agency).
"Note Register" and "Note Registrar" have the respective meanings set
forth in Section 2.04.
"Noteholder" means a Class A-1 Noteholder, Class A-2 Noteholder or
Class A-3 Noteholder, as the context may require.
"Officer's Certificate" means a certificate signed by an Authorized
Officer of the Issuer under the circumstances described in and otherwise
complying with the applicable requirements of Section 11.01, and delivered to
the Trustee.
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise expressly provided in this Indenture, be employees of
or counsel to the Issuer and who shall be satisfactory to the Trustee, and
which shall comply with any applicable requirements of Section 11.01, and shall
be in form and substance satisfactory to the Trustee.
6
<PAGE> 13
"Optional Purchase" means the optional purchase of all Receivables
pursuant to Section 10.01 of the Sale and Servicing Agreement.
"Outstanding Amount" means the aggregate principal amount of all Notes
of one Class or of all Classes, as the case may be, Outstanding at the date of
determination.
"Paying Agent" means the Trustee or any other Person that meets the
eligibility standards for the Trustee specified in Section 6.12 and is
authorized by the Issuer to make the distributions from the Note Distribution
Account, including payment of principal of or interest on the Notes on behalf
of the Issuer.
"Pre-Funded Percentage" means, with respect to a Class of Notes, the
percentage derived from the fraction, the numerator of which is the Original
Note Balance of such Class of Notes, and the denominator of which is the sum of
the Original Note Balance and the Original Certificate Balance.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.05 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Redemption Date" means, in the case of a redemption pursuant to
Section 10.01, the Distribution Date specified by the Servicer or the Issuer
pursuant to such Section.
"Redemption Price" means, in the case of a redemption of the Notes
pursuant to Section 10.01, an amount equal to the Outstanding Amount of the
Notes being redeemed plus accrued and unpaid interest thereon at the related
Interest Rate for each Class of Notes being so redeemed to but excluding the
Redemption Date.
"Registered Holder" means the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Reuters Screen LIBO Page" means the display designated as Page "LIBO"
on the Reuters Monitor Money Rate Service (or such other page as may replace
the LIBO page on that service for the purpose of displaying LIBORs of major
banks.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of the date hereof, among the Issuer, the Seller and the Servicer,
substantially in the form of Exhibit A hereto.
"Successor Servicer" has the meaning set forth in Section 3.07(e).
"Telerate Page 3750" means the display designated as page "3750" on
the Telerate Service (or such other page as may replace the 3750 page on that
service or such other service or
7
<PAGE> 14
services as may be nominated by the British Bankers' Association for the
purpose of displaying LIBORs for U.S. dollar deposits).
"Termination Date" means the date on which the Trustee shall have
received payment and performance of all amounts and obligations the Issuer may
owe to or on behalf of the Trustee for the benefit of the Noteholders under
this Indenture or the Notes.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended, as in force on the date hereof, unless otherwise specifically
provided.
"Trustee" means _____________, as Trustee under this Indenture, or any
successor Trustee under this Indenture.
Section 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"Indenture Securities" means the Notes.
"Indenture Security Holder" means a Noteholder.
"Indenture to be Qualified" means this Indenture.
"Indenture Trustee" or "Institutional Trustee" means the Trustee.
"Obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
have the meaning assigned to them by such definitions.
Section 1.03. Interpretive Provisions. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires, (i) terms used herein include, as appropriate, all genders
and the plural as well as the singular, (ii) references to this Indenture
include all Exhibits hereto, (iii) references to words such as "herein",
"hereof" and the like shall refer to this Indenture as a whole and not to any
particular part, Article or Section herein, (iv) references to an Article or
Section such as "Article One" or "Section 1.01" shall refer to the applicable
Article or Section of this Indenture, (v) the term "include" and all variations
thereof shall mean "include without limitation", (vi) the term "or" shall
include "and/or", (vii) the term "proceeds" shall have the meaning ascribed to
such term in the UCC, (viii) references to "writing" include printing, typing,
lithography and other means of reproducing words in a visible
8
<PAGE> 15
form, (ix) references to agreements and other contractual instruments include
all amendments, modifications and supplements thereto or any changes therein
entered into in accordance with their respective terms and not prohibited by
this Agreement, (x) references to Persons include their permitted successors
and assigns and (xi) all accounting terms used but not defined herein shall be
construed in accordance with generally accepted accounting principles in the
United States.
9
<PAGE> 16
ARTICLE TWO
THE NOTES
Section 2.01. Form. The Class A-1 Notes, the Class A-2 Notes and the
Class A-3 Notes, in each case together with the Trustee's certificate of
authentication, shall be in substantially the forms set forth as Exhibits to
this Indenture with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution of the Notes.
Any portion of the text of any Note may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of such Note.
Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in the Exhibits hereto are part of the terms of this
Indenture.
Section 2.02. Execution, Authentication and Delivery. The Notes
shall be executed on behalf of the Issuer by any of its Authorized Officers.
The signature of any such Authorized Officer on the Notes may be manual or
facsimile. Notes bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Trustee shall, upon receipt of an Issuer Order, authenticate and
deliver for original issue the following aggregate principal amount of Notes:
(i) $_________ of Class A-1 Notes, (ii) $__________ of Class A-2 Notes and
(iii) $__________ of Class A-3 Notes. The aggregate Outstanding Amount at any
time may not exceed such respective amounts, except as otherwise provided in
Section 2.05.
Each Note shall be dated the date of its authentication. The Notes
shall be issuable as registered Notes in minimum denominations of $1,000 and
integral multiples of $1,000 in excess thereof.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Note shall be conclusive evidence,
and the only evidence, that such Note has been duly authenticated and delivered
hereunder.
Section 2.03. Temporary Notes. Pending the preparation of Definitive
Notes, the Issuer may execute, and upon receipt of an Issuer Order the Trustee
shall authenticate and deliver, temporary Notes that are printed, lithographed,
typewritten, mimeographed or otherwise produced, of the tenor of the Definitive
Notes in lieu of which they are issued and with such
10
<PAGE> 17
variations not inconsistent with the terms of this Indenture as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
If temporary Notes are issued, the Issuer shall cause Definitive Notes
to be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Issuer to be
maintained as provided in Section 3.02, without charge to the related
Noteholder. Upon surrender for cancellation of any one or more temporary
Notes, the Issuer shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like tenor and principal amount of Definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Notes.
Section 2.04. Registration; Registration of Transfer and Exchange.
The Issuer shall cause to be kept a register (the "Note Register") in which,
subject to such reasonable regulations as it may prescribe, the Issuer shall
provide for the registration of Notes and the registration of transfers of
Notes. The Trustee shall be "Note Registrar" for the purpose of registering
Notes and transfers of Notes as herein provided. Upon any resignation of any
Note Registrar, the Issuer shall promptly appoint a successor or, if it elects
not to make such an appointment, assume the duties of Note Registrar.
If a Person other than the Trustee is appointed by the Issuer as Note
Registrar, the Issuer shall give the Trustee prompt written notice of the
appointment of such Note Registrar and of the location, and any change in the
location, of the Note Register, and the Trustee shall have the right to inspect
the Note Register at all reasonable times and to obtain copies thereof, and the
Trustee shall have the right to rely upon a certificate executed on behalf of
the Note Registrar by an Executive Officer thereof as to the names and
addresses of the Noteholders and the principal amounts and number of such
Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of the Issuer to be maintained as provided in Section 3.02, provided
that the requirements of Section 8-401 of the UCC are met, the Issuer shall
execute, the Trustee shall authenticate and the related Noteholder shall obtain
from the Trustee, in the name of the designated transferee or transferees, one
or more new Notes of the same Class in any authorized denominations, of a like
aggregate principal amount.
At the option of a Noteholder, Notes may be exchanged for other Notes
of the same Class in any authorized denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange, provided that the
requirements of Section 8-401 of the UCC are met, the Issuer shall execute, and
the Trustee shall authenticate and the Noteholder shall obtain from the
Trustee, the Notes that the Noteholder making the exchange is entitled to
receive.
11
<PAGE> 18
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Each Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by or be accompanied by a written instrument of
transfer in form satisfactory to the Trustee duly executed by the related
Noteholder or such Noteholder's attorney duly authorized in writing, with such
signature guaranteed by a commercial bank or trust company located, or having a
correspondent located, in The City of New York or the city in which the
Corporate Trust Office is located, or by a member firm of a national securities
exchange, and such other documents as the Trustee may require.
No service charge shall be made to a Noteholder for any registration
of transfer or exchange of Notes, but the Issuer or the Trustee may require
payment of a sum sufficient to cover any Tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Section 2.03 or 9.06 not involving any
transfer.
The preceding provisions of this Section notwithstanding, the Issuer
shall not be required to make, and the Note Registrar need not register,
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to such
Note.
Copies of this Indenture (without exhibits) may be obtained by
Noteholders upon request in writing to the Trustee at the Corporate Trust
Office.
Section 2.05. Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Trustee, or the Trustee receives evidence
to its satisfaction of the destruction, loss or theft of any Note, (ii) there
is delivered to the Trustee such security or indemnity as may be required by
the Issuer and the Trustee to hold the Issuer and the Trustee harmless and
(iii) the requirements of Section 8-405 of the UCC are met; then, in the
absence of notice to the Issuer, the Note Registrar or the Trustee that such
Note has been acquired by a protected purchaser (as defined in Article 8 of the
UCC), the Issuer shall execute and upon its request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of the same Class; provided,
however, that if any such destroyed, lost or stolen Note, but not a mutilated
Note, shall have become or within seven days shall be due and payable, or shall
have been called for redemption, instead of issuing a replacement Note, the
Issuer may pay such destroyed, lost or stolen Note when so due or payable or
upon the Redemption Date without surrender thereof. If, after the delivery of
such replacement Note or payment of a destroyed, lost or stolen Note pursuant
to the proviso to the preceding sentence, a protected purchaser (as defined in
Article 8 of the UCC) of the original Note in lieu of which such replacement
Note was issued presents for payment such original Note, the Issuer and the
Trustee shall be entitled to recover such replacement Note (or such payment)
from the Person to which it was delivered or any Person taking such replacement
Note from such Person to which such replacement Note was delivered or any
assignee of such Person, except a
12
<PAGE> 19
protected purchaser (as defined in Article 8 of the UCC), and shall be entitled
to recover upon the security or indemnity provided therefor to the extent of
any Loss incurred by the Issuer or the Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer or the Trustee may require the payment by the related Noteholder of a
sum sufficient to cover any Tax or other governmental charge that may be
imposed in relation thereto and any other reasonable expenses (including the
fees and expenses of the Trustee or the Note Registrar) connected therewith.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.06. Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Trustee and any of their
respective agents may treat the Person in whose name such Note is registered
(as of the day of determination) as the owner of such Note for the purpose of
receiving payments, if any, of principal of and interest on such Note and for
all other purposes whatsoever, whether or not such Note be overdue, and none of
the Issuer, the Trustee nor any of their respective agents shall be affected by
notice to the contrary.
Section 2.07. Payment of Principal and Interest; Defaulted Interest.
(a) Each Class of Notes shall accrue interest at the related
Interest Rate, and such interest shall be payable on each Distribution Date as
specified therein, subject to Section 3.01. Any installment of interest or
principal, if any, payable on any Note that is punctually paid or duly provided
for by the Issuer on the related Distribution Date shall be paid to the Person
in whose name such Note (or one or more Predecessor Notes) is registered on the
Record Date, by check mailed first class, postage prepaid to such Person's
address as it appears on the Note Register on such Record Date; except that,
unless Definitive Notes have been issued pursuant to Section 2.11, with respect
to Notes registered on the Record Date in the name of the nominee of the
depository (initially, such nominee to be Cede & Co.), payment shall be made by
wire transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Distribution Date, a Redemption Date or on the related Note
Final Scheduled Distribution Date, as the case may be (and except for the
Redemption Price for any Note called for redemption pursuant to Section 10.01),
which shall be payable as provided below. The funds represented by any such
checks returned undelivered shall be held in accordance with Section 3.03.
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(b) The principal of each Note shall be payable, from the portion
of the Available Amount remaining after payment of the Servicer Payment, the
Note Interest Distributable Amount and the Certificate Interest Distributable
Amount, on each Distribution Date to the extent provided in the form of the
related Note set forth as an Exhibit hereto. Notwithstanding the foregoing,
the entire unpaid principal amount of the Notes shall be due and payable, if
not previously paid, on the date on which an Event of Default shall have
occurred and be continuing and the Trustee or Noteholders representing not less
than a majority of the Outstanding Amount have declared the Notes to be
immediately due and payable in the manner provided in Section 5.02. All
principal payments on each Class of Notes shall be made pro rata to the
Noteholders entitled thereto. The Trustee shall notify the Person in whose
name a Note is registered at the close of business on the Record Date preceding
the Distribution Date on which the Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall (i) be
mailed within five Business Days of such Distribution Date (or, in the case of
Notes registered in the name of Cede & Co., as nominee of DTC, such notice
shall be provided within one Business Day of such Distribution Date) or receipt
of notice of termination of the Trust pursuant to Section 9.01(c) of the Trust
Agreement, (ii) specify that such final installment will be payable only upon
presentation and surrender and cancellation of such Note and (iii) specify the
place where such Note may be presented and surrendered for payment of such
installment. Notices in connection with redemptions of Notes shall be mailed
to Noteholders as provided in Section 10.02. In addition, the Administrator
shall notify each Rating Agency upon the final payment of interest on and
principal of each Class of Notes, and upon the dissolution of the Trust, in
each case pursuant to Section 1(a)(i) of the Administration Agreement.
(c) If the Issuer defaults on any Distribution Date in a payment
of interest on the Notes, interest accrued but not paid on such Distribution
Date shall be due on the immediately succeeding Distribution Date. The Issuer
shall pay such defaulted interest (plus interest on such defaulted interest at
the related Interest Rate, to the extent lawful), at the related Interest Rate
in any lawful manner. Notwithstanding the foregoing, the Issuer may pay such
defaulted interest to the Persons who are Noteholders on a subsequent special
record date, which record date shall be at least five Business Days prior to
the Distribution Date relating thereto. The Issuer shall fix or cause to be
fixed any such special record date and payment date and, at least 15 days
before any such special record date, shall mail to the Trustee and each
Noteholder a notice that states such special record date, the related
Distribution Date and the amount of defaulted interest to be paid.
Section 2.08. Cancellation. Subject to Section 2.07(d), all Notes
surrendered for payment, registration of transfer, exchange or redemption
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by the Trustee. Subject to Section
2.07(d), the Issuer may at any time deliver to the Trustee for cancellation any
Notes previously authenticated and delivered hereunder that the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
cancelled by the Trustee. No Notes shall be authenticated in lieu of or in
exchange for any Notes cancelled as provided in this Section, except as
expressly permitted by this Indenture. Subject to Section 2.07(d), all
cancelled Notes may be held or disposed of by the Trustee in accordance with
its standard retention or disposal policy as in effect at the time, unless the
Issuer shall direct by an
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Issuer Order that they be destroyed or returned to it; provided, that such
Issuer Order is timely and the Notes have not been previously disposed of by
the Trustee.
Section 2.09. Book-Entry Notes. The Notes, upon original issuance,
shall be issued in the form of a typewritten Note or Notes representing the
Book-Entry Notes, to be delivered to DTC, the initial depository, by or on
behalf of the Issuer. Such Notes shall initially be registered on the Note
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Note Owner shall receive a Definitive Note representing such Note
Owner's interest in such Note, except as provided in Section 2.11. Unless and
until definitive, fully registered Notes ("Definitive Notes") have been issued
to Note Owners pursuant to Section 2.11:
(a) the provisions of this Section shall be in full force
and effect;
(b) the Note Registrar and the Trustee shall be entitled
to deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and interest on the Notes and
the giving of instructions or directions hereunder) as the sole Holder
of the Notes, and shall have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section
conflict with any other provisions of this Indenture, the provisions
of this Section shall control;
(d) the rights of Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those established
by law and agreements between such Note Owners and the Clearing Agency
or the Clearing Agency Participants. Pursuant to the Note Depository
Agreement, unless and until Definitive Notes are issued pursuant to
Section 2.11, the Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit payments of
principal of and interest on the Notes to such Clearing Agency
Participants; and
(e) where this Indenture requires or permits to be taken
actions based upon instructions or directions of Noteholders
evidencing a specified percentage of the Outstanding Amount, the
Clearing Agency shall be deemed to represent such percentage only to
the extent that it has received instructions to such effect from Note
Owners or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in
the Notes and has delivered such instructions to the Trustee.
Section 2.10. Notices to Clearing Agency. Whenever a notice or other
communication to Noteholders is required under this Indenture, unless and until
Definitive Notes shall have been issued to Note Owners pursuant to Section
2.11, the Trustee shall give all such notices and communications specified
herein to be given to the Noteholders to the Clearing Agency, and shall have no
obligation to the Note Owners.
Section 2.11. Definitive Notes. If (i) (A) the Administrator advises
the Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its
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responsibilities as described in the Note Depository Agreement and (B) the
Trustee or the Administrator is unable to locate a qualified successor, (ii)
the Administrator at its option advises the Trustee in writing that it elects
to terminate the book-entry system through the Clearing Agency or (iii) after
the occurrence of an Event of Default, Note Owners representing not less than
51% of the Voting Interest of a Class of Notes advise the Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of the related Note Owners; then, in each case, the Trustee
shall notify all Note Owners of the related Class of Notes, through the
Clearing Agency, of the occurrence of any such event and of the availability of
Definitive Notes of the related Class of Notes to Note Owners requesting the
same. Upon surrender to the Trustee of the Note or Notes representing the
Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute, and the Trustee shall authenticate,
Definitive Notes in accordance with the instructions of the Clearing Agency.
None of the Issuer, the Note Registrar or the Trustee shall be liable for any
delay in delivery of such instructions, and each may conclusively rely upon,
and shall be protected in relying upon, such instructions. Upon the issuance
of Definitive Notes of a Class, the Trustee shall recognize the Holders of such
Definitive Notes as Noteholders hereunder.
The Trustee shall not be liable if the Trustee or the Administrator is
unable to locate a qualified successor Clearing Agency. Definitive Notes shall
be typewritten, printed, lithographed, engraved or produced by any combination
of such methods (with or without steel engraved borders), all as determined by
the officers executing such Notes, as evidenced by their execution of such
Notes.
Section 2.12. Release of Collateral. Subject to Section 11.01 and
the terms of the other Basic Documents, the Trustee shall release property from
the Lien of this Indenture only upon receipt of an Issuer Request accompanied
by an Officer's Certificate, an Opinion of Counsel and Independent Certificates
in accordance with TIA Sections 314(c) and 314(d)(l) or an Opinion of Counsel
in lieu of such Independent Certificates to the effect that the TIA does not
require any such Independent Certificates.
Section 2.13. Tax Treatment. The Issuer has entered into this
Indenture, and the Notes shall be issued, with the intention that, for federal,
state and local income, single business and franchise tax purposes, the Notes
will qualify as indebtedness of the Issuer secured by the Indenture Trust
Estate. The Issuer, by entering into this Indenture, and each Noteholder, by
its acceptance of a Note (and each Note Owner by its acceptance of an interest
in the related Book-Entry Note), agree to treat the Notes for federal, state
and local income, single business and franchise tax purposes as indebtedness of
the Issuer.
Section 2.14. Calculation of LIBOR. LIBOR for each Interest Period
shall be calculated by the Trustee, as calculation agent (in such capacity, the
"Calculation Agent") as follows:
(a) On the second London Banking Day prior to the
Distribution Date on which any Interest Period commences (each, a
"LIBOR Determination Date"), the Calculation Agent shall determine the
arithmetic mean of the offered rates for deposits in
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U.S. dollars for the period of one month, commencing on such
Distribution Date, that appear either (a) on the Telerate Page 3750 as
of 11:00 A.M., London time, on that LIBOR Determination Date ("LIBOR
Telerate") or (b) the Reuters Screen LIBO Page as of 11:00 A.M.,
London time, on the LIBOR Determination Date ("LIBOR Reuters"). If at
least two such offered rates appear on the Telerate Page 3750, LIBOR
for such Interest Period shall be the arithmetic mean of such offered
rates as determined by the Calculation Agent.
(b) If fewer than two offered rates appear on each of the
Telerate Page 3750 and the Reuters Screen LIBO Page on such LIBOR
Determination Date, the Calculation Agent shall request the principal
London offices of each of four major banks in the London interbank
market selected by such Calculation Agent (after consultation with the
Seller) to provide such Calculation Agent with its offered quotations
for deposits in U.S. dollars for the period of one month, commencing
on such Distribution Date, to prime banks in the London interbank
market at approximately 11:00 a.m., London time, on such LIBOR
Determination Date and in a principal amount equal to an amount of not
less than $1,000,000 that is representative of a single transaction in
such market at such time. If at least two such quotations are
provided, LIBOR for such Interest Period shall be the arithmetic mean
of such quotations. If fewer than two such quotations are provided,
LIBOR for such Interest Period shall be the arithmetic mean of rates
quoted by three major banks in The City of New York selected by the
Calculation Agent (after consultation with the Seller) at
approximately 11:00 a.m., New York City time, on such LIBOR
Determination Date for loans in U.S. dollars to leading European
banks, for the period of one month, commencing on such Distribution
Date, and in a principal amount equal to an amount of not less than
$1,000,000 that is representative of a single transaction in such
market at such time; provided, however, that if the banks selected as
aforesaid by the Calculation Agent are not quoting rates as mentioned
in this sentence, LIBOR for such Interest Period shall be the same as
LIBOR for the immediately preceding Interest Period.
Section 2.15. Employee Benefit Plans. The Notes may not be purchased
with the assets of a Benefit Plan if the Seller, the Servicer, the Trustee, the
Owner Trustee or any of their Affiliates (i) has investment or administrative
discretion with respect to such Benefit Plan assets; (ii) has authority or
responsibility to give, or regularly gives, investment advice with respect to
such Benefit Plan assets, for a fee and pursuant to an agreement or
understanding that such advice (a) will serve as a primary basis for investment
decisions with respect to such Benefit Plan assets and (b) will be based on the
particular investment needs for such Benefit Plan; or (iii) is an employer
maintaining or contributing to such Benefit Plan.
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ARTICLE THREE
COVENANTS
Section 3.01. Payment of Principal and Interest. The Issuer shall
duly and punctually pay, if any, the principal of and interest on the Notes in
accordance with the terms of the Notes and this Indenture. Without limiting
the foregoing and subject to Section 8.02(c), the Issuer shall cause to be
distributed all amounts on deposit in the Note Distribution Account on a
Distribution Date for the benefit of (i) the Class A-1 Notes, to the Class A-1
Noteholders, (ii) the Class A-2 Notes, to the Class A-2 Noteholders and (iii)
the Class A-3 Notes, to the Class A-3 Noteholders. Amounts properly withheld
under the Code by any Person from a payment to any Noteholder of interest or
principal shall be considered as having been paid by the Issuer to such
Noteholder for all purposes of this Indenture.
Section 3.02. Maintenance of Office or Agency. _______________, as
agent for the Issuer, shall maintain in The City of New York, an office or
agency where Notes may be surrendered for registration of transfer or exchange,
and where notices and demands to or upon the Issuer in respect of the Notes and
this Indenture may be served. The Issuer hereby initially appoints the Trustee
to serve as its agent for the foregoing purposes. The Issuer shall give prompt
written notice to the Trustee of the location, and of any change in the
location, of any such office or agency. If at any time the Issuer shall fail
to maintain any such office or agency or shall fail to furnish the Trustee with
the address thereof, such surrenders, notices and demands may be made or served
at the Corporate Trust Office, and the Issuer hereby appoints the Trustee as
its agent to receive all such surrenders, notices and demands.
Section 3.03. Money for Payments to be Held in Trust. As provided in
Sections 5.06 and 8.02, all payments of amounts due and payable with respect to
any Notes that are to be made from amounts withdrawn from the Collection
Account and the Note Distribution Account pursuant to Section 8.02(b) shall be
made on behalf of the Issuer by the Trustee or by another Paying Agent, and no
amounts so withdrawn from the Collection Account and the Note Distribution
Account for payments of Notes shall be paid over to the Issuer except as
provided in this Section.
On each Deposit Date and Redemption Date, the Issuer shall deposit or
cause to be deposited in the Note Distribution Account an aggregate sum
sufficient to pay the amounts then becoming due, such sum to be held in trust
for the benefit of the Persons entitled thereto and (unless the Paying Agent is
the Trustee) shall promptly notify the Trustee of its action or its failure to
so act.
The Issuer shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee (and if the Trustee acts as Paying Agent, it
hereby so agrees), subject to the provisions of this Section, that such Paying
Agent will:
(a) hold all sums held by it for the payment of amounts
due with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid
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to such Persons or otherwise disposed of as herein provided and pay
such sums to such Persons as herein provided;
(b) give the Trustee notice of any default by the Issuer
(or any other obligor upon the Notes) in the making of any payment
required to be made with respect to the Notes;
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent;
(d) immediately resign as Paying Agent and forthwith pay
to the Trustee all sums held by it in trust for the payment of Notes
if at any time it ceases to meet the standards required to be met by a
Paying Agent at the time of its appointment; and
(e) comply with all requirements of the Code with respect
to the withholding from any payments made by it on any Notes of any
applicable withholding Taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which the sums were held by such Paying Agent; and upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further Liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Trustee or any Paying Agent in trust for the payment of any amount
due with respect to any Note and remaining unclaimed for two years after such
amount has become due and payable shall be discharged from such trust, and upon
receipt of an Issuer Request, shall be deposited by the Trustee in the
Collection Account; and the related Noteholder shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof, and
all Liability of the Trustee or such Paying Agent with respect to such trust
money shall thereupon cease; provided, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Issuer cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
shall be repaid to or for the account of the Issuer. The Trustee may also
adopt and employ, at the expense of the Issuer, any other reasonable means of
notification of such repayment (including, but not limited to, mailing notice
of such repayment to Noteholders the Notes of which have been called but have
not been surrendered for redemption or whose right to or interest in monies due
and payable but not claimed is determinable from the records of the Trustee or
of any Paying Agent, at the last address of record for each such Noteholder).
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Section 3.04. Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a business trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States,
in which case the Issuer shall keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and shall obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Indenture Trust Estate.
Section 3.05. Protection of Indenture Trust Estate. The Issuer
intends the security interest Granted pursuant to this Indenture in favor of
the Trustee on behalf of the Noteholders to be prior to all other Liens in
respect of the Indenture Trust Estate, and the Issuer shall take all actions
necessary to obtain and maintain, for the benefit of the Trustee on behalf of
the Noteholders, a first Lien on and a first priority, perfected security
interest in the Indenture Trust Estate. The Issuer shall from time to time
execute and deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of further assurance
and other instruments, all as prepared by the Servicer and delivered to the
Issuer, and shall take such other action necessary or advisable to:
(a) Grant more effectively all or any portion of the
Indenture Trust Estate;
(b) maintain or preserve the Lien and security interest
(and the priority thereof) created by this Indenture or carry out more
effectively the purposes hereof;
(c) perfect, publish notice of or protect the validity of
any Grant made or to be made by this Indenture;
(d) enforce any of the Collateral;
(e) preserve and defend title to the Indenture Trust
Estate and the rights of the Trustee and the Noteholders in such
Indenture Trust Estate against the Claims of all persons and parties;
or
(f) pay all Taxes or assessments levied or assessed upon
the Indenture Trust Estate when due.
The Issuer hereby designates the Trustee its agent and attorney-in-fact to
execute all financing statements, continuation statements or other instruments
required to be executed pursuant to this Section.
Section 3.06. Opinions as to Indenture Trust Estate.
(a) Promptly after the execution and delivery of this Indenture,
the Issuer shall furnish to the Trustee an Opinion of Counsel to the effect
that, in the opinion of such counsel, either (i) all financing statements and
continuation statements have been executed and filed that are necessary to
create and continue the Trustee's first priority perfected security interest in
the Collateral for the benefit of the Noteholders, and reciting the details of
such filings or referring to
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prior Opinions of Counsel in which such details are given, or (ii) no such
action shall be necessary to perfect such security interest.
(b) Within 90 days after the beginning of each calendar year,
beginning with the first calendar year beginning more than three months after
the Initial Cut-Off Date, the Issuer shall furnish to the Trustee an Opinion of
Counsel, dated as of a date during such 90-day period, to the effect that, in
the opinion of such counsel, either (i) all financing statements and
continuation statements have been executed and filed that are necessary to
create and continue the Trustee's first priority perfected security interest in
the Collateral for the benefit of the Noteholders, and reciting the details of
such filings or referring to prior Opinions of Counsel in which such details
are given, or (ii) no such action shall be necessary to perfect such security
interest.
Section 3.07. Performance of Obligations; Servicing of Receivables.
(a) The Issuer shall not take any action and shall use its best
efforts not to permit any action to be taken by others, including the Servicer,
that would release any Person from any of such Person's material covenants or
obligations under any instrument or agreement included in the Indenture Trust
Estate or that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of, any
such instrument or agreement, except as expressly provided in the Basic
Documents or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties and obligations under this Indenture, and any performance
of such duties by a Person identified to the Trustee in an Officer's
Certificate shall be deemed to be action taken by the Issuer. The Trustee
shall not be responsible for the action or inaction of the Servicer or the
Administrator. Initially, the Issuer has contracted with the Servicer and the
Administrator to assist the Issuer in performing its duties under this
Indenture.
(c) The Issuer shall, and shall cause the Administrator to,
punctually perform and observe all of the obligations and agreements of the
Issuer and the Administrator contained in this Indenture, the other Basic
Documents and in the instruments and agreements included in the Indenture Trust
Estate, including but not limited to filing or causing to be filed all UCC
financing statements and continuation statements required to be filed by the
terms of this Indenture and the other Basic Documents in accordance with and
within the time periods provided for herein and therein. Except as otherwise
expressly provided therein, the Issuer shall not waive, amend, modify,
supplement or terminate any Basic Document or any provision thereof without the
consent of the Trustee or Noteholders representing at least a majority of the
Outstanding Amount or such greater percentage as may be specified in the
particular provision.
(d) If the Issuer shall have knowledge of the occurrence of a
Servicer Default, the Issuer shall promptly notify the Trustee and each Rating
Agency thereof, and shall specify in such notice the action, if any, the Issuer
is taking with respect of such default. If a Servicer Default shall arise from
the failure of the Servicer to perform any of its duties or obligations under
the Sale and Servicing Agreement with respect to the Receivables, the Issuer
shall take all reasonable steps available to it to remedy such failure.
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(e) If the Issuer has given notice of termination to the Servicer
of the Servicer's rights and powers pursuant to Section 8.02 of the Sale and
Servicing Agreement, as promptly as possible thereafter, the Issuer shall
appoint a successor servicer (the "Successor Servicer"), and such Successor
Servicer shall accept its appointment by a written assumption in a form
acceptable to the Trustee. In the event that a Successor Servicer has not been
appointed and accepted its appointment at the time when the Servicer ceases to
act as Servicer, the Trustee without further action shall automatically be
appointed the Successor Servicer. The Trustee may resign as the Successor
Servicer by giving written notice of such resignation to the Issuer and in such
event will be released from such duties and obligations, such release not to be
effective until the date a new servicer enters into a servicing agreement with
the Issuer as provided below. Upon delivery of any such notice to the Issuer,
the Issuer shall obtain a new servicer as the Successor Servicer under the Sale
and Servicing Agreement. Any Successor Servicer other than the Trustee shall
(i) be an established financial institution having a net worth of not less than
$50,000,000 and whose regular business includes the servicing of motor vehicle
receivables and (ii) enter into a servicing agreement with the Issuer having
substantially the same provisions as the provisions of the Sale and Servicing
Agreement applicable to the Servicer. If within 30 days after the delivery of
the notice referred to above, the Issuer shall not have obtained such a new
Servicer, the Trustee may appoint, or may petition a court of competent
jurisdiction to appoint, a Successor Servicer. In connection with any such
appointment, the Trustee may make such arrangements for the compensation of
such successor as it and such successor shall agree, subject to the limitations
set forth below and in the Sale and Servicing Agreement, and in accordance with
Section 8.02 of the Sale and Servicing Agreement, the Issuer shall enter into
an agreement with such successor for the servicing of the Receivables (such
agreement to be in form and substance satisfactory to the Trustee). If the
Trustee shall succeed to the Servicer's duties as servicer of the Receivables
as provided herein, it shall do so in its individual capacity and not in its
capacity as Trustee and, accordingly, the provisions of Article Six shall be
inapplicable to the Trustee in its duties as the successor to the Servicer and
the servicing of the Receivables. In case the Trustee shall become successor
to the Servicer under the Sale and Servicing Agreement, the Trustee shall be
entitled to appoint as Servicer one of its Affiliates, provided that it shall
be fully liable for the actions and omissions of such Affiliate in such
capacity as Successor Servicer.
(f) Upon any termination of the Servicer's rights and powers
pursuant to the Sale and Servicing Agreement, the Issuer shall promptly notify
the Trustee. As soon as a Successor Servicer is appointed, the Issuer shall
notify the Trustee of such appointment, specifying in such notice the name and
address of such Successor Servicer.
(g) The Issuer agrees that it will not waive timely performance or
observance by the Servicer or the Seller of their respective duties under the
Basic Documents if the effect thereof would adversely affect the Noteholders.
Section 3.08. Negative Covenants. Until the Termination Date, the
Issuer shall not:
(a) except as expressly permitted by the Basic Documents,
sell, transfer, exchange or otherwise dispose of any of the properties
or assets of the Issuer, including those included in the Indenture
Trust Estate;
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(b) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code or
applicable state law) or assert any Claim against any present or
former Noteholder by reason of the payment of the Taxes levied or
assessed upon any part of the Indenture Trust Estate;
(c) (i) permit the validity or effectiveness of this
Indenture to be impaired, or permit the Lien created by this Indenture
to be amended, hypothecated, subordinated, terminated or discharged,
or permit any Person to be released from any covenants or obligations
with respect to the Notes under this Indenture except as may be
expressly permitted hereby, (ii) permit any Lien, excise, Claim,
mortgage or other encumbrance (other than the Lien of this Indenture)
to be created on or extend to or otherwise arise upon or burden the
Indenture Trust Estate or any part thereof or any interest therein or
the proceeds thereof (other than tax Liens, mechanics' Liens and other
Liens that arise by operation of law, in each case on a Financed
Vehicle and arising solely as a result of an action or omission of the
related Obligor), (iii) permit the Lien created by this Indenture not
to constitute a valid first priority (other than with respect to any
such tax, mechanics' or other Lien) security interest in the Indenture
Trust Estate or (iv) amend, modify or fail to comply with the
provisions of the Basic Documents without the prior written consent of
the Owner Trustee, except where the Basic Documents allow for
amendment or modification without the consent or approval of the Owner
Trustee; or
(d) dissolve or liquidate in whole or in part.
Section 3.09. Annual Statement as to Compliance. The Issuer shall
deliver to the Trustee, on or before 120 days after the end of each fiscal year
of the Issuer (commencing with the fiscal year ended December 31, 1999), an
Officer's Certificate stating, as to the Authorized Officer signing such
Officer's Certificate, that:
(a) a review of the activities of the Issuer during such
year and of performance under this Indenture has been made under such
Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge,
based on such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year, or, if there has
been a default in the compliance of any such condition or covenant,
specifying each such default known to such Authorized Officer and the
nature and status thereof.
Section 3.10. Issuer May Consolidate Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any
other Person, unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States or any State and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form and substance satisfactory to the
Trustee, the due and punctual payment of the principal of and interest
on all Notes and the
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performance or observance of every agreement and covenant of this
Indenture and each other Basic Document on the part of the Issuer to
be performed or observed, all as provided herein or therein;
(ii) immediately after giving effect to such consolidation
or merger, no Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been
satisfied; and
(iv) the Issuer shall have received an Opinion of Counsel
that shall be delivered to and shall be satisfactory to the Trustee to
the effect that such consolidation or merger will not have any
material adverse tax consequence to the Trust or any Securityholder;
(b) The Issuer shall not convey or transfer all or substantially
all of its properties or assets, including those included in the Indenture
Trust Estate, to any Person (except as expressly permitted by the Basic
Documents), unless:
(i) the Person that acquires by conveyance or transfer
the properties and assets of the Issuer shall (A) be a United States
citizen or a Person organized and existing under the laws of the
United States or any State, (B) expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
and substance satisfactory to the Trustee, the due and punctual
payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this
Indenture and each other Basic Document on the part of the Issuer to
be performed or observed, all as provided herein, (C) expressly agree
by means of such supplemental indenture that all right, title and
interest so conveyed or transferred shall be subject and subordinate
to the rights of the Noteholders, (D) unless otherwise provided in
such supplemental indenture, expressly agree to indemnify, defend and
hold harmless the Issuer against and from any Loss arising under or
related to this Indenture and the Notes and (E) expressly agree by
means of such supplemental indenture that such Person (or if a group
of Persons, then one specified Person) shall make all filings with the
Commission (and any other appropriate Person) required by the Exchange
Act in connection with the Notes;
(ii) immediately after giving effect to such conveyance or
transference, no Default or Event of Default shall have occurred and
be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such conveyance or transference;
(iv) the Issuer shall have received an Opinion of Counsel
that shall be delivered to and shall be satisfactory to the Trustee to
the effect that such conveyance or transference will not have any
material adverse tax consequence to the Trust or any Securityholder;
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(v) any action as is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel (which shall describe
the actions taken as required by clause (v) above or that no such
actions will be taken) each stating that such conveyance or
transference and such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with (including any filings required by
the Exchange Act).
Section 3.11. Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance
with Section 3.10(a), the Person formed by or surviving such consolidation or
merger (if other than the Issuer) shall succeed to, and be substituted for, and
may exercise every right and power of, the Issuer under this Indenture with the
same effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all or substantially all the
assets or properties of the Issuer pursuant to Section 3.10(b), the Issuer
shall be released from every covenant and agreement of this Indenture to be
observed or performed on the part of the Issuer with respect to the Notes
immediately upon the delivery of written notice to the Trustee stating that the
Issuer is to be so released.
Section 3.12. No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the
Receivables in the manner contemplated by this Indenture and the other Basic
Documents and activities incidental thereto.
Section 3.13. No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
Indebtedness except (i) for the Notes, (ii) pursuant to any Advances made to it
by the Servicer and (iii) for any other Indebtedness permitted by or arising
under the other Basic Documents.
Section 3.14. Servicer's Obligations. The Issuer shall cause the
Servicer to comply with Sections 4.09, 4.10, 4.11 and 5.07 and Article Nine of
the Sale and Servicing Agreement.
Section 3.15. Guarantees, Loans, Advances and Other Liabilities.
Except as otherwise contemplated by the Basic Documents, the Issuer shall not
make any loan or advance or credit to, or guarantee (directly or indirectly or
by an instrument having the effect of assuming another's payment or performance
on any obligation or capability of so doing or otherwise), endorse or otherwise
become contingently liable, directly or indirectly, in connection with the
obligations, stocks or dividends of, or own, purchase, repurchase or acquire
(or agree contingently to do so) any stock, obligations, assets or securities
of, any other interest in, or make any capital contribution to, any other
Person.
Section 3.16. Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
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Section 3.17. Restricted Payments. Except as expressly permitted by
the Basic Documents, the Issuer shall not, directly or indirectly, (i) pay any
dividend or make any distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, to the Owner
Trustee or any owner of a beneficial interest in the Issuer or otherwise with
respect to any ownership or equity interest or security in or of the Issuer,
(ii) redeem, purchase, retire or otherwise acquire for value any such ownership
or equity interest or security or (iii) set aside or otherwise segregate any
amounts for any such purpose; provided, however, that the Issuer may make, or
cause to be made, (A) distributions to the Servicer, the Trustees and the
Securityholders as contemplated by, and to the extent funds are available for
such purpose under, the Sale and Servicing Agreement or the Trust Agreement and
(B) payments to the Trustees pursuant to Section 1(a)(ii) of the Administration
Agreement. The Issuer shall not, directly or indirectly, make payments to or
distributions from the Collection Account except in accordance with this
Indenture and the other Basic Documents.
Section 3.18. Notice of Events of Default. The Issuer agrees to give
the Trustee and each Rating Agency prompt written notice of each Event of
Default hereunder and each default on the part of the Servicer or the Seller of
their respective obligations under the Sale and Servicing Agreement.
Section 3.19. Further Instruments and Acts. Upon request of the
Trustee, the Issuer shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
Section 3.20. Compliance with Laws. The Issuer shall comply with the
requirements of all applicable laws, the non-compliance with which would,
individually or in the aggregate, materially and adversely affect the ability
of the Issuer to perform its obligations under the Notes, this Indenture or any
other Basic Document.
Section 3.21. Amendments of Sale and Servicing Agreement and Trust
Agreement. The Issuer shall not agree to any amendment to Section 10.01 of the
Sale and Servicing Agreement or Section 11.01 of the Trust Agreement to
eliminate the requirements thereunder that the Trustee or the Noteholders
consent to amendments thereto as provided therein.
Section 3.22. Removal of Administrator. The Issuer shall not remove
the Administrator without cause unless the Rating Agency Condition shall have
been satisfied in connection with such removal.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Notes except
as to (a) rights of registration of transfer and exchange, (b) substitution of
mutilated, destroyed, lost or stolen Notes, (c) rights of Noteholders to
receive payments of principal thereof and interest thereon, (d) Sections 3.03,
3.04, 3.05, 3.07, 3.08, 3.10, 3.12, 3.13, 3.20 and 3.21, (e) the rights,
obligations and immunities of the Trustee hereunder (including the rights of
the Trustee under Section 6.08 and the obligations of the Trustee under Section
4.02) and (f) the rights of Noteholders as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them, which
shall survive the Class A-3 Final Scheduled Distribution Date and extend
through any preference period applicable with respect to the Notes or any
payments made in respect of the Notes, and the Trustee, on demand of and at the
expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Notes, when
(i) either
(A) all Notes theretofore authenticated and delivered
(other than (1) Notes that have been destroyed, lost or stolen and
that have been replaced or paid as provided in Section 2.05 and (2)
Notes for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Issuer and thereafter repaid to
the Issuer or discharged from such trust, as provided in Section 3.03)
have been delivered to the Trustee for cancellation; or
(B) all Notes not theretofore delivered to the Trustee
for cancellation:
(1) have become due and payable,
(2) will become due and payable at the Class A-3
Final Scheduled Distribution Date within one year, or
(3) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and
at the expense, of the Issuer;
and the Issuer, in the case of clauses (1), (2) or (3) above,
has irrevocably deposited or caused to be irrevocably
deposited with the Trustee cash or direct obligations of or
obligations guaranteed by the United States (which will mature
prior to the date such amounts are payable), in trust in an
Eligible Account for such purpose, in an amount sufficient to
pay and discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation when due
to the Note Final Scheduled Distribution Date or Redemption
Date (if the Notes
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shall have been called for redemption pursuant to Section
10.01), as the case may be;
(C) the Issuer has paid or performed or caused to be paid
or performed all amounts and obligations the Issuer may owe to or on
behalf of the Trustee for the benefit of the Noteholders under this
Indenture or the Notes; and
(D) the Issuer has delivered to the Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA and the
Trustee) an Independent Certificate from a firm of certified public
accountants, each meeting the applicable requirements of Section
11.01(a) and, subject to Section 11.02, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with (and, in the
case of the foregoing Officer's Certificate, stating that the Rating
Agency Condition has been satisfied).
Section 4.02. Application of Trust Money. All monies deposited with
the Trustee pursuant to Section 4.01 shall be held in trust and applied by it,
in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Trustee may
determine, to the related Noteholders for the payment or redemption of which
such monies have been deposited with the Trustee, of all sums due and to become
due thereon for principal and interest; but such monies need not be segregated
from other funds except to the extent required herein or in the Sale and
Servicing Agreement or required by law.
Section 4.03. Repayment of Monies Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to the Notes, all monies then held by any Paying Agent other than the Trustee
under the provisions of this Indenture with respect to such Notes shall, upon
demand of the Issuer, be paid to the Trustee to be held and applied according
to Section 3.03 and thereupon such Paying Agent shall be released from all
further Liability with respect to such monies.
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ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default. "Event of Default," wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(a) default by the Issuer in the payment of any interest
on any Note when the same becomes due and payable, and such default
shall continue for a period of five days;
(b) default by the Issuer in the payment of the principal
of or any installment of the principal of any Note when the same
becomes due and payable;
(c) default in the observance or performance of any
covenant or agreement of the Issuer made in this Indenture (other than
a covenant or agreement, a default in the observance or performance of
which is elsewhere in this Section specifically dealt with), and such
default shall continue or not be cured for a period of 60 days after
there shall have been given, by registered or certified mail, to the
Issuer by the Trustee or to the Issuer and the Trustee by Noteholders
representing at least 25% of the Voting Interest thereof, voting
together as a single Class, a written notice specifying such default
or incorrect representation or warranty and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder;
(d) any representation or warranty of the Issuer made in
this Indenture or in any certificate or other writing delivered
pursuant hereto or in connection herewith proves to have been
incorrect in any material respect as of the time when the same shall
have been made, and the circumstance or condition in respect of which
such misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured for a period of 30 days after there
shall have been given, by registered or certified mail, to the Issuer
by the Trustee or to the Issuer and the Trustee by Noteholders
representing at least 25% of the Voting Interest thereof, voting
together as a single Class, a written notice specifying such default
or incorrect representation or warranty and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder;
(e) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer or any
substantial part of the Indenture Trust Estate in an involuntary case
under any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Issuer or for any substantial part of the Indenture
Trust Estate, or ordering the winding-up or liquidation of the
Issuer's affairs, and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or
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(f) the commencement by the Issuer of a voluntary
Proceeding under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or the
consent by the Issuer to the entry of an order for relief in an
involuntary Proceeding under any such law, or the consent by the
Issuer to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official with respect to the Issuer or any substantial part of the
Indenture Trust Estate, or the making by the Issuer of any general
assignment for the benefit of creditors, or the failure by the Issuer
generally to pay its debts as such debts become due, or the taking of
action by the Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Trustee, within five days after
obtaining knowledge of the occurrence thereof, written notice in the form of an
Officer's Certificate of any event that with the giving of notice and the lapse
of time would become an Event of Default under paragraph (c) above, its status
and what action the Issuer is taking or proposes to take with respect thereto.
If the Trustee knows or has received notice that an Event of Default has
occurred and is continuing, the Trustee shall mail to each Noteholder notice of
such Event of Default within 30 days after obtaining knowledge or receiving
notice thereof. Except in the case of a failure to pay principal of or
interest on any Note, the Trustee may withhold such notice if and so long as it
determines in good faith that withholding such notice is in the interests of
the Noteholders.
Section 5.02. Rights upon Event of Default.
(a) If an Event of Default shall have occurred and be continuing,
the Trustee may (or, if so requested in writing by Noteholders representing not
less than a majority of the Outstanding Amount, voting together as a single
Class, shall) declare by written notice to the Issuer that the Notes are to
become, whereupon they shall become, immediately due and payable at par,
together with accrued interest thereon. Such declaration may be rescinded by a
request in writing to the Trustee by Noteholders representing not less than a
majority of the Outstanding Amount, voting together as a single Class.
Following a declaration of acceleration upon an Event of Default, (i) the
Noteholders shall be entitled to ratable repayment of principal on the basis of
their respective Outstanding Amounts and (ii) repayment in full of the accrued
interest on the Notes, and any such payments shall be made prior to any further
payment of interest on the Certificates or in respect of the Certificate
Balance.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) The Issuer covenants that if the Notes are accelerated
following the occurrence of an Event of Default, the Issuer shall, upon demand
of the Trustee, pay to it, for the benefit of the Noteholders, the entire
amount then due and payable on such Notes for principal and interest, with
interest on the overdue principal, and, to the extent payment at such rate of
interest shall be legally enforceable, upon overdue installments of interest at
the related Interest Rate; and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee and its agents and counsel.
(b) The Trustee hereby irrevocably and unconditionally appoints
the Owner Trustee as the true and lawful attorney-in-fact of such Person for so
long as such Person is not the Owner
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Trustee, with full power of substitution, to execute, acknowledge and deliver
any notice, document, certificate, paper, pleading or instrument and to do in
the name of the Owner Trustee as well as in the name, place and stead of such
Person such acts, things and deeds for or on behalf of and in the name of such
Person under this Indenture (including specifically under Section 5.04) and
under the other Basic Documents that such Person could or might do or that may
be necessary, desirable or convenient in such Owner Trustee's sole discretion
to effect the purposes contemplated hereunder and under the other Basic
Documents and, without limitation, following the occurrence of an Event of
Default, exercise full right, power and authority to take, or defer from
taking, any and all acts with respect to the administration, maintenance or
disposition of the Indenture Trust Estate.
(c) If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce the rights of the
Noteholders, by such appropriate Proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether (i) for the specific
enforcement of any covenant or agreement in this Indenture, (ii) in aid of the
exercise of any power granted herein, (iii) to collect amounts due or foreclose
on the property of the Trust, (iv) to exercise remedies as a secured party, (v)
to sell the Receivables or (vi) to enforce any other proper remedy or legal or
equitable right vested in the Trustee by this Indenture or by law.
Notwithstanding the foregoing, the Trustee may elect to have the Trust maintain
possession of the Receivables and continue to apply collections on the
Receivables as if there had been no declaration of acceleration.
(d) In case there shall be pending, relative to the Issuer or any
other obligor on the Notes or any Person having or claiming an ownership
interest in the Indenture Trust Estate, Proceedings under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its property
or such other obligor or Person, or in case of any other comparable judicial
Proceedings relative to the Issuer or other obligor upon the Notes, or to the
creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of any Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
Proceedings or otherwise:
(i) to file and prove Claims for the entire amount of
principal and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable
in order to have the Claims of the Trustee (including any Claim for
reasonable compensation to the Trustee and each predecessor Trustee,
and their respective agents, attorneys and counsel, and for
reimbursement of all Liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee, except as a result of
negligence or bad faith) and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and regulations,
to vote on behalf of the Noteholders in any election of a trustee, a
standby trustee or Person performing similar functions in any such
Proceedings;
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(iii) to collect and receive any monies or other property
payable or deliverable on any such Claims and to distribute all
amounts received with respect to the Claims of the Noteholders and of
the Trustee on their behalf; and
(iv) to file such proofs of Claim and other papers or
documents as may be necessary or advisable in order to have the Claims
of the Trustee or the Noteholders allowed in any judicial proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of the Noteholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to
the making of payments directly to the Noteholders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and counsel,
and all other Liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Noteholder or to authorize
the Trustee to vote in respect of the Claim of any Noteholder in any such
proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar Person.
(f) All rights of action and of asserting Claims under this
Indenture or under any Note, may be enforced by the Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Trustee, each predecessor Trustee and
their respective agents and attorneys, shall be for the ratable benefit of the
Noteholders.
(g) In any Proceedings brought by the Trustee (including any
Proceedings involving the interpretation of any provisions of this Indenture),
the Trustee shall be held to represent all the Noteholders, and it shall not be
necessary to make any Noteholder a party to any such Proceedings.
Section 5.04. Remedies. If an Event of Default shall have occurred
and be continuing, the Owner Trustee may (subject to Sections 5.02 and 5.05):
(a) institute Proceedings in its own name and as or on
behalf of a trustee of an express trust for the collection of all
amounts then payable on the Notes or under this Indenture with respect
thereto, whether by declaration or otherwise, enforce any judgment
obtained, and collect from the Issuer and any other obligor upon such
Notes monies adjudged due;
(b) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to the
Indenture Trust Estate;
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(c) exercise any remedies of a secured party under the
UCC and any other remedy available to the Trustee and take any other
appropriate action to protect and enforce the rights and remedies of
the Trustee on behalf of the Noteholders under this Indenture or the
Notes; and
(d) direct the Trustee or the Servicer to sell or
otherwise liquidate the Indenture Trust Estate or any portion thereof
or rights or interests therein, at one or more public or private sales
called and conducted in any manner permitted by law and deliver the
proceeds of such sale or liquidation to the Trustee for distribution
in accordance with the terms of this Indenture; provided, however,
that except as otherwise provided in the immediately succeeding
sentence, no such sale or liquidation may be made if the proceeds of
such sale or liquidation distributable to the Noteholders would not be
sufficient to pay all outstanding principal of and accrued interest on
the Notes. Notwithstanding the foregoing, the proceeds of such sale
or liquidation need not be sufficient to pay all outstanding principal
of and accrued interest on the Notes if the Trustee is the Owner
Trustee and (A) Noteholders representing 100% of the Voting Interest
thereof, voting together as a single Class, consent to such sale or
liquidation or (B) (1) the Trustee determines that the Indenture Trust
Estate will not continue to provide sufficient funds for the payment
of principal of and interest on the Notes as they would have become
due if the Notes had not been declared due and payable, (2) the
Trustee provides prior written notice of such sale or liquidation to
each Rating Agency and (3) Noteholders representing 66 2/3% of the
Voting Interest thereof, voting together as a single Class, consent to
such sale or liquidation. In determining such sufficiency or
insufficiency of (i) the proceeds of such sale or liquidation to pay
all outstanding principal of and accrued interest on the Notes or (ii)
the Indenture Trust Estate to provide sufficient funds for the payment
of principal of and interest on the Notes as they would have become
due if the Notes had not been declared due and payable, the Trustee
may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the
Indenture Trust Estate for such purpose.
Section 5.05. Preservation of the Receivables.
(a) If the Trustee is the Owner Trustee and if the Notes have been
declared to be due and payable under Section 5.02 following an Event of Default
and such declaration and its consequences have not been rescinded and annulled,
the Trustee may, but need not, elect to maintain possession of the Indenture
Trust Estate. It is the intent of the parties hereto and the Noteholders that
there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Trustee shall take such intent into account in
determining whether or not to maintain possession of the Indenture Trust
Estate. In so determining, the Trustee may, but need not, obtain and rely upon
an opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Indenture Trust Estate for such purpose.
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(b) Notwithstanding anything herein to the contrary, the Trustee
shall not sell the Receivables following an Event of Default, other than an
Event of Default described in Section 5.01(a), unless (i) the Holders of all
Outstanding Notes consent to such sale, (ii) the proceeds of such sale are
sufficient to pay in full the principal of and the accrued interest on such
Outstanding Notes at the date of such sale or (iii) the Trustee determines that
the proceeds of sale of the Receivables would not be sufficient on an ongoing
basis to make all payments on the Notes as such payments would have become due
if such obligations had not been declared due and payable, and the Trustee
obtains the consent of Noteholders representing not less than 66 2/3% of the
Voting Interest thereof.
Section 5.06. Priorities.
(a) If the Trustee collects any money or property pursuant to this
Article, it shall pay out such money or property in the following order and
priority:
(i) amounts due and owing and required to be distributed
to the Servicer pursuant to Section 6.07(b)(i) of the Sale and
Servicing Agreement and not previously distributed;
(ii) to each Class of Noteholders, accrued and unpaid
interest on the outstanding principal amount of the related Class of
Notes at the related Interest Rate, together with, to the extent
permitted by applicable law, interest at the related Interest Rate on
any interest accrued but not timely paid;
(iii) to the Holders of the Class A-1 Notes for amounts due
and unpaid on the Class A-1 Notes for principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class A-1 Notes for principal, until the Outstanding
Amount of the Class A-1 Notes is reduced to zero;
(iv) to the Holders of the Class A-2 Notes for amounts due
and unpaid on the Class A-2 Notes for principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class A-2 Notes for principal, until the Outstanding
Amount of the Class A-2 Notes is reduced to zero;
(v) to the Holders of the Class A-3 Notes for amounts due
and unpaid on the Class A-3 Notes for principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class A-3 Notes for principal, until the Outstanding
Amount of the Class A-3 Notes is reduced to zero;
(vi) amounts due and unpaid on the Certificates for
interest and principal, to the Owner Trustee for distribution to the
Certificateholders in accordance with Section 5.02(a) of the Trust
Agreement; and
(vii) any amounts remaining after making the distributions
described in clauses (i) through (vi) above, shall be deposited into
the Note Distribution Account for payment to Noteholders as an
Accelerated Principal Distribution Amount.
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(b) The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section. At least 15 days before such
record date, the Issuer shall mail to each Noteholder and the Trustee a notice
that states such record date, the payment date and the amount to be paid.
Section 5.07. Limitation of Suits. No Noteholder shall have any
right to institute any Proceeding with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(a) such Noteholder has previously given written notice
to the Trustee of a continuing Event of Default;
(b) Noteholders representing not less than 25% of the
Voting Interest thereof, voting together as a single Class, have made
written request to the Trustee to institute such Proceeding in respect
of such Event of Default in its own name as Trustee hereunder;
(c) such Noteholder has offered to the Trustee reasonable
indemnity against the Liabilities to be incurred in complying with
such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceedings; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by Noteholders
representing a majority of the Outstanding Amount, voting together as
a single Class.
It is understood and intended that no Noteholder shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Noteholders
or to obtain or to seek to obtain priority or preference over any other
Noteholder or to enforce any right under this Indenture, except in the manner
provided herein.
In the event the Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Noteholders, each
representing less than a majority of the Outstanding Amount, the Trustee in its
sole discretion may determine what action, if any, shall be taken,
notwithstanding any other provisions of this Indenture.
Section 5.08. Unconditional Rights of Noteholders to Receive
Principal and Interest. Notwithstanding any other provision in this Indenture,
any Noteholder shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest on such Noteholder's Note on
or after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Noteholder.
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Section 5.09. Restoration of Rights and Remedies. If the Owner
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Trustee or to
such Noteholder, then and in every such case the Issuer, the Trustee and the
Noteholders shall, subject to any determination in such Proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Noteholders shall continue as
though no such Proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Owner Trustee or the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion of any other
appropriate right or remedy.
Section 5.11. Delay or Omission Not a Waiver. No delay or omission
of the Owner Trustee or any Noteholder to exercise any right or remedy accruing
upon any Default or Event of Default shall impair any such right or remedy or
constitute a waiver of any such Default or Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or the Noteholders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or the Noteholders, as the case may be.
Section 5.12. Control by Noteholders. Noteholders representing a
majority of the Outstanding Amount, voting together as a single Class, shall
have the right to direct the time, method and place of conducting any
Proceeding or any remedy available to the Trustee with respect to the Notes or
exercising any trust or power conferred upon the Trustee; provided, that:
(a) such direction shall not be in conflict with any rule
of law or this Indenture;
(b) subject to the terms of Section 5.04, any direction
to the Trustee to sell or liquidate the Indenture Trust Estate shall
be by Noteholders representing not less than 100% of the Voting
Interest thereof;
(c) if the conditions set forth in Section 5.05 have been
satisfied and the Trustee elects to retain the Indenture Trust Estate
pursuant to such Section, any direction to the Trustee by Noteholders
representing less than 100% of the Voting Interest thereof to sell or
liquidate the Indenture Trust Estate shall be of no force and effect;
and
(d) the Trustee may take any other action deemed proper
by the Trustee that is not inconsistent with such direction.
Notwithstanding the rights of the Noteholders set forth in this Section,
subject to Section 6.01, the Trustee need not take any action that it
determines, in its sole discretion, might involve it in Liability or that might
materially adversely affect the rights of any Noteholders not consenting to
such action.
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Section 5.13. Waiver of Past Defaults. Noteholders representing not
less than a majority of the Outstanding Amount may waive any past Default or
Event of Default and its consequences except a Default (i) in payment of
principal of or interest on any of the Notes or (ii) in respect of a covenant
or provision hereof that cannot be modified without the waiver or consent of
each Noteholder. In the case of any such waiver, the Issuer, the Trustee and
the Noteholders shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto. Upon any such waiver,
such Default shall cease to exist and be deemed to have been cured and not to
have occurred, and any Event of Default arising therefrom shall be deemed to
have been cured and not to have occurred, for every purpose of this Indenture.
Section 5.14. Undertaking for Costs. All parties to this Indenture
agree, and each Noteholder by its acceptance of a Note shall be deemed to have
agreed, that any court may in its discretion require, in any Proceeding for the
enforcement of any right or remedy under this Indenture, or in any Proceeding
against the Trustee for any action taken, suffered to be taken or omitted by it
as Trustee, the filing by any party litigant in such Proceeding of an
undertaking to pay the costs of such Proceeding and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such Proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (i) any Proceeding instituted by
the Trustee, (ii) any Proceeding instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount or (iii) any Proceeding instituted by any Noteholder for the
enforcement of the payment of principal of or interest on any Note on or after
the respective Note Final Scheduled Distribution Dates expressed in such Note
and in this Indenture (or, in the case of redemption, on or after the
Redemption Date).
Section 5.15. Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in and manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantages of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
Section 5.16. Action on Notes. The Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking or obtaining of, or the application for, any other relief under or
with respect to this Indenture. Neither the Lien of this Indenture nor any of
the rights or remedies of the Trustee or the Noteholders shall be impaired by
the recovery of any judgment by the Trustee against the Issuer or by the levy
of any execution under such judgment upon any portion of the Indenture Trust
Estate or upon any of the assets of the Issuer. Any money or property
collected by the Trustee shall be applied in accordance with Section 5.06.
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Section 5.17. Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Trustee to do so and at
the Administrator's expense, the Issuer shall take such lawful action as the
Trustee may request to compel or secure the performance and observance by the
Seller and the Servicer, as applicable, of each of their obligations to the
Issuer under or in connection with the Sale and Servicing Agreement in
accordance with the terms thereof, and to exercise any and all rights,
remedies, powers and privileges lawfully available to the Issuer under or in
connection with the Sale and Servicing Agreement, to the extent and in the
manner directed by the Trustee, including the transmission of notices of
default on the part of the Seller or the Servicer thereunder and the
institution of legal or administrative Proceedings to compel or secure
performance by the Seller or the Servicer of each of their obligations under
the Sale and Servicing Agreement.
(b) If the Trustee is the Owner Trustee and if an Event of Default
has occurred and is continuing, the Trustee may, and at the direction (which
direction shall be in writing and may include a facsimile) of Noteholders
representing 66 2/3% of the Voting Interest thereof, shall, exercise all
rights, remedies, powers, privileges and Claims of the Issuer against the
Seller or the Servicer under or in connection with the Sale and Servicing
Agreement, including the right or power to take any action to compel or secure
performance or observance by the Seller or the Servicer of each of their
obligations to the Issuer under the Sale and Servicing Agreement and to give
any consent, request, notice, direction, approval, extension or waiver under
the Sale and Servicing Agreement, and any right of the Issuer to take such
action shall be suspended.
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ARTICLE SIX
THE TRUSTEE
Section 6.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture
using the same degree of care and skill in their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person's
own affairs; provided, however, that if the Trustee shall assume the duties of
the Servicer pursuant to Section 3.07(e), the Trustee in performing such duties
shall use that degree of care and skill customarily exercised by a prudent
institutional servicer with respect to motor vehicle retail installment sales
contracts that it services for itself or others.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture, as to
the truth of the statements and the correctness of the opinions
expressed therein; provided, that the Trustee shall examine such
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture and the other Basic Documents to
which the Trustee is a party.
(c) The Trustee may not be relieved from Liability for its own
negligent action, its own negligent failure to act or its own wilful
misconduct; provide, that:
(i) this paragraph does not limit the effect of Section
6.01(b);
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.12.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it.
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(f) Funds held in trust by the Trustee need not be segregated from
other funds, except to the extent required by law or the terms of this
Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial Liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
repayments of such funds or adequate indemnity against such risk or Liability
is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the Liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and the provisions of the TIA.
(i) The Trustee shall, and hereby agrees that it will, perform all
obligations and duties required of it under the Sale and Servicing Agreement.
(j) Except as otherwise required or permitted by the TIA, nothing
contained herein shall be deemed to authorize the Trustee to engage in any
business operations or any activities other than those set forth in this
Indenture. Specifically, the Trustee shall have no authority to engage in any
business operations, acquire any assets other than those specifically included
in the Indenture Trust Estate under this Indenture or otherwise vary the assets
held by the Trust. Similarly, the Trustee shall have no discretionary duties
other than performing those ministerial acts set forth above necessary to
accomplish the purpose of this Trust as set forth in this Indenture.
(k) Notwithstanding the foregoing, the obligations of Trustee
pursuant to this Indenture shall terminate with respect to the Securityholders
upon the earliest to occur of (i) the maturity or other liquidation of the last
Receivable and the disposition of any amounts received upon liquidation of any
property remaining in the Trust, (ii) the payment to Securityholders of all
amounts required to be paid to them pursuant to this Indenture and (iii) the
occurrence of either event described in Section 6.03(l).
Section 6.02. Optional Purchase; Auction. Upon an Optional Purchase
or an Auction pursuant to Article Ten of the Sale and Servicing Agreement, the
Trustee shall give written notice of termination to each Noteholder of record.
The final distribution to each Noteholder shall be made only upon surrender and
cancellation of such Holder's Notes at the office or agency of the Trustee
specified in the notice of termination.
Section 6.03. Rights of Trustee.
(a) Except as otherwise provided in Section 6.03(g) and the second
succeeding sentence, the Trustee may conclusively rely and shall be protected
in acting upon or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, note,
direction, demand, election or other paper or document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not
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investigate any fact or matter stated in any such document. Notwithstanding
the foregoing, the Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that shall be specifically required to be furnished pursuant to
any provision of this Indenture, shall examine such documents to determine
whether or not such documents comply, as to form, to the requirements of this
Indenture.
(b) Before the Trustee acts or refrains from acting, it may
require an Officer's Certificate (with respect to factual matters) or an
Opinion of Counsel, as applicable. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance upon such Officer's
Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee, and the Trustee shall not be responsible
for any misconduct or negligence on the part of, or for the supervision of, any
such agent, attorney, custodian or nominee appointed with due care by it
hereunder.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel, and the advice or
Opinion of Counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from
Liability in respect to any action taken, omitted or suffered to be taken by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers under this Indenture at the request, order or direction of
any Noteholder, if it reasonably believes it will not be adequately indemnified
against any Liability that might be incurred by it in complying with such
request, unless the Noteholders shall have offered to the Trustee reasonable
security or indemnity against any Liability that may be incurred therein or
thereby; provided, however, that the Trustee shall, upon the occurrence of an
uncured Event of Default, exercise the rights and powers vested in it by this
Indenture with reasonable care and skill.
(g) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by Noteholders
evidencing not less than 25% of the Voting Interest thereof; provided, however,
that if the payment within a reasonable time to the Trustee of the Liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture or the Sale and Servicing
Agreement, the Trustee may require reasonable indemnity against such Liability
as a condition to so proceeding. The reasonable expense of each such
investigation shall be paid by
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the Person making such request or, if paid by the Trustee, shall be reimbursed
by the Person making such request upon demand.
Section 6.04. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer and its Affiliates with the same rights as
it would have if it were not the Trustee. Any Paying Agent, Note Registrar,
co-registrar or co-paying agent may do the same, with like rights.
Notwithstanding the foregoing, the Trustee shall comply with Sections 6.12 and
6.13.
Section 6.05. Trustee's Disclaimer. The Trustee shall not (i) be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, the Indenture Trust Estate or the Notes, (ii) be accountable
for the Issuer's use of the proceeds from the Notes or (iii) be responsible for
any statement of the Issuer in (a) this Indenture or in any document issued in
connection with the sale of the Notes or (b) the Notes, other than the
Trustee's certificate of authentication.
Section 6.06. Notice of Defaults. If a Default occurs and is
continuing and if it is known to a Responsible Officer of the Trustee, the
Trustee shall mail to each Noteholder notice of such Default within 90 days
after it occurs. Except in the case of a Default in payment of principal of or
interest on any Note (including payments pursuant to the redemption of Notes),
the Trustee may withhold notice if and so long as a committee of its
Responsible Officers determines in good faith that withholding notice is in the
interests of the Noteholders.
Section 6.07. Reports by Trustee to Noteholders. The Trustee shall
deliver to each Noteholder such information as may be required to enable such
Noteholder to prepare its federal and state income tax returns.
Section 6.08. Compensation and Indemnity. The Issuer shall, or shall
cause the Administrator to, pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Issuer shall,
or shall cause the Administrator to, reimburse the Trustee for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection,
in addition to compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Issuer shall, or shall
cause the Administrator to, indemnify the Trustee against any Loss incurred by
it in connection with the administration of this trust and the performance of
its duties hereunder. The Trustee shall notify the Issuer and the
Administrator promptly of any Claim for which it may seek indemnity. Failure
by the Trustee to so notify the Issuer and the Administrator shall not relieve
the Issuer or the Administrator of its obligations hereunder. The Issuer
shall, or shall cause the Administrator to, defend any such Claim, and the
Trustee may have separate counsel and the Issuer shall, or shall cause the
Administrator to, pay the fees and expenses of such counsel. Neither the
Issuer nor the Administrator need make any reimbursement or indemnification
with respect to any Loss incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith.
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The Issuer's payment obligations to the Trustee pursuant to this
Section shall survive the discharge of this Indenture. When the Trustee incurs
expenses after the occurrence of a Default specified in Section 5.01(iv) or
Section 5.01(v) with respect to the Issuer, such expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar law.
Section 6.09. Replacement of Trustee. The Trustee may resign at any
time by so notifying the Issuer and the Servicer. The Issuer may remove the
Trustee if:
(a) the Trustee fails to comply with Section 6.12;
(b) a court having jurisdiction in the premises in
respect of the Trustee in an involuntary Proceeding under federal or
state banking or bankruptcy laws, as now or hereafter constituted, or
any other applicable federal or state bankruptcy, insolvency or other
similar law, shall have entered a decree or order granting relief or
appointing a receiver, liquidator, assignee, custodian, trustee,
conservator, sequestrator (or similar official) with respect to the
Trustee or any substantial part of the Trustee's property, or ordering
the winding up or liquidation of the Trustee's affairs; provided, that
any such decree or order shall have continued unstayed and in effect
for a period of 30 consecutive days;
(c) the Trustee commences a voluntary Proceeding under
any federal or state banking or bankruptcy law, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian,
trustee, conservator, sequestrator or other similar official with
respect to the Trustee or any substantial part of the Trustee's
property, or makes any assignment for the benefit of creditors or
fails generally to pay its debts as such debts become due or takes any
corporate action in furtherance of any of the foregoing; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Issuer shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The Issuer or the successor Trustee shall mail a notice
of its succession to the Noteholders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee.
If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or
Noteholders representing a majority of the
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Outstanding Amount may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.12, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to the provisions of this Section shall not become
effective until acceptance of appointment by the successor Trustee pursuant to
this Section and payment of all fees and expenses owed the outgoing Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section, the
retiring Trustee shall be entitled to payment or reimbursement of such amounts
as such Person is entitled pursuant to Section 6.08.
Section 6.10. Successor Trustee by Merger. If the Trustee
consolidates or merges with, converts into or transfers all or substantially
all its corporate trust business or assets to another corporation or banking
association, the resulting, surviving or transferee corporation shall, without
any further act, be the successor Trustee; provided, that such corporation or
banking association shall be otherwise qualified and eligible under Section
6.12. The Trustee shall provide each Rating Agency prompt notice of any such
transaction.
In the case that at the time such successor by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture, any of the Notes shall have been authenticated but not delivered,
any such successor may adopt the certificate of authentication of any
predecessor trustee and deliver such Notes so authenticated; and in the case
that at that time any of the Notes shall not have been authenticated, any such
successor may authenticate such Notes either in the name of any predecessor
hereunder or in the name of such successor; and in all such cases, such
certificates shall have the full force as is provided anywhere in the Notes or
this Indenture that the certificate of the Trustee shall have.
Section 6.11. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provision of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Indenture Trust Estate may at such time be located, the
Trustee and the Administrator, acting jointly, shall have the power and may
execute and deliver all instruments to appoint one or more Persons to act as a
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust, and to vest in such Person
or Persons, in such capacity and for the benefit of the Noteholders, such title
to the Indenture Trust Estate or any part thereof and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Trustee and the Administrator may consider necessary or desirable. If
the Administrator shall not have joined in such appointment within 15 days
after its receipt of a request to do so, the Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor Trustee under Section
6.12, and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.09.
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(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Trustee and the Administrator may at any time
accept the resignation of, or remove, any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of co-appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all of the
provisions of this Indenture, specifically including every provision relating
to the conduct of, affecting the Liability of or affording protection to the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time constitute
the Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee. Notwithstanding anything to the
contrary in this Indenture, the appointment of any separate trustee or
co-trustee shall not relieve the Trustee of its obligations and duties under
this Indenture.
Section 6.12. Eligibility; Disqualification.
(a) The Trustee shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b); provided,
however, that there shall be excluded from the operation of TIA
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Section 310(b)(1) any indenture or indentures under which other securities of
the Issuer are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
(b) If the long-term debt rating of the Trustee shall not be at
least Baa3 from Moody's and BBB- from Standard & Poor's, each Rating Agency
shall be given notice of such lower long-term debt rating.
Section 6.13. Preferential Collection of Claims Against Issuer. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee that has resigned or has
been removed shall be subject to TIA Section 311(a) to the extent indicated.
Section 6.14. Representations and Warranties of Trustee. The Trustee
hereby makes the following representations and warranties on which the Issuer
and the Noteholders may rely:
(a) it is a ____________ duly organized, validly existing
and in good standing under the laws of its place of incorporation; and
(b) it has full power, authority and legal right to
execute, deliver and perform this Indenture and shall have taken all
necessary action to authorize the execution, delivery and performance
by it of this Indenture.
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ARTICLE SEVEN
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer to Furnish Trustee Names and Addresses of
Noteholders. The Issuer shall furnish or cause to be furnished to the Trustee
(i) not more than five days after the earlier of (a) each Record Date and (b)
three months after the last Record Date, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Noteholders as of
such Record Date and (ii) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such request, a list
of similar form and content as of a date not more than ten days prior to the
time such list is furnished; provided, however, that so long as the Trustee is
the Note Registrar, no such list need be furnished.
Section 7.02. Preservation of Information; Communications to
Noteholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Noteholders contained in
the most recent list furnished to the Trustee as provided in Section 7.01 and
the names and addresses of the Noteholders received by the Trustee in its
capacity as Note Registrar. The Trustee may destroy any list furnished to it
as provided in such Section 7.01 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or the
Notes.
(c) The Issuer, the Trustee and the Note Registrar shall have the
protection of TIA Section 312(c).
Section 7.03. Reports by Issuer.
(a) The Issuer shall:
(i) file with the Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) that the Issuer
may be required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act;
(ii) file with the Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by
the Commission such additional information, documents and reports with
respect to compliance by the Issuer with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
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(iii) supply to the Trustee (and the Trustee shall transmit
by mail to all Noteholders described in TIA Section 313(c)) such
summaries of any information, documents and reports required to be
filed by the Issuer pursuant to clauses (i) and (ii) of this paragraph
as may be required by rules and regulations prescribed from time to
time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
Section 7.04. Reports by Trustee. To the extent that any of the
events described in TIA Section 313(a) shall have occurred, the Trustee shall,
within 60 days after each ____________ 15 beginning with ____________ 15, 199 ,
mail to each Noteholder as required by TIA Section 313(c) a brief report dated
as of such date that complies with TIA Section 313(a). The Trustee also shall
comply with TIA Section 313(b).
A copy of each report at the time of its mailing to the Noteholders
shall be filed by the Trustee with the Commission and with each stock exchange,
if any, on which the Notes are listed and of which listing the Trustee has been
informed. The Issuer shall notify the Trustee if and when the Notes are listed
on any stock exchange.
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ARTICLE EIGHT
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money. Except as otherwise expressly
provided herein, the Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Trustee pursuant to this Indenture. The Trustee shall apply
all such money received by it as provided in this Indenture. Except as
otherwise expressly provided in this Indenture, if any default occurs in the
making of any payment or performance under any agreement or instrument that is
part of the Indenture Trust Estate, the Trustee may take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate Proceedings. Any such action shall be without
prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article Five.
Section 8.02. Trust Accounts.
(a) On or prior to the Closing Date, the Issuer shall cause the
Servicer to establish and maintain, in the name of the Trustee, for the benefit
of the Securityholders, the Trust Accounts as provided in Section 5.01 of the
Sale and Servicing Agreement.
(b) All collections with respect to each Collection Period shall
be deposited in the Collection Account as provided in Section 5.02 of the Sale
and Servicing Agreement. On each Deposit Date, all amounts required to be
deposited in the Note Distribution Account with respect to the preceding
Collection Period pursuant to Section 5.05 of the Sale and Servicing Agreement
shall be transferred to the Note Distribution Account.
(c) On each Distribution Date, the Trustee shall distribute all
amounts on deposit in the Note Distribution Account in respect of such
Distribution Date to the Noteholders to the extent of amounts due and unpaid on
the Notes for principal and interest as follows:
(i) to each Class of Noteholders, accrued and unpaid
interest on the Outstanding Amount of the related Class of Notes at
the related Interest Rate;
(ii) to the Class A-1 Noteholders in reduction of the
Outstanding Amount of the Class A-1 Notes until the Outstanding Amount
of the Class A-1 Notes is reduced to zero;
(iii) to the Class A-2 Noteholders in reduction of the
Outstanding Amount of the Class A-2 Notes until the Outstanding Amount
of the Class A-2 Notes is reduced to zero; and
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(iv) to the Class A-3 Noteholders in reduction of the
Outstanding Amount of the Class A-3 Notes until the Outstanding Amount
of the Class A-3 Notes is reduced to zero.
If the amount available for the foregoing payments is less than the amount of
interest payable on the Notes on a Payment Date, each Class of Noteholders
shall receive its ratable share (based upon the aggregate amount of interest
due to such Class of Noteholders) of the aggregate amount available to be
distributed in respect of interest on the Notes. To the extent not previously
paid in full, the principal amount of the Class A-1 Notes, the Class A-2 Notes
and the Class A-3 Notes shall be due on the Class A-1 Final Scheduled
Distribution Date, the Class A-2 Final Scheduled Distribution Date and the
Class A-3 Final Scheduled Distribution Date, respectively.
Section 8.03. General Provisions Regarding Accounts.
(a) So long as no Default or Event of Default shall have occurred
and be continuing, all or a portion of the funds in the Trust Accounts (other
than the Certificate Distribution Account) shall be invested in Permitted
Investments and reinvested by the Trustee upon receipt of an Issuer Order,
subject to the provisions of Section 5.01(b) of the Sale and Servicing
Agreement. Except as otherwise provided in Section 5.01(b) of the Sale and
Servicing Agreement, all net income or other gain from investments of monies
deposited in such Trust Accounts shall be deposited by the Trustee in the
Collection Account. The Issuer shall not direct the Trustee to make any
investment of any funds or to sell any investment held in any of the Trust
Accounts unless the security interest Granted and perfected in such Trust
Account will continue to be perfected in such investment or the proceeds of
such sale, in either case without any further action by any Person, and, in
connection with any direction to the Trustee to make any such investment or
sale, if requested by the Trustee, the Issuer shall deliver to the Trustee an
Opinion of Counsel acceptable to the Trustee to such effect.
(b) Subject to Section 6.01(c), the Trustee shall not in any way
be held liable by reason of any insufficiency in any of the Trust Accounts
resulting from any Loss on any Permitted Investment included therein except for
Losses attributable to the Trustee's failure to make payments on such Permitted
Investments issued by the Trustee, in its commercial capacity as principal
obligor and not as Trustee, in accordance with their terms.
(c) If (i) the Issuer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the Trustee by
___:00 __.m., ________ time (or such other time as may be agreed by the Issuer
and Trustee) on any Business Day, (ii) a Default or Event of Default shall have
occurred and be continuing with respect to the Notes but the Notes have not
been declared due and payable pursuant to Section 5.02 or (iii) if the Notes
have been declared due and payable following an Event of Default but amounts
collected or receivable from the Indenture Trust Estate are being applied in
accordance with Section 5.05 as if there had not been such a declaration; then
the Trustee shall, to the fullest extent practicable, invest and reinvest funds
in the Trust Accounts in one or more Permitted Investments.
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Section 8.04. Release of Indenture Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.08, the Trustee may, and when required by the provisions of this
Indenture shall, execute instruments to release property from the Lien of this
Indenture, or convey the Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture.
No party relying upon an instrument executed by the Trustee as provided in this
Article shall be bound to ascertain the Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
monies.
(b) The Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Trustee pursuant to Section 6.08 have been
paid, release any remaining portion of the Indenture Trust Estate that secured
the Notes from the Lien of this Indenture and release to the Issuer or any
other Person entitled thereto any funds then on deposit in the Trust Accounts.
The Trustee shall release property from the Lien of this Indenture pursuant to
this paragraph only upon receipt of an Issuer Request accompanied by an
Officer's Certificate, an Opinion of Counsel and (if required by the TIA)
Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.01.
Section 8.05. Opinion of Counsel. The Trustee shall receive at least
seven days' notice when requested by the Issuer to take any action pursuant to
Section 8.04(a), accompanied by copies of any instruments involved, and the
Trustee shall also require, as a condition to such action, an Opinion of
Counsel, in form and substance satisfactory to the Trustee, stating the legal
effect of any such action, outlining the steps required to complete the same,
and concluding that all conditions precedent to the taking of such action have
been complied with and such action will not materially and adversely impair the
security for the Notes or the rights of the Noteholders in contravention of the
provisions of this Indenture; provided, however, that such Opinion of Counsel
shall not be required to express an opinion as to the fair value of the
Indenture Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Trustee in connection with any such action.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Noteholders and with prior notice
to each Rating Agency, the Issuer and the Trustee, when authorized by an Issuer
Order, and the other parties hereto at any time and from time to time, may
enter into one or more indentures supplemental hereto (which shall conform to
the provisions of the TIA as in force at the date of the execution thereof), in
form satisfactory to the Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property
at any time subject to the Lien of this Indenture, or better to
assure, convey or confirm unto the Trustee any property subject or
required to be subjected to the Lien created by this Indenture, or to
subject additional property to the Lien created by this Indenture;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another Person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer
contained herein and in the Notes;
(iii) to add to the covenants of the Issuer, for the
benefit of the Noteholders, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee;
(v) to cure any ambiguity, correct or supplement any
provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any supplemental
indenture or the Basic Documents or make any other provisions with
respect to matters or questions arising under this Indenture or in any
supplemental indenture that shall not be inconsistent with the
provisions of this Indenture; provided, that any such action shall not
adversely affect the interests of the Noteholders;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes
and to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Article Six; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may he expressly required by the TIA.
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The Trustee is hereby authorized to join in the exemption of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Trustee, when authorized by an Issuer
Order, may, without the consent of the Noteholders and with prior notice to
each Rating Agency, enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Noteholders under this Indenture; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Noteholder.
Section 9.02. Supplemental Indentures With Consent of Noteholders.
The Issuer and the Trustee, when authorized by an Issuer Order, may, with prior
notice to each Rating Agency and with the consent of Noteholders representing
not less than a majority of the Outstanding Amount, by Act of such Noteholders
delivered to the Issuer and the Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Noteholders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(a) change the date of payment of any installment of
principal of or interest on any Note, or reduce the principal amount
thereof, the Interest Rate thereon or the Redemption Price with
respect thereto, change the provisions of this Indenture relating to
the application of collections on, or the proceeds of the sale of, the
Indenture Trust Estate to payment of principal of or interest on the
Notes, or change any place of payment where, or the coin or currency
in which, any Note or the interest thereon is payable, or impair the
right to institute Proceedings for the enforcement of the provisions
of this Indenture requiring the application of funds available
therefor, as provided in Article Five, to the payment of any such
amount due on the Notes on or after the respective due dates thereof
(or, in the case of redemption, on or after the Redemption Date);
(b) reduce the percentage of the Outstanding Amount
required to be represented by the consent of Noteholders for any such
supplemental indenture or for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;
(c) modify or alter the provisions of the second proviso
to the definition of the term "Outstanding";
(d) reduce the percentage of the Outstanding Amount
required to direct the Trustee to sell or liquidate the Indenture
Trust Estate pursuant to Section 5.04 or amend the provisions of this
Article that specify the percentage of the Outstanding Amount required
to amend this Indenture or the other Basic Documents;
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(e) modify any provision of this Section except to
increase any percentage specified herein or to provide that certain
additional provisions of this Indenture or the other Basic Documents
cannot be modified or waived without the consent of the Noteholder of
each Outstanding Note affected thereby; or
(f) permit the creation of any Lien ranking prior to or
on a parity with the Lien created by this Indenture with respect to
any part of the Indenture Trust Estate or, except as otherwise
permitted or contemplated herein, terminate the Lien created by this
Indenture on any property at any time subject hereto or deprive any
Noteholder of the security provided by the Lien created by this
Indenture.
The Trustee may in its discretion determine whether or not any Notes
would be affected by any supplemental indenture and any such determination
shall be conclusive upon all Noteholders, whether theretofore or thereafter
authenticated and delivered hereunder. The Trustee shall not be liable for any
such determination made in good faith.
It shall not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the parties hereto of any supplemental
indenture pursuant to this Section, the Trustee shall mail to the Noteholders
to which such amendment or supplemental indenture relates a notice setting
forth in general terms the substance of such supplemental indenture. Any
failure of the Trustee to mail such notice, or any defect therein, shall not in
any way impair or affect the validity of any such supplemental indenture.
Section 9.03. Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and subject to
Sections 6.01 and 6.03 shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture that affects the Trustee's own
rights, duties, Liabilities or immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be, and shall be deemed to be, modified and amended in accordance
therewith with respect to the Notes affected thereby, and the respective
rights, limitations of rights, obligations, duties, Liabilities and immunities
under this Indenture of the parties hereto and the Noteholders shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be, and shall be deemed to be, part of the terms
and conditions of this Indenture for any and all purposes.
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Section 9.05. Conformity With Trust Indenture Act. Every amendment
of this Indenture and every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as then in
effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
Section 9.06. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and if required by the Trustee, shall, bear a
notation in a form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Issuer or the Trustee shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Issuer, to any such supplemental indenture may be prepared and executed by the
Issuer and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
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ARTICLE TEN
REDEMPTION OF NOTES
Section 10.01. Redemption.
(a) In the event of an Optional Purchase or an Auction, each Class
of Notes Outstanding shall be redeemed in whole, but not in part.
Notwithstanding the foregoing, the Class A-3 Notes shall be subject to
redemption in whole, but not in part, on any Distribution Date relating to an
Optional Purchase or an Auction; provided, that such Distribution Date occurs
after the Class A-1 Notes and the Class A-2 Notes have been paid in full.
(b) The Notes shall be subject to Mandatory Redemption on the
Distribution Date on or immediately following the last day of the Funding
Period in the event that any portion of the Pre-Funded Amount, exclusive of any
Investment Earnings thereon, remains on deposit in the Pre-Funding Account,
after giving effect to the purchase by the Seller and conveyance to the Trust
of all Subsequent Receivables on the related Subsequent Transfer Dates,
including any such purchase and conveyance on the date on which the Funding
Period ends. If such remaining Pre-Funded Amount is less than or equal to
$100,000.00, such amount shall be applied to redeem the Class A-1 Notes until
the principal amount of the Class A-1 Notes has been reduced to zero, and any
remaining amount shall be applied to redeem the Class A-2 Notes. If such
remaining Pre-Funded Amount is greater than $100,000.00, such amount shall be
used to redeem each Class of Notes and to prepay the Certificates in accordance
with Section 3.15 of the Trust Agreement. The Outstanding Amount of each Class
of Notes to be redeemed shall be an amount equal to the Pre-Funded Percentage
of such Class of Notes, multiplied by such remaining Pre-Funded Amount.
Section 10.02. Form of Redemption Notice.
(a) Notice of redemption under Section 10.01 shall be given by the
Trustee by first class mail, postage prepaid, mailed not less than five days
prior to the applicable Redemption Date to each Noteholder, as of the close of
business on the Record Date preceding the applicable Redemption Date, at such
Noteholder's address appearing in the Note Register. The Administrator shall
notify each Rating Agency upon the redemption of any Class of Notes, pursuant
to Section 1(a)(i) of the Administration Agreement.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Notes are to be surrendered for
payment of the Redemption Price (which shall be the office or agency
of the Issuer to be maintained as provided in Section 3.02); and
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(iv) that on the Redemption Date, the Redemption Price
will become due and payable on each Note and that interest thereon
shall cease to accrue from and after the Redemption Date.
Notice of redemption of the Notes shall be given by the Trustee in the
name and at the expense of the Issuer. Failure to give notice of redemption
(or any defect therein) to any Noteholder shall not impair or affect the
validity of the redemption of any other Note.
(b) Prior notice of redemption under Section 10.01(b) need not be
given to Noteholders.
Section 10.03. Notes Payable on Redemption Date. The Notes or
portions thereof to be redeemed shall, following notice of redemption (if any)
as required by Section 10.02, on the Redemption Date become due and payable at
the Redemption Price and (unless the Issuer shall default in the payment of the
Redemption Price) no interest shall accrue on the Redemption Price for any
period after the date to which accrued interest is calculated for purposes of
calculating the Redemption Price.
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ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions.
(a) Upon any application or request by the Issuer to the Trustee
to take any action under any provision of this Indenture, the Issuer shall
furnish to the Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting the applicable requirements
of this Section. Notwithstanding the foregoing, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate
or opinion has read or has caused to be read such covenant or
condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination or investigation
as is necessary to enable such signatory to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other
property or securities with the Trustee that is to be made the basis
for the release of any property subject to the Lien created by this
Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.01(a) or elsewhere in this Indenture, furnish to the
Trustee an Officer's Certificate certifying or stating the opinion of
the signer thereof such certificate as to the fair value (within 90
days of such deposit) to the Issuer of the Collateral or other
property or securities to be so deposited.
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(ii) Whenever the Issuer is required to furnish to the
Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (i) above,
the Issuer shall also deliver to the Trustee an Independent
Certificate as to the named matters, if the fair value to the Issuer
of the property to be so deposited and of all other such property made
the basis of any such withdrawal or release since the commencement of
the then-current fiscal year of the Issuer, as set forth in the
Officer's Certificates delivered pursuant to clause (i) above and this
clause, is 10% or more of the Outstanding Amount, but such Officer's
Certificate need not be furnished with respect to any property so
deposited, if the fair value thereof to the Issuer as set forth in the
related Officer's Certificate is less than $25,000 or less than one
percent of the Outstanding Amount.
(iii) Other than with respect to any release described in
clause (A) or (B) of Section 11.01(b)(v), whenever any property or
securities are to be released from the Lien created by this Indenture,
the Issuer shall also furnish to the Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such release) of
the property or securities proposed to be released and stating that in
the opinion of such person, such proposed release will not impair the
security created by this Indenture in contravention of the provisions
hereof.
(iv) Whenever the Issuer is required to furnish the
Trustee with an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(iii) above, the Issuer shall also furnish the Trustee with an
Independent Certificate as to the same matters if the fair value of
the property or securities and of all other property or securities
(other than property described in clauses (A) or (B) of Section
11.01(b)(v)) released from the Lien created by this Indenture since
the commencement of the then-current fiscal year, as set forth in the
Officer's Certificates required by clause (iii) above and this clause,
equals 10% or more of the Outstanding Amount, but such Officer's
Certificate need not be furnished in the case of any release of
property or securities if the fair value thereof as set forth in the
related Officer's Certificate is less than $25,000 or less than one
percent of the then Outstanding Amount.
(v) Notwithstanding any other provision of this Section,
the Issuer may, without compliance with the other provisions of this
Section, (A) collect, liquidate, sell or otherwise dispose of the
Receivables as and to the extent permitted or required by the Basic
Documents, (B) make cash payments out of the Trust Accounts as and to
the extent permitted or required by the Basic Documents, so long as
the Issuer shall deliver to the Trustee every six months, commencing
________ 15, 199 , an Officer's Certificate stating that all the
dispositions of Collateral described in clauses (A) or (B) that
occurred during the preceding six calendar months were in the ordinary
course of the Issuer's business and that the proceeds thereof were
applied in accordance with the Basic Documents.
Section 11.02. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not
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necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such Authorized Officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Servicer, the Seller or the Issuer, stating that the information with
respect to such factual matters is in the possession of the Servicer, the
Seller or the Issuer, unless such officer or counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Trustee, it is provided that the Issuer shall
deliver any document as a condition of the granting of such application, or as
evidence of the Issuer's compliance with any term hereof, it is intended that
the truth and accuracy, at the time of the granting of such application or at
the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however,
be construed to affect the Trustee's right to rely upon the truth and accuracy
of any statement or opinion contained in any such document as provided in
Article Six.
Section 11.03. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by the Noteholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Noteholders in person or by
agents duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Noteholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.01) conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Section.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Trustee deems
sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by any Noteholder shall bind the holder of
every Note issued upon the registration thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by
the Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
Section 11.04. Notices to Trustee, Issuer and Rating Agencies.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders or other documents provided or permitted
by this Indenture shall be in writing; and if such request, demand,
authorization, direction, notice, consent, waiver or Act of Noteholders is to
be made upon, given or furnished to or filed with:
(i) the Trustee by any Noteholder or by the Issuer, it
shall be sufficient for every purpose hereunder if in writing,
personally delivered, sent by facsimile transmission and confirmed or
mailed by overnight delivery, to or with the Trustee at its Corporate
Trust Office; or
(ii) the Issuer by the Trustee or by any Noteholder, it
shall be sufficient for every purpose hereunder if in writing,
personally delivered, sent by facsimile transmission and confirmed or
mailed by overnight delivery, to the Issuer addressed to: Fleetwood
Credit RV Receivables 199 - Owner Trust, in care of
__________________, as Owner Trustee, _________________, Attention:
_____________, or at any other address furnished in writing to the
Trustee by the Issuer.
(b) Notices required to be given to the Rating Agencies by the
Issuer, the Trustee or the Owner Trustee shall be in writing, personally
delivered, sent by facsimile transmission and confirmed or mailed by overnight
delivery, to (i) in the case of Moody's, at 99 Church Street, New York, New
York 10007, Attention: ABS Monitoring Department and (ii) in the case of
Standard & Poor's, at 26 Broadway, 20th Floor, New York, New York 10004,
Attention: Asset Backed Surveillance Department; or as to each of the
foregoing, at such other address as shall be designated by written notice to
the parties hereto.
Section 11.05. Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such
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<PAGE> 68
notice with respect to other Noteholders, and any notice that is mailed un the
manner herein provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Trustee but
such filing shall not be a conclusion precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to a Rating Agency, failure
to give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute a Default or Event
of Default.
Section 11.06. Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any provision of any Note to
the contrary, the Issuer may enter into any agreement with any Noteholder
providing for a method of payment, or notice by the Trustee or any Paying Agent
to such Noteholder, that is different from the methods provided for in this
Indenture for such payments or notices. The Issuer shall furnish to the
Trustee a copy of each such agreement and the Trustee shall cause payments to
be made and notices to be given in accordance with such agreements.
Section 11.07. Conflict With Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
Section 11.08. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 11.09. Successors and Assigns. All covenants and agreements
in this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Trustee in this
Indenture shall bind its successors, co-trustees and agents.
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Section 11.10. Separability. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 11.11. Benefits of Indenture. Nothing in this Indenture or
in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Noteholders, and any
other party secured hereunder, and any other Person with an ownership interest
in any part of the Indenture Trust Estate, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 11.12. Legal Holidays. In any case where the date on which
any payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
Section 11.13. Governing Law. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, AND THE OBLIGATIONS,
RIGHTS, AND REMEDIES OF THE PARTIES UNDER THIS INDENTURE SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS EXCEPT THAT THE DUTIES OF THE TRUSTEE SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 11.14. Counterparts. This Indenture may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 11.15. Recording of Indenture. If this Indenture is subject
to recording in any appropriate public recording offices, such recording is to
be effected by the Issuer and at its expense accompanied by an Opinion of
Counsel (which may be counsel to the Trustee or any other counsel reasonably
acceptable to the Trustee) to the effect that such recording is necessary
either for the protection of the Noteholders or any other Person secured
hereunder or for the enforcement of any right or remedy granted to the Trustee
under this Indenture.
Section 11.16. Trust Obligation. No recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Trustee on the Notes or under this Indenture or any certificate or other
writing delivered in connection herewith or therewith, against (i) the Trustee
or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director, employee or agent of the Trustee or the Owner Trustee in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Trustee or of any successor or assign of the Trustee or
the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed (it being understood that the Trustee and the Owner
Trustee have no such obligations in their individual capacities) and except
that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for
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stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity. For all purposes of this Indenture, in the performance
of any duties or obligations of the Issuer hereunder, the Owner Trustee shall
be subject to, and entitled to the benefits of, the terms and provisions of
Articles Six, Seven and Eight of the Trust Agreement.
Section 11.17. No Petition. The parties hereto, by entering into
this Indenture, and each Noteholder, by accepting a Note or a beneficial
interest in a Note, hereby covenant and agree that they will not at any time
institute against the Seller or the Issuer, or join in any institution against
the Seller or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation Proceeding, or other Proceeding under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, this Indenture or any of the other Basic
Documents.
Section 11.18. Inspection. The Issuer agrees that, on reasonable
prior notice, it will permit any representative of the Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested, the Trustee shall
and shall cause its representatives to hold in confidence all such information
except to the extent disclosure may be required by law (and all reasonable
applications for confidential treatment are unavailing) and except to the
extent that the Trustee may reasonably determine that such disclosure is
consistent with its obligations hereunder.
Section 11.19. Limitation of Liability. Neither the Trustee nor the
Owner Trustee in its individual capacity, nor any Certificateholder, nor any of
their respective owners, beneficiaries, agents, officers, directors, employees,
affiliates, successors or assigns shall, in the absence of an express agreement
to the contrary, be personally liable for the payment of the principal of or
interest on the Notes or for the agreements of the Issuer contained in this
Indenture. Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by _____________ not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall _______________ in its individual capacity or any beneficial owner
of the Issuer have any Liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder, as to all
of which recourse shall be had solely to the assets of the Issuer. For all
purposes of this Indenture, in the performance of any duties or obligations of
the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles Six, Seven and Eight of
the Trust Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and delivered as of the day and year first above written.
FLEETWOOD CREDIT RV RECEIVABLES
199 - OWNER TRUST
By:
---------------------------,
as Owner Trustee
By:
---------------------------,
Name:
Title:
------------------------------,
as Trustee
By:
----------------------------
Name:
Title:
<PAGE> 72
STATE OF CALIFORNIA )
) ss
COUNTY OF )
--------------
On before me,
--------------------- ---------------------------------------,
[insert date] [Here insert name and title of notary]
personally appeared
-----------------------------------------------------------,
[ ] personally known to me, or
[ ] proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument,
and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ties), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which such person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature [Seal]
<PAGE> 73
STATE OF CALIFORNIA )
) ss
COUNTY OF )
---------
On before me,
--------------------- ---------------------------------------,
[insert date] [Here insert name and title of notary]
personally appeared
-----------------------------------------------------------,
[ ] personally known to me, or
[ ] proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument,
and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ties), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which such person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature [Seal]
--------------------------------------------------
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<PAGE> 74
SCHEDULE A
SCHEDULE OF RECEIVABLES
Omitted -- Schedules of Receivables on file at the offices of the Seller, the
Servicer and the Owner Trustee.
SA-1
<PAGE> 75
EXHIBIT A
FORM OF SALE AND SERVICING AGREEMENT
A-1
<PAGE> 76
EXHIBIT B
FORM OF NOTE DEPOSITORY AGREEMENT
B-1
<PAGE> 77
EXHIBIT C
FORM OF CLASS A-1 NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT
INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
FLEETWOOD CREDIT RV RECEIVABLES 199 - OWNER TRUST
____% ASSET BACKED NOTE, CLASS A-1
REGISTERED $_______________
No. R-__ CUSIP NO. ___________
The Fleetwood Credit RV Receivables 199 - Owner Trust, a business
trust organized and existing under the laws of the State of Delaware (the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of _______________ Dollars
($____________), payable to the extent described in the Indenture referred to on
the reverse hereof on each Distribution Date; provided, however, that the entire
unpaid principal amount of this Note shall be payable on the earlier of
____________, ____ (the "Class A-1 Final Scheduled Distribution Date") and the
Redemption Date, if any, selected pursuant to the Indenture.
The Issuer will pay interest on this Note at the rate per annum shown
above on each Distribution Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding on
the preceding Distribution Date (after giving effect
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to all payments of principal made on the preceding Distribution Date), or on
the Closing Date in the case of the first Distribution Date or if no interest
has yet been paid, subject to certain limitations contained in the Indenture.
Interest on this Note will accrue for each Distribution Date from and including
the most recent Distribution Date on which interest has been paid to but
excluding such Distribution Date or, in the case of the first Distribution Date
or if no interest has yet been paid, from ___________ 1, 199 . The Issuer
shall pay interest on overdue installments of interest at the Class A-1
Interest Rate to the extent lawful. Interest will be computed on the basis of
a 360-day year and the actual number of days elapsed since the immediately
preceding Distribution Date. Such principal of and interest on this Note shall
be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Note shall not
be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
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<PAGE> 79
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by an Authorized Officer, as set forth
below.
Date: 199 FLEETWOOD CREDIT RV RECEIVABLES
------------------, 199 - OWNER TRUST
By:
----------------------------,
as Owner Trustee
By:
-----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
----------------------------,
as Trustee
By:
--------------------------
Authorized Signatory
C-3
<PAGE> 80
[REVERSE OF CLASS A-1 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its "_____% Asset Backed Notes, Class A-1" (the "Class A-1
Notes"), all issued under an Indenture, dated as of ____________ 1, 199 (the
"Indenture"), between the Issuer and _____________, a _________, as trustee
(the "Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Trustee and the Noteholders. The
Notes are subject to all terms of the Indenture. All terms used in this Note
that are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture, as so supplemented
or amended.
The Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes
(collectively, the "Notes") are and will be equally and ratably secured by the
Collateral pledged as security therefor as provided in the Indenture.
Principal payable on the Class A-1 Notes will be paid on each
Distribution Date in the amount specified in the Indenture. As described
above, the entire unpaid principal amount of this Note will be payable on the
earlier of the Class A-1 Final Scheduled Distribution Date and the Redemption
Date, if any, selected pursuant to the Indenture. Notwithstanding the
foregoing, under certain circumstances, the entire unpaid principal amount of
the Class A-1 Notes shall be due and payable following the occurrence and
continuance of an Event of Default, as described in the Indenture. All
principal payments on the Class A-1 Notes shall be made pro rata to the Class
A-1 Noteholders entitled thereto.
Payments of principal of and interest on this Note due and payable on
each Distribution Date or Redemption Date shall be made by check mailed to the
Person whose name appears as the registered holder hereof (or one or more
Predecessor Notes) on the Note Register as of the close of business on the
related Record Date, except that with respect to Notes registered on the Record
Date in the name of the nominee of the Depository (initially, such nominee to
be Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such checks shall be mailed
to the Person entitled thereto at the address of such Person as it appears on
the Note Register as of the applicable Record Date without requiring that this
Note be submitted for notation of payment. Any reduction in the principal
amount of this Note (or any one or more Predecessor Notes) affected by any
payments made on any Distribution Date or Redemption Date shall be binding upon
all future holders hereof and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not noted
hereon. If funds are expected to be available, as provided in the Indenture,
for payment in full of the remaining unpaid principal amount of this Note on a
Distribution Date or Redemption Date, then the Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the registered holder
hereof as of the Record Date preceding such Distribution Date or Redemption
Date by notice mailed within five days of such Distribution Date or Redemption
Date and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Corporate Trust Office of the
Trustee or at the office of the Trustee's agent appointed for such purposes
located in The City of New York.
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As provided in the Indenture, the Notes may be redeemed pursuant to
the Indenture, in whole, but not in part, at the option of the Seller, on any
Distribution Date as of which (i) the Aggregate Scheduled Balance is less than
or equal to 10% of the Cut-Off Date Aggregate Scheduled Balance and (ii) the
aggregate outstanding principal amount of the Securities is less than 5% of the
aggregate outstanding principal amount of the Securities as of the Closing
Date.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or
agency designated by the Issuer pursuant to the Indenture. No service charge
will be charged for any registration of transfer or exchange of this Note, but
the transferor may be required to pay a sum sufficient to cover any Tax or
other governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director or employee of the
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Trustee or of any
successor or assign of the Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture and such Note that such Noteholder or
Note Owner will not at any time institute against the Seller or the Issuer, or
join in any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture, and this Note is issued
with the intention that, for federal, state and local income, single business
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer secured by the Indenture Trust Estate. Each Noteholder, by acceptance
of a Note (and each Note Owner by acceptance of a beneficial interest in a
Note), agrees to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Note (as of the day of determination or as
of such other date as may be specified in the Indenture) is
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<PAGE> 82
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Noteholders representing a majority of the
Outstanding Amount. The Indenture also contains provisions permitting
Noteholders representing specified percentages of the Outstanding Amount, on
behalf of all Noteholders, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder hereof (or
any one of more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future holders hereof and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The
Indenture also permits the Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Noteholders issued
thereunder.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
The Notes may not be purchased with the assets of an employee benefit
plan (a "Benefit Plan") if the Seller, the Servicer, the Trustee, the Owner
Trustee or any of their Affiliates (i) has investment or administrative
discretion with respect to such Benefit Plan assets; (ii) has authority or
responsibility to give, or regularly gives, investment advice with respect to
such Benefit Plan assets, for a fee and pursuant to an agreement or
understanding that such advice (a) will serve as a primary basis for investment
decisions with respect to such Benefit Plan assets and (b) will be based on the
particular investment needs for such Benefit Plan; or (iii) is an employer
maintaining or contributing to such Benefit Plan.
This Note and the Indenture shall be construed in accordance with the
laws of the State of California, and the obligations, rights and remedies of
the parties hereunder and thereunder shall be determined in accordance with
such laws, except that the duties of the Trustee under the Indenture shall be
governed by the laws of the State of New York.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the times, place and rate, and in the coin or currency herein prescribed.
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EXHIBIT D
FORM OF CLASS A-2 NOTE
THIS NOTE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A-1 NOTES
TO THE EXTENT DESCRIBED IN THE INDENTURE REFERRED TO HEREIN.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT
INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
FLEETWOOD CREDIT RV RECEIVABLES 199 - OWNER TRUST
____% FLOATING RATE ASSET BACKED NOTE, CLASS A-2
REGISTERED $____________
No. R-__ CUSIP NO. ___________
The Fleetwood Credit RV Receivables 199 - Owner Trust, a business
trust organized and existing under the laws of the State of Delaware (the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of _______________ Dollars
($_____________), payable to the extent described in the Indenture referred to
on the reverse hereof on each Distribution Date; provided, however, that the
entire unpaid principal amount of this Note shall be payable on the earlier of
__________, ____ (the "Class A-2 Final Scheduled Distribution Date") and the
Redemption Date, if any, selected pursuant to the
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<PAGE> 84
Indenture. No payments of principal of the Class A-2 Notes shall be made until
the principal amount of the Class A-1 Notes has been reduced to zero.
The Issuer will pay interest on this Note at the rate per annum shown
above on each Distribution Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding on
the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date), or on the Closing Date in
the case of the first Distribution Date or if no interest has yet been paid,
subject to certain limitations contained in the Indenture. Interest on this
Note will accrue for each Distribution Date from and including the most recent
Distribution Date on which interest has been paid to but excluding such
Distribution Date or, in the case of the first Distribution Date or if no
interest has yet been paid, from ____________ 1, 199 . The Issuer shall pay
interest on overdue installments of interest at the Class A-2 Interest Rate to
the extent lawful. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months. Such principal of and interest on this
Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Note shall not
be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
D-2
<PAGE> 85
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by an Authorized Officer, as set forth below.
Date: 199 FLEETWOOD CREDIT RV RECEIVABLES
---------------, 199 - OWNER TRUST
By:
--------------------------------,
as Owner Trustee
By:
---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
---------------------------------
as Trustee,
By:
------------------------------
Authorized Signatory
D-3
<PAGE> 86
[REVERSE OF CLASS A-2 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its "____% Floating Rate Asset Backed Notes, Class A-2" (the
"Class A-2 Notes"), all issued under an Indenture, dated as of ____________ 1,
199 (the "Indenture"), between the Issuer and _____________, a __________, as
trustee (the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Trustee and the Noteholders. The
Notes are subject to all terms of the Indenture. All terms used in this Note
that are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture, as so supplemented
or amended.
The Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes
(collectively, the "Notes") are and will be equally and ratably secured by the
Collateral pledged as security therefor as provided in the Indenture.
Principal payable on the Class A-2 Notes will be paid on each
Distribution Date in the amount specified in the Indenture. As described
above, the entire unpaid principal amount of this Note will be payable on the
earlier of the Class A-2 Final Scheduled Distribution Date and the Redemption
Date, if any, selected pursuant to the Indenture. Notwithstanding the
foregoing, under certain circumstances, the entire unpaid principal amount of
the Class A-2 Notes shall be due and payable following the occurrence and
continuance of an Event of Default, as described in the Indenture. All
principal payments on the Class A-2 Notes shall be made pro rata to the Class
A-2 Noteholders entitled thereto.
Payments of principal of and interest on this Note due and payable on
each Distribution Date or Redemption Date shall be made by check mailed to the
Person whose name appears as the registered holder hereof (or one or more
Predecessor Notes) on the Note Register as of the close of business on the
related Record Date, except that with respect to Notes registered on the Record
Date in the name of the nominee of the Depository (initially, such nominee to
be Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such checks shall be mailed
to the Person entitled thereto at the address of such Person as it appears on
the Note Register as of the applicable Record Date without requiring that this
Note be submitted for notation of payment. Any reduction in the principal
amount of this Note (or any one or more Predecessor Notes) affected by any
payments made on any Distribution Date or Redemption Date shall be binding upon
all future holders hereof and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not noted
hereon. If funds are expected to be available, as provided in the Indenture,
for payment in full of the remaining unpaid principal amount of this Note on a
Distribution Date or Redemption Date, then the Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the registered holder
hereof as of the Record Date preceding such Distribution Date or Redemption
Date by notice mailed within five days of such Distribution Date or Redemption
Date and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Corporate Trust Office of the
Trustee or at the office of the Trustee's agent appointed for such purposes
located in The City of New York.
D-4
<PAGE> 87
As provided in the Indenture, the Notes may be redeemed pursuant to
the Indenture, in whole, but not in part, at the option of the Seller, on any
Distribution Date as of which (i) the Aggregate Scheduled Balance is less than
or equal to 10% of the Cut-Off Date Aggregate Scheduled Balance and (ii) the
aggregate outstanding principal amount of the Securities is less than 5% of the
aggregate outstanding principal amount of the Securities as of the Closing
Date.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or
agency designated by the Issuer pursuant to the Indenture. No service charge
will be charged for any registration of transfer or exchange of this Note, but
the transferor may be required to pay a sum sufficient to cover any Tax or
other governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director or employee of the
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Trustee or of any
successor or assign of the Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture and such Note that such Noteholder or
Note Owner will not at any time institute against the Seller or the Issuer, or
join in any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture, and this Note is issued
with the intention that, for federal, state and local income, single business
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer secured by the Indenture Trust Estate. Each Noteholder, by acceptance
of a Note (and each Note Owner by acceptance of a beneficial interest in a
Note), agrees to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Note (as of the day of determination or as
of such other date as may be specified in the Indenture) is
D-5
<PAGE> 88
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of Noteholders representing a majority of the
Outstanding Amount. The Indenture also contains provisions permitting
Noteholders representing specified percentages of the Outstanding Amount, on
behalf of all Noteholders, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder hereof (or
any one of more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future holders hereof and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The
Indenture also permits the Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Noteholders issued
thereunder.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
The Notes may not be purchased with the assets of an employee benefit
plan (a "Benefit Plan") if the Seller, the Servicer, the Trustee, the Owner
Trustee or any of their Affiliates (i) has investment or administrative
discretion with respect to such Benefit Plan assets; (ii) has authority or
responsibility to give, or regularly gives, investment advice with respect to
such Benefit Plan assets, for a fee and pursuant to an agreement or
understanding that such advice (a) will serve as a primary basis for investment
decisions with respect to such Benefit Plan assets and (b) will be based on the
particular investment needs for such Benefit Plan; or (iii) is an employer
maintaining or contributing to such Benefit Plan.
This Note and the Indenture shall be construed in accordance with the
laws of the State of California, and the obligations, rights and remedies of
the parties hereunder and thereunder shall be determined in accordance with
such laws, except that the duties of the Trustee under the Indenture shall be
governed by the laws of the State of New York.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the times, place and rate, and in the coin or currency herein prescribed.
D-6
<PAGE> 89
EXHIBIT E
FORM OF CLASS A-3 NOTE
THIS NOTE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A-1 NOTES
AND THE CLASS A-2 NOTES AS DESCRIBED IN THE INDENTURE REFERRED TO HEREIN.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT
INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
FLEETWOOD CREDIT RV RECEIVABLES 199 - OWNER TRUST
_____% ASSET BACKED NOTE, CLASS A-3
REGISTERED $____________
No. R-__ CUSIP NO. __________
The Fleetwood Credit RV Receivables 199 - Owner Trust, a business
trust organized and existing under the laws of the State of Delaware (the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of ____________ Dollars ($____________),
payable to the extent described in the Indenture referred to on the reverse
hereof on each Distribution Date; provided, however, that the entire unpaid
principal amount of this Note shall be payable on the earlier of _________,
____ (the "Class A-3 Final Scheduled Distribution Date") and the Redemption
Date, if any, selected pursuant to the Indenture. No
E-1
<PAGE> 90
payments of principal of the Class A-3 Notes shall be made until the principal
amount of the Class A-1 Notes and the Class A-2 Notes has been reduced to zero.
The Issuer will pay interest on this Note at the rate per annum shown
above on each Distribution Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding on
the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date), or on the Closing Date in
the case of the first Distribution Date or if no interest has yet been paid,
subject to certain limitations contained in the Indenture. Interest on this
Note will accrue for each Distribution Date from and including the most recent
Distribution Date on which interest has been paid to but excluding such
Distribution Date or, in the case of the first Distribution Date or if no
interest has yet been paid, from ____________ 1, 199 . The Issuer shall pay
interest on overdue installments of interest at the Class A-3 Interest Rate to
the extent lawful. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months. Such principal of and interest on this
Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Note shall not
be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
E-2
<PAGE> 91
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by an Authorized Officer, as set forth below.
Date: 199 FLEETWOOD CREDIT RV RECEIVABLES
--------------, 199 - OWNER TRUST
By:
----------------------------
as Owner Trustee
By:
----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
--------------------------------,
as Trustee
By:
-------------------------------
Authorized Signatory
E-3
<PAGE> 92
[REVERSE OF CLASS A-3 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its "_____% Asset Backed Notes, Class A-3" (the "Class A-3
Notes"), all issued under an Indenture, dated as of ____________ 1, 199 (the
"Indenture"), between the Issuer and ____________, a __________, as trustee
(the "Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Trustee and the Noteholders. The
Notes are subject to all terms of the Indenture. All terms used in this Note
that are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture, as so supplemented
or amended.
The Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes
(collectively, the "Notes") are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture.
Principal payable on the Class A-3 Notes will be paid on each
Distribution Date in the amount specified in the Indenture. As described
above, the entire unpaid principal amount of this Note will be payable on the
earlier of the Class A-3 Final Scheduled Distribution Date and the Redemption
Date, if any, selected pursuant to the Indenture. Notwithstanding the
foregoing, under certain circumstances, the entire unpaid principal amount of
the Class A-3 Notes shall be due and payable following the occurrence and
continuance of an Event of Default, as described in the Indenture. All
principal payments on the Class A-3 Notes shall be made pro rata to the Class
A-3 Noteholders entitled thereto.
Payments of principal and interest on this Note due and payable on
each Distribution Date or Redemption Date shall be made by check mailed to the
Person whose name appears as the registered holder hereof (or one or more
Predecessor Notes) on the Note Register as of the close of business on the
related Record Date, except that with respect to Notes registered on the Record
Date in the name of the nominee of the Depository (initially, such nominee to
be Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such checks shall be mailed
to the Person entitled thereto at the address of such Person as it appears on
the Note Register as of the applicable Record Date without requiring that this
Note be submitted for notation of payment. Any reduction in the principal
amount of this Note (or any one or more Predecessor Notes) affected by any
payments made on any Distribution Date or Redemption Date shall be binding upon
all future holders hereof and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not noted
hereon. If funds are expected to be available, as provided in the Indenture,
for payment in full of the remaining unpaid principal amount of this Note on a
Distribution Date or Redemption Date, then the Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the registered holder
hereof as of the Record Date preceding such Distribution Date or Redemption
Date by notice mailed within five days of such Distribution Date or Redemption
Date and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Corporate Trust Office of the
Trustee or at the office of the Trustee's agent appointed for such purposes
located in The City of New York.
E-4
<PAGE> 93
As provided in the Indenture, the Notes may be redeemed pursuant to
the Indenture, in whole, but not in part, at the option of the Seller, on any
Distribution Date as of which (i) the Aggregate Scheduled Balance is less than
or equal to 10% of the Cut-Off Date Aggregate Scheduled Balance and (ii) the
aggregate outstanding principal amount of the Securities is less than 5% of the
aggregate outstanding principal amount of the Securities as of the Closing
Date.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or
agency designated by the Issuer pursuant to the Indenture. No service charge
will be charged for any registration of transfer or exchange of this Note, but
the transferor may be required to pay a sum sufficient to cover any Tax or
other governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director or employee of the
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Trustee or of any
successor or assign of the Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture and such Note that such Noteholder or
Note Owner will not at any time institute against the Seller or the Issuer, or
join in any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation Proceeding under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture, and this Note is issued
with the intention that, for federal, state and local income, single business
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer secured by the Indenture Trust Estate. Each Noteholder, by acceptance
of a Note (and each Note Owner by acceptance of a beneficial interest in a
Note), agrees to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Note (as of the day of determination or as
of such other date as may be specified in the Indenture) is
E-5
<PAGE> 94
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of Noteholders representing a majority of the
Outstanding Amount. The Indenture also contains provisions permitting
Noteholders representing specified percentages of the Outstanding Amount, on
behalf of all Noteholders, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder hereof (or
any one of more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future holders hereof and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The
Indenture also permits the Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Noteholders issued
thereunder.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
The Notes may not be purchased with the assets of an employee benefit
plan (a "Benefit Plan") if the Seller, the Servicer, the Trustee, the Owner
Trustee or any of their Affiliates (i) has investment or administrative
discretion with respect to such Benefit Plan assets; (ii) has authority or
responsibility to give, or regularly gives, investment advice with respect to
such Benefit Plan assets, for a fee and pursuant to an agreement or
understanding that such advice (a) will serve as a primary basis for investment
decisions with respect to such Benefit Plan assets and (b) will be based on the
particular investment needs for such Benefit Plan; or (iii) is an employer
maintaining or contributing to such Benefit Plan.
This Note and the Indenture shall be construed in accordance with the
laws of the State of California, and the obligations, rights and remedies of
the parties hereunder and thereunder shall be determined in accordance with
such laws, except that the duties of the Trustee under the Indenture shall be
governed by the laws of the State of New York.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the times, place and rate, and in the coin or currency herein prescribed.
E-6
<PAGE> 95
EXHIBIT G
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
- --------------------------------------------------------------------------------
the within Note, and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
to transfer said Note on the books kept for registration thereof, with full
power of substitution in the premises.
Dated:
-----------------------
Signature Guaranteed By:
<TABLE>
<S> <C>
- --------------------------------------------------- ---------------------------------------------------
Signature must be guaranteed by an eligible Notice: The signature(s) on this assignment must
guarantor institution that is a participant in the correspond with the name(s) as it appears on the
Securities Transfer Agent's Medallion Program face of the within Note in every particular,
(STAMP) or similar signature guarantee program. without alteration, enlargement, or any change
whatsoever.
</TABLE>
- ---------------------------------------------------
(Authorized Officer)
G-1
<PAGE> 1
EXHIBIT 4.3
================================================================================
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Seller
FLEETWOOD CREDIT CORP.,
as Servicer
and
______________________,
as Trustee
on behalf of the Certificateholders
------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of _________ 1, 199__
------------------------------------------------------
$____________
Fleetwood Credit RV Receivables 199__-__ Grantor Trust
Asset Backed Certificates
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE ONE
CREATION OF TRUST
Section 1.01. Creation of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Initial Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.02. Conveyance of Subsequent Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE THREE
THE SERVICER LETTER OF CREDIT
Section 3.01. Servicer Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE FOUR
ACCEPTANCE BY TRUSTEE; NO ACTION EXCEPT UNDER
SPECIFIED DOCUMENTS
Section 4.01. Acceptance by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.02. No Action Except under Specified Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE FIVE
INCORPORATION OF STANDARD
TERMS AND CONDITIONS OF AGREEMENT
Section 5.01. Incorporation of Standard Terms and Conditions of Agreement . . . . . . . . . . . . . . . . . . . . . 5
</TABLE>
(i)
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE SIX
SPECIAL DEFINITIONS AND TERMS
Section 6.01. Special Definitions and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE SEVEN
ADDITIONAL REPRESENTATIONS AND WARRANTIES
OF SELLER
Section 7.01. Additional Representations and Warranties of Seller . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE EIGHT
FLEETWOOD CREDIT NOT TO RESIGN AS SERVICER
Section 8.01. Fleetwood Credit Not to Resign as Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE NINE
AGENT FOR SERVICE
Section 9.01. Agent for Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE TEN
[Reserved]
SCHEDULES
Schedule A - Schedule of Initial Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA-1
Schedule B - Locations of Receivable Files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SB-1
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
EXHIBITS
Exhibit A - Form of Class A Certificate . . . . . . . . . . . . . . A-1
Exhibit B - Form of Class B Certificate . . . . . . . . . . . . . . B-1
Exhibit C - Form of Servicer's Certificate . . . . . . . . . . . . C-1
Exhibit D - Auction Procedures . . . . . . . . . . . . . . . . . . D-1
Exhibit E - Form of Addition Notice . . . . . . . . . . . . . . . . E-1
</TABLE>
(iii)
<PAGE> 5
This Pooling and Servicing Agreement, dated as of _________ 1, 199__,
is made with respect to the formation of the Fleetwood Credit RV Receivables
199__-__ Grantor Trust, among Fleetwood Credit Receivables Corp., a California
corporation (the "Seller"), Fleetwood Credit Corp., a California corporation
(the "Servicer"), and __________, as trustee (the "Trustee").
W I T N E S S E T H:
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE ONE
CREATION OF TRUST
Section 1.01. Creation of Trust. Upon the execution of this
Agreement by the parties hereto, there is hereby created the Fleetwood Credit
RV Receivables 199__-__ Grantor Trust.
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Initial Receivables. In consideration of
the Trustee's delivery to, or upon the order of, the Seller of executed and
authenticated Certificates, in authorized denominations and in an aggregate
amount equal to the sum of the Original Class A Certificate Balance and the
Original Class B Certificate Balance, the Seller does hereby sell, transfer,
assign and otherwise convey to the Trustee, in trust for the benefit of the
Certificateholders, without recourse (subject to the Seller's obligations
herein):
(i) all right, title and interest of the Seller in and to
the Initial Receivables listed in Schedule A hereto and all monies due
thereon and paid thereon or in respect thereof (including proceeds of
the repurchase of Initial Receivables by the Seller pursuant to
Section 12.02 or 21.02 of the Standard Terms and Conditions or the
repurchase of Initial Receivables by the Servicer, or any successor to
the Servicer, pursuant to Section 13.07 or 21.02 of the Standard Terms
and Conditions) on or after the Initial Cutoff Date, exclusive of
Accrued Interest as of the opening of business on the Initial Cutoff
Date;
(ii) the interest of the Seller in the security interests
in the related Financed Vehicles granted by the related Obligors
pursuant to the Initial Receivables;
<PAGE> 6
(iii) the interest of the Seller in any Liquidation
Proceeds, in any proceeds of any physical damage insurance policies
covering the Financed Vehicles and in any proceeds of any credit life
or credit disability insurance policies relating to the Initial
Receivables or the related Obligors;
(iv) the interest of the Seller in any proceeds from
Dealer repurchase obligations relating to the Initial Receivables;
(v) the interest of the Seller under the Receivables
Purchase Agreement;
(vi) all other assets comprising the estate of the Trust;
and
(vii) all proceeds of the foregoing.
Section 2.02. Conveyance of Subsequent Receivables.
(a) Subject to the conditions set forth in Section 2.02(b), in
consideration of the Trustee's delivery on behalf of the Trust, to or upon the
order of the Seller, of the purchase price for the Subsequent Receivables, in
each case as described below and set forth in the related Transfer Agreement,
the Seller shall on each Subsequent Transfer Date sell, transfer, assign and
otherwise convey to the Trustee for the benefit of the Certificateholders,
without recourse (subject to the Seller's obligations herein):
(i) all right, title and interest of the Seller in and to
the Subsequent Receivables listed on Schedule A to the related
Transfer Agreement, and all monies due thereon and paid thereon or in
respect thereof (including proceeds of the repurchase of such
Subsequent Receivables by the Seller pursuant to Section 12.02 or
21.02 of the Standard Terms and Conditions or the purchase of such
Subsequent Receivables by the Servicer pursuant to Section 13.07 or
21.02 of the Standard Terms and Conditions) on or after the related
Subsequent Cutoff Date;
(ii) the interest of the Seller in the security interests
in the related Financed Vehicles granted by the related Obligors
pursuant to such Subsequent Receivables;
(iii) the interest of the Seller in any Liquidation
Proceeds, in any proceeds of any physical damage insurance policies
covering the related Financed Vehicles and in any proceeds of any
credit life or credit disability insurance policies relating to such
Subsequent Receivables or the related Obligors;
(iv) the interest of the Seller in any proceeds from
Dealer repurchase obligations relating to such Subsequent Receivables;
and
2
<PAGE> 7
(v) all proceeds of the foregoing.
The purchase price to be paid by the Trust on each Subsequent Transfer
Date for the Subsequent Receivables so sold shall be set forth in the related
Transfer Agreement and shall be paid from monies released from the Pre-Funding
Account pursuant to Section 14.09(b) of the Standard Terms and Conditions.
Such purchase price shall equal the aggregate Principal Balance of such
Subsequent Receivables as of the related Subsequent Cutoff Date.
(b) The Seller shall transfer to the Trustee the Subsequent
Receivables and the other property and rights related thereto described in
Section 2.02(a) only upon the satisfaction of each of the following conditions
on or prior to the related Subsequent Transfer Date:
(i) the Seller shall have timely provided the Trustee and
each Rating Agency with a written Addition Notice, in substantially the
form of Exhibit E hereto, and shall have provided any information
reasonably requested by any of the foregoing with respect to the
Subsequent Receivables;
(ii) the Seller shall have delivered to the Trustee an
executed Transfer Agreement in substantially the form of Exhibit B to
the Standard Terms and Conditions, which shall include a list of the
Subsequent Receivables so transferred;
(iii) the Seller shall have caused the Servicer to deposit
in the Certificate Account all collections on or in respect of the
Subsequent Receivables received on or after the related Subsequent
Cutoff Date but prior to the related Subsequent Transfer Date;
provided, however, that for so long as (A) Fleetwood Credit shall be
the Servicer and (B) the Servicer shall be entitled pursuant to
Section 14.02 of the Standard Terms and Conditions to remit
collections on a monthly rather than daily basis, the Seller shall
cause the Servicer to deposit such collections in the Certificate
Account on the Business Day immediately preceding the Distribution
Date immediately succeeding the related Subsequent Transfer Date;
(iv) as of each Subsequent Transfer Date, neither the
Servicer nor the Seller was insolvent nor will either of them have
been made insolvent by such transfer nor is any of them aware of any
pending insolvency;
(v) such addition will not result in a material adverse
federal or California tax consequence to the Trust or the
Certificateholders;
(vi) the Funding Period shall not have terminated;
3
<PAGE> 8
(vii) the Seller shall have delivered to the Trustee and
each Rating Agency an Officer's Certificate confirming the
satisfaction of each condition precedent specified in this paragraph
(b) and in Section 5 of the related Transfer Agreement;
(viii) the Seller shall have delivered to each Rating Agency
and the Trustee an Opinion of Counsel with respect to the transfer of
the Subsequent Receivables;
(ix) the Seller shall have taken all actions required to
maintain the first perfected ownership interest of the Trust in the
assets of the Trust (including the Subsequent Receivables);
(x) no selection procedures believed by the Seller or the
Servicer to be adverse to the interests of the Certificateholders
shall have been utilized in selecting the Subsequent Receivables;
(xi) the Seller and the Trustee shall have been advised in
writing by each Rating Agency on or before the Business Day
immediately preceding the related Subsequent Transfer Date that the
conveyance of the Subsequent Receivables will not result in a
qualification, modification or withdrawal of its then-current rating
of each Class of Rated Certificates; and
(xii) the Seller shall have provided the Trustee with a
supplement to the Schedule of Receivables setting forth the Subsequent
Receivables to be transferred on such Subsequent Transfer Date.
The Trustee shall not be required to investigate or otherwise verify
compliance with the conditions specified above (except in respect of its own
receipt of documents specified above) and shall be entitled to rely upon the
Officer's Certificates and Opinions of Counsel to be delivered pursuant to
paragraphs (vii) and (viii) above for such purposes.
ARTICLE THREE
THE SERVICER LETTER OF CREDIT
Section 3.01. Servicer Letter of Credit. Upon the obtaining of any
Servicer Letter of Credit pursuant to Section 14.02 of the Standard Terms and
Conditions, the Trustee will hold the Servicer Letter of Credit and deliver
demands for payment pursuant thereto in accordance with its terms and the terms
of this Agreement. As of the Closing Date, there will be no Servicer Letter of
Credit and the Servicer will be permitted to remit collections on or in respect
of the Receivables on a monthly basis as described in Section 14.02 of the
Standard Terms and Conditions.
4
<PAGE> 9
ARTICLE FOUR
ACCEPTANCE BY TRUSTEE; NO ACTION EXCEPT UNDER
SPECIFIED DOCUMENTS
Section 4.01. Acceptance by Trustee. The Trustee does hereby accept
all consideration conveyed by the Seller pursuant to Section 2.01 and declares
that the Trustee shall hold such consideration upon the trusts herein set forth
for the benefit of Holders of the Certificates, subject to the terms and
provisions of this Agreement.
Section 4.02. No Action Except under Specified Documents. The
Trustee shall not manage, control, use, sell, dispose of or otherwise deal with
any part of the Trust except in accordance with the powers granted to, and the
authority conferred upon, the Trustee pursuant to this Agreement and the
actions of the Trustee contemplated by the Receivables Purchase Agreement.
ARTICLE FIVE
INCORPORATION OF STANDARD
TERMS AND CONDITIONS OF AGREEMENT
Section 5.01. Incorporation of Standard Terms and Conditions of
Agreement. This Pooling and Servicing Agreement does hereby incorporate by
reference the Standard Terms and Conditions of Agreement (Pre-Funded
Senior/Subordinated) for Fleetwood Credit RV Receivables Grantor Trusts
Effective ___________ 1, 199__ (the "Standard Terms and Conditions"), in the
form attached hereto.
ARTICLE SIX
SPECIAL DEFINITIONS AND TERMS
Section 6.01. Special Definitions and Terms. Whenever used in the
Standard Terms and Conditions and in this Agreement, the following words and
phrases shall have the following meanings:
"Auction Procedures" means the Auction Procedures set forth in Exhibit
D hereto.
"Certificate Registrar" means the Trustee unless a successor
Certificate Registrar is appointed pursuant to Section 16.03 of the Standard
Terms and Conditions.
5
<PAGE> 10
"Class A Pass-Through Rate" means _____% per annum.
"Class A Percentage" means _____%.
"Class B Pass-Through Rate" means ______% per annum. The Class B
Pass-Through Rate includes the sum of (i) the Class A Pass-Through Rate
multiplied by the Class B Certificate Balance and (ii) _______ basis points on
the Pool Balance. In no event will the Class B Pass-Through Rate exceed
______% per annum.
"Class B Percentage" means ____%.
"Closing Date" means _________, 199__.
"Corporate Trust Office" means, as of the date hereof, the office of
the Trustee located at __________________.
The first "Distribution Date" shall be __________, 199__.
"Final Funding Period Distribution Date" means the Distribution Date
on which the Certificates are to be partially prepaid pursuant to Section
14.09(c) of the Standard Terms and Conditions, which Distribution Date shall be
(i) the Distribution Date immediately succeeding the date on which the Funding
Period ends, or (ii) the Distribution Date on which the Funding Period ends if
the Funding Period ends on a Distribution Date.
The "Final Scheduled Distribution Date" is the ______ Distribution
Date.
"Fleetwood Credit" means Fleetwood Credit Corp.
"Funding Period" means the period from the Closing Date until the
earliest to occur of (i) the date on which the remaining Pre-Funded Amount is
less than $_________, (ii) the date on which an Event of Default occurs or
(iii) the close of business on _________, 199__.
"Initial Cutoff Date" means ___________, 199__.
"Military Reservist Relief Act" means The Military Reservist Relief
Act of 1991.
"Negative Carry Amount Deposit" means an amount equal to (i) two
month's interest on the Pre-Funded Amount on deposit in the Pre-Funding Account
as of the Closing Date at a rate equal to the weighted average of the Class A
Pass-Through Rate and the Class B Pass-Through Rate (weighted by Original Class
Certificate Balance) less (ii) ____% of the Pre-Funded Amount on deposit in the
Pre-Funding Account as of the Closing Date.
6
<PAGE> 11
"Original Class A Certificate Balance" means $___________.
"Original Class B Certificate Balance" means $___________.
"Original Pool Balance" means $____________.
"Original Pre-Funded Amount" means $____________.
"Prepayment Amount" means, as of the Final Funding Period Distribution
Date, the Pre-Funded Amount.
"Rating Agency" means each of Moody's and Standard & Poor's.
"Relief Acts" means the Military Reservist Relief Act and the
Soldier's and Sailor's Relief Act.
"Required Deposit Rating" means a rating on short-term deposits of
Prime-1 by Moody's and A-1+ by Standard & Poor's; and any requirement that
deposits have the "Required Deposit Rating" shall mean that such deposits shall
be rated at least equal to the foregoing ratings from Moody's and Standard &
Poor's.
"Required Long Term Debt Rating" means a rating on the long-term
unsecured debt obligations of the related depository institution or trust
company of at least Baa3 by Moody's and, with respect to the Certificates to be
issued pursuant to this Agreement, the requirement that any such long-term
unsecured debt obligations have the "Required Long Term Debt Rating" shall mean
that such obligations have at least the foregoing rating from Moody's.
"Required Rating" means a rating of Prime-1 by Moody's and A-1+ by
Standard & Poor's.
"Required Servicer Rating" means a rating on short-term obligations of
the Servicer of Prime-1 by Moody's and A-1 by Standard & Poor's; and any
requirement that the Servicer have the "Required Servicer Rating" shall mean
that the short-term unsecured debt obligations shall be rated at least equal to
the foregoing ratings from Moody's and Standard & Poor's.
"Reserve Fund Initial Deposit" means $___________ (i.e., $_________
plus the Negative Carry Amount Deposit).
"Servicing Fee Rate" means _____% per annum.
"Soldier's and Sailor's Relief Act" means the Soldiers' and Sailors'
Civil Relief Act of 1940, as amended.
7
<PAGE> 12
"Specified Reserve Fund Balance" means, with respect to the first
Distribution Date, an amount equal to $___________ (i.e., $__________ plus an
amount equal to the Negative Carry Amount Deposit). On each Distribution Date
thereafter, the Specified Reserve Fund Balance will equal _____% of the sum of
the Class A Certificate Balance and the Class B Certificate Balance (after
giving effect to distributions of principal to be made on such Distribution
Date); provided, however, that so long as the foregoing sum of the Class A
Certificate Balance and the Class B Certificate Balance exceeds $_________, the
Specified Reserve Fund Balance will not be less than $_________. From and
after the Distribution Date as of which the foregoing sum of the Class A
Certificate Balance and the Class B Certificate Balance is less than
$___________, the Specified Reserve Fund Balance will equal such sum.
Notwithstanding the foregoing, on each Distribution Date following any Fiscal
Quarter in which the Realized Loss Percentage or the Delinquency Percentage
exceeds ____%, the Specified Reserve Fund Balance will be equal to the greater
of (a) the amount described above or (b) an amount equal to the Pool Balance as
of the immediately preceding Record Date multiplied by a percentage equal to
___% minus the following fraction, expressed as a percentage: (i) one minus
(ii) a fraction, the numerator of which is the Class A Certificate Balance on
such Distribution Date (after giving effect to distributions of principal made
on such Distribution Date) and the denominator of which is such the sum of the
Pool Balance and an amount equal to the amount on deposit in the Pre-Funding
Account (other than investment earnings), in each case as of the last day of
the three related Collection Periods in such Fiscal Quarter; provided, further,
that following any Fiscal Quarter thereafter in which the Realized Loss
Percentage and the Delinquency Percentage are less than ____%, the Specified
Reserve Fund Balance shall return to the amount described in the first two
sentences of this definition. If on any Distribution Date cumulative losses in
respect of the Receivables exceed ____% of the sum of the Original Pool Balance
plus an amount equal to the aggregate principal balance of all Subsequent
Receivables conveyed to the Trust as of the related Subsequent Cutoff Dates,
the Specified Reserve Fund Balance shall remain at the level in effect as of
such date and shall not be reduced further in accordance with the first two
sentences of this definition.
8
<PAGE> 13
ARTICLE SEVEN
ADDITIONAL REPRESENTATIONS AND WARRANTIES
OF SELLER
Section 7.01. Additional Representations and Warranties of Seller.
The Seller does hereby make the following representations and warranties on
which the Trustee shall rely in accepting the Receivables in trust and
authenticating the Certificates. Such representations and warranties shall
speak as of the execution and delivery of this Agreement in the case of the
Initial Receivables, and as of the related Subsequent Transfer Date in the case
of the Subsequent Receivables, and in each case shall survive the sale,
transfer and assignment of the related Receivables to the Trustee:
(i) Maturity of Receivables. Each Receivable conveyed
hereby shall have an original maturity of not less than ___ months nor
greater than ____ months and as of the Initial Cutoff Date or the
related Subsequent Cutoff Date, as the case may be, a scheduled
remaining term of not less than ___ months nor greater than ____
months and the weighted average remaining term of the Receivables
(including the Subsequent Receivables) shall be ____ months.
(ii) APR. Each Receivable shall have an APR equal to or
greater than _____%, the weighted average APR of the Initial
Receivables shall not be less than _____% and the weighted average APR
of the Receivables (including the Subsequent Receivables) shall not be
less than _____%.
(iii) No Overdue Payments. Each Receivable shall have no
payment that is more than 30 days past due as of the Initial Cutoff
Date or the related Subsequent Cutoff Date, as the case may be.
(iv) Location of Receivable Files. Each Receivable File
shall be kept at one of the locations listed in Schedule B hereto.
(v) Obligors. In the case of any Obligor in the military
service (including an Obligor who is a member of the National Guard or
is in the reserves) whose Receivable is subject to either Relief Act,
as of the Initial Cutoff Date or Subsequent Cutoff Date, as the case
may be, no such Obligor has made a claim to the Seller or the Servicer
that (A) the amount of interest on the related Receivable should be
limited to ___% during the period of such Obligor's active duty status
pursuant to the Soldiers' and Sailors' Relief Act or (B) payments on
such Receivable should be delayed pursuant to the Military Reservist
Relief Act, in either case unless a court has ruled otherwise upon
application of the Seller or the Servicer.
9
<PAGE> 14
(vi) Motor Home Financed Vehicles. Based on the Principal
Balances of the Initial Receivables as of the Initial Cutoff Date,
____% of the Initial Receivables shall be secured by motor homes.
ARTICLE EIGHT
FLEETWOOD CREDIT NOT TO RESIGN AS SERVICER
Section 8.01. Fleetwood Credit Not to Resign as Servicer. Subject to
the provisions of Section 18.05 of the Standard Terms and Conditions, Fleetwood
Credit shall not resign from the obligations and duties hereby imposed on it as
Servicer under this Agreement except upon determination that the performance of
its duties under this Agreement shall no longer be permissible under applicable
law. Notice of any such determination permitting the resignation of Fleetwood
Credit shall be communicated to the Trustee and the Letter of Credit Bank at
the earliest practicable time (and, if such communication is not in writing,
shall be confirmed in writing at the earliest practicable time) and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to the Trustee concurrently with or promptly after such notice. No
such resignation shall become effective until the Trustee or a successor
Servicer shall have assumed the responsibilities and obligations of Fleetwood
Credit in accordance with Sections 18.05 and 19.02 of the Standard Terms and
Conditions.
ARTICLE NINE
AGENT FOR SERVICE
Section 9.01. Agent for Service. The agent for service for (i) the
Seller shall be its Senior Vice President, 22840 Savi Ranch Parkway, Yorba
Linda, California 92687, and (ii) the Servicer shall be its Senior Vice
President, 22840 Savi Ranch Parkway, Yorba Linda, California 92687.
ARTICLE TEN
[Reserved]
10
<PAGE> 15
IN WITNESS WHEREOF, the parties have caused this Pooling and Servicing
Agreement to be duly executed by their respective officers as of the day and
year first above written.
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Seller
By:
-------------------------------------
Name:
Title:
FLEETWOOD CREDIT CORP.,
as Servicer
By:
-------------------------------------
Name:
Title:
,
------------------------------
as Trustee
By:
-------------------------------------
Name:
Title:
<PAGE> 16
SCHEDULE A
SCHEDULE OF RECEIVABLES
Omitted - Originals on file at the offices of the Seller, the Servicer and the
Trustee.
SA-1
<PAGE> 17
SCHEDULE B
LOCATIONS OF RECEIVABLE FILES
Fleetwood Credit Corp.
22840 Savi Ranch Parkway
Yorba Linda, California 92687
Fleetwood Credit Corp.
324 East 11th Street
Tracy, California 95376
Fleetwood Credit Corp.
3200 Highlands Parkway
Suite 104
Smyrna, Georgia 30082
Fleetwood Credit Corp.
501 East Monroe
Suite 350
South Bend, Indiana 46601
Fleetwood Credit Corp.
110 Turnpike Road
Suite 203
Westborough, Massachusetts 01581
Fleetwood Credit Corp.
100 Century Parkway
Suite 150
Mt. Laurel, New Jersey 08054
Fleetwood Credit Corp.
4000 Kruse Way Place
Building 2, Suite 250
Lake Oswego, Oregon 97035
Fleetwood Credit Corp.
14901 Quorum Drive
Suite 750
Addison, Texas 75240
SB-1
<PAGE> 18
Fleetwood Credit Corp.
10895 Lowell Street
Suite 280
Overland Park, Kansas 66225
SB-2
<PAGE> 19
EXHIBIT A
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
FLEETWOOD CREDIT RV RECEIVABLES 199__-__ GRANTOR TRUST
_____% ASSET BACKED CERTIFICATE, CLASS A
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes, among other things, a pool of
simple interest retail installment sale contracts secured by the new
and used recreational vehicles financed thereby and sold to the
Trustee by Fleetwood Credit Receivables Corp. and monies on deposit in
the Pre-Funding Account. The Final Scheduled Distribution Date is
________, ____.
(This Certificate does not represent an interest in or obligation of
Fleetwood Credit Receivables Corp., Fleetwood Credit Corp., Associates
First Capital Corporation or any of their respective affiliates.)
CUSIP __________
NUMBER RA-1 $________________
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
_____________ DOLLAR ($___________) nonassessable, fully-paid, fractional
undivided interest in the Fleetwood Credit RV Receivables 199__-__ Grantor
Trust (the "Trust") formed by Fleetwood Credit Receivables Corp., a California
corporation (the "Seller"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of _________ 1, 199__ (the "Agreement") among the
Seller, Fleetwood Credit Corp., as Servicer, and ____________, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in the Agreement. This
Certificate is one of the duly authorized certificates designated as "Fleetwood
Credit RV Receivables 199__-__ Grantor Trust _____% Asset Backed Certificates,
A-1
<PAGE> 20
Class A" (the "Class A Certificates") issued under the Agreement. Also issued
under the Agreement are certificates designated as "Fleetwood Credit RV
Receivables 199__-__ Grantor Trust _____% Asset Backed Certificates, Class B"
(the "Class B Certificates"). The Class B Certificates are subordinated to the
Class A Certificates to the extent described in the Agreement. The Class A
Certificates and the Class B Certificates are herein collectively called the
"Certificates". The aggregate undivided interest in the Trust evidenced by all
Class A Certificates is _____%. This Class A Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class A Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. The property of the Trust
includes, or will include, among other things, a pool of simple interest retail
installment sale contracts (the "Initial Receivables") secured by the new and
used recreational vehicles financed thereby (the "Initial Financed Vehicles"),
certain payments due under the Initial Receivables on and after _________,
199__ (exclusive of Accrued Interest as of the opening of business on such
date), security interests in the related Initial Financed Vehicles, certain
bank accounts and the proceeds thereof, a Servicer Letter of Credit, if any,
property (including the right to receive certain Liquidation Proceeds) securing
the Initial Receivables and held by the Trustee, proceeds from claims on
physical damage, credit life and disability insurance policies covering the
Initial Financed Vehicles, the Initial Receivables or the related Obligors, an
assignment of the Seller's rights under the Receivables Purchase Agreement and
the right of the Seller to receive the proceeds of Dealer repurchase
obligations relating to the Initial Receivables. From time to time during the
Funding Period, certain monies on deposit in the Pre-Funding Account will be
applied towards the purchase from the Seller of certain additional qualifying
simple interest retail installment sale contracts (the "Subsequent
Receivables") secured by new and used recreational vehicles (the "Subsequent
Financed Vehicles" and, together with the Initial Financed Vehicles, the
"Financed Vehicles") financed thereby. The Subsequent Receivables, together
with, among other things, certain payments due thereunder on and after the
related Subsequent Cutoff Dates (exclusive of Accrued Interest as of the
opening of business on such dates), security interests in the related
Subsequent Financed Vehicles, property (including the right to receive certain
Liquidation Proceeds) securing the Subsequent Receivables and held by the
Trustee, proceeds from claims on physical damage, credit life and disability
insurance policies covering the Subsequent Receivables, the related Financed
Vehicles or the related Obligors and the right of the Seller to receive the
proceeds from Dealer repurchase obligations relating to the Subsequent
Receivables, will be included as property of the Trust. If certain amounts
remain on deposit in the Pre-Funding Account at the end of the Funding Period,
such amounts will be distributable as a mandatory prepayment of principal to
Certificateholders as described in the Agreement.
Under the Agreement, there will be distributed on the fifteenth day of
each month or, if such day is not a Business Day, the next succeeding Business
Day (each, a "Distribution Date"), commencing on __________, 199__, to the
Person in whose name this Class A Certificate is registered at the close of
business on the day immediately
A-2
<PAGE> 21
preceding such Distribution Date or, if Definitive Certificates are issued, at
the close of business on the last day of the immediately preceding calendar
month (each, a "Record Date"), such Class A Certificateholder's percentage
interest in the Class A Distributable Amount for such Distribution Date
actually distributed, together with the repayment of any outstanding Class A
Interest Carryover Shortfall and Class A Principal Carryover Shortfall actually
made on such Distribution Date, in each case to the extent and as more
specifically set forth in the Agreement.
Distributions on this Class A Certificate will be made by the Trustee
by check or money order mailed to the related Class A Certificateholder of
record in the Certificate Register without the presentation or surrender of
this Class A Certificate or the making of any notation hereon, except that with
respect to Class A Certificates registered in the name of Cede & Co., the
nominee for The Depository Trust Company, distributions will be made in the
form of immediately available funds. Except as otherwise provided in the
Agreement and notwithstanding the foregoing, the final distribution on this
Class A Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Class A Certificate at the office or agency maintained for that purpose by the
Trustee.
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer or any of their respective affiliates. The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Receivables and monies on deposit in the Reserve
Fund, all as more specifically set forth in the Agreement. A copy of the
Agreement may be examined during normal business hours at the Corporate Trust
Office of the Trustee, and at such other places, if any, designated by the
Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Seller, the Servicer and the Trustee with the consent of the
Holders of Certificates evidencing not less than 51% of the Voting Interests of
all Certificates, voting together as a single class. Any such consent by the
Holder of this Class A Certificate shall be conclusive and binding on such
Holder and on all future Holders of this Class A Certificate and of any Class A
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Class A
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Class A Certificate is registrable in
the Certificate Register upon surrender of this Class A Certificate for
registration of transfer at the offices or agencies maintained by the Trustee
in its capacity as Certificate Registrar, or by any successor Certificate
Registrar, in the Borough of Manhattan, The City of New York, accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Class A
A-3
<PAGE> 22
Certificates of authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee.
The Class A Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A Certificates are exchangeable for new Class A Certificates of
authorized denominations evidencing the same aggregate denomination, as
requested by the Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the Trustee may require
payment of a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
Prior to due presentation of this Class A Certificate for registration
of transfer, the Trustee, the Certificate Registrar and any of their respective
agents may treat the Person in whose name this Class A Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to the Agreement or the
maturity or liquidation of the last Receivable and the disposition of all
property held as part of the Trust. The Seller or the Servicer, or any
successor to the Servicer, may, at its option, purchase the corpus of the Trust
at a price specified in the Agreement, and such purchase of the Receivables and
other property of the Trust will effect early retirement of the Certificates;
however, such right of purchase is exercisable only following the last day of a
Collection Period as of which the Pool Balance is 10% or less of the sum of the
Original Pool Balance and the aggregate principal balance of all Subsequent
Receivables conveyed to the Trust as of the related Subsequent Cutoff Dates.
If no such entity exercises its optional termination right within 90 days after
the last day of the Collection Period as of which such right can first be
exercised, the Trustee shall solicit bids for the purchase of all Receivables
and other property remaining in the Trust and such sale of the Receivables and
other property of the Trust will effect early retirement of the Certificates.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Class A Certificate shall not entitle the Holder hereof to any benefit under
the Agreement or be valid for any purpose.
A-4
<PAGE> 23
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Class A Certificate to be duly executed.
Dated: __________, 199__ FLEETWOOD CREDIT RV RECEIVABLES
199__-__ GRANTOR TRUST
, as Trustee
--------------
By:
-------------------------------------
Authorized Officer
[SEAL]
ATTEST:
- ----------------------------------
This is one of the Class A Certificates referred to in the within-mentioned
Agreement.
, as Trustee
----------------
By:
-------------------------------------
Authorized Officer
A-5
<PAGE> 24
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
*
----------------------------------------
Signature Guaranteed:
*
----------------------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an institution which is a participant in the Securities Transfer
Agent Medallion Program (STAMP) or similar program.
A-6
<PAGE> 25
EXHIBIT B
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
FLEETWOOD CREDIT RV RECEIVABLES 199__-__ GRANTOR TRUST
_____% ASSET BACKED CERTIFICATE, CLASS B
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes, among other things, a pool of
simple interest retail installment sale contracts secured by the new
and used recreational vehicles financed thereby and sold to the
Trustee by Fleetwood Credit Receivables Corp. and monies on deposit in
the Pre-Funding Account. The Final Scheduled Distribution Date is
_________, ____.
(This Certificate does not represent an interest in or obligation of
Fleetwood Credit Receivables Corp., Fleetwood Credit Corp., Associates
First Capital Corporation or any of their respective affiliates.)
NUMBER RB-1 CUSIP ___________
$___________
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
______________ DOLLAR ($___________) nonassessable, fully-paid, fractional
undivided interest in the Fleetwood Credit RV Receivables 199__-__ Grantor
Trust (the "Trust") formed by Fleetwood Credit Receivables Corp., a California
corporation (the "Seller"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of _________ 1, 199__ (the "Agreement") among the
Seller, Fleetwood Credit Corp., as Servicer, and ______________, as trustee
(the "Trustee"),
B-1
<PAGE> 26
a summary of certain of the pertinent provisions of which is set forth below.
To the extent not otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in the Agreement. This Certificate is one
of the duly authorized certificates designated as "Fleetwood Credit RV
Receivables 199__-__ Grantor Trust _____% Asset Backed Certificates, Class B"
(the "Class B Certificates") issued under the Agreement. Also issued under the
Agreement are certificates designated as "Fleetwood Credit RV Receivables
199__-__ Grantor Trust _____% Asset Backed Certificates, Class A" (the "Class A
Certificates"). The Class B Certificates are subordinated to the Class A
Certificates to the extent described in the Agreement. The Class A
Certificates and the Class B Certificates are herein collectively called the
"Certificates". The aggregate undivided interest in the Trust evidenced by all
Class B Certificates is ____%. This Class B Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class B Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. The property of the Trust
includes, or will include, among other things, a pool of simple interest
recreational vehicle retail installment sale contracts (the "Initial
Receivables") secured by the new and used recreational vehicles financed
thereby (the "Initial Financed Vehicles"), certain payments due under the
Initial Receivables on and after _________, 199__ (exclusive of Accrued
Interest as of the opening of business on such date), security interests in the
related Initial Financed Vehicles, certain bank accounts and the proceeds
thereof, a Servicer Letter of Credit, if any, property (including the right to
receive certain Liquidation Proceeds) securing the Initial Receivables and held
by the Trustee, proceeds from claims on physical damage, credit life and
disability insurance policies covering the Initial Financed Vehicles, the
Initial Receivables or the related Obligors, an assignment of the Seller's
rights under the Receivables Purchase Agreement and the right of the Seller to
receive the proceeds of Dealer repurchase obligations relating to the Initial
Receivables and monies on deposit in the Pre-Funding Account. From time to
time during the Funding Period, certain monies on deposit in the Pre-Funding
Account will be applied towards the purchase from the Seller of certain
additional qualifying simple interest retail installment sale contracts (the
"Subsequent Receivables") secured by new and used recreational vehicles (the
"Subsequent Financed Vehicles" and, together with the Initial Financed
Vehicles, the "Financed Vehicles") financed thereby. The Subsequent
Receivables, together with, among other things, certain payments due thereunder
on and after the related Subsequent Cutoff Dates (exclusive of Accrued Interest
as of the opening of business on such dates), security interests in the related
Subsequent Financed Vehicles, property (including the right to receive certain
Liquidation Proceeds) securing the Subsequent Receivables and held by the
Trustee, proceeds from claims on physical damage, credit life and disability
insurance policies covering the Subsequent Receivables, the related Financed
Vehicles or the related Obligors and the right of the Seller to receive the
proceeds from Dealer repurchase obligations relating to the Subsequent
Receivables, will be included as property of the Trust. If certain amounts
remain on deposit in the Pre-Funding Account at the end of the Funding Period,
such amounts will be distributable as a mandatory prepayment of principal to
Certificateholders as described in the Agreement.
B-2
<PAGE> 27
Under the Agreement, there will be distributed on the fifteenth day of
each month or, if such day is not a Business Day, the next succeeding Business
Day (each, a "Distribution Date"), commencing on _________, 199__, to the
Person in whose name this Class A Certificate is registered at the close of
business on the day immediately preceding such Distribution Date or, if
Definitive Certificates are issued, at the close of business on the last day of
the immediately preceding calendar month (each, a "Record Date"), such Class B
Certificateholder's percentage interest in the Class B Distributable Amount for
such Distribution Date actually distributed, together with the repayment of any
outstanding Class B Interest Carryover Shortfall and Class B Principal
Carryover Shortfall actually made on such Distribution Date, in each case to
the extent and as more specifically set forth in the Agreement.
Distributions on this Class B Certificate will be made by the Trustee
by check or money order mailed to the related Class B Certificateholder of
record in the Certificate Register without the presentation or surrender of
this Class B Certificate or the making of any notation hereon, except that with
respect to Class B Certificates registered in the name of Cede & Co., the
nominee for The Depository Trust Company, distributions will be made in the
form of immediately available funds. Except as otherwise provided in the
Agreement and notwithstanding the foregoing, the final distribution on this
Class B Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Class B Certificate at the office or agency maintained for that purpose by the
Trustee.
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer or any of their respective affiliates. The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Receivables and monies on deposit in the Reserve
Fund, all as more specifically set forth in the Agreement. A copy of the
Agreement may be examined during normal business hours at the Corporate Trust
Office of the Trustee, and at such other places, if any, designated by the
Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Seller, the Servicer and the Trustee with the consent of the
Holders of Certificates evidencing not less than 51% of the Voting Interests of
all Certificates, voting together as a single class. Any such consent by the
Holder of this Class B Certificate shall be conclusive and binding on such
Holder and on all future Holders of this Class B Certificate and of any Class B
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Class B
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Class B Certificate is registrable in
the Certificate Register upon surrender of this
B-3
<PAGE> 28
Class B Certificate for registration of transfer at the offices or agencies
maintained by the Trustee in its capacity as Certificate Registrar, or by any
successor Certificate Registrar, in the Borough of Manhattan, The City of New
York, accompanied by a written instrument of transfer in form satisfactory to
the Trustee and the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more
new Class B Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee.
The Class B Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof. As
provided in the Agreement and subject to certain limitations therein set forth,
Class B Certificates are exchangeable for new Class B Certificates of
authorized denominations evidencing the same aggregate denomination, as
requested by the Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the Trustee may require
payment of a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
Prior to due presentation of this Class B Certificate for registration
of transfer, the Trustee, the Certificate Registrar and any of their respective
agents may treat the Person in whose name this Class B Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to the Agreement or the
maturity or liquidation of the last Receivable and the disposition of all
property held as part of the Trust. The Seller or the Servicer, or any
successor to the Servicer, may, at its option, purchase the corpus of the Trust
at a price specified in the Agreement, and such purchase of the Receivables and
other property of the Trust will effect early retirement of the Certificates;
however, such right of purchase is exercisable only the last day of a
Collection Period as of which the Pool Balance is 10% or less of the sum of the
Original Pool Balance and the aggregate principal balance of all Subsequent
Receivables conveyed to the Trust as of the related Subsequent Cutoff Dates.
If no such entity exercises its optional termination right within 90 days after
the last day of the Collection Period as of which such right can first be
exercised, the Trustee shall solicit bids for the purchase of all Receivables
and other property remaining in the Trust and such sale of the Receivables and
other property of the Trust will effect early retirement of the Certificates.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Class B Certificate shall not entitle the Holder hereof to any benefit under
the Agreement or be valid for any purpose.
B-4
<PAGE> 29
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Class B Certificate to be duly executed.
Dated: __________, 199__ FLEETWOOD CREDIT RV RECEIVABLES
199__-__ GRANTOR TRUST
, as Trustee
----------------
By:
-------------------------------------
Authorized Officer
[SEAL]
ATTEST:
- ----------------------------------
This is one of the Class B Certificates referred to in the within-mentioned
Agreement.
, as Trustee
-----------------
By:
-------------------------------------
Authorized Officer
B-5
<PAGE> 30
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
*
----------------------------------------
Signature Guaranteed:
*
----------------------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an institution which is a participant in the Securities Transfer
Agent Medallion Program (STAMP) or similar program.
B-6
<PAGE> 31
EXHIBIT C
FLEETWOOD CREDIT RV RECEIVABLES 199__-__ GRANTOR TRUST
Servicer's Certificate
For the Month of __________, ____
<TABLE>
<S> <C> <C>
Principal and Interest Collections
----------------------------------
Beginning Pool Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1)$_______
Beginning Pool Factor [(1)/$__________] . . . . . . . . . . . . . . . . . . . . . . . . (2) _______
Principal Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3)$_______
Interest Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4)$_______
Less: Accrued Interest Prior to Cutoff Date . . . . . . . . . . . . . . . . . . (5)$_______
Less: Additional Purchased Accrued Interest . . . . . . . . . . . . . . . . . . (5a)$_______
Plus: Purchased Accrued Interest - End of Collection Period . . . . . . . . . . (6)$_______
Net decrease/(increase) in Purchased Accrued Interest [(5)+(5a)-(6)] . . . . . . . . . (7)$_______
Plus: "Non-Reimbursable Interest Payment" . . . . . . . . . . . . . . . . . . . (8)$_______
Total Interest Received [(4)-(5)+(5a)+(6)+(8)] . . . . . . . . . . . . . . . . . . . . (9)$_______
Additional Deposits
(i) Repurchase Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (10)$_______
(ii) Liquidation Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (11)$_______
Total Additional Deposits [(10)+(11)] . . . . . . . . . . . . . . . . . . . . . . . . . . . (12)$_______
Total Available Funds [(3)+(9)+(12)] . . . . . . . . . . . . . . . . . . . . . . . . . . . (13)$_______
Defaulted Receivable Principal Balance [(A1)] . . . . . . . . . . . . . . . . . . . . . . . (14)$_______
Ending Pool Balance [(1)-(3)-(14)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . (15)$_______
Ending Pool Factor [(15)/$___(16)_______] . . . . . . . . . . . . . . . . . . . . . . . . . (16)$_______
Class A Class B
------- -------
Distribution:
------------
Class Percentage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _____% _____%
Pool Factor (Ending Pool Balance) . . . . . . . . . . . . . . . . . . . . . .
Class Pass-Through Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . _____% _____%
____ Beginning Pool Balance (1) . . . . . . . . . . . . . . . . . . . . . . . $_______ $_______
</TABLE>
C-1
<PAGE> 32
<TABLE>
<CAPTION>
Class A Class B
------- -------
<S> <C> <C>
____ Ending Pool Balance (15) . . . . . . . . . . . . . . . . . . . . . . . . $_______ $_______
Collected Principal (3) . . . . . . . . . . . . . . . . . . . . . . . . . . $_______ $_______
Collected Interest (9) . . . . . . . . . . . . . . . . . . . . . . . . . . $_______ $_______
Other Collected Interest . . . . . . . . . . . . . . . . . . . . . . . . . $_______ $_______
Additional Deposits (12) . . . . . . . . . . . . . . . . . . . . . . . . . $_______ $_______
Servicing Fee [(___%/12)x(1)] . . . . . . . . . . . . . . . . . . . . . . . $_______ $_______
Total Available Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . $_______ $_______
Payment to Certificateholders
-----------------------------
Principal Distributable Amount [(1)-(15)] . . . . . . . . . . . . . . . . . $_______ $_______
Interest Distributable Amount [(1)x(pass-through rate/12)] . . . . . . . . . $_______ $_______
Subtotal . . . . . . . . . . . . . . . . . . . . . . . . . . . . $_______ $_______
Payments from Reserve Fund . . . . . . . . . . . . . . . . . . . . . . $_______ $_______
Total Payments to Certificateholders . . . . . . . . . . . . . . . . . $_______ $_______
Reserve Fund payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . $_______ $_______
Amount due Class B but paid to Class A (subordination) . . . . . . . . . . . $_______ $_______
Class A Interest Carryover Shortfall . . . . . . . . . . . . . . . . . . . . $_______
Class A Principal Carryover Shortfall . . . . . . . . . . . . . . . . . . . . $_______
Class B Interest Carryover Shortfall . . . . . . . . . . . . . . . . . . . . $_______
Class B Principal Carryover Shortfall . . . . . . . . . . . . . . . . . . . . $_______
Amounts Remaining in the Certificate Account to be paid to the Seller . . . . $_______ $_______
Memo:
Principal Difference . . . . . . . . . . . . . . . . . . . . . . . . . $_______ $_______
Interest Difference . . . . . . . . . . . . . . . . . . . . . . . . . . $_______ $_______
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $_______ $_______
Reconciliation of Net Payment to the Trustee
--------------------------------------------
Available Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $_______
Servicing Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $_______
Total Available Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $_______
Total payments to Class A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $_______
Total payments to Class B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $_______
</TABLE>
C-2
<PAGE> 33
<TABLE>
<S> <C> <C> <C> <C>
Reconciliation of Net Payment to the Trustee
--------------------------------------------
Reserve Fund:
Excess from Seller [(57a)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $_______
Reserve Fund Payments [(58)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . $_______
Gross payment to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
=======
Less: Amount released from Reserve Fund in excess of $_________ [(61)] . . . . . . . $_______
Reconciliation of Net Payment to the Trustee
--------------------------------------------
Net payment to the Trustee (Equals Gross payment for first 90 days) . . . . . . . . . . . . $
=======
Account Activity
----------------
Number of Accounts - Beginning of Month . . . . . . . . . . . . . . . . . . . . . . . _______
Less: Account Paid Off / Repurchased . . . . . . . . . . . . . . . . . . . . . _______
Plus: Accounts in Collateral Addition . . . . . . . . . . . . . . . . . . . . _______
Number of Accounts - End of Month . . . . . . . . . . . . . . . . . . . . . . . . . . _______
Non-Accrual Accounts - End of Month
-----------------------------------
Number of Non-Accrual Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . _______
Aggregate Principal Balance Outstanding . . . . . . . . . . . . . . . . . . . . . . . $_______
Determination of the Servicer Letter of Credit Amount (if applicable)
---------------------------------------------------------------------
Number of Contracts - End of Month (45)
Original number of Contracts (46) _____
Percent of Original Contracts remaining (47) %
[((45)/(46))x100]
Original Servicer Letter of Credit Amount (48) $ ___________
Revised Servicer Letter of Credit Amount (49) $
[Lesser of [(48)x(47) or the Beginning
Pool Balance(1)]
Prior Month Servicer Letter of Credit Amount (50) $
[Previous Month (49)]
Servicer Letter of Credit Fee [(__)x(0.__%/12)] (51) $
</TABLE>
C-3
<PAGE> 34
<TABLE>
<S> <C> <C>
Defaulted Receivables
---------------------
Amount of principal and accrued interest due from
Obligors on Defaulted Receivables
Principal (A1) $
Interest (A2)
Expense (A3)
Total (A) $
Less: Liquidation Proceeds (B) $
Realized Loss [(A1)+(A2)-(B)] (C) $
Cumulative Losses (Including Expenses) (D) $
Cumulative Loss Percentage [(D)/$___________] %
(Less than ___%)
Reconciliation of Reserve Fund
------------------------------
Beginning Reserve Fund Balance (57) $ ___________
Plus: Excess Amounts from Seller (57a)
Plus: Investment Earnings
Plus: Reserve Fund Payments (57b)
(58)
Plus: Beginning Negative Carry Balance (58a)
Plus: Negative Carry Investment Earnings (58b)
Less: Release from Negative Carry (58c)
Ending Negative Carry Balance (58d)
Reserve Fund prior to payments to Seller (59) $ ___________
Required Reserve Fund Balance:
($__________ (i.e., $_________ plus an amount equal to the Negative
----
Carry Amount Deposit) for the first Distribution Date; thereafter,
the lesser of 1 or 2)
(1) _____% of the sum of the Class A Certificate Balance and the Class B
Certificate Balance (provided that (i) so long as the sum of the Class A
Certificate Balance and the Class B Certificate Balance (a) exceeds
$___________, the Specified Reserve Fund Balance cannot be less than
$__________, or (b) is less than $_________, the Specified Reserve Fund Balance
will equal such sum) (unless the Cumulative Loss Percentage exceeds ____%), or
(2);
(2) (___% - Subordination Fraction) x the Ending Pool Balance
Required Amount (60) $ ___________
Amount in Reserve Fund released [(59)-(60)] (61) $
Ending Reserve Fund Balance to be Invested (including
Negative Carry Balance) (62) $ ___________
Reserve Fund Balance as a Percent
of the Ending Pool Balance (63)
Interest Income on Reserve Fund for ____, 199_
from ______________ (64) $
Interest Income on Negative Carry Balance for ____, 199_
from ________________ (65) $
</TABLE>
C-4
<PAGE> 35
<TABLE>
<S> <C> <C> <C> <C>
Delinquent Accounts
-------------------
Period of Delinquency Units Amount Percent of Pool
----- ------ ---------------
30-59 days $
60-89 days
90 days or more
------ ---- ---
Total $ (A)
====== ==== ===
Repossession Inventory $ (B)
------ ---- ===
Delinquency Percentage
----------------------
Quarter
___ ___ ___ Total (Avg)
----------- ----------- ------------ ---------------
90 days or more (000) $ $ $ $
----------- ----------- ------------ ---------------
Repossession Inventory (000) $ $ $ $
----------- ----------- ------------ ---------------
Total $ $ $ $ (A)
----------- ----------- ------------ ---------------
Ending Pool Balance (mils) $ $ $ $ (B)
----------- ----------- ------------ ---------------
Delinquency Percentage (A)/(B) $
---------------
---------------
Realized Loss Analysis
----------------------
Quarter
___ ___ ___ Total
----------- ----------- ------------ ---------------
Realized Losses/(Recoveries) (X)
[(A1)+(A2)-(B)] (000) $ $ $ (Sum)
Beginning Pool Balance (Y) $ $ $ $ (Avg)
Realized Loss Percentage
(Less than ___%) [((X)/(Y))*4]
---------------
Realized Losses since inception (less than $_________ ) $
---------------
Change in Realized Losses from the preceding Distribution
Date $
---------------
Proceeds from Insurance and Dealer Repurchase
---------------------------------------------
Proceeds received during the related Collection Period
from $
physical damage insurance
Proceeds received during the month from Dealer
repurchase obligations relating to Defaulted $
Receivables
</TABLE>
(9__-__)
C-6
<PAGE> 36
EXHIBIT D
AUCTION PROCEDURES
The following sets forth the auction procedures (the "Auction
Procedures") to be followed in connection with a sale effected pursuant to
Section 21.03 of the Pooling and Servicing Agreement, dated as of ___________
1, 199__ (the "Agreement"), among Fleetwood Credit Receivables Corp., as
Seller, Fleetwood Credit Corp., as Servicer, and _____________, as Trustee.
Capitalized terms used herein that are not otherwise defined shall have the
meanings described thereto in the Agreement.
I. Pre-Auction Process
(a) Upon receiving notice of the Auction Date, the Advisor will
initiate its general Auction procedures consisting of the following:
(i) with the assistance of the Servicer, prepare a general
solicitation package along with a confidentiality agreement; (ii)
derive a list of qualified bidders, in a commercially reasonable
manner; (iii) initiate contact with all qualified bidders; (iv) send a
confidentiality agreement to all qualified bidders; (v) upon receipt
of a signed confidentiality agreement, send solicitation packages to
all interested bidders on behalf of the Trustee; and (vi) notify the
Servicer of all potential bidders and anticipated timetable.
(b) The general solicitation package will include: (i) the
prospectus from the public offering of the Certificates; (ii) a copy
of all monthly servicing reports or a copy of all annual servicing
reports and the prior year's monthly servicing reports; (iii) a form
of a Purchase and Sale Agreement and Servicing Agreement; (iv) a
description of the minimum purchase price required to cause the
Trustee to sell the Auction Property as set forth in Section 21.03 of
the Agreement; (v) a formal bidsheet; (vi) a detailed timetable; and
(vii) a preliminary data tape of the Pool Balance as of the related
Distribution Date reflecting the same data attributes used to create
the Initial Cutoff Date tables for the prospectus dated _________,
199__ relating to the public offering of the Certificates.
(c) The Trustee, with the assistance of the Servicer and the
Advisor, will maintain an auction package beginning at the time of
closing of the transaction, which will contain terms (i) through (iii)
listed in the preceding paragraph. If the Advisor is unable to
perform its role as advisor to the Trustee, the Servicer acting in its
capacity under the Agreement will select a successor Advisor and
inform the Trustee of its actions.
(d) The Advisor will send solicitation packages to all bidders at
least 15 Business Days before the Auction Date. Bidders will be
required to submit any due diligence questions in writing to the
Advisor for determination of their relevancy, no later than ten
D-1
<PAGE> 37
Business Days before the Auction Date. The Servicer and the Advisor
will be required to satisfy all relevant questions at least five
Business Days prior to the Auction Date and distribute the questions
and answers to all bidders.
II. Auction Process
(a) _____________ and/or ____________ (the "Underwriters"), in
their roles as Advisor to the Trustee, will be allowed to bid in the
Auction, but will not be required to do so.
(b) The Servicer will also be allowed to bid in the Auction if it
deems appropriate, but will not be required to do so.
(c) On the Auction Date, all bids will be due by facsimile to the
offices of the Trustee by 1:00 p.m., New York City time, with the
winning bidder to be notified by 2:00 p.m., New York City time. All
acceptable bids (as described in Section 21.03 of the Agreement) will
be due on a conforming basis on the bid sheet contained in the
solicitation package.
(d) If the Trustee receives fewer than two market value bids from
participants in the market for motor vehicle retail installment sale
contracts willing and able to purchase the Auction Property, the
Trustee shall decline to consummate the sale.
(e) Upon notification to the winning bidder, a good faith deposit
equal to 1% of the Pool Balance will be required to be wired to the
Trustee upon acceptance of the bid. This deposit, along with any
interest income attributable to it, will be credited to the purchase
price but will not be refundable. The Trustee will establish a
separate account for the acceptance of the good faith deposit, until
such time as the account is fully funded and all monies are
transferred into the Certificate Account, such time not to exceed one
Business Day before the related Distribution Date (as described
above).
(f) The winning bidder will receive on the Auction Date a copy of
the draft Purchase and Sale Agreement, Servicing Agreement and
Servicer's Representations and Warranties (which shall be
substantially identical to the representations and warranties set
forth in Section 18.01 of the Agreement).
(g) Either Underwriter, in its capacity as Advisor to the Trustee,
will provide to the Trustee a letter concluding whether or not the
winning bid is a fair market value bid. Such Underwriter will also
provide this letter if it is the winning bidder. In the case where
such Underwriter or the Servicer is the winning bidder it will in its
letter provide for market comparables and valuations.
(h) The Auction will stipulate that the Servicer be retained to
service the Receivables sold pursuant to the terms of the Purchase and
Sale Agreement and Servicing Agreement.
D-2
<PAGE> 38
EXHIBIT E
[FCRC LETTERHEAD]
________, 199__
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10017
Standard & Poor's,
a division of The McGraw-Hill Companies, Inc.
25 Broadway
New York, New York 10017
_____________________
_____________________
_____________________
Re: Fleetwood Credit RV Receivables 199__-__ Grantor Trust
Asset-Backed Certificates
Dear Sirs:
Reference is made to that certain Pooling and Servicing Agreement,
dated as of _________ 1, 199__ (the "Pooling and Servicing Agreement"), among
Fleetwood Credit Corp., as Servicer, Fleetwood Credit Receivables Corp., as
Seller (the "Seller"), and ____________, as Trustee. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed thereto
in the Pooling and Servicing Agreement.
Pursuant to Section 2.02(b)(i) of the Pooling and Servicing Agreement,
you are hereby notified that the Seller intends to sell to the Trust on
__________, 199__ (the "Subsequent Transfer Date") the Subsequent Receivables
described in Exhibit A attached hereto. In this regard, please be advised of
the following:
(i) The Subsequent Cutoff Date with respect to each
Subsequent Receivable originated prior to __________, 199__ is
__________, 199__;
(ii) The Subsequent Cutoff Date with respect to each
Subsequent Receivable originated on or after __________, 199__ is its
date of origination;
E-1
<PAGE> 39
(iii) The aggregate Principal Balance of Subsequent
Receivables, as of the related Subsequent Cutoff Dates, to be sold to
the Trust on the Subsequent Transfer Date specified above is
$___________; and
(iv) The aggregate Principal Balance of Subsequent
Receivables sold to the Trust as of the related Subsequent Cutoff
Dates, after giving effect to the transaction contemplated herein,
equals $__________ [Note: must be less than or equal to $_________,
after giving effect to all transfers of Subsequent Receivables].
Very truly yours,
FLEETWOOD CREDIT RECEIVABLES CORP.
By:
-------------------------------------
Name:
Title:
E-2
<PAGE> 1
EXHIBIT 4.4
================================================================================
FLEETWOOD CREDIT CORP.,
as Servicer
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Seller
Fleetwood Credit RV Receivables Grantor Trust
Standard Terms and Conditions of Agreement
(Pre-Funded Senior/Subordinated)
Effective _______ 1, 199__
================================================================================
<PAGE> 2
TABLE OF CONTENTS
Page
ARTICLES ONE - TEN
[Reserved]
ARTICLE ELEVEN
DEFINITIONS
<TABLE>
<S> <C> <C>
Section 11.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 11.02. Initial Cutoff Date and Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 11.03. Usage of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 11.04. Section References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 11.05. Separate Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE TWELVE
THE RECEIVABLES
Section 12.01. Representations and Warranties of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 12.02. Repurchase Upon Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 12.03. Conveyance of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 12.04. Custody of Receivable Files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 12.05. Duties of Servicer as Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 12.06. Instructions; Authority to Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 12.07. Indemnification by Servicer as Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 12.08. Effective Period and Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE THIRTEEN
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 13.01. Duties of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 13.02. Collection of Receivable Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 13.03. Realization Upon Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 13.04. Physical Damage Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
</TABLE>
(i)
<PAGE> 3
Page
<TABLE>
<S> <C> <C>
Section 13.05. Maintenance of Security Interests in Financed Vehicles . . . . . . . . . . . . . . . . . . . . . . . 27
Section 13.06. Covenants of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 13.07. Purchase of Receivables Upon Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 13.08. Servicing Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 13.09. Servicer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 13.10. Annual Statement as to Compliance; Notice of Default;
Opinion as to Interest of the Trustee in the Receivables . . . . . . . . . . . . . . . . . . 28
Section 13.11. Annual Independent Certified Public Accountant's Report . . . . . . . . . . . . . . . . . . . . . . . 29
Section 13.12. Access to Certain Documentation and Information
Regarding Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 13.13. Reports to Certificateholders and Rating Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE FOURTEEN
DISTRIBUTIONS; RESERVE FUND;
PRE-FUNDING ACCOUNT; STATEMENTS TO CERTIFICATEHOLDERS
Section 14.01. Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 14.02. Collections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 14.03. Application of Collections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 14.04. Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 14.05. Non-Reimbursable Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 14.06. Additional Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 14.07. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 14.08. Subordination; Reserve Fund; Priority of Distributions . . . . . . . . . . . . . . . . . . . . . . . 37
Section 14.09. Pre-Funding Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 14.10. Net Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 14.11. Statements to Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE FIFTEEN
THE SERVICER LETTER OF CREDIT
Section 15.01. Servicer Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
</TABLE>
(ii)
<PAGE> 4
Page
ARTICLE SIXTEEN
THE CERTIFICATES
<TABLE>
<S> <C> <C>
Section 16.01. The Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 16.02. Execution, Authentication and Delivery of Certificates . . . . . . . . . . . . . . . . . . . . . . . 45
Section 16.03. Registration of Transfer and Exchange of Certificates . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 16.04. Mutilated, Destroyed, Lost or Stolen Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 16.05. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 16.06. Access to List of Certificateholder Names and Addresses . . . . . . . . . . . . . . . . . . . . . . . 47
Section 16.07. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 16.08. Temporary Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 16.09. Book-Entry Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 16.10. Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 16.11. Definitive Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE SEVENTEEN
THE SELLER
Section 17.01. Representations of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 17.02. Liability of Seller; Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 17.03. Merger or Consolidation of, or Assumption of the Obligations of,
Seller; Certain Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 17.04. Limitation on Liability of Seller and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 17.05. Seller May Own Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 17.06. No Transfer of Excess Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE EIGHTEEN
THE SERVICER
Section 18.01. Representations of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 18.02. Liability of Servicer; Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 18.03. Merger, Consolidation or Assumption of Obligations of Servicer . . . . . . . . . . . . . . . . . . . 57
Section 18.04. Limitation on Liability of Servicer and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 18.05. Servicer Not to Resign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
</TABLE>
(iii)
<PAGE> 5
Page
ARTICLE NINETEEN
EVENTS OF DEFAULT
<TABLE>
<S> <C> <C>
Section 19.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 19.02. Trustee to Act; Appointment of Successor Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 19.03. Reimbursement for Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 19.04. Notification of Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 19.05. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE TWENTY
THE TRUSTEE
Section 20.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 20.02. Trustee's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 20.03. Trustee's Assignment of Repurchased and Removed Receivables . . . . . . . . . . . . . . . . . . . . . 63
Section 20.04. Certain Matters Affecting Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 20.05. Trustee Not Liable for Certificates or Receivables . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 20.06. Trustee May Own Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 20.07. Trustee's Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 20.08. Indemnity of Trustee and Successor Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 20.09. Eligibility Requirements for Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 20.10. Resignation or Removal of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 20.11. Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 20.12. Merger or Consolidation of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 20.13. Appointment of Co-Trustee or Separate Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 20.14. Representations and Warranties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE TWENTY ONE
TERMINATION
Section 21.01. Termination of the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 21.02. Optional Purchase of All Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 21.03. Sale of All Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
</TABLE>
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<PAGE> 6
Page
ARTICLE TWENTY TWO
MISCELLANEOUS PROVISIONS
<TABLE>
<S> <C>
Section 22.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 22.02. Protection of Title to Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 22.03. Limitation on Certificateholder Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 22.04. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 22.05. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 22.06. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 22.07. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 22.08. Certificates Nonassessable and Fully Paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 22.09. No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
EXHIBITS
Exhibit A - Servicer Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B - Transfer Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Exhibit C-1 - Trustee's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1-1
Exhibit C-2 - Trustee's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-2-1
</TABLE>
(v)
<PAGE> 7
FLEETWOOD CREDIT RV RECEIVABLES GRANTOR TRUST
STANDARD TERMS AND CONDITIONS OF AGREEMENT
(PRE-FUNDED SENIOR/SUBORDINATED)
EFFECTIVE ________ 1, 199__
for Fleetwood Credit RV Receivables Grantor Trusts formed
subsequent to the date specified above
INTRODUCTION
These Standard Terms and Conditions of Agreement (Pre-Funded
Senior/Subordinated) Effective _________ 1, 199__ (the "Standard Terms and
Conditions") shall be applicable to Fleetwood Credit RV Receivables Grantor
Trusts formed on or after the date hereof, with respect to which a Pooling and
Servicing Agreement incorporating by reference these Standard Terms and
Conditions shall have been executed.
ARTICLE ELEVEN
DEFINITIONS
Section 11.01. Definitions. Whenever used in the Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Accounts" means the Certificate Account and the Pre-Funding Account.
"Accrued Interest" on a Receivable, as of any Distribution Date, means
the amount of interest, if any, accrued on the Principal Balance of such
Receivable at the related APR since the most recent date upon which a payment
was made by or on behalf of the related Obligor in respect of such Receivable
through the end of the Collection Period immediately preceding the Collection
Period in which such Distribution Date occurs.
"Addition Notice" means with respect to the transfer of Subsequent
Receivables to the Trust pursuant to the Agreement and a Transfer Agreement,
notice, substantially in the form attached as an Exhibit to the Agreement,
which shall be given to the Trustee and each Rating Agency not later than six
Business Days prior to the related Subsequent Transfer Date, of the Seller's
designation of Subsequent Receivables to be sold to the Trust and the aggregate
Principal Balances of such Subsequent Receivables as of the related Subsequent
Cutoff Date.
"Advance" shall have the meaning specified in Section 14.04.
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"Advisor" shall have the meaning specified in Section 21.03.
"Agreement" means the Pooling and Servicing Agreement executed by the
Seller, the Servicer and the Trustee as of the Initial Cutoff Date, into which
these Standard Terms and Conditions shall be incorporated by reference, and all
amendments and supplements thereto.
"Amount Financed" in respect of a Receivable means the amount advanced
under such Receivable toward the purchase price of the related Financed Vehicle
and any related costs.
"Annual Percentage Rate" or "APR" of a Receivable means the annual
rate of interest stated in such Receivable.
"Auction" shall have the meaning specified in Section 21.03.
"Auction Procedures" shall have the meaning specified in Section
21.03.
"Auction Property" shall have the meaning specified in Section 21.03.
"Authorized Officer" means an officer of the Trustee assigned to the
Corporate Trust Office, including any Vice President, any trust officer or any
other officer performing functions similar to those performed by the
individuals who at the time shall be such officers, and any other officer of
the Trustee to whom a matter is referred because of his knowledge of and
familiarity with the particular subject.
"Available Funds" means, with respect to any Distribution Date, the
sum of (i) the earnings received by the Trustee during the related Collection
Period from investment of the Pre-Funded Amount on deposit in the Pre-Funding
Account (which earnings are withdrawn from the Pre-Funding Account and
deposited into the Certificate Account pursuant to Section 14.07(a)(i)); (ii)
the Negative Carry Amount, if any, for such Collection Period (which amount is
withdrawn from the Reserve Fund and deposited into the Certificate Account
pursuant to Section 14.07(a)(iii)); (iii) all cash received by the Servicer in
respect of the Receivables under the Agreement during the related Collection
Period (including Non-Reimbursable Payments and Advances but other than (a)
late payment and extension fees and administrative charges, if any, and (b)
recoveries by the Servicer of amounts on the Receivables that were repurchased
by the Seller or purchased by the Servicer prior to the related Collection
Period); and (iv) the Repurchase Amounts of all Receivables purchased or to be
purchased under the Agreement in respect of the related Collection Period.
"Book-Entry Certificates" means a beneficial interest in the Class A
Certificates or Class B Certificates, as the case may be, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 16.09.
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"Business Day" means any day that is not a Saturday, Sunday or other
day on which banking institutions in the States of California, Delaware or New
York are authorized or obligated by law, executive order or government decree
to remain closed.
"Certificate Account" means the account designated as such and
established and maintained pursuant to Section 14.01.
"Certificate Owner" means, with respect to a Book-Entry Certificate,
the Person who is the owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant, in
accordance with the rules of such Clearing Agency) and shall mean, with respect
to a Definitive Certificate, the related Certificateholder.
"Certificate Register" and "Certificate Registrar" mean the register
maintained and the registrar (or any successor thereto) appointed pursuant to
Section 16.03.
"Certificateholder" or "Holder" means the Person in whose name a
Certificate shall be registered in the Certificate Register, except that,
solely for the purposes of giving any consent, waiver, request or demand
pursuant to the Agreement, the interest evidenced by any Certificate registered
in the name of the Seller or the Servicer, or any Person controlling,
controlled by or under common control with the Seller or the Servicer, or
evidenced by a Book-Entry Certificate of which the Seller, the Servicer or any
such Person is the Certificate Owner, shall not be taken into account in
determining whether the requisite percentage necessary to effect any such
consent, waiver, request or demand shall have been obtained.
"Certificates" means the Class A Certificates and the Class B
Certificates.
"Class" means all Certificates whose form is identical except for
variation in denomination, principal amount, owner or designation of class.
"Class A Certificate" means any one of the Class A Certificates
executed and authenticated by the Trustee in substantially the form set forth
as an Exhibit to the Agreement.
"Class A Certificate Balance" shall equal, initially, the Original
Class A Certificate Balance and, thereafter, shall equal the Original Class A
Certificate Balance, reduced by all amounts previously distributed on the Class
A Certificates and allocable to principal.
"Class A Distributable Amount" means, with respect to any Distribution
Date, the sum of the Class A Principal Distributable Amount and the Class A
Interest Distributable Amount.
"Class A Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (a) the Class A Interest
Distributable Amount for such Distribution Date and
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any outstanding Class A Interest Carryover Shortfall from the immediately
preceding Distribution Date plus interest on such outstanding Class A Interest
Carryover Shortfall, to the extent permitted by law, at the Class A
Pass-Through Rate from such immediately preceding Distribution Date through the
current Distribution Date, over (b) the amount of interest distributed to the
Class A Certificateholders on such current Distribution Date.
"Class A Interest Distributable Amount" means, with respect to any
Distribution Date, the product of one-twelfth of the Class A Pass-Through Rate
and the Class A Certificate Balance (or, in the case of the first Distribution
Date, the Original Pool Balance) as of the immediately preceding Distribution
Date (after giving effect to distributions of principal to be made on such
immediately preceding Distribution Date).
"Class A Pass-Through Rate" shall have the meaning specified in the
Agreement.
"Class A Percentage" shall have the meaning specified in the
Agreement.
"Class A Pool Factor" means, with respect to any Record Date, a
seven-digit decimal figure equal to the Class A Certificate Balance as of such
Record Date divided by the Original Class A Certificate Balance.
"Class A Principal Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of the Class A Principal Distributable
Amount plus any outstanding Class A Principal Carryover Shortfall with respect
to one or more prior Distribution Dates over the amount of principal that the
Holders of the Class A Certificates actually received on such current
Distribution Date.
"Class A Principal Distributable Amount" means, with respect to any
Distribution Date, the Class A Percentage of the Monthly Principal Payment (but
not exceeding the Class A Certificate Balance as of such Distribution Date).
In addition, with respect to the Distribution Date relating to the Collection
Period in which the last Receivable in the Trust is scheduled to mature or the
Distribution Date relating to the Record Date as of which all remaining
Receivables are to be purchased pursuant to Section 21.02 or 21.03, the Class A
Principal Distributable Amount will include the portion of such amount
necessary (after giving effect to the other amounts to be distributed to the
Class A Certificateholders on such Distribution Date and allocable to
principal) to reduce the Class A Certificate Balance to zero.
"Class B Certificate" means any one of the Class B Certificates
executed and authenticated by the Trustee in substantially the form set forth
as an Exhibit to the Agreement.
"Class B Certificate Balance" shall equal, initially, the Original
Class B Certificate Balance and, thereafter, shall equal the Original Class B
Certificate Balance, reduced by (a) all
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amounts previously distributed on the Class B Certificates and allocable to
principal and (b) Realized Losses allocable to the Class B Certificates.
"Class B Distributable Amount" means, with respect to any Distribution
Date, the sum of (a) the Class B Principal Distributable Amount, (b) the Class
B Interest Distributable Amount and (c) recoveries to the extent allocable to
principal on Receivables which became Defaulted Receivables in one or more
prior Collection Periods.
"Class B Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (a) the Class B Interest
Distributable Amount for such Distribution Date and any outstanding Class B
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class B Interest Carryover Shortfall, to the
extent permitted by law, at the Class B Pass-Through Rate from such immediately
preceding Distribution Date through the current Distribution Date, over (b) the
amount of interest distributed to the Class B Certificateholders on such
current Distribution Date.
"Class B Interest Distributable Amount" means, with respect to any
Distribution Date, the product of one-twelfth of the Class B Pass-Through Rate
and the Class B Certificate Balance (or, in the case of the first Distribution
Date, the Original Pool Balance) as of the immediately preceding Distribution
Date (after giving effect to distributions of principal made on such
immediately preceding Distribution Date).
"Class B Pass-Through Rate" shall have the meaning specified in the
Agreement.
"Class B Percentage" shall have the meaning specified in the
Agreement.
"Class B Pool Factor" means, with respect to any Record Date, a
seven-digit decimal equal to the Class B Certificate Balance as of such Record
Date divided by the Original Class B Certificate Balance.
"Class B Principal Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of the Class B Principal Distributable
Amount plus any outstanding Class B Principal Carryover Shortfall with respect
to one or more prior Distribution Dates over the amount of principal that the
Holders of the Class B Certificates actually received on such current
Distribution Date.
"Class B Principal Distributable Amount" means, with respect to any
Distribution Date, the Class B Percentage of the Monthly Principal Payment (but
not exceeding the Class B Certificate Balance as of such Distribution Date).
"Class Percentage" means the Class A Percentage or the Class B
Percentage, as the case may be.
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"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" shall have the meaning specified in the Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collected Interest" means, with respect to each Collection Period,
the sum of (i) the earnings received by the Trustee during the related
Collection Period from investment of the Pre-Funded Amount on deposit in the
Pre-Funding Account (which earnings are withdrawn from the Pre-Funding Account
and deposited into the Certificate Account pursuant to Section 14.07(a)(i));
(ii) the Negative Carry Amount, if any, for such Collection Period (which
amount is withdrawn from the Reserve Fund and deposited into the Certificate
Account pursuant to Section 14.07(a)(iii)); and (iii) the portion of all
payments received by the Servicer on or in respect of the Receivables during
such Collection Period allocable to interest.
"Collected Principal" means, with respect to each Collection Period,
the portion of all Available Funds received by the Servicer on or in respect of
the Receivables during such Collection Period allocable to principal.
"Collection Period" means, as to any Distribution Date and the related
Record Date, the calendar month ending immediately prior to such Distribution
Date.
"Commission" means the Securities and Exchange Commission, and any
successor thereto.
"Corporate Trust Office" means the office of the Trustee at which its
corporate trust business shall be administered, which office shall be specified
in the Agreement, or such office at some other address as the Trustee may
designate from time to time by notice to the Certificateholders, the Seller,
the Servicer and the Letter of Credit Bank, if any.
"Cutoff Date" shall have the meaning specified in the Agreement.
"Dealer" means the dealer who sold a Financed Vehicle and who
originated and assigned the Receivable relating to such Financed Vehicle to
Fleetwood Credit under an agreement with Fleetwood Credit.
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"Defaulted Receivable" means a Receivable (other than a Repurchased
Receivable) as to which (i) all or any part of a scheduled payment is 180 days
delinquent or (ii) the Servicer has determined, in accordance with its
customary servicing procedures, that eventual payment in full is unlikely and
has repossessed and liquidated the related Financed Vehicle within such 180 day
period.
"Definitive Certificates" shall have the meaning specified in Section
16.08.
"Delinquency Percentage" for any Fiscal Quarter means a percentage
equal to the average of the month end percentages, the numerator of which is
the aggregate principal balance of the Receivables (excluding Defaulted
Receivables) that are 90 days or more past due (which amount shall include
Receivables in respect of Financed Vehicles that have been repossessed but not
yet sold or otherwise liquidated) and the denominator of which is the Pool
Balance, in each case calculated on the last day of the three related
Collection Periods in such Fiscal Quarter.
"Delivery" when used with respect to Reserve Fund Property means:
(a) with respect to certificated securities, bankers'
acceptances, commercial paper, negotiable certificates of deposit and
any other obligations which evidence a right to the payment of money
and is not itself a security agreement or lease and is of a type which
is in ordinary course of business transferred by delivery with
necessary endorsement or assignment (collectively, "Physical
Property"): (A) the Trustee or its Financial Intermediary acquires
possession of the Physical Property, and evidence that any such
Physical Property that is in registrable form has been registered in
the name of the Trustee, its Financial Intermediary, its custodian or
its nominee; (B) the Financial Intermediary, not a clearing
corporation, sends the Trustee confirmation of the transfer and also
by book entry or otherwise identifies as belonging to the Trustee the
Physical Property in the Financial Intermediaries possession; or (C)
with respect to a clearing corporation, appropriate entries to the
account of the Trustee or a Person designated by him or her and, if
certificated, it is both, in the custody of the clearing corporation
or another clearing corporation, a custodian bank or a nominee of any
of them and, in bearer form or endorsed in blank by the appropriate
person or registered in the name of the clearing corporation,
custodian bank, or a nominee of any of them.
(b) with respect to any Reserve Fund Property that is a
book-entry security held through the Federal Reserve System pursuant
to federal book-entry regulations, the following procedures, all in
accordance with applicable law, including applicable federal
regulations and Articles 8 and 9 of the UCC: (i) book-entry
registration of such Reserve Fund Property to an appropriate
book-entry account maintained with a Federal Reserve Bank by the
Trustee or by a custodian, as collateral agent, and issuance to the
Trustee or to such custodian, as the case may be, as collateral agent,
of a deposit advice or other written confirmation of such book-entry
registration; (ii) the making by any such
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custodian of entries in its books and records identifying such
book-entry security held through the Federal Reserve System pursuant
to federal book-entry regulations as belonging to the Trustee, and
indicating that such custodian holds such Reserve Fund Property solely
as agent for the Trustee, and the making by the Trustee of entries in
its books and records establishing that it holds such Reserve Fund
Property solely as collateral agent, and the making by the Trustee of
entries in its books and records establishing that it holds such
Reserve Fund Property solely as Trustee pursuant to Section 14.08 and
(iii) such additional or alternative procedures as may hereafter
become appropriate to effect complete transfer of ownership of any
such Reserve Fund Property to the Trustee, acting solely as collateral
agent, consistent with changes in applicable law or regulations or the
interpretation thereof; and
(c) with respect to any Reserve Fund Property that is an
uncertificated security under Article 8 of the UCC and that is not
governed by clause (b) above, registration of the transfer to and
ownership of such Reserve Fund Property by the Trustee, its Financial
Intermediary, its custodian or its nominee, acting solely as
collateral agent, by the issuer of such Reserve Fund Property.
"Determination Date" means, as to any Distribution Date, the eighth
calendar day of the month in which such Distribution Date occurs or, if such
day is not a Business Day, the immediately succeeding Business Day.
"Distribution Date" means, for each Collection Period, the fifteenth
day of the following month, or if such day is not a Business Day, the
immediately succeeding Business Day, commencing with the date specified in the
Agreement.
"DTC" means The Depository Trust Company, and any successor thereto.
"Duff & Phelps" means Duff & Phelps Credit Rating Co., and any
successor thereto.
"Event of Default" shall have the meaning specified in Section 19.01.
"Excess Amounts" shall have the meaning set forth in Section 14.07(c).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"FDIC" means the Federal Deposit Insurance Corporation, and any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, and any
successor thereto.
"FNMA" means the Federal National Mortgage Association, and any
successor thereto.
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"Final Funding Period Distribution Date" shall have the meaning
specified in the Agreement.
"Final Scheduled Distribution Date" shall have the meaning specified
in the Agreement.
"Financed Vehicle" with respect to a Receivable means the recreational
vehicle, together with all accessions thereto, securing the related Obligor's
indebtedness under such Receivable.
"Financial Intermediary" shall have the meaning specified in Section
8-313(4) of the UCC.
"Fiscal Quarters" means each of the following three-month periods:
(i) January, February and March; (ii) April, May and June; (iii) July, August
and September; and (iv) October, November and December.
"Fleetwood Credit" means Fleetwood Credit Corp., and any successor
thereto.
"Funding Period" shall have the meaning specified in the Agreement.
"Independent Director" means a director of the Seller who is not (a) a
director, officer or employee of any affiliate of the Seller; (b) a person
related to any officer or director of any affiliate of the Seller; (c) a holder
(directly or indirectly) of more than 10% of any voting securities of any
affiliate of the Seller; or (d) a person related to a holder (directly or
indirectly) of more than 10% of any voting securities of any affiliate of the
Seller.
"Initial Cutoff Date" shall have the meaning specified in the
Agreement.
"Initial Receivables" means the Receivables initially transferred by
the Seller to the Trust pursuant to the Agreement on the Closing Date, which
Receivables are listed on the Schedule of Receivables.
"Initial Servicer Letter of Credit Amount" shall have the meaning
specified in the Servicer Letter of Credit, if any.
"Letter of Credit Bank" means any Person which has provided a Servicer
Letter of Credit in accordance with Section 15.01.
"Letter of Representations" means the agreement among the Seller, the
Trustee and the initial Clearing Agency, dated as of the Closing Date,
substantially in the form attached as an Exhibit to the Agreement.
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"Lien" means a security interest, lien, charge, claim, pledge, equity
or encumbrance of any kind other than tax liens, mechanics' liens and any liens
which attach to a Receivable or any property, as the context may require, by
operation of law.
"Liquidation Proceeds" means monies collected (from whatever source)
during a Collection Period on or in respect of a Defaulted Receivable, net of
all amounts (i) expended by the Servicer in effecting such collections and (ii)
required by law to be remitted to the related Obligor.
"Monthly Principal Payment" means, as of any Distribution Date, an
amount equal to (i) the sum of the Pool Balance (or, with respect to the first
Distribution Date, the Original Pool Balance) plus the amount on deposit in the
Pre-Funding Account (other than investment earnings), in each case as of the
first day of the related Collection Period, less (ii) the sum of the Pool
Balance plus the amount on deposit in the Pre-Funding Account (other than
investment earnings), in each case as of the last day of the related Collection
Period.
"Moody's" means Moody's Investors Service, Inc., and any successor
thereto.
"Negative Carry Amount" means, with respect to any Distribution Date
relating to the Funding Period, an amount equal to the negative difference, if
any, between (i) one month's interest on the Pre-Funded Amount on deposit in
the Pre-Funding Account as of the first day of the related Collection Period at
a rate equal to the weighted average of the Class A Pass-Through Rate and the
Class B Pass-Through Rate (weighted by Original Class Certificate Balance) and
(ii) the earnings received by the Trustee during such Collection Period from
investment of such Pre-Funded Amount.
"Non-Reimbursable Payment" means, as of any Record Date, the payment
required to be made by the Servicer pursuant to Section 14.05.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
related Financed Vehicle purchased in part or in whole by the execution and
delivery of such Receivable or any other Person who owes or may be liable for
payments under such Receivable.
"Offered Securities" shall have the meaning specified in Section
17.03.
"Officer's Certificate" means a certificate signed by the President,
any Vice President, the Treasurer, the Secretary or any Assistant Secretary of
the Seller or the Servicer, as the case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel (who may be an
employee of or outside counsel to the Seller or the Servicer), which counsel
shall be acceptable to the Trustee.
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"Original Class A Certificate Balance" shall have the meaning
specified in the Agreement.
"Original Class B Certificate Balance" shall have the meaning
specified in the Agreement.
"Original Pool Balance" shall have the meaning specified in the
Agreement.
"Original Pre-Funded Amount" shall have the meaning specified in the
Agreement.
"Paid-Ahead Receivables" means Receivables the Principal Balance of
which have been reduced by one or more scheduled monthly payments made in
advance by the related Obligor.
"Permitted Investments" means, at any time, any one or more of the
following obligations and securities:
(i) obligations of the United States or any agency
thereof, provided such obligations are backed by the full faith and
credit of the United States;
(ii) general obligations of or obligations guaranteed by
any State then rated the highest rating of each Rating Agency for such
obligations, or such lower rating (as approved in writing by each
Rating Agency) as will not result in the qualification, downgrading or
withdrawal of the rating then assigned to the Rated Certificates by
such Rating Agency;
(iii) commercial paper then rated the highest rating of
each Rating Agency for commercial paper, or such lower rating (as
approved in writing by each Rating Agency) as will not result in the
qualification, downgrading or withdrawal of the rating then assigned
to the Rated Certificates by such Rating Agency;
(iv) certificates of deposit, demand or time deposits,
federal funds or banker's acceptances issued by any depository
institution or trust company incorporated under the laws of the United
States or of any State and subject to supervision and examination by
federal or state banking authorities, provided that the commercial
paper of such depository institution or trust company is then rated
the highest rating of each Rating Agency for such obligations, or such
lower rating (as approved in writing by each Rating Agency) as will
not result in the qualification, downgrading or withdrawal of the
rating then assigned to the Rated Certificates by such Rating Agency;
(v) demand or time deposits or certificates of deposit
issued by any bank, trust company, savings bank or other savings
institution, which deposits are fully insured by the FDIC;
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(vi) guaranteed reinvestment agreements issued by any
bank, insurance company or other corporation (as approved in writing
by each Rating Agency) as will not result in the qualification,
downgrading or withdrawal of the rating then assigned to the Rated
Certificates by each Rating Agency;
(vii) repurchase obligations with respect to any security
described in clauses (i), (ii) or (viii) hereof or any other security
issued or guaranteed by the FHLMC, FNMA or any other agency or
instrumentality of the United States which is backed by the full faith
and credit of the United States, in either case entered into with a
federal agency or a depository institution or trust company (acting as
principal) described in clause (iv) above; and
(viii) such other investments acceptable to each Rating
Agency (as approved in writing by each Rating Agency) as will not
result in the qualification, downgrading or withdrawal of the rating
then assigned to the Rated Certificates by such Rating Agency;
provided that each of the foregoing investments shall mature no later than the
Business Day prior to the Distribution Date immediately following the date of
purchase (other than instruments of which the Trustee is the obligor, which may
mature on the related Distribution Date), and shall be required to be held to
such maturity.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Physical Property" shall have the meaning specified in the definition
of the term "Delivery."
"Pool Balance" as of any Record Date, means the aggregate Principal
Balance of the Receivables (excluding all Repurchased Receivables and Defaulted
Receivables) as of the close of business on the last day of the Collection
Period immediately preceding the Collection Period in which such Record Date
occurs.
"Pre-Funded Amount" means, with respect to (i) the first Distribution
Date, the Original Pre-Funded Amount, and (ii) any Distribution Date
thereafter, the amount on deposit in the Pre-Funding Account, after giving
effect to the deposit of investment earnings for the related Collection Period
into the Certificate Account on such Distribution Date pursuant to Section
14.07(a)(i).
"Pre-Funding Account" means the account designated as such and
established and maintained pursuant to Section 14.09.
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"Principal Balance" of a Receivable as of any date, means the Amount
Financed, without regard to any offsets or judicial reductions thereof, minus
the sum of (i) that portion of all payments received on or prior to such date
by the Servicer and allocable as a payment of principal pursuant to Section
14.03, (ii) any refunded portion of extended warranty protection plan costs, or
of physical damage, credit life or disability insurance premiums included in
the Amount Financed unless such refund must be paid to the related Obligor and
(iii) any payment of the Repurchase Amount allocable to principal with respect
to each Receivable which became a Defaulted Receivable or Repurchased
Receivable during or prior to the related Collection Period.
"Rated Certificates" means each Class of Certificates that has been
rated by a Rating Agency at the request of the Seller.
"Rating Agency" means each nationally recognized rating agency
specified in the Agreement as from time to time shall be rating the Rated
Certificates.
"Realized Loss Percentage" for any Fiscal Quarter means a percentage
with respect to the three Collection Periods that fell in such Fiscal Quarter
equal to (a) the aggregate Repurchase Amount for all Receivables that become
Defaulted Receivables during such Fiscal Quarter, minus (b) the sum of (i) the
aggregate Liquidation Proceeds received by the Servicer during such Fiscal
Quarter with respect to all Receivables that became Defaulted Receivables
during such Fiscal Quarter and (ii) all recoveries in respect of Defaulted
Receivables received during such Fiscal Quarter, to the extent not otherwise
covered in clause (i) above, which amount is then divided by the mean of the
three Pool Balances calculated as of the Record Date immediately preceding the
first day of each Collection Period that fell in such Fiscal Quarter; such
quotient is then multiplied by four to arrive at an annualized percentage.
"Realized Losses" with respect to each Collection Period will equal
the amount by which (a) the aggregate Principal Balance of all Receivables
which became Defaulted Receivables during such Collection Period exceeds (b)
the sum of (i) the aggregate Liquidation Proceeds recovered in respect of
principal of such Defaulted Receivables during such Collection Period and (ii)
recoveries in respect of all Defaulted Receivables received in such Collection
Period, to the extent not otherwise covered in clause (i) above.
"Receivable" means any Initial Receivable or Subsequent Receivable.
"Receivable Files" means the documents specified in Section 12.04.
"Receivables Pool" means the pool of Receivables included in the
Trust.
"Receivables Purchase Agreement" means the Receivables Purchase
Agreement dated as of the Initial Cutoff Date, between Fleetwood Credit and the
Seller.
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"Record Date" means, in respect of a Distribution Date, the close of
business on the day immediately preceding such Distribution Date or, if
Definitive Certificates are issued, the last day of the calendar month
immediately preceding such Distribution Date.
"Recreational Vehicle Receivables" shall have the meaning specified in
Section 17.03.
"Repurchase Amount" as of any date, means the amount required to
prepay in full the Principal Balance of a Receivable plus interest thereon at a
rate equal to the sum of (i) the weighted average of the Class A Pass-Through
Rate and the Class B Pass-Through Rate and (ii) the Servicing Fee Rate to the
last day of the month in which such date occurs.
"Repurchased Receivable" means a Receivable purchased as of a Record
Date by the Servicer (or a successor to the Servicer) pursuant to Section 13.07
or 21.02 or by the Seller pursuant to Section 12.02 or 21.02.
"Required Deposit Rating" means the rating or ratings specified in the
Agreement.
"Required Long Term Debt Rating" means the rating or ratings, if
applicable, specified in the Agreement.
"Required Rating" means the rating or ratings specified in the
Agreement.
"Required Servicer Rating" means the rating or ratings specified in
the Agreement.
"Reserve Fund" means the account established and maintained pursuant
to Section 14.08.
"Reserve Fund Initial Deposit" shall have the meaning specified in the
Agreement.
"Reserve Fund Property" shall have the meaning specified in Section
14.08(a)(ii).
"Reset Percentage" shall have the meaning specified in the Servicer
Letter of Credit, if any.
"Residual Certificate" shall have the meaning specified in Section
16.01.
"Schedule of Receivables" means the schedule of receivables attached
as Schedule A to the Agreement, as it may be amended or supplemented (including
pursuant to any Transfer Agreement) from time to time.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securitization Agreement" shall have the meaning specified in Section
17.03.
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"Seller" means Fleetwood Credit Receivables Corp., in its capacity as
seller of the Receivables under the Agreement, and each successor to Fleetwood
Credit Receivables Corp. (in the same capacity) pursuant to Section 17.03.
"Servicer" means Fleetwood Credit, in its capacity as servicer of the
Receivables, and each successor to Fleetwood Credit (in the same capacity)
pursuant to Section 18.03 or 19.02.
"Servicer Letter of Credit" means, if the Servicer desires to remit
collections on or in respect of the Receivables to the Certificate Account on a
monthly basis but the conditions of clause (a) of Section 14.02 are not
otherwise satisfied, an irrevocable letter of credit, issued by the Letter of
Credit Bank and naming the Trustee as beneficiary, substantially in, except as
otherwise provided in the Agreement, the form attached hereto as Exhibit A.
"Servicer Letter of Credit Amount" means the amount determined
pursuant to Section 15.01(a).
"Servicer Letter of Credit Percentage" shall have the meaning
specified in the Servicer Letter of Credit, if any.
"Servicer's Certificate" means an Officer's Certificate of the
Servicer completed and executed pursuant to Section 13.09, substantially in the
form attached as an Exhibit to the Agreement.
"Servicing Fee" means the fee payable to the Servicer for services
rendered during each Collection Period, determined pursuant to Section 13.08.
"Servicing Fee Rate" shall have the meaning specified in the
Agreement.
"Specified Reserve Fund Balance" shall have the meaning specified in
the Agreement.
"Standard & Poor's" means Standard & Poor's, a division of The
McGraw-Hill Companies, Inc., and any successor thereto.
"State" means any state of the United States or the District of
Columbia.
"Subsequent Cutoff Date" shall have the meaning specified in the
related Transfer Agreement.
"Subsequent Receivables" means the Receivables transferred by the
Seller to the Trust pursuant to a Transfer Agreement on the related Subsequent
Transfer Date, which Receivables are listed on Schedule A to the related
Transfer Agreement.
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"Subsequent Transfer Date" shall have the meaning specified in the
related Transfer Agreement.
"Successor Servicer" shall have the meaning specified in Section
19.02.
"Transfer Agreement" means each Transfer Agreement, dated as of the
related Subsequent Cutoff Date, among the Seller, Fleetwood Credit and the
Trustee, pursuant to which Subsequent Receivables are conveyed to the Trust,
substantially in the form attached as an Exhibit to the Agreement.
"Trust" means the trust created by the Agreement, the estate of which
shall consist of (i) the Receivables (other than Repurchased Receivables) and
all payments due thereunder on and after the Initial Cutoff Date or any
Subsequent Cutoff Date, as the case may be, other than Accrued Interest as of
the opening of business on the Initial Cutoff Date or any Subsequent Cutoff
Date, as the case may be; (ii) security interests in the Financed Vehicles;
(iii) funds deposited in the Certificate Account and proceeds thereof; (iv)
such monies as are from time to time on deposit in the Pre-Funding Account
(including investment earnings thereon); (v) the Servicer Letter of Credit, if
any; (vi) the right to realize upon any property (including the right to
receive future Liquidation Proceeds) that shall have secured a Receivable and
have been repossessed by or on behalf of the Trustee; (vii) proceeds from
claims on any physical damage, credit life or disability insurance policies
covering the Financed Vehicles or Obligors; (viii) the Seller's rights under
the Receivables Purchase Agreement; (ix) the right of the Seller to receive
payments pursuant to repurchase obligations of Dealers relating to the
Receivables; and (x) all proceeds of the foregoing. The Reserve Fund shall not
be a part of or otherwise includable in the Trust.
"Trustee" means the Person acting as Trustee under the Agreement, its
successor in interest and any successor trustee pursuant to Section 20.11.
"Trustee's Certificate" means a certificate completed and executed by
the Trustee by an Authorized Officer pursuant to Section 20.02 or 20.03,
substantially in the form attached hereto as, in the case of assignment to the
Seller, Exhibit C-1, and in the case of an assignment to the Servicer, Exhibit
C-2.
"UCC" means the Uniform Commercial Code as in effect in the respective
jurisdiction or, with respect to Louisiana, the equivalent body of statutory
and commercial law.
"United States" means the United States of America.
"Vice President" of any Person means any vice president of such
Person, whether or not designated by a number or words before or after the
title "Vice President."
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"Voting Interests" means the aggregate voting strength evidenced by
the Class A Certificates or the Class B Certificates, as the case may be;
provided, however, that where the Voting Interests are relevant in determining
whether the vote of the requisite percentage of Class A Certificateholders or
Class B Certificateholders, as the case may be, necessary to effect any
consent, waiver, request or demand shall have been obtained, the Voting
Interests shall be deemed to be reduced by the amount equal to the Voting
Interests (without giving effect to this provision) represented by the
interests evidenced by any such Certificate registered in the name of the
Seller, the Servicer or any Person controlling, controlled by or under common
control with the Seller or the Servicer.
Section 11.02. Initial Cutoff Date and Record Date. All references
to the Record Date prior to the first Record Date in the life of the Trust
shall be to the Initial Cutoff Date.
Section 11.03. Usage of Terms. With respect to all terms in the
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance
with their respective terms and not prohibited by the Agreement; references to
Persons include their permitted successors and assigns; and the term
"including" means "including without limitation."
Section 11.04. Section References. All section references shall be
to Sections in these Standard Terms and Conditions.
Section 11.05. Separate Agreements. Each Agreement which shall
incorporate by reference these Standard Terms and Conditions shall be separate
and distinct from each other such Agreement, no provision of any such Agreement
shall be applicable to any other such Agreement, and all references to "the
Agreement" and to provisions thereof shall be references to a particular
Agreement which incorporates these Standards Terms and Conditions.
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ARTICLE TWELVE
THE RECEIVABLES
Section 12.01. Representations and Warranties of Seller. The Seller
shall make the following representations and warranties as to the Receivables
on which the Trustee shall rely in accepting the Receivables in trust and
executing and authenticating the Certificates. Such representations and
warranties shall speak as of the execution and delivery of the Agreement in
the case of the Initial Receivables, and as of the related Subsequent Transfer
Date in the case of the Subsequent Receivables, but in each case shall survive
the sale, transfer and assignment of the related Receivables to the Trustee and
any subsequent assignment or transfer pursuant to Article Fifteen.
(i) Characteristics of Receivables. Each Receivable (a)
shall have been (1) originated in the United States by a Dealer for
the retail sale of the related Financed Vehicle in the ordinary course
of such Dealer's business, (2) fully and properly executed by the
parties thereto, (3) purchased by Fleetwood Credit from such Dealer
under an agreement with Fleetwood Credit and (4) validly assigned by
such Dealer to Fleetwood Credit in accordance with its terms and shall
have been subsequently sold by Fleetwood Credit to the Seller, (b)
shall have created or shall create a valid, subsisting and enforceable
first priority perfected security interest in favor of Fleetwood
Credit in the related Financed Vehicle, which security interest has
been assigned by Fleetwood Credit to the Seller and shall be
assignable, and shall be so assigned, by the Seller to the Trustee,
(c) shall contain customary and enforceable provisions such that the
rights and remedies of the holder thereof shall be adequate for
realization against the collateral of the benefits of the security,
(d) shall provide for level monthly payments (provided that the
payment in the first or last month in the life of the Receivable may
be minimally different from the level payment) that fully amortize the
Amount Financed by maturity and provide for a finance charge or yield
interest at its APR and (e) shall provide for, in the event that such
Receivable is prepaid in full, a payment that fully pays the Principal
Balance and includes accrued but unpaid interest at least through the
date of prepayment in an amount at least equal to its APR.
(ii) Schedule of Receivables. The information set forth
in the Schedule of Receivables shall be true and correct in all
material respects as of the opening of business on the Initial Cutoff
Date or the related Subsequent Cutoff Date, as the case may be, and no
selection procedures adverse to the Certificateholders shall have been
utilized in selecting the Receivables from those Receivables of
Fleetwood Credit which met the selection criteria set forth in this
Section.
(iii) Compliance with Law. Each Receivable shall have
complied at the time it was originated or made, and shall comply at
the time of execution of the Agreement in all
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material respects with all requirements of applicable federal, state
and local laws, and regulations thereunder, including usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, Federal Reserve Board Regulations B and Z,
state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit, equal credit
opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable shall constitute
the genuine, legal, valid and binding payment obligation in writing of
the related Obligor, enforceable by the holder thereof in accordance
with its terms, except as enforceability may be subject to or limited
by bankruptcy, insolvency, reorganization, liquidation and other
similar laws affecting the enforcement of creditors' rights in general
and by general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at
law.
(v) No Government Obligor. None of the Receivables shall
be due from the United States or any state or local government thereof
or from any agency, department or instrumentality of the United States
or any state or local government.
(vi) Security Interest in Financed Vehicle. Immediately
prior to the sale, assignment and transfer thereof, each Receivable
shall be secured by a validly perfected first security interest in the
related Financed Vehicle in favor of Fleetwood Credit as secured party
or all necessary and appropriate action with respect to such
Receivable shall have been taken to perfect a first priority security
interest in such Financed Vehicle in favor of Fleetwood Credit as
secured party.
(vii) Receivables in Force. No Receivable shall have been
satisfied, subordinated or rescinded, nor shall any Financed Vehicle
have been released from the lien granted by the related Receivable in
whole or in part.
(viii) No Waiver. No provision of a Receivable shall have
been waived in such a manner that such Receivable fails to meet all of
the other representations and warranties made by the Seller herein
with respect thereto.
(ix) No Amendments. No Receivable shall have been amended
in such a manner that such Receivable fails to meet all of the other
representations and warranties made by the Seller herein with respect
thereto.
(x) No Defenses. No facts shall be known to the Seller
which would give rise to any right of rescission, setoff, counterclaim
or defense, nor shall the same have been asserted or threatened, with
respect to any Receivable.
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(xi) No Liens. To the knowledge of the Seller, no Liens
shall have been filed, including Liens for work, labor or materials
relating to a Financed Vehicle, that shall be prior to, or equal or
coordinate with, the security interest in such Financed Vehicle
granted by the related Receivable.
(xii) No Default. Except for payment defaults continuing
for a period of not more than 30 days as of the Initial Cutoff Date or
the related Subsequent Cutoff Date, as the case may be, no default,
breach, violation or event permitting acceleration under the terms of
any Receivable shall have occurred; no continuing condition that with
notice or the lapse of time would constitute a default, breach,
violation or event permitting acceleration under the terms of any
Receivable shall have arisen; and the Seller shall not have waived any
of the foregoing.
(xiii) Insurance. Fleetwood Credit, in accordance with its
customary servicing procedures, shall have determined that each
Obligor has obtained physical damage insurance covering the related
Financed Vehicle.
(xiv) Good Title. It is the intention of the Seller that
the transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Receivables from the Seller to the Trust and
that the beneficial interest in and title to the Receivables not be
part of the debtor's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law. No
Receivable has been sold, transferred, assigned or pledged by the
Seller to any Person other than the Trustee, and no provision of a
Receivable shall have been waived, except as provided in clause (viii)
above; immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to each
Receivable free and clear of all Liens and rights of others;
immediately upon the transfer and assignment thereof, the Trustee, for
the benefit of the Certificateholders, shall have good and marketable
title to each Receivable, free and clear of all Liens and rights of
others; and the transfer and assignment herein contemplated has been
perfected under the UCC.
(xv) Lawful Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable under
the Agreement or any Transfer Agreement or pursuant to transfers of
the Certificates shall be unlawful, void or voidable.
(xvi) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Trustee a first
perfected ownership interest in the Receivables shall have been made.
(xvii) One Original. There shall be only one original
executed copy of each Receivable.
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(xviii) Agreement/Transfer Agreement. The additional
representations and warranties as to the Receivables in the Agreement
or in the related Transfer Agreement, as the case may be, shall be
true and correct.
Section 12.02. Repurchase Upon Breach. The Seller, the Servicer or
the Trustee, as the case may be, shall inform the other parties promptly, in
writing, upon the discovery of any breach of the Seller's representations and
warranties set forth in Article Seven of the Agreement or Section 12.01 hereof
or in any Transfer Agreement which materially and adversely affects any
Receivable. Unless the breach shall have been cured by the second Record Date
following the discovery (or, at the Seller's option, the first Record Date
following the discovery), the Seller shall repurchase any Receivable materially
and adversely affected by the breach, as of such Record Date. If necessary,
the Seller shall enforce the obligation of Fleetwood Credit under the
Receivables Purchase Agreement to repurchase such Receivable from the Seller.
In consideration of the purchase of any such Receivable, the Seller shall remit
the Repurchase Amount of such Receivable (less the amount of any Liquidation
Proceeds with respect to such Receivable deposited, or to be deposited, by the
Servicer in the Certificate Account pursuant to Section 13.03) to the
Certificate Account in the manner specified in Section 14.06(a)(i). In the
event that, as of the date of execution and delivery of the Agreement, any
Liens shall have been filed, including Liens for work, labor or materials
relating to a Financed Vehicle, that shall be prior to, or equal or coordinate
with, the lien granted by the related Receivable (whether or not the Seller has
knowledge thereof), and such breach materially and adversely affects the
interests of the Trust in such Receivable, the Seller shall repurchase such
Receivable on the terms and in the manner specified above. The sole remedy of
the Trustee, the Trust or the Certificateholders with respect to a breach of
the Seller's representations and warranties set forth in Article Seven of the
Agreement or Section 12.01 hereof or in any Transfer Agreement or with respect
to the existence of any such Liens shall be to require the Seller to repurchase
Receivables pursuant to this Section and to enforce Fleetwood Credit's
obligation to the Seller to repurchase such Receivables from the Seller
pursuant to the Receivables Purchase Agreement.
Section 12.03. Conveyance of Receivables. The Seller, pursuant to
the mutually agreed upon terms contained in the Agreement, shall sell,
transfer, assign and otherwise convey to the Trustee, without recourse (but
subject to the Seller's obligations in the Agreement), all of its right, title
and interest in and to the Receivables and any proceeds related thereto,
including any other items as shall be specified in the Agreement. It is the
intention of the Seller and the Certificateholders (as evidenced by the
acceptance of their Certificates) that the transfer and assignment contemplated
by the Agreement shall constitute a sale of the Receivables from the Seller to
the Trust and the beneficial interest in and title to the Receivables shall not
be part of the Seller's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law. The Seller agrees
to execute and file all filings (including filings under the UCC) necessary in
any jurisdiction to provide third parties with notice of the sale of the
Receivables and to perfect such sale under the UCC.
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In the event that, notwithstanding the intention of the Seller and the
Certificateholders specified in the immediately preceding paragraph, the
transfer and assignment contemplated by the Agreement is deemed to be other
than a sale, the parties intend that all filings described in the foregoing
paragraph shall give the Trustee on behalf of the Trust a first priority
perfected security interest in, to and under the related Receivables, and other
property conveyed hereunder and all proceeds of any of the foregoing. The
Agreement shall be deemed to be the grant of a security interest from the
Seller to the Trustee on behalf of the Trust, and the Trustee on behalf of the
Trust shall have all the rights, powers and privileges of a secured party under
the UCC. In such event, the Seller agrees to take such action and execute such
documents as the Trustee shall request in order fully to realize the benefits
of such secured party status, including, without limitation, powers of
attorneys, financing statements, notices of lien or other instruments or
documents.
Section 12.04. Custody of Receivable Files. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Trustee, upon the execution and delivery of the Agreement, revocably appoints
the Servicer, and the Servicer accepts such appointment, to act as the agent of
the Trustee as custodian of the following documents or instruments which are
hereby constructively delivered to the Trustee with respect to each Receivable
on or prior to the Closing Date and each Subsequent Receivable on or prior to
the related Subsequent Transfer Date:
(i) the original of the Receivable;
(ii) all documents evidencing the existence of physical
damage insurance covering the related Financed Vehicle;
(iii) the original credit application, executed by the
Obligor;
(iv) the original certificate of title or such documents
that the Servicer or the Seller shall keep on file, in accordance with
its customary procedures, evidencing the security interest in the
related Financed Vehicle; and
(v) any and all other documents that the Seller or the
Servicer, as the case may be, shall keep on file, in accordance with
its customary procedures, relating to such Receivable or the related
Obligor or Financed Vehicle.
Section 12.05. Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer, in its capacity as custodian,
shall hold the Receivable Files on behalf of the Trustee for the use and
benefit of all present and future Certificateholders, and maintain such
accurate and complete accounts, records and computer systems pertaining to each
Receivable File as shall enable the Trustee to comply with the Agreement. In
performing
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its duties as custodian, the Servicer shall act with reasonable care, using
that degree of skill and attention that it exercises with respect to the
receivable files of comparable recreational vehicle receivables that the
Servicer services for itself or others. The Servicer shall conduct, or cause
to be conducted, periodic reviews of the files of all receivables owned or
serviced by it which shall include the Receivable Files held by it under the
Agreement, and of the related accounts, records and computer systems, in such a
manner as shall enable the Trustee to verify the accuracy of the Servicer's
record keeping. The Servicer shall promptly report to the Trustee any failure
on its part to hold the Receivable Files and maintain its accounts, records and
computer systems as herein provided and promptly take appropriate action to
remedy any such failure.
(b) Maintenance of and Access to Records. The Servicer shall
maintain each Receivable File at one of its offices specified in Schedule B to
the Agreement, or at such other office as shall be specified to the Trustee by
30 days' prior written notice. The Servicer shall make available to the
Trustee or its duly authorized representatives, attorneys or auditors the
Receivable Files and the related accounts, records and computer systems
maintained by the Servicer at such times as the Trustee may reasonably request.
(c) Release of Documents. Upon instruction from the Trustee, the
Servicer shall release any document in the Receivable Files to the Trustee or
its agent or designee, as the case may be, at such place or places as the
Trustee may designate, as soon as practicable. The Servicer shall not be
responsible for any loss occasioned by the failure of the Trustee to return any
document or any delay in doing so.
Section 12.06. Instructions; Authority to Act. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable
Files upon its receipt of written instructions signed by an Authorized Officer.
A certified copy of a bylaw or of a resolution of the Board of Directors of the
Trustee shall constitute conclusive evidence of the authority of any such
Authorized Officer to act and shall be considered in full force and effect
until receipt by the Servicer of written notice to the contrary given by the
Trustee.
Section 12.07. Indemnification by Servicer as Custodian. The
Servicer, as custodian, shall indemnify the Trustee for any and all
liabilities, obligations, losses, compensatory damages, payments, costs or
expenses of any kind whatsoever that may be imposed on, incurred or asserted
against the Trustee as the result of any improper act or omission in any way
relating to the maintenance and custody by the Servicer, as custodian, of the
Receivable Files; provided, however, that the Servicer shall not be liable for
any portion of any such amount resulting from the willful misfeasance, bad
faith or negligence of the Trustee.
Section 12.08. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Initial Cutoff Date
and shall continue in full force and effect until terminated pursuant to this
Section. If the Servicer shall resign as Servicer pursuant to Section 18.05 or
if all of the rights and obligations of the Servicer may have been terminated
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pursuant to Section 19.01, the appointment of the Servicer as custodian shall
be terminated by the Trustee, or by the Holders of Certificates evidencing not
less than 51% of the Voting Interests of the Class A Certificates and Class B
Certificates, voting together as a single class, in the same manner as the
Trustee or such Holders may terminate the rights and obligations of the
Servicer under Section 19.01. The Trustee may terminate the Servicer's
appointment as custodian, with cause at any time upon written notification to
the Servicer, and without cause upon 30 days' prior written notification to the
Servicer. As soon as practicable after any termination of such appointment,
the Servicer shall deliver the Receivable Files to the Trustee or its agent at
such place or places as the Trustee may reasonably designate. Notwithstanding
the termination of the Servicer as custodian, the Trustee agrees that upon any
such termination, the Trustee shall provide, or cause its agent to provide,
access to the Receivable Files to the Servicer for the purpose of carrying out
its duties and responsibilities with respect to the servicing of the
Receivables hereunder.
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ARTICLE THIRTEEN
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 13.01. Duties of Servicer. The Servicer, as agent for the
Trustee, shall administer the Receivables with reasonable care, using that
degree of skill and attention that the Servicer exercises with respect to all
comparable recreational vehicle receivables that it services for itself or
others. The Servicer's duties shall include collecting and posting of all
payments, responding to inquiries of Obligors or by federal, state or local
government authorities with respect to the Receivables, investigating
delinquencies, reporting tax information to Obligors in accordance with its
customary practices and accounting for collections and furnishing monthly and
annual statements to the Trustee with respect to distributions, making Advances
pursuant to Section 14.04 and making Non-Reimbursable Payments pursuant to
Section 14.05. The Servicer shall follow its customary standards, policies and
procedures in performing its duties as Servicer. Without limiting the
generality of the foregoing, the Servicer shall be authorized and empowered by
the Trustee to execute and deliver, on behalf of itself, the Trust, the Trustee
or the Certificateholders or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and
all other comparable instruments, with respect to the Receivables or the
related Financed Vehicles. If the Servicer shall commence a legal proceeding
to enforce a Receivable, including a Defaulted Receivable, the Trustee shall
thereupon be deemed to have automatically assigned, solely for the purpose of
collection on behalf of the party retaining an interest in such Receivable,
such Receivable and the other property conveyed to the Trust pursuant to
Section 2.01 of the Agreement with respect to such Receivable to the Servicer
for the purposes of participating in such proceeding. If in any enforcement
suit or legal proceeding it shall be held that the Servicer may not enforce a
Receivable on the grounds that it shall not be a real party in interest or a
holder entitled to enforce the Receivable, the Trustee shall, at the Servicer's
expense and direction, take steps to enforce the Receivable, including bringing
suit in its name or the name of the Certificateholders. The Trustee shall
furnish the Servicer with any powers of attorney and other documents necessary
or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
Section 13.02. Collection of Receivable Payments. The Servicer shall
make reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due and shall
follow such collection procedures as it follows with respect to all comparable
recreational vehicle receivables that it services for itself or others. If, as
a result of extending of payments (including any increase in the number of
payments) in the ordinary course of the Servicer's collection procedures, any
Receivable will be outstanding on the Final Scheduled Distribution Date, then
the Servicer shall repurchase such Receivable pursuant to Section 13.07 or
Section 21.02. In addition, in the event that any such rescheduling or
extension of a Receivable modifies the terms of such Receivable in such a
manner as to constitute a cancellation of such Receivable and the creation of a
new receivable, the Servicer shall purchase such Receivable pursuant to Section
13.07, and the receivable created shall not be
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included in the Trust. For the purpose of such repurchases pursuant to Section
13.07, notice shall be deemed to have been received by the Servicer at such
time as shall make repurchase mandatory as of the related Record Date.
Notwithstanding the foregoing, extensions or modifications of the payment
schedule of a Receivable cannot be made unless the related Receivable is in
default or a default thereunder is imminent or if such extension or
modification is required by law. The Servicer may, in accordance with its
customary standards, policies and procedures, in its discretion (i) waive any
late payment charge or any other fees that may be collected in the ordinary
course of servicing a Receivable and (ii) waive the payment by the related
Obligor of Accrued Interest on any Receivable; provided that, in connection
with any such waiver of Accrued Interest, the Servicer shall make an Advance in
respect of the Accrued Interest so waived in accordance with Section 14.04, it
being understood and agreed that, notwithstanding anything to the contrary
contained in the Agreement, the obligation of the Servicer hereunder shall be
absolute and shall be performed regardless of whether the Servicer determines
that such Advance shall be recoverable and that the Servicer shall have no
right of reimbursement therefor.
Section 13.03. Realization Upon Receivables. On behalf of the Trust,
the Servicer shall use its best efforts, consistent with its customary
servicing procedures, to repossess or otherwise take possession of the Financed
Vehicle securing any Receivable which the Servicer shall have determined to be
or that the Servicer believes will become a Defaulted Receivable (and shall
specify such Receivables to the Trustee no later than the Determination Date
following the end of the Collection Period in which the Servicer shall have
made such determination). The Servicer shall follow such customary and usual
practices and procedures as it shall deem necessary or advisable in its
servicing of recreational vehicle receivables, which may include reasonable
efforts to realize upon any recourse to Dealers, consigning a Financed Vehicle
to a dealer for resale and selling a Financed Vehicle at public or private
sale. The Servicer shall be entitled to recover all reasonable out-of-pocket
expenses incurred by it in the course of converting a Financed Vehicle into
cash proceeds. The Liquidation Proceeds realized in connection with any such
action with respect to a Receivable shall be deposited by the Servicer in the
Certificate Account in the manner specified in Section 14.06(a)(ii) and shall
be applied to reduce (or to satisfy, as the case may be) the Repurchase Amount
of the Receivable, if such Receivable is to be repurchased by the Seller
pursuant to Section 12.02 or by the Servicer pursuant to Section 13.07;
provided, however, that if such Liquidation Proceeds are recovered subsequent
to the purchase of a Receivable by the Seller such Liquidation Proceeds shall
be paid to the Seller within two Business Days of receipt or, if received with
respect to a Receivable purchased by the Servicer, may be retained by the
Servicer or deposited in the Certificate Account in satisfaction of other
obligations of the Servicer hereunder. The foregoing shall be subject to the
proviso that, in any case in which a Financed Vehicle shall have suffered
damage, the Servicer shall not expend funds in connection with the repair or
the repossession of such Financed Vehicle unless it shall determine in its
discretion that such repair and/or repossession will increase the Liquidation
Proceeds of the related Receivable by an amount equal to or greater than the
amount of such expenses.
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Section 13.04. Physical Damage Insurance. The Servicer, in
accordance with its customary servicing procedures and underwriting standards,
shall require that each Obligor shall have obtained and maintained physical
damage insurance covering each Financed Vehicle as of the date of execution of
the related Receivable.
Section 13.05. Maintenance of Security Interests in Financed
Vehicles. The Servicer, in accordance with its customary servicing procedures,
shall take such steps as are necessary to maintain perfection of the security
interest created by each Receivable in the related Financed Vehicle including
the filing of financing statements and continuation statements with respect to
the transfer of the security interest in such Financed Vehicle to the Trust.
The Trustee hereby authorizes the Servicer, and the Servicer hereby agrees, to
take such steps as are necessary to reperfect such security interest on behalf
of the Trust in the event of the relocation of a Financed Vehicle or for any
other reason. In the event that the assignment of a Receivable to the Trust is
insufficient, without a notation on the related Financed Vehicle's certificate
of title, to grant to the Trust a first perfected security interest in the
related Financed Vehicle, the Servicer hereby agrees to serve as the agent of
the Trust for the purpose of perfecting the security interest in such Financed
Vehicle and that the Servicer's listing as the secured party on the certificate
of title is in its capacity as agent of the Trust.
Section 13.06. Covenants of Servicer. The Servicer shall make the
following covenants on which the Trustee will rely in accepting the Receivables
in trust and authenticating the Certificates:
(i) Security Interest to Remain in Force. Except as
contemplated by the Agreement, the Financed Vehicle securing each
Receivable shall not be released by the Servicer from the security
interest granted by the Receivable in whole or in part.
(ii) No Impairment. The Servicer shall not impair the
rights of the Certificateholders in the Receivables.
(iii) Amendments. The Servicer shall not increase the
number of payments under a Receivable except as permitted pursuant to
Section 13.02, nor increase the Amount Financed under a Receivable.
Section 13.07. Purchase of Receivables Upon Breach. The Servicer or
the Trustee, as the case may be, shall inform the other party promptly, in
writing, upon the discovery of any breach by the Servicer of its obligations
pursuant to Section 13.06 which materially and adversely affects the interest
of the Trust in any Receivable or pursuant to Section 13.02 in the case of a
Receivable for which the related payment schedule has been extended or
modified. Unless the breach shall have been cured by the second Record Date
following the date of such discovery (or, at the Servicer's election, the first
following Record Date), the Servicer shall purchase any Receivable materially
and adversely affected by such breach as of such second Record Date. In
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consideration of the purchase of such Receivable, the Servicer shall remit the
Repurchase Amount (less any Liquidation Proceeds deposited, or concurrently
being deposited, in the Certificate Account with respect to such Receivable
pursuant to Section 13.03) to the Certificate Account in the manner specified
in Section 14.06(a)(i). The sole remedy of the Trustee, the Trust or the
Certificateholders against the Servicer with respect to a breach pursuant to
Section 13.02 or 13.06 shall be to require the Servicer to repurchase
Receivables pursuant to this Section.
Section 13.08. Servicing Fee. The Servicing Fee for a Collection
Period shall equal the product of one twelfth times the Servicing Fee Rate
times the Pool Balance as of the Record Date immediately preceding the first
day of such Collection Period, except that in the case of the first Collection
Period, the Servicing Fee shall equal the product of one twelfth times the
Servicing Fee Rate times the Original Pool Balance. The Servicing Fee for any
Collection Period shall be calculated based on a 360 day year comprised of
twelve 30-day months. In addition, the Servicer shall also be entitled to
receive as additional servicing compensation all late payment and extension
fees, and other administrative fees with respect to the Receivables, collected
(from whatever source) on the Receivables; provided, however, such late payment
and other fees shall not form a part of the Servicing Fee and the Servicer
shall be entitled to such fees as and when collected.
Section 13.09. Servicer's Certificate. On or before each
Determination Date, the Servicer shall deliver to the Trustee and the Letter of
Credit Bank, if any, a Servicer's Certificate containing all information
necessary to make the distributions pursuant to Section 14.07 in respect of the
Collection Period preceding the date of such Servicer's Certificate and all
information necessary for the Trustee to send statements to Certificateholders
pursuant to Section 14.10. The Servicer shall also specify to the Trustee no
later than the Determination Date following the Record Date as of which the
Seller shall be required to repurchase or the Servicer shall be required to
purchase a Receivable, the identity of any such Receivable and the identity of
any Receivable which the Servicer shall have determined to be a Defaulted
Receivable during the preceding Collection Period. Receivables purchased or to
be purchased by the Servicer or the Seller and Receivables as to which the
Servicer has determined during the Collection Period that eventual payment in
full is unlikely and with respect to which payment of the Repurchase Amount has
been provided from whatever source as of any Record Date shall be identified by
the Seller's account number with respect to such Receivable (as specified in
the Schedule of Receivables). The Rating Agencies may request such additional
information as the Servicer may be able to reasonably provide.
Section 13.10. Annual Statement as to Compliance; Notice of Default;
Opinion as to Interest of the Trustee in the Receivables.
(a) The Servicer shall deliver to the Trustee and the Letter of
Credit Bank, if any, on or before April 30 of each year, beginning with the
first April 30 that occurs at least six months after the Initial Cutoff Date,
an Officer's Certificate, stating that (i) a review of the activities of
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the Servicer during the preceding 12-month period ending the preceding December
31 (or shorter period in the case of the first such certificate) and of its
performance under the Agreement has been made under such officer's supervision
and (ii) to the best of such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under the Agreement throughout such
year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
(b) The Servicer shall deliver to the Trustee and the Letter of
Credit Bank, if any, promptly after having obtained knowledge thereof, but in
no event later than five Business Days thereafter, an Officer's Certificate of
any event which with the giving of notice or lapse of time, or both, would
become an Event of Default under clause (i) or (ii) of Section 19.01. The
Seller shall deliver to the Trustee and Letter of Credit Bank, if any, promptly
after having obtained knowledge thereof, but in no event later than five
Business Days thereafter, an Officer's Certificate of any event which with the
giving of notice or lapse of time, or both, would become an Event of Default
under clause (ii) of Section 19.01.
(c) The Servicer shall deliver to the Trustee on or prior to April
30 of each year, commencing with the first April 30 that occurs at least six
months after the Initial Cutoff Date, an Opinion of Counsel, dated as of such
date, either (A) stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed and filed that are
necessary fully to preserve and protect the interest of the Trustee in the
Receivables, and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given or (B) stating that, in the
opinion of such counsel, no such action shall be necessary to preserve and
protect such interest.
Section 13.11. Annual Independent Certified Public Accountant's
Report. The Servicer shall cause a firm of independent certified public
accountants (who may also render other services to the Servicer or to the
Seller) to deliver to the Trustee and the Letter of Credit Bank, if any, on or
before April 30 of each year beginning with the first April 30 that occurs at
least six months after the Initial Cutoff Date, a report addressed to the Board
of Directors of the Servicer, the Trustee and the Letter of Credit Bank, if
any, to the effect that such firm has examined the financial statements of the
Servicer for the fiscal year ending the preceding December 31 and issued its
report thereon and that such examination (i) was made in accordance with
generally accepted auditing standards, and accordingly included such tests of
the accounting records and such other auditing procedures as such firm
considered necessary in the circumstances, and (ii) except as described in such
report, disclosed no exceptions or errors in the records relating to
receivables serviced for others that, in such firm's opinion, requires such
firm to report.
The report shall also indicate that such firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
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Section 13.12. Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to the Certificateholders
access to the Receivable Files in such cases where the Certificateholders shall
be required by applicable statutes or regulations to review such documentation.
Access shall be afforded without charge, but only upon reasonable request and
during the normal business hours at the respective offices of the Servicer.
Nothing in this Section shall affect the obligation of the Servicer to observe
any applicable law prohibiting disclosure of information regarding the
Obligors, and the failure of the Servicer to provide access to information as a
result of such obligation shall not constitute a breach of this Section.
Section 13.13. Reports to Certificateholders and Rating Agencies.
(a) The Trustee shall provide to any Certificateholder or
Certificate Owner who so requests in writing a copy of (i) any Servicer's
Certificate, (ii) any annual statement as to compliance described in Section
13.10(a), (iii) any annual report described in Section 13.11, (iv) any
statement to Certificateholders described in Section 14.11 or (v) the Agreement
(without Exhibits). The Trustee may require such Certificateholder or
Certificate Owner to pay a reasonable sum to cover the cost of the Trustee's
complying with such request.
(b) The Trustee shall forward to each Rating Agency a copy of each
(i) Servicer's Certificate described in Section 13.09, (ii) annual statement as
to compliance described in Section 13.10(a), (iii) Officer's Certificate
described in Section 13.10(b), (iv) Opinion of Counsel described in 13.10(c),
(v) annual independent certified public accountants' report described in
Section 13.11, (vi) statement to Certificateholders described in Section 14.11
and (vii) other report it may receive pursuant to the Agreement at its address
specified in Section 22.05 or in the Agreement.
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ARTICLE FOURTEEN
DISTRIBUTIONS; RESERVE FUND;
PRE-FUNDING ACCOUNT; STATEMENTS TO CERTIFICATEHOLDERS
Section 14.01. Accounts.
(a) The Servicer shall establish the Accounts in the name of the
Trustee for the benefit of the Certificateholders. Each Account shall be a
segregated trust account initially established with the Trustee and maintained
(i) with the Trustee so long as the deposits of the Trustee have the Required
Deposit Rating, or (ii) in a non-interest bearing segregated trust account
bearing a designation clearly indicating that the funds deposited therein are
held in trust for the benefit of the Certificateholders, located in the
corporate trust department of a depository institution or trust company having
corporate trust powers under applicable federal and state laws (which may
include the Trustee) organized under the laws of the United States or any State
and, if required by any Rating Agency, having the Required Long Term Debt
Rating.
(b) For so long as the bank or trust company then maintaining the
Accounts has the Required Deposit Rating, all amounts held in the Accounts
shall, to the extent permitted by applicable laws, rules and regulations, be
invested, as directed by the Servicer, in Permitted Investments. In the event
that the short-term unsecured debt obligations of the Trustee no longer have
the Required Deposit Rating, then the Servicer shall, with the Trustee's
assistance as necessary, cause the Certificate Account and, so long as the
Funding Period has not ended, the Pre-Funding Account, to be moved within 15
days of such occurrence (i) to a bank or trust company, the short-term
unsecured debt obligations of which shall have the Required Deposit Rating, or
(ii) to a non-interest bearing segregated trust account bearing a designation
clearly indicating that the funds deposited therein are held in trust for the
benefit of the Certificateholders, located in the corporate trust department of
a depository institution or trust company having corporate trust powers under
applicable federal and state laws (which may include the Trustee) organized
under the laws of the United States or any State and, if required by any Rating
Agency, having the Required Long Term Debt Rating. Earnings on investment of
funds in the Pre-Funding Account shall be deposited into the Certificate
Account pursuant to Section 14.07(a)(i) and losses and investment expenses
shall be charged against the funds on deposit in the Pre-Funding Account.
Earnings on investment of funds in the Certificate Account shall be paid to the
Servicer.
Section 14.02. Collections. The Servicer shall remit to the
Certificate Account on a daily basis within two Business Days of receipt
thereof, all payments by or on behalf of the Obligors (other than the amounts
listed in subclauses (i)(a) and (b) of the definition of Available Funds as not
constituting Available Funds) on or in respect of the Receivables (other than
Repurchased Receivables) and all Liquidation Proceeds both as collected during
each Collection Period.
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Fleetwood Credit has requested that the Servicer be permitted to make
remittances of collections on a less frequent basis than that specified in the
immediately preceding sentence upon the Servicer's compliance with the specific
terms and conditions set forth below in this Section and for so long as such
terms and conditions are fulfilled. Accordingly, notwithstanding the
provisions of the first sentence of this Section, the Servicer will be
permitted to remit such collections to the Certificate Account in Automated
Clearinghouse Corporation next-day funds or immediately available funds no
later than 12:00 P.M., New York City time, on the Business Day immediately
preceding each Distribution Date but only for so long as (a)(i) except as
provided in clause (b) below, the short-term credit rating of the Servicer is
at least equal to the Required Servicer Rating by each Rating Agency, and (ii)
no Event of Default shall have occurred and be continuing; provided, however,
that immediately following the non-compliance with clause (i) above or in the
event that an event of the nature specified in clause (iii) of Section 19.01
has occurred (notwithstanding any period of grace contained in such clause),
the Servicer shall remit such collections to the Certificate Account on a daily
basis within two Business Days of receipt thereof, or (b)(i) if the condition
specified in clause (a)(ii) above is satisfied, and (ii) the Servicer shall
have obtained a Servicer Letter of Credit issued in favor of the Trustee by a
depository institution or insurance company, as the case may be, having a
short-term credit rating at least equal to the Required Deposit Rating and
providing that the Trustee may draw thereon in the event that the Servicer
fails to deposit collections into the Certificate Account on a monthly basis;
provided that in connection with clause (b) above, the Servicer provides, to
the Trustee, from each Rating Agency for which the Servicer's then-current
short-term credit rating is not at least equal to the Required Servicer Rating
for such Rating Agency, a letter to the effect that the satisfaction of the
conditions in clause (b) above and allowing the Servicer to make monthly
deposits will not result in a qualification, reduction or withdrawal of the
then-current rating of the Rated Certificates and, if applicable, an Officer's
Certificate from the Servicer to the effect that the Servicer's then-current
short-term credit rating is at least equal to the Required Servicer Rating from
each other Rating Agency, if any; and, provided further, that if the Servicer
shall have obtained a Servicer Letter of Credit in accordance with clause (b)
above, the Servicer shall be required to remit such collections in the manner
provided for in Section 15.01(c) under the conditions specified in such
Section. The Trustee shall not be deemed to have knowledge of any event or
circumstance under clause (a)(ii) above that would require daily remittance by
the Servicer to the Certificate Account unless it has received notice of such
event or circumstance from the Seller or the Servicer in an Officer's
Certificate or from Certificateholders as provided in Section 19.01. For
purposes of this Article the phrase "payments made on behalf of Obligors" shall
mean payments made by Persons other than the Seller, the Servicer or the Letter
of Credit Bank, if any.
Any funds held by the Servicer which it determines are to be remitted
(or any of its own funds which the Seller or the Servicer determines to pay to
the Letter of Credit Bank) in respect of a failure previously to remit
collections which failure resulted in a payment under any Servicer Letter of
Credit pursuant to Section 15.01 shall not be remitted to the Certificate
Account, but shall instead be paid immediately and directly to the Letter of
Credit Bank. Any such payment to
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the Letter of Credit Bank shall be accompanied by a copy of the Servicer's
Certificate related to the previous failure to remit funds and an Officer's
Certificate which includes a statement identifying, by reference to the items
in such Servicer's Certificate, each shortfall in Servicer remittances to which
such payment relates. The Servicer will also provide the Trustee with copies
of each such Servicer's Certificate and Officer's Certificate delivered with
any such payment to the Letter of Credit Bank.
Section 14.03. Application of Collections. As of each Record Date,
all collections for the related Collection Period shall be applied by the
Servicer as follows: with respect to each Receivable (including a Defaulted
Receivable), payments by or on behalf of an Obligor shall be applied first to
late payment and extension fees, second to interest accrued on the Receivable,
third to principal of the Receivable and fourth to administrative charges, if
any. Any excess shall be applied to pay the principal balance of the
Receivable.
Section 14.04. Advances. As of each Record Date, the Servicer shall
purchase from the Trust the aggregate Accrued Interest on the Receivables
(including Accrued Interest waived by the Servicer pursuant to Section 13.02)
at a price equal to the face value thereof. On the Business Day immediately
preceding the related Distribution Date, the Servicer shall deposit an amount
equal to the Accrued Interest in respect of each Receivable (an "Advance") in
the Certificate Account in Automated Clearinghouse Corporation next-day funds
or immediately available funds. The Servicer shall be entitled to
reimbursement for unreimbursed Advances, without interest, with respect to a
Receivable from subsequent Collected Interest or Collected Principal, as the
case may be, allocable with respect to such Receivable, Liquidation Proceeds of
or the Repurchase Amount of such Receivable or as otherwise provided in Section
14.07, except as otherwise provided in Sections 13.02 and 13.07. Except as
otherwise provided in Section 13.02, the Servicer shall not be required to make
an Advance to the extent that the Servicer, in its sole discretion, shall
determine that such Advance will not be recoverable from subsequent payments by
or on behalf of the related Obligor, Liquidation Proceeds or the Repurchase
Amount with respect to such Receivable (whether such Receivable is purchased by
the Seller or the Servicer, to the extent such right of reimbursement is not
waived in connection with any such repurchase) or otherwise.
Section 14.05. Non-Reimbursable Payments. As of each Record Date,
the Servicer shall be required to make a payment (the "Non-Reimbursable
Payment") equal to the amount of interest that accrued on the aggregate
Collected Principal for the related Collection Period, at a rate equal to the
sum of (i) the weighted average of the Class A Pass- Through Rate and the Class
B Pass-Through Rate as of the Closing Date and (ii) the Servicing Fee Rate,
from the date of collection of each payment of principal on or in respect of
the Receivables comprising part of such aggregate Collected Principal through
such Record Date, based on a year with the actual number of days in such year
and consisting of twelve months with the actual number of days in such month.
The Servicer shall not be entitled to reimbursement for any Non-Reimbursable
Payment from the Trust, the Trustee, the Seller or the Letter of Credit Bank,
if any. On the
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Business Day immediately preceding each Distribution Date, the Servicer shall
deposit into the Certificate Account in Automated Clearinghouse Corporation
next-day funds or immediately available funds an amount equal to the aggregate
Non-Reimbursable Payments to be made in respect of the related Collection
Period.
Section 14.06. Additional Deposits.
(a) The following additional deposits shall be made to the
Certificate Account: (i) the Servicer or the Seller, as the case may be, shall
remit the aggregate Repurchase Amount with respect to Repurchased Receivables
pursuant to Sections 12.02, 13.07 and 21.02, (ii) the Servicer shall remit the
aggregate Liquidation Proceeds received during each Collection Period (less any
Liquidation Proceeds paid to the Seller or retained by the Servicer) pursuant
to Section 13.03, (iii) the Trustee shall deposit (A) the aggregate of any
amounts received from any Letter of Credit Bank pursuant to Article Fifteen or
(B) from the sale of Receivables pursuant to Section 21.03, in each case on the
date of receipt thereof, and (iv) on the Distribution Date immediately
succeeding the date in which the Funding Period ends (or on the Distribution
Date on which the Funding Period ends, if the Funding Period ends on a
Distribution Date), the Trustee shall remit the remaining Pre-Funded Amount on
deposit in the Pre-Funding Account to the Certificate Account pursuant to
Section 14.09(c).
(b) Except as otherwise provided in Section 14.02, all deposits
required to be made in respect of a Collection Period pursuant to this Section
by the Seller or the Servicer may be made in the form of a single deposit by
the Seller or the Servicer, as the case may be, and shall be made in Automated
Clearinghouse Corporation next-day funds or immediately available funds, no
later than 12:00 P.M., New York City time, on the Business Day preceding each
Distribution Date.
Section 14.07. Distributions.
(a) On each Distribution Date, the Trustee shall cause to be made
the following transfers and distributions in immediately available funds in the
amounts set forth in the Servicer's Certificate for such Distribution Date:
(i) from monies on deposit in the Pre-Funding Account to
the Certificate Account, earnings received from investment of the
Pre-Funded Amount during the related Collection Period; and
(ii) from monies on deposit in the Reserve Fund to the
Certificate Account, an amount equal to the Negative Carry Amount for
the related Collection Period, if any.
(b) The rights of the Class B Certificateholders to receive
distributions in respect of the Class B Certificates shall be and hereby are
subordinated to the rights of the Class A
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Certificateholders to receive distributions in respect of the Class A
Certificates to the extent provided in this Section. On each Distribution
Date, the Trustee shall cause to be made the following transfers and
distributions from the Certificate Account in respect of the related Collection
Period in the following order of priority and in the amounts set forth in the
Servicer's Certificate for such Distribution Date:
(i) to the Servicer in reimbursement of an Advance
previously made in respect of a Receivable, by wire transfer of
immediately available funds, from monies on deposit in the Certificate
Account in respect of (A) the amount of Collected Interest collected
during the related Collection Period in respect of the related
Receivable, (B) the interest portion of the Repurchase Amount (to the
extent that the Repurchase Amount does not consist in part of a waiver
of the right to reimbursement for an Advance made in respect of such
Receivable, as provided in Section 13.02) and (C) the interest portion
of Liquidation Proceeds of such Receivable; provided that no repayment
of an Advance made by the Servicer in respect of a Receivable pursuant
to this subclause, when taken together with all previous repayments
made in respect of such Advance, may exceed the actual amount of the
Advance;
(ii) to the Servicer, by wire transfer of immediately
available funds, the aggregate payment of the Servicing Fee (including
any unpaid Servicing Fees with respect to one or more prior Collection
Periods); provided, however, that such fees shall be provided from
Available Funds only to the extent, as determined by the Servicer
pursuant to Section 14.03, such funds represent payment in respect of
the Receivables allocable to interest;
(iii) to the Class A Certificateholders as of the previous
Record Date from Collected Interest (after giving effect to the
reduction in Collected Interest described in clauses (i) and (ii)
above), an amount equal to the sum of the Class A Interest
Distributable Amount and any outstanding Class A Interest Carryover
Shortfall; and, if such Collected Interest is insufficient, the Class
A Certificateholders will receive such shortfall first, from the Class
B Percentage of Collected Principal and second, if such amounts are
still insufficient, from monies on deposit in the Reserve Fund;
(iv) to the Class B Certificateholders as of the previous
Record Date, from Collected Interest (after giving effect to the
reduction in Collected Interest described in clauses (i), (ii) and
(iii) above), an amount equal to the sum of the Class B Interest
Distributable Amount and any outstanding Class B Interest Carryover
Shortfall; and, if such Collected Interest is insufficient, the Class
B Certificateholders will receive such shortfall from monies on
deposit in the Reserve Fund;
(v) to the Class A Certificateholders as of the previous
Record Date, from Collected Principal (after giving effect to
reduction in Collected Principal described in
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clause (iii) above) an amount equal to the sum of the Class A
Principal Distributable Amount and any outstanding Class A Principal
Carryover Shortfall; and, if such Collected Principal is insufficient,
the Class A Certificateholders will receive such shortfall first, from
Collected Interest (after giving effect to the reduction in Collected
Interest described in clauses (i) through (iv) above) and second, if
such amounts are still insufficient, from monies on deposit in the
Reserve Fund; and
(vi) to the Class B Certificateholders as of the previous
Record Date, from Collected Principal (after giving effect to the
reduction in Collected Principal described in clauses (iii) and (v)
above), an amount equal to the sum of the Class B Principal
Distributable Amount and any outstanding Class B Principal Carryover
Shortfall; and, if such Collected Principal is insufficient, the Class
B Certificateholders will receive such shortfall first, from Collected
Interest (after giving effect to the reduction in Collected Interest
described in clauses (i) through (v) above) and second, if such
amounts are still insufficient, from monies on deposit in the Reserve
Fund.
(c) On each Distribution Date, the Trustee shall distribute any
excess amounts remaining in the Certificate Account in respect of the related
Collection Period after making the distributions described in clauses (b)(i)
through (vi) above ("Excess Amounts") in the following amounts and in the
following order of priority: (i) into the Reserve Fund until the amount on
deposit therein equals the Specified Reserve Fund Balance, and (ii) to the
Seller. Notwithstanding the foregoing, all Excess Amounts will be deposited
into the Reserve Fund and will not be paid to the Seller until the Distribution
Date immediately succeeding the date on which the Funding Period ends (or on
the Distribution Date on which the Funding Period ends if the Funding Period
ends on a Distribution Date).
(d) Subject to Section 21.01 with respect to the final payment
upon retirement of each Certificate, on each Distribution Date the Trustee
shall distribute to the respective Certificateholders of record as of the
previous Record Date by check mailed by the Trustee to each Certificateholder's
respective address (or if DTC, its nominee or a Clearing Agency is the relevant
Certificateholder, by wire transfer of immediately available funds or pursuant
to other arrangements) the amount to be distributed to such Certificateholder
pursuant to such Holder's Certificate.
(e) In the event that the Servicer determines that the amount of
an Advance previously made in respect of a Receivable which became a Defaulted
Receivable is not recoverable as a result of the fact that Liquidation Proceeds
of such Defaulted Receivable are insufficient to fully reimburse the Servicer
for such Advance, the Servicer shall be entitled to withdraw from the
Certificate Account an amount equal to the amount that would be necessary to
fully reimburse the Servicer for such Advance, and the amount available for the
other distributions pursuant to this Section will be reduced accordingly.
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Section 14.08. Subordination; Reserve Fund; Priority of
Distributions.
(a) (i) In order to effectuate the subordination provided for
herein and to assure that sufficient amounts to make required
distributions to Certificateholders will be available, the Servicer
shall establish and maintain with the Trustee a separate trust account
(the "Reserve Fund") which will include the money and other property
deposited and held therein pursuant to Section 14.07(c)(i) and this
Section. Except as otherwise provided in the Agreement, the Reserve
Fund shall (A) be a segregated trust account initially established
with the Trustee and maintained with the Trustee so long as the
commercial paper, other short-term unsecured debt obligations or
uninsured deposits of the Trustee have the Required Rating and (B) in
the event that the commercial paper, other short-term unsecured debt
obligations or uninsured deposits of the Trustee no longer have the
Required Rating, within ten Business Days the Servicer shall, with the
assistance of the Trustee as necessary, cause the Reserve Fund to be
moved to (1) a segregated deposit account in a bank or trust company
the commercial paper, other short-term unsecured debt obligations or
uninsured deposits of which shall have the Required Rating, or (2)
segregated trust accounts bearing designations clearly indicating the
funds deposited therein are held in trust for the benefit of the
Certificateholders, located in the corporate trust department of a
depository institution or trust company (which may include the
Trustee) having a long-term deposit rating from Moody's (so long as
Moody's is a Rating Agency) of at least Baa3 (or such lower rating as
Moody's shall approve in writing) and corporate trust powers under
applicable federal and state laws and organized under the laws of the
United States, any State or the Commonwealth of Puerto Rico.
On or prior to the Closing Date, the Seller shall deposit an
amount equal to the Reserve Fund Initial Deposit into the Reserve
Fund. The Reserve Fund shall not be part of the Trust but instead
will be held for the benefit of the Holders of the Certificates. The
Seller hereby acknowledges that any money and other property held in
the Reserve Fund, including the Reserve Fund Initial Deposit (and any
investment earnings thereon), is owned directly by it, and the Seller
hereby agrees to treat the same as its assets (and earnings) for
federal income, state and local franchise tax purposes.
(ii) In order to give effect to the subordination provided
for herein and to assure availability of the amounts maintained in the
Reserve Fund, the Seller hereby sells, conveys and transfers to the
Trustee, as collateral agent, and its successors and assigns, the
Reserve Fund Initial Deposit and all proceeds thereof and hereby
pledges to the Trustee as collateral agent, and its successors and
assigns, all other amounts deposited in or credited to the Reserve
Fund from time to time under the Agreement, all Permitted Investments
made with amounts on deposit therein, all earnings and distributions
thereon and proceeds thereof (other than proceeds constituting net
investment earnings attributable to the Reserve Fund Property)
subject, however, to the limitations set forth below, and solely for
the purpose of securing and providing for payment of the Class A
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and Class B Distributable Amounts, together with any Class A and Class
B Interest Carryover Shortfalls and Class A and Class B Principal
Carryover Shortfalls, in accordance with Section 14.07 and this
Section (all the foregoing, subject to the limitations set forth
below, being the "Reserve Fund Property"), to have and to hold all the
aforesaid property, rights and privileges unto the Trustee, its
successors and assigns, in trust for the uses and purposes, and
subject to the terms and provisions, set forth in this Section. The
Trustee hereby acknowledges such transfer and accepts the trusts
hereunder and shall hold and distribute the Reserve Fund Property in
accordance with the terms and provisions of this Section.
(iii) Consistent with the limited purposes for which such
trust is granted on each Distribution Date, the amounts on deposit in
the Reserve Fund shall be available for distribution as provided in
Section 14.07, in accordance with and subject to the following: if
the amount on deposit in the Reserve Fund (after giving effect to all
deposits thereto and withdrawals therefrom on such Distribution Date)
is greater than the Specified Reserve Fund Balance, the Trustee shall
release and distribute all such amounts to the Seller unless
prohibited from making such distribution by the last sentence of
Section 14.07(c). Upon any such distribution to the Seller, the
Certificateholders will have no further rights in, or claims to, such
amounts.
(b) (i) Amounts held in the Reserve Fund shall be invested in
Permitted Investments in accordance with written instructions from the
Seller and such investments shall not be sold or disposed of prior to
their maturity. Investment earnings attributable to the Reserve Fund
Property shall not be available to satisfy the subordination
provisions of the Agreement and shall not otherwise be subject to any
claims or rights of the Certificateholders or the Servicer. All such
investments shall be made in the name of the Trustee or its nominee,
as collateral agent, and all income and gain realized thereon shall be
solely for the benefit of the Seller and shall be payable by the
Trustee to the Seller on each Distribution Date. Realized losses, if
any, on investment of the Reserve Fund Property shall be charged first
against undistributed investment earnings attributable to the Reserve
Fund Property and then against the Reserve Fund Property.
(ii) With respect to the Reserve Fund Property, the Seller
on behalf of itself, its successors and assigns and the Trustee agree
that:
(A) Any Reserve Fund Property that is held in
deposit accounts shall be held solely in the name of the
Trustee, as collateral agent, at the Trustee (in a segregated
trust account if the deposits of the Trustee do not have the
Required Deposit Rating) or at one or more depository
institutions which have the Required Deposit Rating. Each
such deposit account shall be subject to the exclusive custody
and control of the Trustee, and the Trustee shall have sole
signature authority with respect thereto.
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(B) Any Reserve Fund Property that constitutes
Physical Property shall be delivered to the Trustee, as
collateral agent, in accordance with paragraph (a) of the
definition of "Delivery" and shall be held, pending maturity
or disposition, solely by the Trustee, as collateral agent, or
a Financial Intermediary acting solely for the Trustee, as
collateral agent.
(C) Any Reserve Fund Property that is a
book-entry security held through the Federal Reserve System
pursuant to federal book-entry regulations shall be delivered
in accordance with paragraph (b) of the definition of
"Delivery" and shall be maintained by the Trustee, as
collateral agent, pending maturity or disposition, through
continued book-entry registration of such Reserve Fund
Property as described in such paragraph.
(D) Any Reserve Fund Property that is an
"uncertificated security" under Article 8 of the UCC and that
is not governed by clause (C) above shall be delivered to the
Trustee, as collateral agent, in accordance with paragraph (c)
of the definition of "Delivery" and shall be maintained by the
Trustee, as collateral agent, pending maturity or disposition,
through continued registration of the Trustee's or its
Financial Intermediary's (or its custodian's or its nominee's)
ownership of such security, in its capacity as collateral
agent.
Effective upon Delivery of any Reserve Fund Property in the
form of Physical Property, book-entry securities or uncertificated
securities, the Trustee shall be deemed to have purchased such Reserve
Fund Property for value, in good faith and without notice of any
adverse claim thereto.
(iii) Each of the Seller and the Servicer agrees to take or
cause to be taken such further actions, to execute, deliver and file
or cause to be executed, delivered and filed such further documents
and instruments (including, without limitation, any UCC financing
statements or the Agreement) as may be determined to be necessary in
an Opinion of Counsel to the Seller delivered to the Trustee in order
to perfect the interests created by this Section and otherwise fully
to effectuate the purposes, terms and conditions of this Section. The
Seller and/or the Servicer, as the case may be, shall:
(A) promptly execute, deliver and file any
financing statements, amendments, continuation statements,
assignments, certificates and other documents with respect to
such interests and perform all such other acts as may be
necessary in order to perfect or to maintain the perfection of
the Trustee's security interest; and
(B) make the necessary filings of financing
statements or amendments thereto within five days after the
occurrence of any of the following: (1) any
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change in its corporate name or any trade name; (2) any change
in the location of its chief executive office or principal
place of business; and (3) any merger or consolidation or
other change in its identity or corporate structure and
promptly notify the Trustee of any such filings.
(iv) The Trustee shall not enter into any subordination or
intercreditor agreement with respect to the Reserve Fund Property.
(c) Upon termination of this Agreement in accordance with Section
21.01, any amounts on deposit in the Reserve Fund, after payment of amounts due
to the Class A and Class B Certificateholders, shall be paid to the Seller.
Section 14.09. Pre-Funding Account.
(a) Pursuant to Section 14.01, the Servicer shall establish the
Pre-Funding Account in the name of the Trustee for the benefit of the
Certificateholders.
(b) On the Closing Date, the Seller will deposit in the
Pre-Funding Account an amount equal to the Original Pre-Funded Amount from the
proceeds of the sale of the Certificates. On each Subsequent Transfer Date,
the Servicer shall instruct the Trustee in writing to withdraw from the
Pre-Funding Account an amount equal to the Principal Balance of the Subsequent
Receivables (as of the related Subsequent Cutoff Date) sold to the Trust on
such Subsequent Transfer Date, which instruction shall specify the amount
thereof, and pay such amount to or upon the order of the Seller upon
satisfaction of the conditions set forth in the Agreement and in the related
Transfer Agreement with respect to such transfer.
(c) If (i) the Pre-Funded Amount has not been reduced to zero by
the close of business on the Final Funding Period Distribution Date or (ii) the
Pre-Funded Amount has been reduced to $100,000 or less on any Distribution Date
during the Funding Period, in either case after giving effect to any reductions
in the Pre-Funded Amount on such Distribution Date pursuant to Section
14.09(b), the Servicer shall instruct the Trustee to withdraw such remaining
portion of the Pre-Funded Amount from the Pre-Funding Account and deposit it in
the Certificate Account on such Distribution Date to be applied to a partial
prepayment of the Certificates, in addition to the payment of principal and
interest that otherwise would be payable with respect to such Certificates on
such Distribution Date.
Section 14.10. Net Deposits. For so long as (i) Fleetwood Credit
shall be the Servicer and (ii) the Servicer shall be entitled pursuant to
Section 14.02 to remit collections on a monthly rather than daily basis, the
Servicer may make the remittances pursuant to Sections 14.02, 14.04, 14.05 and
14.06 net of amounts to be distributed to the Servicer pursuant to Section
14.07. Nonetheless, the Servicer shall account for all of the above described
remittances and
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distributions in the Servicer's Certificate as if the amounts were deposited
and/or distributed separately.
Section 14.11. Statements to Certificateholders. On each
Distribution Date, the Trustee shall include with each distribution to each
Class A Certificateholder and Class B Certificateholder of record, a statement
based on information in the related Servicer's Certificate furnished pursuant
to Section 13.09, setting forth for the related Collection Period the following
information (stated in the case of items (i), (ii) and (iii) below, on the
basis of a Certificate with a denomination of $1,000) as of the related Record
Date or such Distribution Date, as the case may be:
(i) the amount of the distribution allocable to principal
on the Class A Certificates and the Class B Certificates;
(ii) the amount of the distribution allocable to interest
on the Class A Certificates and the Class B Certificates;
(iii) the Certificateholder's pro rata portion of the
Servicing Fee and any additional servicing compensation paid to the
Servicer and the fee paid to the Letter of Credit Bank, if any;
(iv) the Pool Balance, the Class A Pool Factor and the
Class B Pool Factor as of the related Record Date;
(v) the amount, if any, of proceeds received during the
related Collection Period in connection with any physical damage
insurance policies covering Financed Vehicles;
(vi) the amount on deposit in the Reserve Fund, after
giving effect to distributions made on such Distribution Date, such
amount as a percentage of the Pool Balance and, if the amount on
deposit in the Reserve Fund has been reduced to zero, the number and
aggregate dollar amount of Defaulted Receivables;
(vii) the Servicer Letter of Credit Amount, if any, and
such amount as a percentage of the Pool Balance;
(viii) the amount if any, of proceeds received during the
related Collection Period from Dealer repurchase obligations relating
to Defaulted Receivables;
(ix) the number and aggregate amount of Paid-Ahead
Receivables, the aggregate amount of unreimbursed Advances made with
respect to such Paid-Ahead Receivables and the change in such amounts
from the previous Collection Period;
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(x) the aggregate amount of unreimbursed Advances and the
change in such amount from the previous Collection Period;
(xi) the Class A Certificate Balance and the Class B
Certificate Balance as of such Record Date, after giving effect to
payments allocated to principal reported under (i) above;
(xii) the amount of Class A Principal and Interest
Carryover Shortfalls and Class B Principal and Interest Carryover
Shortfalls, if any, on such Distribution Date and the change in such
Class A and Class B Principal and Interest Carryover Shortfalls from
the immediately preceding Distribution Date;
(xiii) the amount of Realized Losses, if any, on such
Distribution Date and the change in such amount from the immediately
preceding Distribution Date; and
(xiv) the amount otherwise distributable to the Class B
Certificateholders that is being distributed to the Class A
Certificateholders on such Distribution Date.
(xv) for Distribution Dates during the Funding Period, the
remaining Pre-Funded Amount on deposit in the Pre-Funding Account and
the Negative Carry Amount, if any, for the related Collection Period;
and
(xvi) for the first Distribution Date that is on or
immediately following the end of the Funding Period (if any), the
amount of the Pre-Funded Amount that has not been used to purchase
Subsequent Receivables and is being distributed as a payment of
principal to Certificateholders.
Within a reasonable period of time after the end of each calendar
year, but not later than the latest date permitted by law, the Trustee shall
furnish, to each Person who at any time during such calendar year shall have
been a Certificateholder, a statement containing the sum of the amounts
determined in each of clauses (i) through (iii) and (xiii) above for such
calendar year or, in the event such Person shall have been a Certificateholder
during a portion of such calendar year, for the applicable portion of such
year, for the purposes of such Certificateholder's preparation of federal
income tax returns. In addition, the Servicer shall furnish to the Trustee for
distribution to such Person at such time any other information necessary under
applicable law for the preparation of such income tax returns.
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ARTICLE FIFTEEN
THE SERVICER LETTER OF CREDIT
Section 15.01. Servicer Letter of Credit.
(a) If the Servicer has obtained a Servicer Letter of Credit, on
any Distribution Date which immediately follows a Collection Period during
which the Servicer is permitted to remit collections on a monthly rather than a
daily basis pursuant to Section 14.02 and the Servicer shall have failed to
make in full the remittances to the Certificate Account pursuant to Section
14.02 required for distribution to Certificateholders on such Distribution Date
by 12:00 P.M., New York City time, on the Business Day immediately preceding
such Distribution Date, the Trustee shall immediately deliver a demand for
payment under the Servicer Letter of Credit to the Letter of Credit Bank
requesting payment in the amount of the shortfall between the amount of funds
that are required to be remitted by the Servicer to the Certificate Account as
set forth in the related Servicer's Certificate and the amount of funds
actually so remitted. Upon receipt of a completed demand for payment by the
Trustee under the Servicer Letter of Credit, the Letter of Credit Bank shall
pay or cause to be paid, at the time and in the manner provided in the Servicer
Letter of Credit, an amount equal to the lesser of (i) the amount demanded by
the Trustee and (ii) the amount available under the Servicer Letter of Credit
(the "Servicer Letter of Credit Amount") to the Trustee for deposit to the
Certificate Account. Except as otherwise provided in the Servicer Letter of
Credit, the Servicer Letter of Credit Amount shall equal the lesser of (x) the
product of the Initial Servicer Letter of Credit Amount and the Reset
Percentage, or (y) the Pool Balance as of the related Record Date. For the
purpose of Section 14.07 or 19.01(i), amounts deposited by the Trustee pursuant
to this Section shall be deemed to constitute Servicer remittances with respect
to which the demand on the Servicer Letter of Credit was made.
(b) Any Servicer Letter of Credit may be terminated by the Trustee
at any time when the Servicer's short term debt obligations are rated at least
equal to the Required Servicer Rating by each Rating Agency; provided, however,
that prior to any such termination of the Servicer Letter of Credit, the
Servicer shall furnish to the Trustee, from each Rating Agency for which the
Servicer's then-current short-term credit rating is not at least as specified
above, a letter to the effect that the rating then assigned to the Rated
Certificates will not be qualified, reduced or withdrawn and, if applicable, an
Officer's Certificate of the Servicer to the effect that the Servicer's
then-current short-term credit rating is at least as specified above from each
other Rating Agency, if any. Notwithstanding the foregoing, if the short term
debt obligations of the Servicer are subsequently downgraded below the Required
Servicer Rating by any Rating Agency, the Servicer shall be required to obtain
an insurance policy, letter of credit or surety bond acceptable to each Rating
Agency (as evidenced by a letter from each Rating Agency to the effect that the
rating then assigned to the Rated Certificates will not be qualified, reduced
or withdrawn) which insurance policy or surety bond, if it shall not replace
the Servicer Letter of Credit, shall be drawn upon prior to any draws made upon
the Servicer Letter of Credit pursuant
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to this Section, or the Servicer shall remit collections to the Certificate
Account on a daily basis pursuant to Section 14.02. In addition, the Servicer
may cancel the Servicer Letter of Credit for so long as the Servicer is
required to remit collections to the Certificate Account on a daily basis
pursuant to Section 14.02. The Servicer shall provide notice of such
cancellation of the Servicer Letter of Credit pursuant to the immediately
preceding sentence to each Rating Agency. The Servicer shall also provide
notice of the renewal, if any, of the Servicer Letter of Credit to each Rating
Agency and the Trustee.
(c) Notwithstanding the other provisions of this Section, in the
event that on any day during a Collection Period during which the Servicer is
permitted to remit collections on a monthly rather than a daily basis as a
result of having obtained a Servicer Letter of Credit pursuant to Section 14.02
and the aggregate amount of collections described in the first sentence of
Section 14.02 exceeds the product of the Servicer Letter of Credit Percentage
and the Servicer Letter of Credit Amount, then the Servicer shall cause the
amount of such excess to be deposited into the Certificate Account on the next
succeeding Business Day.
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ARTICLE SIXTEEN
THE CERTIFICATES
Section 16.01. The Certificates. Unless otherwise specified in the
Agreement, the Certificates shall be issued in denominations of $1,000 and
integral multiples thereof in registered form; provided, however, that one
Class A Certificate and one Class B Certificate may be issued in a denomination
that includes any remaining portion of the Original Class A Certificate Balance
or the Original Class B Certificate Balance, as the case may be (each, a
"Residual Certificate"). The Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of an Authorized Officer under the
Trustee's seal imprinted thereon and attested on behalf of the Trust by the
manual or facsimile signature of the Trustee. Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be valid and binding obligations of the Trust, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of such Certificates.
Section 16.02. Execution, Authentication and Delivery of
Certificates. The Trustee shall deliver to, or upon the order of, the Seller,
in exchange for the Initial Receivables and the other assets of the Trust,
simultaneously with the sale, assignment and transfer to the Trustee of the
Initial Receivables, the constructive delivery to the Trustee of the Receivable
Files relating thereto and the delivery to the Trustee of the other components
of the Trust, Certificates duly executed by the Trustee, on behalf of the
Trust, and authenticated by the Trustee in authorized denominations equaling in
the aggregate the sum of the Original Class A Certificate Balance and the
Original Class B Certificate Balance, and evidencing the entire ownership of
the Trust. No Certificate shall entitle its holder to any benefit under the
Agreement, or shall be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form appearing
as an Exhibit to the Agreement executed by the Trustee by manual signature;
such authentication shall constitute conclusive evidence that such Certificate
shall have been duly authenticated and delivered hereunder. All Certificates
shall be dated the date of their authentication.
Section 16.03. Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall maintain a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Certificate Registrar shall provide for the registration of Certificates
and of transfers and exchanges of Certificates as herein provided. The Trustee
is hereby initially appointed Certificate Registrar. In the event that,
subsequent to the Closing Date, the Trustee notifies the Servicer that it is
unable to act as Certificate Registrar, the Servicer shall appoint another bank
or trust company, having an office or agency located in the Borough of
Manhattan, The City of New York, agreeing to act in accordance with the
provisions
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of the Agreement applicable to it, and otherwise acceptable to the Trustee, to
act as successor Certificate Registrar under the Agreement.
(b) Upon surrender for registration of transfer of any Certificate
at the office or agency maintained pursuant to Section 16.07, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class, in authorized
denominations of a like aggregate amount dated the date of authentication by
the Trustee. At the option of a Holder, Certificates may be exchanged for
other Certificates of authorized denominations and of a like aggregate amount
upon surrender of the Certificates to be exchanged at such office or agency.
(c) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the Holder or his attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer and exchange shall be cancelled and
subsequently disposed of by the Trustee.
(d) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
Section 16.04. Mutilated, Destroyed, Lost or Stolen Certificates. If
(i) any mutilated Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar and the Trustee shall receive
evidence to their satisfaction of the destruction, loss or theft of any
Certificate and (ii) there shall be delivered to the Certificate Registrar and
the Trustee such security or indemnity as may be required to save each of them
harmless, then in the absence of notice that such Certificate shall have been
acquired by a bona fide purchaser, the Trustee on behalf of the Trust shall
execute and the Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and denomination. In connection with the issuance of
any new Certificate under this Section, the Trustee may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Certificate issued pursuant to
this Section shall constitute conclusive evidence of ownership in the Trust, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 16.05. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Trustee and the Certificate
Registrar may treat the Person in whose name any Certificate shall be
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 14.07 and for all other purposes whatsoever,
and neither the Trustee nor the Certificate Registrar shall be bound by any
notice to the contrary.
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Section 16.06. Access to List of Certificateholder Names and
Addresses. The Certificate Registrar shall furnish or cause to be furnished to
the Servicer, within 15 days after receipt by the Certificate Registrar of a
request therefor from the Servicer in writing, a list, in such form as the
Servicer may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders, or one or more Holders of Certificates of any Class
aggregating not less than 25% of the Voting Interests evidenced by such Class,
apply in writing to the Trustee, and such application states that the
applicants desire to communicate with other Certificateholders with respect to
their rights under the Agreement or under the Certificates and such application
shall be accompanied by a copy of the communication that such applicants
propose to transmit, then the Trustee shall, within five Business Days after
the receipt for such application, afford such applicants access during normal
business hours to the current list of Certificateholders. Each Holder, by
receiving and holding a Certificate, shall be deemed to have agreed to hold
neither the Servicer nor the Trustee accountable by reason of the disclosure of
its name and address, regardless of the source from which such information was
derived.
Section 16.07. Maintenance of Office or Agency. The Certificate
Registrar shall maintain in the Borough of Manhattan, The City of New York, an
office or offices or agency or agencies where Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Certificate Registrar in respect of the Certificates and the Agreement
may be served. Unless otherwise provided in the Agreement, the Trustee shall
designate its Corporate Trust Office as its office for such purposes. The
Certificate Registrar shall give prompt written notice to the Servicer and to
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
Section 16.08. Temporary Certificates. In the event that the
Agreement provides that either Class of Certificates are not to be issued in
book-entry form pursuant to Section 16.09, pending the preparation of
definitive, fully registered Certificates of such Class pursuant to Section
16.11 (the "Definitive Certificates"), the Trustee, on behalf of the Trust, may
execute, authenticate and deliver temporary Certificates of such Class that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the Definitive
Certificates in lieu of which they are issued. If temporary Certificates are
issued, the Seller will cause Definitive Certificates to be prepared without
unreasonable delay. After the preparation of Definitive Certificates, the
temporary Certificates shall be exchangeable for Definitive Certificates upon
surrender of the temporary Certificates at the office or agency to be
maintained as provided in Section 16.07, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall execute and authenticate and deliver in exchange therefor a like
principal amount of Definitive Certificates in authorized denominations. Until
so exchanged the temporary Certificates shall in all respects be entitled to
the same benefits under the Agreement as Definitive Certificates.
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Section 16.09. Book-Entry Certificates. Unless otherwise specified
in the Agreement, the Class A Certificates and the Class B Certificates, upon
original issuance (except for the Residual Certificates) each will be issued in
the form of one or more typewritten certificates representing the Book-Entry
Certificates, to be delivered to DTC, the initial Clearing Agency, by, or on
behalf of, the Seller. The certificates delivered to DTC evidencing such
Certificates shall initially be registered on the Certificate Register in the
name of CEDE & CO., the nominee of DTC, and no Certificate Owner will receive a
Definitive Certificate representing such Certificate Owner's interest in the
Certificates, except as provided in Section 16.11. Unless otherwise specified
in the Agreement, subject to Section 16.11, unless and until Definitive
Certificates have been issued to Certificate Owners pursuant to Section 16.11:
(i) the provisions of this Section shall be in full force
and effect;
(ii) the Seller, the Servicer, the Certificate Registrar
and the Trustee may deal with the Clearing Agency for all purposes
(including the making of distributions on the Certificates) as the
authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of the Agreement, the provisions of
this Section shall control;
(iv) the rights of Certificate Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements between such Certificate Owners and
the Clearing Agency and/or the Clearing Agency Participants and,
pursuant to the related depository agreement, unless and until
Definitive Certificates are issued pursuant to Section 16.11, the
initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit distributions of
principal and interest on the Certificates to such Clearing Agency
Participants; and
(v) whenever the Agreement requires or permits actions to
be taken based upon instructions or directions of Holders of
Certificates evidencing a specified percentage of the Voting Interests
thereof, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to
such effect from Certificate Owners and/or Clearing Agency
Participants owning or representing, respectively, such required
percentage of the beneficial interest in Certificates and has
delivered such instructions to the Trustee.
Section 16.10. Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders is required under the Agreement, other
than to the Holder of the Residual Certificates, unless and until Definitive
Certificates shall have been issued to Certificate Owners pursuant to Section
16.11, the Trustee and the Servicer shall give all such notices and
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communications specified herein to be given to Holders of the Certificates to
the Clearing Agency.
Section 16.11. Definitive Certificates. If (i)(A) the Seller advises
the Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities as described in the Letter of
Representations and (B) the Trustee or the Seller is unable to locate a
qualified successor, (ii) the Seller at its option, advises the Trustee in
writing that it elects to terminate the book-entry system through the Clearing
Agency or (iii) after the occurrence of an Event of Default, Certificate Owners
representing beneficial interests in Class A Certificates or Class B
Certificates aggregating not less than 51% of the Voting Interests of the
related Class, advise the Trustee and the Clearing Agency through the Clearing
Agency Participants in writing that the continuation of a book-entry system
through the Clearing Agency with respect to such Class is no longer in the best
interests of the related Certificate Owners, then the Trustee shall notify all
such Certificate Owners, through the Clearing Agency, of the occurrence of any
such event and of the availability of Definitive Certificates to such
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Certificates by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency for registration, the Trustee shall issue
the Definitive Certificates and deliver such Definitive Certificates in
accordance with the instructions of the Clearing Agency. Neither the Seller,
the Certificate Registrar nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder. The Trustee shall not be liable
if the Trustee or the Seller is unable to locate a qualified successor Clearing
Agency.
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ARTICLE SEVENTEEN
THE SELLER
Section 17.01. Representations of Seller. The Seller shall make the
following representations on which the Trustee shall rely in accepting the
Initial Receivables in trust and executing and authenticating the Certificates
and on which the Trustee shall rely in accepting any Subsequent Receivables in
trust. The representations shall speak as of the execution and delivery of the
Agreement in the case of the Initial Receivables, and as of the related
Subsequent Transfer Date in the case of the Subsequent Receivables, and in each
case shall survive the sale of the related Receivables to the Trustee.
(i) Organization and Good Standing. The Seller shall
have been duly organized and shall be validly existing as a
corporation in good standing under the laws of the State of
California, with power and authority to own its properties and to
conduct its business as such properties shall be currently owned and
such business is presently conducted, and had at all relevant times,
and shall now have, power, authority and legal right to acquire and
own the Receivables.
(ii) Due Qualification. The Seller shall be duly
qualified to do business as a foreign corporation in good standing,
and shall have obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(iii) Power and Authority. The Seller shall have the power
and authority to execute and deliver the Agreement and to carry out
its terms, the Seller shall have full power and authority to sell and
assign the property to be sold and assigned to and deposited with the
Trustee as part of the Trust and shall have duly authorized such sale
and assignment to the Trustee by all necessary corporate action; and
the execution, delivery and performance of the Agreement shall have
been duly authorized by the Seller by all necessary corporate action.
(iv) Valid Sale; Binding Obligations. The Agreement shall
evidence a valid sale, transfer and assignment of the Receivables,
enforceable against creditors of and purchasers from the Seller; and
shall constitute a legal, valid and binding obligation of the Seller
enforceable in accordance with its terms, except as enforceability may
be subject to or limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity, regardless of whether
such enforceability shall be considered in a proceeding in equity or
at law.
(v) No Violation. The consummation of the transactions
contemplated by the Agreement and the fulfillment of the terms of the
Agreement shall not conflict with,
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result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of the Seller, or conflict
with or breach any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a default under,
any indenture, agreement or other instrument to which the Seller is a
party or by which it shall be bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than
the Agreement); nor violate any law or, to the best of the Seller's
knowledge, any order, rule or regulation applicable to the Seller of
any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Seller or its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending, or to the Seller's best knowledge, threatened,
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or
its properties: (a) asserting the invalidity of the Agreement or the
Certificates, (b) seeking to prevent the issuance of the Certificates
or the consummation of any of the transactions contemplated by the
Agreement, (c) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, the Agreement
or the Certificates or (d) relating to the Seller and which might
adversely affect the federal income tax attributes of the
Certificates.
Section 17.02. Liability of Seller; Indemnities. The Seller shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Seller in such capacity under the Agreement and
shall have no other obligations or liabilities hereunder.
Section 17.03. Merger or Consolidation of, or Assumption of the
Obligations of, Seller; Certain Limitations.
(a) Any corporation (i) into which the Seller may be merged or
consolidated, (ii) which may result from any merger or consolidation to which
the Seller shall be a party or (iii) which may succeed to all or substantially
all of the business of the Seller, which corporation in any of the foregoing
cases executes an agreement of assumption to perform every obligation of the
Seller under the Agreement, shall be the successor to the Seller hereunder
without the execution or filing of any document or any further act by any of
the parties to the Agreement, except that if the Seller in any of the foregoing
cases is not the surviving entity, then the surviving entity shall execute an
agreement of assumption to perform every obligation of the Seller hereunder.
The Seller shall provide notice of any merger, consolidation or succession
pursuant to this Section to each Rating Agency and shall deliver to the Trustee
a letter from each Rating Agency to the effect that such merger, consolidation
or succession will not result in a qualification, reduction or withdrawal of
the then-current rating of the Rated Certificates.
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(b) (i) Subject to paragraph (ii) below, the purpose of the
Seller shall be to engage in any lawful activity for which a
corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business
or the practice of a profession permitted to be incorporated by the
California Corporations Code.
(ii) Notwithstanding paragraph (b)(i) above, the purpose
of the Seller shall be limited to the following purposes, and
activities incident to and necessary or convenient to accomplish the
following purposes: (A) to acquire, own, hold, sell, transfer,
assign, pledge, finance, refinance and otherwise deal with, retail
installment sale contracts or wholesale loans secured by new and used
recreational vehicles (the "Recreational Vehicle Receivables"); (B) to
authorize, issue, sell and deliver one or more series of obligations,
consisting of one or more classes of certificates or notes or other
evidences of indebtedness (the "Offered Securities") that are
collateralized by or evidence an interest in Recreational Vehicle
Receivables; and (C) to negotiate, authorize, execute, deliver and
assume the obligations or any agreement relating to the activities set
forth in clauses (A) and (B) above, including but not limited to any
pooling and servicing agreement, indenture, reimbursement agreement,
credit support agreement, receivables purchase agreement or
underwriting agreement (each, a "Securitization Agreement") or to
engage in any lawful activity which is incidental to the activities
contemplated by any such Securitization Agreement. So long as any
outstanding debt of the Seller or Offered Securities are rated by any
nationally recognized statistical rating organization, the Seller
shall not borrow money other than in connection with the issuance of
Offered Securities by the Corporation pursuant to a Securitization
Agreement unless (I) the Seller has made a written request to the
related nationally recognized statistical rating organization to issue
notes or incur borrowing which notes or borrowing are rated by the
related nationally recognized statistical rating organization the same
as or higher than the rating afforded such rated debt or Offered
Securities, or (II) such notes or borrowings (X) are fully
subordinated (and which shall provide for payment only after payment
in respect of all outstanding rated debt and/or Offered Securities) or
are nonrecourse against any assets of the Seller other than the assets
pledged to secure such notes or borrowing, (Y) do not constitute a
claim against the Seller in the event such assets are insufficient to
pay such notes or borrowing and (Z) where such notes or borrowing are
secured by the rated debt or Offered Securities, are fully
subordinated (and which shall provide for payment only after payment
in respect of all outstanding rated debt and/or Offered Securities) to
such rated debt or Offered Securities.
(c) Notwithstanding any other provision of this Section and any
provision of law, the Seller shall not do any of the following:
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(i) engage in any business or activity other than as set
forth in clause (b) above;
(ii) without the affirmative vote of a majority of the
members of the Board of Directors of the Seller (which must include
the affirmative vote of all duly appointed Independent Directors, as
required by the articles of incorporation of the Seller), (A) dissolve
or liquidate, in whole or in part, or institute proceedings to be
adjudicated bankrupt or insolvent, (B) consent to the institution of
bankruptcy or insolvency proceedings against it, (C) file a petition
seeking or consent to reorganization or relief under any applicable
federal or state law relating to bankruptcy, (D) consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Seller or a substantial part of its
property, (E) make a general assignment for the benefit of creditors,
(F) admit in writing its inability to pay its debts generally as they
become due or (G) take any corporate action in furtherance of the
actions set forth in clauses (A) through (F) above; provided, however,
that no director may be required by any shareholder of the Seller to
consent to the institution of bankruptcy or insolvency proceedings
against the Seller so long as it is solvent; or
(iii) merge or consolidate with any other corporation,
company or entity or sell all or substantially all of its assets or
acquire all or substantially all of the assets or capital stock or
other ownership interest of any other corporation, company or entity,
except for the acquisition of Recreational Vehicle Receivables of
Fleetwood Credit and the sale of Recreational Vehicle Receivables to
one or more trusts in accordance with the terms of clause (b)(ii)
above, on which there shall be no such restriction.
Section 17.04. Limitation on Liability of Seller and Others. The
Seller and any director, officer, employee or agent of the Seller may rely in
good faith on the advice of counsel or on any document of any kind, prima facie
properly executed and submitted by any Person respecting any matters arising
under the Agreement. The Seller shall not be under any obligation to appear
in, prosecute or defend any legal action that shall be unrelated to its
obligations under the Agreement and that in its opinion may involve it in any
expense or liability.
Section 17.05. Seller May Own Certificates. The Seller and any
Person controlling, controlled by or under common control with the Seller may
in its individual or any other capacity become the owner or pledgee of
Certificates with the same rights as it would have if it were not the Seller or
an affiliate thereof, except as otherwise provided in the definition of the
terms "Certificateholder" and "Voting Interests." Certificates so owned by or
pledged to the Seller or such controlling or commonly controlled Person shall
have an equal and proportionate benefit under the provisions of the Agreement,
without preference, priority or distinction as among all of the Certificates.
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Section 17.06. No Transfer of Excess Amounts. The Seller hereby
covenants that, except as otherwise provided in the Agreement, it will not
transfer, pledge or assign to any Person any part of its right to receive any
Excess Amounts pursuant to Section 14.07(c)(ii) unless it has first delivered
to the Trustee and each Rating Agency an Opinion of Counsel in form and
substance satisfactory to the Trustee stating that such transfer will not (i)
adversely affect the status of the Trust as a grantor trust pursuant to subpart
E, part I of subchapter J of the Code and (ii) cause the Reserve Fund to be
taxable as a corporation under the Code. The Seller shall give written notice
to each Rating Agency of any proposed transfer, pledge or assignment to any
Person of all or any part of its right to receive Excess Amounts pursuant to
Section 14.07(c)(ii).
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ARTICLE EIGHTEEN
THE SERVICER
Section 18.01. Representations of Servicer. The Servicer shall make
the following representations on which the Trustee shall rely in accepting the
Initial Receivables in trust and executing and authenticating the Certificates
and on which the Trustee shall rely in accepting any Subsequent Receivables in
trust. The representations shall speak as of the execution and delivery of the
Agreement in the case of the Initial Receivables, and as of the related
Subsequent Transfer Date in the case of the Subsequent Receivables, and in each
case shall survive the sale of the Receivables to the Trustee.
(i) Organization and Good Standing. The Servicer shall
have been duly organized and shall be validly existing as a
corporation in good standing under the laws of the State of
California, with power and authority to own its properties and to
conduct its business as such properties shall be currently owned and
such business is presently conducted, and had at all relevant times,
and shall have, power, authority and legal right to acquire, own, sell
and service the Receivables and to hold the Receivable Files as
custodian on behalf of the Trustee.
(ii) Due Qualification. The Servicer shall be duly
qualified to do business as a foreign corporation in good standing,
and shall have obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business (including the servicing of the Receivables as
required by the Agreement) shall require such qualifications.
(iii) Power and Authority. The Servicer shall have the
power and authority to execute and deliver the Agreement and to carry
out its terms; and the execution, delivery and performance of the
Agreement shall have been duly authorized by the Servicer by all
necessary corporate action.
(iv) Binding Obligations. The Agreement shall constitute
a legal, valid and binding obligation of the Servicer enforceable in
accordance with its terms, except as enforceability may be subject to
or limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at
law.
(v) No Violation. The consummation of the transactions
contemplated by the Agreement and the fulfillment of the terms of the
Agreement shall not conflict with, result in any breach of any of the
terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or
bylaws of the
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Servicer, or conflict with or breach any of the material terms or
provisions of, or constitute (with or without notice or lapse of time)
a default under, any indenture, agreement or other instrument to which
the Servicer is a party or by which it shall be bound; nor result in
the creation or imposition of any lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other
instrument (other than this Agreement); nor violate any law or, to the
best of the Servicer's knowledge, any order, rule or regulation
applicable to the Servicer of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its
properties.
(vi) No Proceedings. There are no Proceedings or
investigations pending, or to the Servicer's best knowledge,
threatened, before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the
Servicer or its properties: (A) asserting the invalidity of this
Agreement or the Securities, (B) seeking to prevent the issuance of
the Securities or the consummation of any of the transactions
contemplated by the Agreement, (C) seeking any determination or ruling
that might materially and adversely affect the performance by the
Servicer of its obligations under, or the validity or enforceability
of, this Agreement or the Securities or (D) relating to the Servicer
and which might adversely affect the federal income tax attributes of
the Securities.
Section 18.02. Liability of Servicer; Indemnities.
(a) The Servicer shall be liable in accordance herewith only to
the extent of the obligations specifically undertaken by the Servicer under the
Agreement and shall have no other obligations or liabilities under the
Agreement. Such obligations shall include the following:
(i) The Servicer shall defend, indemnify and hold
harmless the Trustee, the Trust, the Certificateholders and the Letter
of Credit Bank, if any, from and against any and all costs, expenses,
losses, damages, claims and liabilities, arising out of or resulting
from the use, ownership or operation by the Servicer or any affiliate
thereof of a Financed Vehicle.
(ii) The Servicer shall indemnify, defend and hold
harmless the Trustee, the Trust and the Letter of Credit Bank, if any,
from and against any taxes that may at any time be asserted against
the Trustee, the Trust or the Letter of Credit Bank, if any, with
respect to the transactions contemplated in the Agreement, including
any sales, gross receipts, general corporation, tangible or intangible
personal property, privilege or license taxes (but, in the case of the
Trustee or the Trust, not including any taxes asserted with respect
to, and as of the date of, the sale of the Receivables to the Trustee
or the issuance and original sale of the Certificates, or asserted
with respect to ownership of the
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Receivables, or federal or other income taxes arising out of
distributions on the Certificates) and costs and expenses in defending
against the same.
(iii) The Servicer shall indemnify, defend and hold
harmless the Trustee, the Trust and the Certificateholders from and
against any and all costs, expenses, losses, claims, damages and
liabilities to the extent that such costs, expenses, losses, claims,
damages or liabilities arose out of, or was imposed upon the Trustee,
the Trust or the Certificateholders through the willful misfeasance,
negligence or bad faith of the Servicer in the performance of its
duties under the Agreement.
(iv) The Servicer shall indemnify, defend and hold
harmless the Trustee from and against all costs, expenses, losses,
claims, damages and liabilities arising out of or incurred in
connection with the acceptance or performance of the trusts and duties
herein contained, except to the extent that such costs, expenses,
losses, claims, damages or liabilities shall: (A) be due to the
willful misfeasance, negligence or bad faith of the Trustee; (B)
relate to any tax other than the taxes with respect to which either
the Seller or the Servicer shall be required to indemnify the Trustee;
(C) arise from the breach by the Trustee of any of its representations
or warranties set forth in Section 20.14; (D) be one as to which the
Seller is required to indemnify the Trustee; or (E) arise out of or be
incurred in connection with the performance by the Trustee of the
duties of successor Servicer hereunder.
(b) Indemnification under this Section shall include reasonable
fees and expenses of counsel and expenses of litigation. If the Servicer shall
have made any indemnity payments pursuant to this Section and the recipient
thereafter collects any of such amounts from others, the recipient shall
promptly repay such amounts to the Servicer, without interest.
Section 18.03. Merger, Consolidation or Assumption of Obligations of
Servicer. Any corporation (i) into which the Servicer may be merged or
consolidated, (ii) which may result from any merger or consolidation to which
the Servicer shall be a party or (iii) which may succeed to all or
substantially all of the business of the Servicer, which corporation shall
execute an agreement of assumption to perform every obligation of the Servicer
under the Agreement, shall be the successor to the Servicer under the Agreement
without further act on the part of any of the parties to the Agreement. The
Servicer shall promptly provide notice and inform the Trustee and each Rating
Agency of any merger, consolidation or succession pursuant to this Section.
Section 18.04. Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of its directors, officers,
employees or agents shall be under any liability to the Trust, the Trustee or
the Certificateholders, except as provided in the Agreement, for any action
taken or for refraining from the taking of any action pursuant to the
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Agreement; provided, however, that this provision shall not protect the
Servicer or any such individual against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties under the Agreement. The Servicer and any director, officer, employee
or agent of the Servicer may rely in good faith on any document of any kind,
prima facie properly executed and submitted by any Person respecting any
matters arising under the Agreement.
(b) Except as provided in the Agreement, the Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action that
shall not be incidental to its duties to service the Receivables in accordance
with the Agreement, and that in its opinion may involve it in any expense or
liability; provided, however, that the Servicer may undertake any reasonable
action that it may deem necessary or desirable in respect of the Agreement and
the rights and duties of the parties to the Agreement and the interests of the
Certificateholders under the Agreement.
(c) The Servicer and any director, officer, employee or agent of
the Servicer may rely in good faith on the advice of counsel or on any document
of any kind, prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that shall not be
incidental to its obligations under the Agreement and that in its opinion may
involve it in any expense or liability.
Section 18.05. Servicer Not to Resign. The Servicer shall not resign
from its obligations and duties under the Agreement except upon determination
that the performance of its duties shall no longer be permissible under
applicable law. Any such determination permitting the resignation of the
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered
to the Trustee. No such resignation shall become effective until the Trustee
or a Successor Servicer shall have assumed the responsibilities and obligations
of the Servicer in accordance with Section 19.02.
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ARTICLE NINETEEN
EVENTS OF DEFAULT
Section 19.01. Events of Default. If any one of the following events
("Events of Default") shall occur and be continuing:
(i) failure by the Servicer to deliver to the Trustee the
Servicer's Certificate for the related Collection Period, or any
failure by the Servicer (or, so long as the Servicer is Fleetwood
Credit, the Seller) to deliver to the Trustee, for distribution to
Certificateholders, any proceeds or payment required to be so
delivered under the terms of the Certificates or the Agreement, in
each case, that continues unremedied for a period of three Business
Days after discovery by an officer of the Servicer (or, so long as the
Servicer is Fleetwood Credit, the Seller) or written notice of such
failure is given (1) to the Servicer or the Seller, as the case may
be, by the Trustee or (2) to the Trustee and the Servicer or the
Seller, as the case may be, by the Holders of Certificates evidencing
not less than 25% of the Voting Interests of the Class A Certificates
and the Class B Certificates, voting together as a single class;
(ii) failure by the Servicer (or so long as the Servicer
is Fleetwood Credit, the Seller) to duly observe or perform in any
material respect any other covenants or agreements of the Servicer (or
so long as the Servicer is Fleetwood Credit, the Seller) set forth in
the Certificates or in the Agreement, which failure shall (a)
materially and adversely affect the rights of the Certificateholders
and (b) continue unremedied for a period of 60 days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given (1) to the Servicer or the Seller, as
the case may be, by the Trustee or (2) to the Trustee and the Servicer
or the Seller, as the case may be, by the Holders of Certificates
evidencing not less than 25% of the Voting Interests of the Class A
Certificates and the Class B Certificates, voting together as a single
class;
(iii) the entry of a decree or order by a court, agency or
supervisory authority having jurisdiction in the premises for the
appointment of a trustee in bankruptcy, conservator, receiver or
liquidator for the Servicer (or, so long as the Servicer is Fleetwood
Credit, the Seller) in any bankruptcy, insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings, or
for the winding up or liquidation of their respective affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days;
(iv) the consent by the Servicer (or, so long as the
Servicer is Fleetwood Credit, the Seller) to the appointment of a
trustee in bankruptcy, conservator or receiver or liquidator in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings of or relating to the Servicer
(or, so long as the
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Servicer is Fleetwood Credit, the Seller) of or relating to
substantially all of its property; or admission by the Servicer (or,
so long as the Servicer is Fleetwood Credit, the Seller) in writing of
its inability to pay its debts generally as they become due, filing of
a petition to take advantage of any applicable insolvency or
reorganization statute, assignment for the benefit of its creditors or
voluntary suspension of payment of its obligations;
then, and in each and every case, so long as such Event of Default shall not
have been remedied, either the Trustee or the Holders of Certificates
evidencing not less than 51% of the Voting Interests of the Class A
Certificates and the Class B Certificates, voting together as a single class,
by notice given in writing to the Servicer (and to the Trustee if given by
Class A and Class B Certificateholders), may terminate all of the rights and
obligations of the Servicer under the Agreement. On or after the receipt by
the Servicer of such written notice, all authority and power of the Servicer
under the Agreement, whether with respect to the Certificates, the Receivables
or otherwise, shall, without further action, pass to and be vested in the
Trustee or such Successor Servicer as may be appointed under Section 19.02;
and, without limitation, the Trustee shall be hereby authorized and empowered
to execute and deliver, on behalf of the predecessor Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer
and endorsement of the Receivables and related documents, or otherwise. The
predecessor Servicer shall cooperate with the Successor Servicer and the
Trustee in effecting the termination of the responsibilities and rights of the
predecessor Servicer under the Agreement, including the transfer to the
Successor Servicer for administration by it of all cash amounts that shall at
the time be held by the predecessor Servicer for deposit, shall have been
deposited by the predecessor Servicer in the Certificate Account or shall
thereafter be received with respect to a Receivable. All reasonable costs and
expenses (including attorneys' fees) incurred in connection with transferring
the Receivable Files to the Successor Servicer and amending the Agreement to
reflect such succession as Servicer pursuant to this Section shall be paid by
the predecessor Servicer upon presentation of reasonable documentation of such
costs and expenses.
Section 19.02. Trustee to Act; Appointment of Successor Servicer.
Upon the Servicer's receipt of notice of termination pursuant to Section 19.01
or resignation pursuant to Section 18.05, the Trustee shall be the successor in
all respects to the Servicer in its capacity as Servicer under the Agreement (a
"Successor Servicer"), and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions of the Agreement. As compensation therefor, the Trustee shall be
entitled to such compensation (whether payable out of the Certificate Account
or otherwise) as the Servicer would have been entitled to under the Agreement
if no such notice of termination or resignation had been given.
Notwithstanding the foregoing, the Trustee may, if it shall be unwilling to so
act, or shall, if it shall be legally unable so to act, appoint, or petition a
court of competent jurisdiction to appoint, any established institution, having
a net worth of not less than $100,000,000 and whose regular business shall
include the servicing of recreational vehicle or motor vehicle receivables, as
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Successor Servicer; provided that the appointment of any such Successor
Servicer (whether the Trustee or another entity) will not result in the
qualification, reduction or withdrawal of the rating then assigned to the Rated
Certificates by each Rating Agency. In connection with such appointment, the
Trustee may make such arrangements for the compensation of such Successor
Servicer out of payments on the Receivables as it and such Successor Servicer
shall agree; provided, however, that such compensation shall not be in excess
of that permitted the Servicer under the Agreement. The Trustee and such
Successor Servicer shall take such action, consistent with the Agreement, as
shall be necessary to effectuate any such succession. The Trustee shall not be
relieved of its duties as Successor Servicer under this Section until the newly
appointed Servicer shall have assumed the responsibilities and obligations of
the Servicer under the Agreement.
Section 19.03. Reimbursement for Advances. If a Successor Servicer
replaces the Servicer, the predecessor Servicer shall be entitled to receive
reimbursement for Advances previously made by such Servicer, in the manner
specified, and to the extent provided, in Section 14.04.
Section 19.04. Notification of Events of Default. Upon (i) the
occurrence of an Event of Default and the expiration of any cure period
applicable thereto or (ii) any termination of, or appointment of a successor
to, the Servicer pursuant to this Article, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register, to the Letter of Credit Bank, if any,
and to each Rating Agency.
Section 19.05. Waiver of Past Defaults. The Holders of Class A
Certificates and Class B Certificates evidencing not less than 51% of the
Voting Interests thereof, voting together as a single class, may, on behalf of
all Holders of Certificates, waive any default by the Servicer in the
performance of its obligations under the Agreement and its consequences, except
a default in making any required deposits to or payments from the Certificate
Account in accordance with the Agreement or in respect of a covenant or
provision hereof that under Section 22.01 cannot be modified or amended without
the consent of the Holder of each Certificate. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of the
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
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ARTICLE TWENTY
THE TRUSTEE
Section 20.01. Duties of Trustee. The Trustee, both prior to and
after the occurrence of an Event of Default, shall undertake to perform such
duties as are specifically set forth in the Agreement. If an Event of Default
shall have occurred and shall not have been cured or waived, the Trustee shall
exercise such of the rights and powers vested in it by the Agreement, and shall
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
provided, however, that if the Trustee shall become a Successor Servicer
pursuant to Section 19.02, the Trustee in performing such duties shall use the
degree of skill and attention customarily exercised by a servicer with respect
to recreational vehicle or motor vehicle receivables that it services for
itself or others.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that shall be specifically required to be furnished pursuant to
any provision of the Agreement, shall examine them to determine whether they
conform to the requirements of the Agreement.
No provision of the Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, its own bad faith or its own willful misfeasance; provided, however,
that:
(i) prior to the occurrence of an Event of Default, and
after the curing or waiving of all such Events of Default that may
have occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of the Agreement, the
Trustee shall not be liable except for the performance of such duties
and obligations as shall be specifically set forth in the Agreement,
no implied covenants or obligations shall be read into the Agreement
against the Trustee, the permissive right of the Trustee to do things
enumerated in the Agreement shall not be construed as a duty and, in
the absence of bad faith on the part of the Trustee or manifest error,
the Trustee may conclusively rely on the truth of the statements and
the correctness of the opinions expressed upon any certificates or
opinions furnished to the Trustee and conforming to the requirements
of the Agreement;
(ii) the Trustee shall not be personally liable for an
error of judgment made in good faith by an Authorized Officer, unless
it shall be proved that the Trustee shall have been negligent in
performing its duties in accordance with the terms of the Agreement;
and
(iii) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken in good
faith in accordance with the direction of the
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Holders of Certificates evidencing not less than 25% of the Voting
Interests of the Class A Certificates and the Class B Certificates,
voting together as a single class, relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under the Agreement.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
under the Agreement, or in the exercise of any of its rights or powers, if
there shall be reasonable grounds for believing that the repayment of such
funds or adequate indemnity against such risk or liability shall not be
reasonably assured to it, and none of the provisions contained in the Agreement
shall in any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer under the
Agreement except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges of,
the Servicer in accordance with the terms of the Agreement.
Except for actions expressly authorized by the Agreement, the Trustee
shall take no action reasonably likely to impair the security interests created
or existing under any Receivable or to impair the value of any Receivable.
All information obtained by the Trustee regarding the Obligors and the
Receivables, whether upon the exercise of its rights under the Agreement or
otherwise, shall be maintained by the Trustee in confidence and shall not be
disclosed to any other Person, unless such disclosure is required by any
applicable law or regulation.
Section 20.02. Trustee's Certificate. On or as soon as practicable
after each Record Date as of which Receivables shall be assigned to the Seller
or the Servicer, as applicable, pursuant to Section 20.03, the Trustee shall
execute a Trustee's Certificate, based on the information contained in the
Servicer's Certificate for the related Collection Period, amounts deposited to
the Certificate Account and notices received pursuant to the Agreement,
identifying the Receivables repurchased by the Seller pursuant to Section 12.02
or 21.02 or purchased by the Servicer pursuant to Section 13.07 or 21.02 during
such Collection Period, and shall deliver such Trustee's Certificate,
accompanied by a copy of the Servicer's Certificate for such Collection Period
to the Seller or the Servicer, as the case may be. The Trustee's Certificate
submitted with respect to such Distribution Date shall operate, as of such
Distribution Date, as an assignment, without recourse, representation or
warranty, to the Seller or the Servicer, as the case may be, of all the
Trustee's right, title and interest in and to such Repurchased Receivable and
to the other property conveyed to the Trust pursuant to Section 12.01 with
respect to such Repurchased Receivable, and all security and documents relating
thereto, such assignment being an assignment outright and not for security.
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Section 20.03. Trustee's Assignment of Repurchased and Removed
Receivables. With respect to Receivables repurchased by the Seller pursuant to
Section 12.02 or 21.02 or purchased by the Servicer pursuant to Section 13.07
or 21.02, the Trustee shall by a Trustee's Certificate assign, without
recourse, representation or warranty, to the Seller or the Servicer, as the
case may be, all the Trustee's right, title and interest in and to such
Receivable and the other property conveyed to the Trust pursuant to Section
2.01 with respect to such Receivable, and all security and documents relating
thereto, such assignment being an assignment outright and not for security.
If, in any enforcement suit or legal proceeding, it shall be held that the
Servicer may not enforce a Receivable on the ground that it shall not be a real
party in interest or a holder entitled to enforce the Receivable, the Trustee
shall, at the Servicer's expense, take such steps as the Trustee deems
necessary to enforce the Receivable, including bringing suit in the name of the
Trustee or the names of the Certificateholders.
Section 20.04. Certain Matters Affecting Trustee.
(a) Except as otherwise provided in Section 20.01:
(i) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate of auditors
or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it under the
Agreement in good faith and in accordance with such Opinion of
Counsel;
(iii) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by the Agreement, or to
institute, conduct or defend any litigation under the Agreement or in
relation to the Agreement, at the request, order or direction of any
of the Certificateholders pursuant to the provisions of the Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby; however, nothing
contained in the Agreement shall relieve the Trustee of its
obligation, upon the occurrence of an Event of Default (that shall not
have been cured or waived), to exercise such of the rights and powers
vested in it by the Agreement, and to use the same degree of care and
skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
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(iv) the Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers
conferred upon it by the Agreement;
(v) prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default that may have
occurred, the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in
writing to do so by Holders of Class A Certificates and Class B
Certificates evidencing not less than 25% of the Voting Interests
thereof, voting together as a single class; provided, however, that if
the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation shall be, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by
the terms of the Agreement, the Trustee may require reasonable
indemnity against such cost, expense or liability as a condition to so
proceeding; the reasonable expense of every such examination shall be
paid by the Seller or the Servicer, as the case may be, or, if paid by
the Trustee, shall be reimbursed by the Servicer upon demand; and
nothing in this clause (v) shall affect the obligation of the Servicer
to observe any applicable law prohibiting disclosure of information
regarding the Obligors; and
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties under the Agreement either directly or
by or through agents or attorneys or a custodian.
(b) No Certificateholder will have any right to institute any
proceeding with respect to the Agreement, unless such Holder shall have given
to the Trustee written notice of default and (i) the Event of Default arises
from the Servicer's failure to remit collections or payments when due or (ii)
the Holders of Class A Certificates and Class B Certificates evidencing not
less than 25% of the Voting Interests thereof, voting together as a single
class, have made written request upon the Trustee to institute such proceeding
in its own name as Trustee thereunder, and have offered to the Trustee
reasonable indemnity, and the Trustee for 30 days has neglected or refused to
institute any such proceedings.
Section 20.05. Trustee Not Liable for Certificates or Receivables.
The Trustee shall make no representations as to the validity or sufficiency of
the Agreement or of the Certificates (other than the execution by the Trustee
on behalf of the Trust of, and the certificate of authentication on, the
Certificates) or of any Receivable or related document. The Trustee shall have
no obligation to perform any of the duties of the Seller or Servicer unless
explicitly set forth in the Agreement. The Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any security interest in any Financed Vehicle or any
Receivable, or the perfection and priority of such a security interest or the
maintenance of
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any such perfection and priority; the efficacy of the Trust or its ability to
generate the payments to be distributed to Certificateholders under the
Agreement; the existence, condition, location and ownership of any Financed
Vehicle; the existence and enforceability of any physical damage or credit life
or credit disability insurance; the existence and contents of any Receivable or
any computer or other record thereof; the validity of the assignment of any
Receivable to the Trust or of any intervening assignment; the completeness of
any Receivable; the performance or enforcement of any Receivable; the
compliance by the Seller or the Servicer with any warranty or representation
made under the Agreement or in any related document and the accuracy of any
such warranty or representation prior to the Trustee's receipt of notice or
other discovery of any noncompliance therewith or any breach thereof; any
investment of monies by the Servicer or any loss resulting therefrom (it being
understood that the Trustee shall remain responsible for any Trust property
that it may hold); the acts or omissions of the Seller, the Servicer or any
Obligor; any action of the Servicer taken in the name of the Trustee; or any
action by the Trustee taken at the instruction of the Servicer; provided,
however, that the foregoing shall not relieve the Trustee of its obligation to
perform its duties under the Agreement. Except with respect to a claim based
on the failure of the Trustee to perform its duties under the Agreement or
based on the Trustee's willful misconduct, bad faith or negligence no recourse
shall be had for any claim based on any provision of the Agreement, the
Certificates or any Receivable or assignment thereof against the Trustee in its
individual capacity. The Trustee shall not have any personal obligation,
liability or duty whatsoever to any Certificateholder or any other Person with
respect to any such claim, and any such claim shall be asserted solely against
the Trust or any indemnitor who shall furnish indemnity as provided in the
Agreement. The Trustee shall not be accountable for the use or application by
the Seller of any of the Certificates or of the proceeds thereof, or for the
use or application of any funds paid to the Servicer in respect of the
Receivables.
Section 20.06. Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Certificates with the same rights as it would have if it were not Trustee.
Section 20.07. Trustee's Fees and Expenses. The Servicer shall
covenant and agree to pay to the Trustee, and the Trustee shall be entitled to,
reasonable compensation (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) for all services
rendered by it in connection with the execution of the trusts created by the
Agreement and in the exercise and performance of any of the powers and duties
under the Agreement of the Trustee, and the Servicer shall pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances (including the reasonable compensation and the expenses and
disbursements of its counsel and of all individuals not regularly in its
employ) incurred or made by the Trustee in defense of any action brought
against it in connection with the Agreement except any such expense,
disbursement or advance as may arise from its negligence, willful misfeasance
or bad faith or that is the responsibility of Certificateholders under the
Agreement. Additionally, the Servicer, pursuant to Section 18.02, shall
indemnify the Trustee with respect to certain matters, and Certificateholders,
pursuant to
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Section 20.04 shall, upon the circumstances therein set forth, indemnify the
Trustee under certain circumstances.
Section 20.08. Indemnity of Trustee and Successor Servicer. Upon the
appointment of a Successor Servicer pursuant to Section 19.02, such Successor
Servicer and the Trustee and their respective agents and employees shall be
indemnified by the Trust and held harmless against any loss, liability, or
expense (including reasonable attorney's fees and expenses) arising out of or
incurred in connection with the acceptance of performance of the trusts and
duties contained in the Agreement to the extent that (i) the Successor Servicer
or the Trustee, as the case may be, shall not be indemnified for such loss,
liability or expense by the Servicer pursuant to Section 18.02; (ii) such loss,
liability or expense shall not have been incurred by reason of the Successor
Servicer's or the Trustee's willful misfeasance, bad faith or negligence; and
(iii) such loss, liability or expense shall not have been incurred by reason of
the Successor Servicer's or the Trustee's breach of its respective
representations and warranties pursuant to Sections 18.01 and 20.14,
respectively.
The Successor Servicer and/or the Trustee shall be entitled to the
indemnification provided by this Section only to the extent all amounts due the
Class A Certificateholders and the Class B Certificateholders with respect to
any Distribution Date pursuant to Section 14.07 have been paid in full and all
amounts required to be deposited in the Reserve Fund with respect to any
Distribution Date pursuant to Section 14.07(b)(i) have been so deposited.
Section 20.09. Eligibility Requirements for Trustee. The Trustee
under the Agreement shall at all times be a corporation having its corporate
trust office in the same State as the location of the Corporate Trust Office as
specified in the Agreement, organized and doing business under the laws of such
State or the United States, authorized under such laws to exercise corporate
trust powers, have a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by federal or state authorities and, if
required by any Rating Agency, having the Required Long Term Debt Rating.
If the Trustee shall publish reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 20.10.
Section 20.10. Resignation or Removal of Trustee. The Trustee may at
any time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Servicer. Upon receiving such notice of
resignation, the Servicer shall promptly appoint a successor Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor Trustee. If no successor
Trustee shall
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have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 20.09 and shall fail to resign after written
request therefor by the Servicer, or if at any time the Trustee shall be
legally unable to act, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the Servicer may remove the Trustee. If it shall remove the Trustee under the
authority of the immediately preceding sentence, the Servicer shall promptly
appoint a successor Trustee by written instrument, in duplicate, one copy of
which shall be delivered to the Trustee so removed and one copy to the
successor Trustee and payment of all fees owed to the outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to this Section shall not become effective until
acceptance of appointment by the successor Trustee pursuant to Section 20.11.
Section 20.11. Successor Trustee. Any successor Trustee appointed
pursuant to Section 20.10 shall execute, acknowledge and deliver to the
Servicer and to its predecessor Trustee an instrument accepting such
appointment under the Agreement, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor under the
Agreement, with like effect as if originally named as Trustee. The predecessor
Trustee shall deliver to the successor Trustee all documents and statements and
monies held by it under the Agreement; and the Servicer and the predecessor
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in
the successor Trustee all such rights, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall be
eligible pursuant to Section 20.09.
Upon acceptance of appointment by a successor Trustee pursuant to this
Section, the Servicer shall mail notice of the successor of such Trustee under
the Agreement to all Holders of Certificates at their addresses as shown in the
Certificate Register and shall give notice by mail to the Rating Agencies. If
the Servicer shall fail to mail such notice within ten days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Servicer.
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Section 20.12. Merger or Consolidation of Trustee. Any corporation
(i) into which the Trustee may be merged or consolidated, (ii) which may result
from any merger, conversion or consolidation to which the Trustee shall be a
party or (iii) which may succeed to the business of the Trustee, which
corporation executes an agreement of assumption to perform every obligation of
the Trustee under the Agreement, shall be the successor of the Trustee
hereunder, provided such corporation shall be eligible pursuant to Section
20.09, without the execution or filing of any instrument or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding. Notice of any such merger shall be given by the Trustee to
the Rating Agencies.
Section 20.13. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of the Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or any Financed Vehicle may at the time be located, the Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
to act as co-trustee, jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in such Person, in such
capacity and for the benefit of the Certificateholders, such title to the
Trust, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the Servicer
and the Trustee may consider necessary or desirable. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee under the Agreement shall be required to meet
the terms of eligibility as a successor Trustee pursuant to Section 20.09 and
no notice of a successor Trustee pursuant to Section 20.11 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required pursuant to Section 20.11.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred upon and exercised or
performed by the Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in
such act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as
Trustee under the Agreement or as successor to the Servicer under the
Agreement), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Trustee;
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(ii) no trustee under the Agreement shall be personally
liable by reason of any act or omission of any other trustee under the
Agreement; and
(iii) the Servicer and the Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to the Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the
provisions of the Agreement, specifically including every provision of the
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Each such instrument shall be filed with the
Trustee and a copy thereof given to the Servicer.
Any separate trustee or co-trustee may at any time appoint the
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of the
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Trustee, to the extent permitted by law, without the appointment of a
new or successor trustee. Notwithstanding anything to the contrary in the
Agreement, the appointment of any separate trustee or co-trustee shall not
relieve the Trustee of its obligations and duties under the Agreement.
Section 20.14. Representations and Warranties of Trustee. The
Trustee shall make the following representations and warranties on which the
Seller and Certificateholders may rely:
(i) Organization and Good Standing. The Trustee is a
banking corporation duly organized, validly existing and in good
standing under the laws of its place of incorporation.
(ii) Power and Authority. The Trustee has full power,
authority and legal right to execute, deliver and perform its duties
and obligations under the Agreement, and shall have taken all
necessary action to authorize the execution, delivery and performance
by it of the Agreement.
(iii) No Violation. The execution, delivery and
performance by the Trustee of the Agreement (a) shall not violate any
provision of any law governing the banking and trust powers of the
Trustee or, to the best of the Trustee's knowledge, any order, writ,
judgment or decree of any court, arbitrator or governmental authority
applicable to the Trustee or any of its assets, (b) shall not violate
any provision of the corporate charter or
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by-laws of the Trustee and (c) shall not violate any provision of,
constitute, with or without notice or lapse of time, a default under
or result in the creation or imposition of any Lien on any properties
included in the Trust pursuant to the provisions of any mortgage,
indenture, contract, agreement or other undertaking to which it is a
party, which violation, default or Lien could reasonably be expected
to materially and adversely affect the Trustee's performance or
ability to perform its duties under the Agreement or the transactions
contemplated in the Agreement.
(iv) No Authorization Required. The execution, delivery
and performance by the Trustee of the Agreement shall not require the
authorization, consent or approval of, the giving of notice to, the
filing or registration with or the taking of any other action in
respect of, any governmental authority or agency regulating the
banking and corporate trust activities of the Trustee.
(v) Duly Executed. The Agreement shall have been duly
executed and delivered by the Trustee and shall constitute the legal,
valid and binding agreement of the Trustee, enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or at law.
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ARTICLE TWENTY ONE
TERMINATION
Section 21.01. Termination of the Trust. The Trust and the
respective obligations and responsibilities of the Seller, the Servicer, any
Letter of Credit Bank and the Trustee shall terminate upon the first to occur
of (i) the purchase on any Distribution Date by the Seller or the Servicer, or
any successor to the Servicer, at its option, pursuant to Section 21.02, of the
corpus of the Trust, (ii) the payment to Certificateholders of all amounts
required to be paid to them pursuant to the Agreement, (iii) the maturity or
liquidation of the last Receivable and the disposition of all property held as
part of the Trust or (iv) the sale by the Trustee of all of the Receivables
remaining in the Trust pursuant to Section 21.03; provided, however, that in no
event shall the trust created by the Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of George
Herbert Walker Bush of the State of Texas living on the date of the Agreement.
The Servicer shall promptly notify the Trustee of any prospective termination
pursuant to this Section.
Notice of any termination, specifying the Distribution Date upon which
Certificateholders are expected to be able to surrender their Certificates to
the Trustee for payment of the final distribution and cancellation, shall be
given promptly by the Trustee by letter to Certificateholders and each Rating
Agency mailed not earlier than the 15th day and not later than the 25th day of
the month next preceding the specified Distribution Date stating (i) the
Distribution Date upon which final payment of the Certificates shall be made
upon presentation and surrender of the Certificates at the office of the
Trustee therein designated, (ii) the amount of any such final payment and (iii)
if applicable, that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and
surrender of the Certificates at the office of the Trustee therein specified.
The Trustee shall give such notice to the Certificate Registrar (if other than
the Trustee) and the Letter of Credit Bank, if any, at the time such notice is
given to Certificateholders. Upon presentation and surrender of the
Certificates, the Trustee shall cause to be distributed to Certificateholders
amounts distributable on such Distribution Date pursuant to Section 14.07.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within one year after the second notice all the Certificates shall not have
been surrendered for cancellation, the Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to the Agreement. Any funds remaining in the Trust after exhaustion of
such remedies shall be distributed by the Trustee to the United Way.
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As soon as practicable after the Distribution Date specified for the
final distribution or upon such other date upon which all amounts to be paid to
the Certificateholders pursuant to the Agreement have been paid, the Trustee
shall surrender the Servicer Letter of Credit to the Letter of Credit Bank for
cancellation.
Section 21.02. Optional Purchase of All Receivables. On each
Distribution Date following a Record Date as of which the Pool Balance is 10%
or less of the sum of the Original Pool Balance and the aggregate principal
balance of all Subsequent Receivables conveyed to the Trust as of the related
Subsequent Cutoff Dates, the Seller or the Servicer, or any successor to the
Servicer, shall have the option to purchase the corpus of the Trust; provided
that the option to purchase provided in this Section shall not be exercised if
the final distribution to Certificateholders would be less than the aggregate
outstanding principal amount of the Certificates plus the sum of (i) the Class
A Interest Distributable Amount for the related Distribution Date, (ii) any
outstanding Class A Interest Carryover Shortfall, (iii) the Class B Interest
Distributable Amount for such Distribution Date and (iv) any outstanding Class
B Interest Carryover Shortfall. To exercise such option, the Seller or the
Servicer, or any successor to the Servicer, as the case may be, shall notify
the Trustee in writing, no later than the tenth day of the month in which the
Record Date as of which such purchase is to be effected and, if there are any
Book-Entry Certificates, the Clearing Agency in accordance with the Letter of
Representations, and shall deposit pursuant to Section 14.06 in the Certificate
Account an amount equal to the aggregate Repurchase Amount for the Receivables
(including Defaulted Receivables), plus the appraised value of any other
property held by the Trust (less liquidation expenses), such value to be
determined by an appraiser mutually agreed upon by the Servicer and the
Trustee, and shall succeed to all interests in and to the Trust; provided,
however, the Seller or the Servicer, or any successor to the Servicer, as the
case may be, may not effect any such purchase if the long-term unsecured debt
obligations of the related entity are rated less than Baa3, unless the Trustee
shall have received an Opinion of Counsel that such purchase will not
constitute a fraudulent conveyance. The payment shall be made in the manner
specified in Section 14.06(a)(i), and shall be distributed pursuant to Section
14.07. In the event that both the Seller and the Servicer, or any successor to
the Servicer, elect to purchase the Receivables pursuant to this Section, the
party first notifying the Trustee (based on the Trustee's receipt of such
notice) shall be permitted to purchase the Receivables.
Section 21.03. Sale of All Receivables. If none of the Seller, the
Servicer or any successor to the Servicer exercises its optional termination
right pursuant to Section 21.02 within 90 days after the last day of the
Collection Period as of which such right can first be exercised, in accordance
with the procedures and schedule set forth as an Exhibit to the Agreement (the
"Auction Procedures"), the Trustee shall conduct an auction (the "Auction") of
the Receivables remaining in the Trust (such Receivables hereinafter referred
to as the "Auction Property") in order to effect a termination of the Trust
pursuant to clause (iv) of the first paragraph of Section 21.01 on the second
Distribution Date succeeding the last day of the Collection Period as of which
the Pool Balance is 10% or less of the sum of the Original Pool Balance and the
aggregate
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principal balance of all Subsequent Receivables conveyed to the Trust as of the
related Subsequent Cutoff Dates. Fleetwood Credit may, but shall not be
required to, bid at the Auction. The Trustee shall sell and transfer the
Auction Property to the highest bidder therefor at the Auction provided that:
(i) the Auction has been conducted in accordance with the
Auction Procedures;
(ii) the Trustee has received good faith bids for the
Auction Property from at least two bidders;
(iii) one or more financial advisors, as advisor to the
Trustee (each, an "Advisor"), shall have advised the Trustee in
writing that at least two of such bidders (including the winning
bidder) are participants in the market for motor vehicle retail
installment sale contracts willing and able to purchase the Auction
Property;
(iv) the highest bid in respect of the Auction Property is
not less than the aggregate fair market value of the Auction Property
(as set forth in a written opinion of the Advisor to the Trustee);
(v) any bid submitted by Fleetwood Credit or any
affiliate of Fleetwood Credit shall reasonably represent the fair
market value of the Auction Property, as independently verified and
represented in writing by a qualified independent third party
evaluator (which may include an investment banking firm), selected by
the Trustee; and
(vi) the highest bid would result in proceeds from the
sale of the Auction Property which will be at least equal to the sum
of (a) the greater of (1) the aggregate Repurchase Amounts for the
Receivables (including Defaulted Receivables), plus the appraised
value of any other property held by the Trust (less liquidation
expenses) or (2) an amount that when added to amounts on deposit in
the Certificate Account that would constitute Available Funds for such
second succeeding Distribution Date would result in proceeds
sufficient to distribute the sum of (A) the Class A Distributable
Amount plus any unpaid Class A Interest Carryover Shortfall and any
unpaid Class A Principal Carryover Shortfall with respect to one or
more prior Distribution Dates, and (B) the Class B Distributable
Amount plus any unpaid Class B Interest Carryover Shortfall and any
unpaid Class B Principal Carryover Shortfall, and (b) the sum of (1)
an amount sufficient to reimburse the Servicer for any unreimbursed
Advances and (2) the Servicing Fee payable on such final Distribution
Date, including any unpaid Servicing Fees with respect to one or more
prior Collection Periods.
Provided that all of the conditions set forth in clauses (i) through
(vi) above have been met, the Trustee shall sell and transfer the Auction
Property, without recourse, to such highest
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bidder in accordance with and upon completion of the Auction Procedures. The
Trustee shall deposit the purchase price for the Auction Property in the
Certificate Account at least one Business Day prior to such second succeeding
Distribution Date. In addition, the Auction must stipulate that the Servicer
be retained to service the Receivables on terms substantially similar to those
in the Agreement. In the event that any of such conditions are not met or such
highest bidder fails or refuses to comply with any of the Auction Procedures,
the Trustee shall decline to consummate such sale and transfer. In the event
such sale and transfer is not consummated in accordance with the foregoing,
however, the Trustee may from time to time in the future, but shall not under
any further obligation to, solicit bids for sale of the assets of the Trust
upon the same terms and conditions as set forth above.
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ARTICLE TWENTY TWO
MISCELLANEOUS PROVISIONS
Section 22.01. Amendment. The Agreement may be amended by the
Seller, the Servicer and the Trustee, without the consent of any of the
Certificateholders or the Letter of Credit Bank, if any, (a) to cure any
ambiguity, to correct or supplement any provision in the Agreement which may be
inconsistent with any other provision of the Agreement, or to add, change or
eliminate any other provision with respect to matters or questions arising
under the Agreement that shall not be inconsistent with the provisions of the
Agreement, (b) to change the formula for determining the Specified Reserve Fund
Balance or the manner in which the Reserve Fund is funded and (c) to amend or
modify any provisions in the Agreement relating to the Servicer Letter of
Credit, if any, or the acquisition thereof (provided that no such amendment or
modification pursuant to this clause (c) shall be made without the consent of
the Letter of Credit Bank, if any, which consent shall not be unreasonably
withheld); provided, however, that for purposes of clauses (a) through (c)
above, no such amendment shall, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder
(including any amendment that would adversely affect the Trust's status as a
grantor trust for federal income tax purposes) and provided, further, that
prior to changing the formula for determining the Specified Reserve Fund
Balance or the manner in which the Reserve Fund is funded or amending or
modifying any provisions relating to the Servicer Letter of Credit or the
Letter of Credit Bank, if any, the Servicer shall deliver to the Trustee a
letter from each Rating Agency to the effect that such revised formula will not
cause the rating then assigned to the Rated Certificates to be qualified,
reduced or withdrawn.
The Agreement may also be amended from time to time by the Seller, the
Servicer and the Trustee, with the consent of the Holders of Certificates
evidencing not less than 51% of the Voting Interests of each Class of
Certificates, voting together as a single class, and upon not less than two
weeks' prior notice to each Rating Agency, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Agreement, or of modifying in any manner the rights of the
Certificateholders or the Letter of Credit Bank, if any; provided, however,
that no such amendment shall (i) except as otherwise provided in the first
paragraph of this Section, increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments of the Receivables,
or distributions that shall be required to be made on any Certificate or to or
by the Letter of Credit Bank, if any, or (ii) reduce the aforesaid percentage
of the Voting Interests of the Certificates of each Class required to consent
to any such amendment, without the consent of the Holders of all Certificates
of such Class then outstanding. The Trustee shall furnish written notification
of the substance of such amendment or consent to each Certificateholder and to
the Letter of Credit Bank, if any.
It shall not be necessary for the consent of Certificateholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if
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such consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the
Trustee may prescribe.
Prior to the execution of any amendment to the Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by the Agreement.
The Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Trustee's own rights, duties or immunities under the
Agreement or otherwise.
Section 22.02. Protection of Title to Trust.
(a) Each of the Seller and the Servicer shall execute and file
such financing statements and cause to be executed and filed such continuation
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interest of the Certificateholders,
the Letter of Credit Bank, if any, and the Trustee in the Receivables and in
the proceeds thereof. Each of the Seller and the Servicer shall deliver (or
cause to be delivered) to the Trustee file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed by the Servicer in
accordance with paragraph (a) above seriously misleading within the meaning of
Section 9-402(7) of the UCC, unless it shall have given the Trustee at least 60
days' prior written notice thereof and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Seller and the Servicer shall give the Trustee at least 60
days' prior written notice of any relocation of their respective principal
executive offices if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement and shall
promptly file any such amendment. The Servicer shall at all times maintain
each office from which it shall service the Receivables, and its principal
executive office, within the United States.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Certificate
Account in respect of such Receivable.
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(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale under the Agreement of the Receivables to the
Trustee, the Servicer's master computer records (including any back-up
archives) that refer to a Receivable shall indicate clearly the interest of the
particular grantor trust in such Receivable and that such Receivable is owned
by the Trustee. Indication of the Trustee's ownership of a Receivable shall be
deleted from or modified on the Servicer's computer systems when, and only
when, the Receivable shall have been paid in full, repurchased or assigned
pursuant to the Agreement.
(f) If at any time the Seller or the Servicer shall propose to
sell, grant a security interest in or otherwise transfer any interest in
recreational vehicle receivables to any prospective purchaser, lender or other
transferee, the Servicer shall give to such prospective purchaser, creditor or
other transferee computer tapes, records or print-outs (including any restored
from back-up archives) that, if they shall refer in any manner whatsoever to
any Receivable, shall indicate clearly that such Receivable has been sold and
is owned by the Trustee.
(g) The Servicer shall permit the Trustee and its agents at any
time during normal business hours and upon reasonable notice to inspect, audit
and make copies of and abstracts from the Servicer's records regarding any
Receivable.
(h) Upon request, the Servicer shall furnish to the Trustee,
within five Business Days, a list of all Receivables (by contract number and
name of Obligor) then held as part of the Trust, together with a reconciliation
of such list to the Schedule of Receivables and to each of the Servicer's
Certificates furnished before such request indicating removal of Receivables
from the Trust.
(i) The Servicer shall deliver to the Trustee promptly after the
execution and delivery of the Agreement and of each amendment thereto, an
Opinion of Counsel either (A) stating that, in the opinion of such Counsel, all
financing statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the Trustee in
the Receivables, and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given or (B) stating that, in the
opinion of such Counsel, no such action shall be necessary to preserve and
protect such interest.
(j) The Seller shall, to the extent required by applicable law,
cause the Certificates to be registered with the Commission pursuant to Section
12(b) or 12(g) of the Exchange Act within the time periods specified in such
sections.
(k) For the purpose of facilitating the execution of the Agreement
and for other purposes, the Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and all of which counterparts shall constitute but one and the same
instrument.
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Section 22.03. Limitation on Certificateholder Rights. The death or
incapacity of any Certificateholder shall not operate to terminate the
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties to the Agreement or any of them.
No Certificateholder shall have any right to vote (except as provided
in Sections 19.05 and 22.01) or in any manner otherwise control the operation
and management of the Trust, or the obligations of the parties to the
Agreement, nor shall anything set forth in the Agreement or contained in the
terms of the Certificates, be construed so as to constitute the holders from
time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken pursuant to any provision of the Agreement.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of the Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to the Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of Certificates evidencing not less than 25% of the Voting
Interests of the Class A Certificates and the Class B Certificates, voting
together as a single class, shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee under the
Agreement and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee, for 30 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding; no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of the Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or
seek to obtain priority over or preference to any other such Holder, or to
enforce any right, under the Agreement except in the manner provided in the
Agreement and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section, each Certificateholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
Section 22.04. Governing Law. The Agreement shall be construed in
accordance with the laws of the State of California and the obligations, rights
and remedies of the parties under the Agreement shall be determined in
accordance with such laws; provided, however, the immunities, authority and
standard of care of the Trustee shall be governed by the jurisdiction in which
its principal office is located.
Section 22.05. Notices. All demands, notices and communications
under the Agreement shall be in writing, personally delivered or mailed by
certified mail, return receipt requested, and
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shall be deemed to have been duly given upon receipt (i) in the case of the
Seller or the Servicer, to the agent for service as specified in the Agreement,
or at such other address as shall be designated by the Seller or the Servicer
in a written notice to the Trustee; (ii) in the case of the Trustee, at the
Corporate Trust Office; (iii) in the case of any Letter of Credit Bank to the
address provided in the Agreement or in the reimbursement agreement pursuant to
which the Servicer Letter of Credit is issued; (iv) in the case of Standard &
Poor's, at 26 Broadway, 15th Floor, New York, New York 10004, Attention: Asset
Backed Surveillance Department; (v) in the case of Moody's, at 99 Church
Street, New York, New York 10007 Attention: ABS Monitoring Department; and
(vi) in the case of Duff & Phelps, at 55 East Monroe, Chicago, Illinois 60603.
Any notice required or permitted to be mailed to a Certificateholder shall be
given by first class mail, postage prepaid, at the address of such Holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in the Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder shall receive such notice.
Section 22.06. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of the Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of the Agreement and shall in no way affect the validity or
enforceability of the other covenants, agreements, provisions or terms of the
Agreement or of the Certificates or the rights of the Holders thereof.
Section 22.07. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 17.03 and 18.03 and as
provided in the provisions of the Agreement concerning the resignation of the
Servicer, the Agreement may not be assigned by the Seller or the Servicer
without the prior written consent of the Trustee and the Holders of
Certificates evidencing not less than 51% of the Voting Interests of the Class
A Certificates and the Class B Certificates, voting together as a single class.
Section 22.08. Certificates Nonassessable and Fully Paid. The
interests represented by the Certificates shall be nonassessable for any losses
or expenses of the Trust or for any reason whatsoever, and, upon authentication
thereof by the Trustee pursuant to Section 16.02, 16.03, 16.04, 16.08, 16.09 or
16.11, each of the related Certificates shall be deemed fully paid.
Section 22.09. No Petition. Each of the Servicer and the Trustee
covenants and agrees that prior to the date which is one year and one day after
the date upon which each Class of Certificates has been paid in full, it will
not institute against, or join any other Person in instituting against the
Seller any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceedings under any federal or state bankruptcy or
similar law.
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This Section shall survive the termination of the Agreement or the termination
of the Servicer or the Trustee, as the case may be, under the Agreement.
* * * *
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EXHIBIT A
SERVICER LETTER OF CREDIT
____________, _____
Credit No. ___________
__________________________________
__________________________________
__________________________________
__________________________________
Attention: ______________________
Ladies and Gentlemen:
At the request and for the account of our customer, Fleetwood Credit
Corp., a California corporation ("Fleetwood Credit"), we (the "Letter of Credit
Bank") hereby establish in your favor this Servicer Letter of Credit, wherein
you, as trustee (the "Trustee") under the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") dated as of ______ 1, ____, among Fleetwood
Credit Receivables Corp. ("FCRC"), Fleetwood Credit and you, pursuant to which
$______________ in aggregate principal amount of Asset Backed Certificates (the
"Certificates") of the Fleetwood Credit RV Receivables Grantor Trust (the
"Trust") have been issued, are hereby irrevocably authorized to draw upon the
terms and conditions hereinafter set forth, in an aggregate amount not
exceeding $_______ (hereinafter, as reduced from time to time in accordance
with the provisions hereof, the "Stated Amount"). This Servicer Letter of
Credit is effective immediately and expires at the close of business on
__________, ____ (the "Expiration Date") at the counters of the Letter of
Credit Bank's _____________ Branch.
Funds under this Servicer Letter of Credit are available to you
against your written certificate signed by one who states therein that he is
your duly authorized officer, appropriately completed, in the form of Annex 1
hereto for payment of certain amounts due from, but unpaid by, Fleetwood Credit
under the Pooling and Servicing Agreement.
We hereby agree that each demand made under and in compliance with the
terms of this Servicer Letter of Credit will be duly honored by us upon due
delivery of the certificate(s), as specified above, appropriately completed
(together with such enclosures, if any, required thereby), if presented as
specified on or before the expiration date hereof. If a presentation in
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respect of payment is made by you hereunder at or prior to 12:00 Noon, [LOS
ANGELES] time, on a Business Day, and provided that the documents so presented
conform to the terms and conditions hereof, payment shall be made to you of the
amount specified, in immediately available funds, not later than 9:00 a.m.,
[LOS ANGELES] time, on the following Business Day. If a presentation in
respect of payment is made by you hereunder after 12:00 Noon, [LOS ANGELES]
time, on a Business Day, such presentation shall be deemed to have been made
prior to 12:00 Noon, [LOS ANGELES] time, on the next succeeding Business Day.
You agree to use your best efforts to provide us telephonic notice at the time
any presentation in respect of payment is made hereunder; provided, however,
that failure to provide such telephonic notice shall not affect our obligation
to make payment in respect of any such presentation in respect of payment. If
requested by you, payment under this Servicer Letter of Credit will be wire
transferred to an account specified by the Trustee in the related certificate.
As used herein, "Business Day" shall mean any day other than a Saturday, a
Sunday, or a day on which the Trustee or banking institutions in New York, New
York or [LOS ANGELES], California shall be authorized or obligated by law,
executive order or governmental decree to be closed.
If a drawing made by you hereunder does not, in any instance, conform
to the terms and conditions of this Servicer Letter of Credit, we shall give
you prompt notice that the purported drawing was not effected in accordance
with the terms and conditions of this Servicer Letter of Credit, stating the
reasons therefor and that we are holding any documents presented in connection
therewith at your disposal or are returning the same to you, as we may elect.
Only you, as Trustee, may make a drawing under this Servicer Letter of
Credit. Upon the payment of the amount specified in the related certificate(s)
presented hereunder, we shall be fully discharged of our obligation under this
Servicer Letter of Credit with respect to such certificate(s) and we shall not
thereafter be obligated to make any further payments under this Servicer Letter
of Credit in respect of such certificate(s) to you or any other person. By
paying to you an amount demanded in accordance herewith, we make no
representation as to the correctness of the amount demanded.
This Servicer Letter of Credit shall automatically terminate at our
close of business in [LOS ANGELES], California on the first to occur of the
following dates (the "Termination Date"): (i) the Expiration Date, or if said
date shall not be a Business Day, on the Business Day next succeeding said
date, (ii) the date of receipt by us of your written certificate signed by your
authorized officer, appropriately completed, in the form of Annex 2 hereto,
(iii) the payment by us of the final drawing available to be made hereunder or
(iv) on the date specified in our letter to you in the form of Annex 5 hereto.
If we are not then in default hereunder by reason of our having wrongfully
failed to honor a demand for payment hereunder, this Servicer Letter of Credit
shall be promptly surrendered to us upon the Termination Date.
Drawings in respect of payments hereunder honored by us shall not, in
the aggregate, exceed the Stated Amount in effect immediately prior to such
drawing. Each drawing honored
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by us hereunder shall pro tanto reduce the Stated Amount in effect immediately
prior to such drawing.
The Stated Amount under the Servicer Letter of Credit shall be
automatically further reduced at the close of business on the 15th day of each
month, or if such day is not a Business Day, the next following Business Day,
commencing on __________, ____ (each, a "Reset Date"), so that the Stated
Amount at the close of business on such Reset Date will equal the lesser of (i)
the Stated Amount as theretofore in effect or (ii) the product of $_________
and the Reset Percentage; provided that the Stated Amount as of the close of
business on any Reset Date shall be further reduced if the Stated Amount would
otherwise exceed the Pool Balance (as defined in the Pooling and Servicing
Agreement). For purposes of this Servicer Letter of Credit, the Reset
Percentage on any Reset Date shall be equal to a fraction the numerator of
which is the number of Receivables in the Trust at the close of business on the
last day of the calendar month preceding the calendar month in which such Reset
Date occurs (as evidenced by the Servicer's Certificate for such calendar
month) and the denominator of which is the original number of Receivables in
the Trust as of _____________. Although the adjustment on each Reset Date
shall occur automatically, by acceptance of this Servicer Letter of Credit you
agree on or as soon as practicable following each Reset Date on which any
reduction has been effected pursuant to the preceding sentence, and in any
event within one Business Day after our written request (which may be by telex
or telecopier) on any subsequent date on which a drawing certificate is
presented hereunder, to deliver to us your certificate in the form of Annex 3
hereto (each, a "Reduction Certificate"), appropriately completed, setting
forth the calculation of the Stated Amount as so adjusted; but the failure to
deliver such Reduction Certificate shall not otherwise affect the effectiveness
of any such reduction.
This Servicer Letter of Credit shall be governed by the internal laws
of the State of California, including, without limitation, Article 5 of the
Uniform Commercial Code as in effect in the State of California. This Servicer
Letter of Credit shall be supplemented by the provisions (to the extent that
such provisions are not inconsistent with this Servicer Letter of Credit and
said Article 5) of the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce, Publication No. 500, except
Article 45 thereof.
All documents presented to us in connection with any demand for
payment hereunder, as well as all notices and other communications to us in
respect of this Servicer Letter of Credit shall be in writing, or shall be
transmitted by tested telex or telecopier (promptly confirmed in either case in
writing), and shall be addressed to us at _____________, specifically referring
thereon to this Servicer Letter of Credit by number.
You may transfer your rights under this Servicer Letter of Credit in
their entirety (but not in part) to any transferee who has succeeded you as
trustee pursuant to the Pooling and Servicing Agreement and such transferred
rights may be successively transferred. The transfer of your rights under this
Servicer Letter of Credit to any such transferee shall be effected upon the
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presentation to us of this Servicer Letter of Credit accompanied by a transfer
letter in the form attached hereto as Annex 4.
This Servicer Letter of Credit sets forth in full our undertaking, and
such undertaking shall not in any way be modified, amended, amplified or
limited by reference to any document, instrument or agreement referred to
herein (including, without limitation, the Certificates), except only Annexes 1
through 5 hereto; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement except as set forth
above.
Very truly yours,
--------------------------------------
By:
---------------------------------
Name:
Title:
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ANNEX 1 TO SERVICER
LETTER OF CREDIT NO.
CERTIFICATE FOR "ANNEX 1 DRAWING"
The undersigned, ________________________, as trustee (the "Trustee"),
acting through the undersigned duly authorized officer of the Trustee, hereby
certifies to ______________________ (the "Letter of Credit Bank"), with
reference to the Bank's Servicer Letter of Credit No. __________ (the "Servicer
Letter of Credit"; any capitalized terms used herein and not defined having its
respective meaning as set forth in the Servicer Letter of Credit) issued in
favor of the Trustee, that:
(1) The Trustee is the Trustee under the Pooling and
Servicing Agreement.
(2) Fleetwood Credit, as servicer ("Servicer") under the
Pooling and Servicing Agreement, has notified us, as Trustee under the
Pooling and Servicing Agreement, pursuant to a Servicer's Certificate
(as defined in the Pooling and Servicing Agreement) (a copy of which
is attached hereto) furnished pursuant to Section 13.09 of the Pooling
and Servicing Agreement that the following amount was required to be
remitted by the Servicer to the Certificate Account (as such term is
defined in the Pooling and Servicing Agreement) pursuant to Section
14.02 of the Pooling and Servicing Agreement with respect to the
Distribution Date (as defined in the Pooling and Servicing Agreement)
occurring on [insert applicable Distribution Date]: $[insert amount
required to be remitted pursuant to Section 14.02].
(3) Fleetwood Credit has failed to deposit the following
portion of amounts owed by it with respect to such Distribution Date
as set forth in paragraph (2) above: $[insert amount of deficiency].
(4) The Trustee is making a drawing under the Servicer
Letter of Credit in the amount of $__________ which amount equals the
lesser of (a) the amount set forth in paragraph (3) and (b) the amount
identified by the Servicer in the Servicer's Certificate referred to
in paragraph (2) above as being available on the date hereof to be
drawn under the Servicer Letter of Credit.
(5) The Trustee has not received notice from Fleetwood
Credit or any other person or entity contesting the accuracy of such
Servicer's Certificate.
(6) The account to which payment under the Servicer
Letter of Credit is to be wire transferred is Account No. __________,
maintained at ___________________________.
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IN WITNESS WHEREOF, the Trustee has executed and delivered this
certificate as of the _____ day of ___________.
-------------------------------
as Trustee
By:
---------------------------
Name:
Title:
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ANNEX 2 TO SERVICER
LETTER OF CREDIT NO. ___
CERTIFICATE FOR THE TERMINATION
OF SERVICER LETTER OF CREDIT NO. ___
The undersigned, a duly authorized officer of _______________, as
trustee (the "Trustee"), hereby certifies to ______________ (the "Letter of
Credit Bank") with reference to the Servicer Letter of Credit Bank's
Irrevocable Servicer Letter of Credit No. _______ (the "Servicer Letter of
Credit"; any capitalized term used herein and not defined having its respective
meaning as set forth in the Servicer Letter of Credit) issued in favor of the
Trustee, that [the Pooling and Servicing Agreement has been terminated in
accordance with its terms and the Certificate Account defined therein contains
sufficient funds to pay in full all outstanding Certificates issued thereunder]
or [in accordance with Section 15.01(b) of the Pooling and Servicing Agreement,
the Servicer Letter of Credit has been terminated on the date hereof] or [the
Trustee has received the Letter of Credit Bank's letter in the form of Annex 5
to the Servicer Letter of Credit].* Accordingly, we herewith return to you for
cancellation the Servicer Letter of Credit which is terminated, as of the date
hereof, pursuant to its terms.
Date: ______________
-------------------------------
as Trustee
By:
----------------------------
Authorized Officer
- -----------------------------------
* Select appropriate alternative.
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ANNEX 3 TO SERVICER
LETTER OF CREDIT NO. ___
CERTIFICATE FOR THE REDUCTION OF THE STATED
AMOUNT OF SERVICER LETTER OF CREDIT NO. ___
The undersigned, a duly authorized officer of ________________, as
trustee (the "Trustee"), hereby certifies to _______________ (the "Letter of
Credit Bank") with reference to the Letter of Credit Bank's Servicer Letter of
Credit No. __________ (the "Servicer Letter of Credit"; any capitalized terms
used herein and not defined having its respective meaning as set forth in the
Servicer Letter of Credit) issued in favor of the Trustee, that:
(1) The Trustee is the Trustee under the Pooling and
Servicing Agreement.
(2) On the basis of the Servicer's Certificate attached
hereto, the Trustee hereby confirms that effective [insert Reset Date]
the Stated Amount of the Servicer Letter of Credit has been reduced
from $__________ to $__________, which amount equals the product of
$__________ and the Reset Percentage; provided that if the Stated
Amount would exceed the Pool Balance set forth in such certificate as
of the end of last month, the Stated Amount shall be reduced to the
amount of the Pool Balance.
(3) This Certificate has been prepared and presented in
strict compliance with the terms of the Pooling and Servicing
Agreement and the Servicer Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
certificate as of the _______ day of __________, ____.
-------------------------------
as Trustee
By:
---------------------------
Name:
Title:
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<PAGE> 96
ANNEX 4 TO SERVICER
LETTER OF CREDIT NO. ___
_____________, _____
__________________________________
__________________________________
__________________________________
__________________________________
Re: Servicer Letter of Credit No. _________
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
-------------------------------------
(Name and Address of Transferee)
all rights of the undersigned beneficiary to draw under the above-captioned
Servicer Letter of Credit (the "Servicer Letter of Credit"). The transferee
has succeeded the undersigned as Trustee under the Pooling and Servicing
Agreement (as defined in the Servicer Letter of Credit).
By this transfer, all rights of the undersigned beneficiary in the
Servicer Letter of Credit are transferred to the transferee and the transferee
shall hereafter have the sole rights as beneficiary thereof; provided, however,
that no rights shall be deemed to have been transferred to the transferee until
such transfer complies with the requirements of the Servicer Letter of Credit
pertaining to transfers.
The Servicer Letter of Credit is returned herewith and in accordance
therewith we ask that this transfer be effective and that you cause the
transfer of the Servicer Letter of Credit to
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our transferee or that, if so requested by the transferee, you cause the
issuance of a new Servicer Letter of Credit in favor of the transferee with
provisions consistent with the Servicer Letter of Credit.
Very truly yours,
---------------------------------------
as predecessor Trustee
By:
-----------------------------------
Name:
Title:
A-10
<PAGE> 98
ANNEX 5 TO SERVICER
LETTER OF CREDIT NO. ___
[Letterhead of Letter of Credit Bank]
____________, ____
[Insert name of Beneficiary]
[Address]
Attention: _______________________
Re: Servicer Letter of Credit No. _________
of
Ladies and Gentlemen:
On the date hereof we have received notice from Fleetwood Credit Corp.
("Fleetwood Credit") that its short-term credit rating has been upgraded to
[the Required Servicer Rating] by [insert name of applicable Rating Agency].
[On the date hereof, as a result of such upgrading] or [At the close
of business on the [immediately] [second]* succeeding Distribution Date (as
defined in the Servicer Letter of Credit) following the date hereof, as a
result of such downgrading]**, the Servicer Letter of Credit is hereby
terminated. Please deliver the Servicer Letter of Credit to us for
cancellation as soon as practicable following such date, accompanied by your
certificate in the form of Annex 2 to the Servicer Letter of Credit.
Very truly yours,
-------------------------------
By:
---------------------------
Name:
Title:
- -----------------------------
* Insert "immediately" if the date of this letter is after the 15th day of
the month. Insert "second" if the date of this letter is on or prior to
the 15th day of the month.
** Select appropriate alternative.
A-11
<PAGE> 99
EXHIBIT B
TRANSFER AGREEMENT
TRANSFER NO. __ OF SUBSEQUENT RECEIVABLES, dated as of __________,
among FLEETWOOD CREDIT RV RECEIVABLES 199_ -____ GRANTOR TRUST (the
"Trust"), FLEETWOOD CREDIT CORP., a California corporation ("Fleetwood
Credit"), FLEETWOOD CREDIT RECEIVABLES CORP., a California corporation
(the "Seller"), and __________, as trustee (the "Trustee") pursuant to
the Pooling and Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Fleetwood Credit, the Seller and the Trustee are parties to
the Pooling and Servicing Agreement, dated as of __________, _____ (the
"Pooling and Servicing Agreement");
WHEREAS, Fleetwood Credit and the Seller are parties to the
Receivables Purchase Agreement, dated as of __________, _____ (the "Receivables
Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, Fleetwood
Credit desires to convey certain Subsequent Receivables to the Seller and
pursuant to the Pooling and Servicing Agreement and this Agreement the Seller
desires to convey such Subsequent Receivables to the Trust; and
WHEREAS, the Trustee is willing to accept such conveyance subject to
the terms and conditions hereof.
NOW, THEREFORE, the Trustee, the Seller and Fleetwood Credit hereby
agree as follows:
Section 1. Defined Terms. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement.
"Agreement" means this Transfer Agreement and all amendments hereof
and supplements hereto.
"Subsequent Cutoff Date" means, with respect to the Subsequent
Receivables conveyed hereby, __________.
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"Subsequent Receivables" means the Receivables identified on the
supplement to Schedule A to the Pooling and Servicing Agreement attached
hereto.
"Subsequent Transfer Date" means, with respect to the Subsequent
Receivables conveyed hereby, __________.
Section 2. Schedule of Receivables. Annexed hereto is a supplement
to Schedule A to the Pooling and Servicing Agreement listing the Subsequent
Receivables to be conveyed by the Seller to the Trust pursuant to this
Agreement on the Subsequent Transfer Date.
Section 3. Conveyance of Subsequent Receivables. Subject to the
conditions set forth in Section 5 hereof, in consideration of the Trustee's
delivery on behalf of the Trust to or upon the order of the Seller of an amount
equal to $__________ (i.e., the aggregate Principal Balance of the Subsequent
Receivables as of the Subsequent Cutoff Date), the Seller does hereby sell,
transfer, assign and otherwise convey to the Trust, without recourse (subject
to the Seller's obligations hereunder):
(a) all right, title and interest of the Seller in and to
the Subsequent Receivables listed on Schedule A hereto and all monies
due thereon and paid thereon or in respect thereof (including proceeds
of the repurchase of such Subsequent Receivables by the Seller
pursuant to Section 12.02 or 21.02 of the Pooling and Servicing
Agreement or the purchase of such Subsequent Receivables by Fleetwood
Credit pursuant to Section 13.07 or 21.02 of the Pooling and Servicing
Agreement) on or after the Subsequent Cutoff Date;
(b) the interest of the Seller in the security interests
in the related Financed Vehicles granted by the related Obligors
pursuant to such Subsequent Receivables;
(c) the interest of the Seller in any Liquidation
Proceeds, in any proceeds of any physical damage insurance policies
covering the related Financed Vehicles and in any proceeds of any
credit life or credit disability insurance policies relating to such
Subsequent Receivables or the related Obligors;
(d) the interest of the Seller in any proceeds from
Dealer repurchase obligations relating to such Subsequent Receivables;
and
(e) all proceeds of the foregoing.
Section 4. Representations and Warranties of the Seller.
(a) The Seller does hereby make the following representations on
which the Trustee shall rely in accepting the Subsequent Receivables in trust
pursuant to the Pooling and Servicing
B-2
<PAGE> 101
Agreement. The representations shall speak as of the execution and delivery of
this Agreement and as of the Subsequent Transfer Date, and in each case shall
survive the sale, transfer and assignment of the Subsequent Receivables to the
Trustee.
(i) Organization and Good Standing. The Seller shall
have been duly organized and shall be validly existing as a
corporation in good standing under the laws of the State of
California, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is presently conducted, and had at all relevant times, and
shall now have, power, authority and legal right to acquire, own and
sell the Subsequent Receivables.
(ii) Due Qualification. The Seller shall be duly
qualified to do business as a foreign corporation in good standing,
and shall have obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(iii) Power and Authority. The Seller shall have the power
and authority to execute and deliver this Agreement and to carry out
its terms, the Seller shall have full power and authority to sell and
assign the property to be sold and assigned to and deposited with the
Trustee as part of the Trust and shall have duly authorized such sale
and assignment to the Trustee by all necessary corporate action; and
the execution, delivery and performance of this Agreement shall have
been duly authorized by the Seller by all necessary corporate action.
(iv) Valid Sale; Binding Obligations. This Agreement
shall evidence a valid sale, transfer and assignment of the Subsequent
Receivables, enforceable against creditors of and purchasers from the
Seller; and shall constitute a legal, valid and binding obligation of
the Seller enforceable against the Seller in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or at law.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of
this Agreement shall not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or
bylaws of the Seller, or conflict with or breach any of the material
terms or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement or other instrument
to which the Seller is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument (other than this Agreement and the
B-3
<PAGE> 102
Pooling and Servicing Agreement); nor violate any law or, to the best
of the Seller's knowledge, any order, rule or regulation applicable to
Seller of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Seller or its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Seller,
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:
(a) asserting the invalidity of this Agreement, (b) seeking to prevent
the consummation of any of the transactions contemplated by this
Agreement, or (c) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this
Agreement.
(b) The Seller does hereby make the following representations and
warranties as to the Subsequent Receivables on which the Trustee shall rely in
accepting the Subsequent Receivables in trust. The representations shall speak
as of the execution and delivery of this Agreement and as of the Subsequent
Transfer Date, and in each case shall survive the sale, transfer and assignment
of the Subsequent Receivables to the Trustee.
(i) Characteristics of Subsequent Receivables. Each
Subsequent Receivable (a) shall have been originated in the United
States by a Dealer for the retail sale of the related Financed Vehicle
in the ordinary course of such Dealer's business, shall have been
fully and properly executed by the parties thereto, shall have been
purchased by Fleetwood Credit from such Dealer under an agreement with
Fleetwood Credit and shall have been validly assigned by such Dealer
to Fleetwood Credit in accordance with its terms and shall have been
subsequently sold by Fleetwood Credit to the Seller; (b) shall have
created or shall create a valid, subsisting and enforceable first
priority security interest in favor of Fleetwood Credit in the related
Financed Vehicle, which security interest has been assigned by
Fleetwood Credit to the Seller, and shall be assignable, and shall be
so assigned, by the Seller to the Trustee; (c) shall contain customary
and enforceable provisions such that the rights and remedies of the
holder thereof shall be adequate for the realization against the
collateral of the benefits of the security; (d) shall provide for
level monthly payments (provided that the payment in the first or last
month in the life of the Subsequent Receivable may be minimally
different from the level payment) that fully amortize the Amount
Financed by maturity and yield interest at its APR; and (e) shall
provide for, in the event that such Subsequent Receivable is prepaid,
a prepayment that fully pays the Principal Balance and includes
accrued but unpaid interest at least through the date of prepayment in
an amount calculated by using an interest rate at least equal to its
APR.
B-4
<PAGE> 103
(ii) Schedule of Receivables. The information set forth
in the supplement to the Schedule of Receivables annexed hereto shall
be true and correct in all material respects as of the opening of
business on the Subsequent Cutoff Date, and no selection procedure
adverse to the Certificateholders shall have been utilized in
selecting the Subsequent Receivables from those Receivables of
Fleetwood Credit which met the selection criteria set forth in this
Section.
(iii) Compliance with Law. Each Subsequent Receivable and
each sale of the related Financed Vehicle shall have complied at the
time it was originated or made, and shall comply at the time of
execution of this Agreement in all material respects with all
requirements of applicable federal, state and local laws, and
regulations thereunder, including usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, Federal Reserve Board Regulations B and Z,
state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit, equal credit
opportunity and disclosure laws.
(iv) Binding Obligation. Each Subsequent Receivable shall
constitute the genuine, legal, valid and binding payment obligation in
writing of the related Obligor, enforceable by the holder thereof in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation and other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity regardless of whether such enforceability
shall be considered in a proceeding in equity or at law.
(v) No Government Obligor. None of the Subsequent
Receivables shall be due from the United States or any state or local
government thereof or from any agency, department or instrumentality
of the United States or any state or local government.
(vi) Security Interest in Financed Vehicles. Immediately
prior to the sale, assignment and transfer thereof, each Subsequent
Receivable shall be secured by a validly perfected first security
interest in the related Financed Vehicle in favor of Fleetwood Credit
as secured party or all necessary and appropriate action with respect
to such Subsequent Receivable shall have been taken to perfect a first
priority security interest in such Financed Vehicle in favor of
Fleetwood Credit as secured party.
(vii) Receivables in Force. No Subsequent Receivable shall
have been satisfied, subordinated or rescinded, nor shall any related
Financed Vehicle have been released from the lien granted by the
related Subsequent Receivable in whole or in part.
B-5
<PAGE> 104
(viii) No Waiver. No provision of a Subsequent Receivable
shall have been waived in such a manner that such Subsequent
Receivable fails to meet all of the other representations and
warranties made by the Seller herein with respect thereto.
(ix) No Amendments. No Subsequent Receivable shall have
been amended in such a manner that such Subsequent Receivable fails to
meet all of the other representations and warranties made by the
Seller herein with respect thereto.
(x) No Defenses. No facts shall be known to the Seller
which would give rise to any right of rescission, setoff, counterclaim
or defense, nor shall the same have been asserted or threatened, with
respect to any Subsequent Receivable.
(xi) No Liens. To the knowledge of the Seller, no liens
or claims shall have been filed, including liens for work, labor or
materials relating to a Financed Vehicle related to a Subsequent
Receivable, that shall be liens prior to, or equal or coordinate with,
the security interest in such Financed Vehicle granted by the related
Subsequent Receivable.
(xii) No Default. Except for payment defaults continuing
for a period of not more than 30 days as of the Subsequent Cutoff
Date, no default, breach, violation or event permitting acceleration
under the terms of any Subsequent Receivable shall have occurred; and
no continuing condition that with notice or the lapse of time would
constitute a default, breach, violation or event permitting
acceleration under the terms of any Subsequent Receivable shall have
arisen; and the Seller shall not have waived any of the foregoing.
(xiii) Insurance. Fleetwood Credit, in accordance with its
customary servicing procedures, shall have determined that each
Obligor had obtained physical damage insurance covering the related
Financed Vehicle.
(xiv) Good Title. It is the intention of the Seller that
the transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Subsequent Receivables from the Seller to the
Trust and that the beneficial interest in and title to the Subsequent
Receivables not be a part of the debtor's estate in the event of a
filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Subsequent Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the
Trustee, and no provision of a Subsequent Receivable shall have been
waived, except as provided in clause (viii) above; immediately prior
to the transfer and assignment herein contemplated, the Seller had
good and marketable title to each Subsequent Receivable free and clear
of all Liens and rights of others; immediately upon the transfer and
assignment thereof, the Trustee, for the benefit of the
Certificateholders, shall have good and marketable title to each
Subsequent Receivable, free and clear of all Liens and rights
B-6
<PAGE> 105
of others; and the transfer and assignment herein contemplated has
been perfected under the UCC.
(xv) Lawful Assignment. No Subsequent Receivable shall
have been originated in, or shall be subject to the laws of, any
jurisdiction under which the sale, transfer and assignment of such
Subsequent Receivable under the Agreement or pursuant to transfers of
the Certificates shall be unlawful, void or voidable.
(xvi) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Trustee a first
perfected ownership interest in the Subsequent Receivables shall have
been made.
(xvii) One Original. There shall be only one original
executed copy of each Subsequent Receivable.
(xviii) Additional Representations and Warranties. (a) Each
Subsequent Receivable shall have an original maturity of not less than
__ months nor greater than __ months and, as of the Subsequent Cutoff
Date, a scheduled remaining maturity of not less than __ months nor
greater than __ months; (b) the weighted average remaining term of the
Receivables (including the Subsequent Receivables) as of the
Subsequent Transfer Date is not greater than __ months; (c) each
Subsequent Receivable shall have an Annual Percentage Rate equal to or
greater than _____% and equal to or less than _____%; (d) the weighted
average APR of the Receivables (including the Subsequent Receivables)
is not less than _____%; (e) each Subsequent Receivable shall have no
payment that is more than 30 days past due as of the related
Subsequent Cutoff Date; (f) such Subsequent Receivables were
originated on or prior to __________; and (g) the related Receivable
Files shall be kept at one or more of the locations listed in Schedule
B to the Pooling and Servicing Agreement.
Section 5. Conditions Precedent. The obligation of the Trust to
acquire the Subsequent Receivables hereunder is subject to the satisfaction, on
or prior to the Subsequent Transfer Date, of the following conditions
precedent:
(a) Representations and Warranties. (i) Each of the
representations and warranties made by Fleetwood Credit in Section
2.03 of the Receivables Purchase Agreement and (ii) each of the
representations and warranties made by the Seller in Section 4 of this
Agreement and Sections 7.01 and 17.01 of the Pooling and Servicing
Agreement, shall be true and correct as of the date of this Agreement
and as of the Subsequent Transfer Date.
(b) Pooling and Servicing Agreement Conditions. Each of
the conditions set forth in Section 2.02(b) to the Pooling and
Servicing Agreement shall have been satisfied.
B-7
<PAGE> 106
(c) Receivables Purchase Agreement Conditions. Fleetwood
Credit shall have complied with the requirements of Section 2.03 of
the Receivables Purchase Agreement and shall have delivered all
documents required to be delivered pursuant to Section 2.01 of the
Receivables Purchase Agreement.
(d) Security Interest Perfection. In connection with the
conveyance contemplated by this Agreement, the Seller agrees to record
and file, at its own expense, a financing statement with respect to
the related Subsequent Receivables now existing and hereafter created
for the sale of chattel paper (as defined in Section 9105 of the UCC
as in effect in the State of California) meeting the requirements of
applicable state law in such manner as is sufficient to perfect the
sale and assignment of such Subsequent Receivables to the Trust, and
the proceeds thereof (and any continuation statements as are required
by applicable state law), and to deliver a file-stamped copy of each
such financing statement (or continuation statement) or other evidence
of such filings (which may, for purposes of this Section, consist of
telephone confirmation of such filing with the file stamped copy of
each such filing to be provided to the Trustee in due course), as soon
as is practicable after the Seller's receipt thereof.
In connection with such conveyance, the Seller further
agrees, at its own expense, on or prior to the Subsequent Transfer Date
(i) to annotate and indicate in its computer files that the Subsequent
Receivables have been transferred to the Trust pursuant to the
Agreement and (ii) to deliver to the Trustee a computer file printed or
microfiche list containing a true and complete list of all such
Subsequent Receivables, identified by account number and by the
Principal Balance of each Subsequent Receivable as of the related
Subsequent Cutoff Date.
(e) Additional Information. The Seller shall have
delivered to the Trustee on behalf of the Trust such information as
was reasonably requested by the Trustee on behalf of the Trust to
satisfy itself as to (i) the accuracy of the representations and
warranties set forth in Section 4 of this Agreement and Sections 7.01
and 17.01 of the Pooling and Servicing Agreement and (ii) the
satisfaction of the conditions set forth in this Section.
The Trustee shall not be required to investigate or otherwise verify
satisfaction of the conditions listed above, but shall be entitled to
conclusively rely upon Opinions of Counsel and Certificates of the Servicer
confirming such fulfillment.
Section 6. Ratification of Agreement. As supplemented by this
Agreement, the Pooling and Servicing Agreement is in all respects ratified and
confirmed and the Pooling and Servicing Agreement as so supplemented by this
Agreement shall be read, taken and construed as one and the same instrument.
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Section 7. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of California and the obligations, rights
and remedies of the parties under this Agreement shall be determined in
accordance with such laws; provided, however, the immunities, authority and
standard of care of the Trustee shall be governed by the jurisdiction in which
its principal office is located.
B-9
<PAGE> 108
IN WITNESS WHEREOF, the Trustee, Fleetwood Credit and the Seller have
caused this Agreement to be duly executed and delivered by their respective
duly authorized officers as of the day and the year first above written.
FLEETWOOD CREDIT CORP.
By:
---------------------------------
Name:
Title:
FLEETWOOD CREDIT RECEIVABLES CORP.
By:
---------------------------------
Name:
Title:
--------------------,
as Trustee
By:
---------------------------------
Name:
Title:
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<PAGE> 109
EXHIBIT C-1
TRUSTEE'S CERTIFICATE
PURSUANT TO SECTION 20.02 OR 20.03
OF THE POOLING AND SERVICING
AGREEMENT
__________________, as trustee (the "Trustee") of the Fleetwood Credit
199__-__ Grantor Trust created pursuant to the Pooling and Servicing Agreement
(the "Agreement") dated as of ________ 1, ____ among Fleetwood Credit
Receivables Corp., as Seller, Fleetwood Credit Corp., as Servicer, and the
Trustee, does hereby sell, transfer, assign and otherwise convey to the Seller,
without recourse, representation or warranty, all of the Trustee's right, title
and interest in and to all of the Receivables (as defined in the Agreement)
identified in the attached Servicer's Certificate as "Repurchased Receivables,"
which are to be repurchased by the Seller pursuant to Section 12.02 or 21.02 of
the Agreement and all security and documents relating thereto.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
__________, 199__.
-------------------------------
as Trustee
By:
----------------------------
Name:
Title:
C-1-1
<PAGE> 110
EXHIBIT C-2
TRUSTEE'S CERTIFICATE
PURSUANT TO SECTION 20.02 OR 20.03
OF THE POOLING AND SERVICING
AGREEMENT
___________________, as trustee (the "Trustee") of the Fleetwood
Credit 199__-__ Grantor Trust created pursuant to the Pooling and Servicing
Agreement (the "Agreement") dated as of ______ 1, 199__ among Fleetwood Credit
Receivables Corp., as Seller, Fleetwood Credit Corp., as Servicer (the
"Servicer"), and the Trustee, does hereby sell, transfer, assign and otherwise
convey to the Servicer, without recourse, representation or warranty, all of
the Trustee's right, title and interest in and to all of the Receivables (as
defined in the Agreement) identified in the attached Servicer's Certificate as
"Repurchased Receivables," which are to be repurchased by the Servicer pursuant
to Section 13.07 or 21.02, and all security and documents relating thereto.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
__________, 199__.
-------------------------------
as Trustee
By:
---------------------------
Name:
Title:
C-2-1
<PAGE> 1
EXHIBIT 5.1
March 31, 1998
Fleetwood Credit Receivables Corp.
22840 Savi Ranch Parkway
Yorba Linda, California 92687
Re: Fleetwood Credit RV Receivables Trusts
Ladies and Gentlemen:
I am Vice President and Assistant General Counsel of Associates First
Capital Corporation, a Delaware corporation and the parent company of Fleetwood
Credit Corp., and in that capacity I have acted as counsel to Fleetwood Credit
Receivables Corp., a California corporation (the "Company"), in connection with
the preparation of the registration statement on Form S-3 (File No. 33-91848),
including forms of prospectus supplements relating to the Grantor Trust and the
Owner Trust (in each case as defined below) (the "Registration Statement")
relating to the Securities (as defined below) and with the authorization and
issuance from time to time in one or more series (each, a "Series") of up to
$2,000,000,000 aggregate principal amount of (i) in the case of a grantor trust
(each, a "Grantor Trust"), Asset Backed Certificates (the "Grantor
Certificates") and (ii) in the case of an owner trust (each, an "Owner Trust"),
Asset Backed Certificates (the "Owner Certificates") and Asset Backed Notes (the
"Notes" and, together with the Owner Certificates, the "Owner Securities" and,
together with the Grantor Certificates and the Owner Certificates, the
"Securities"). The Registration Statement has been filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended. As set
forth in the Registration Statement, (i) each Series of Grantor Certificates
will be issued pursuant to a pooling and servicing agreement (each, a "Pooling
and Servicing Agreement") among the Company as depositor (the "Depositor"), the
entity named as trustee therein (the "Grantor Trustee") and a servicer named
therein (the "Servicer"), which Pooling and Servicing Agreement will be
identified in the prospectus supplement for such Series of Grantor Certificates,
and (ii) each Series of Owner Securities will be issued pursuant to (A) in the
case of Owner Certificates, a trust agreement (each, a "Trust Agreement")
between the Company as seller (the "Seller") and the entity named as trustee
therein (the "Owner Trustee"), and (B) in the case of Notes, an indenture (each,
an "Indenture") between the Owner Trust and the entity named therein as trustee
(the "Indenture Trustee").
As such counsel, I have examined originals, or copies identified to my
satisfaction as being true copies of originals, of the following documents and
have received the following advices:
<PAGE> 2
Fleetwood Credit Receivables Corp.
March 31, 1998
1. Articles of Incorporation of the Company, as now in effect;
2. Bylaws of the Company, as now in effect;
3. Advices of governmental authorities with respect to the
corporate status of, and payment of taxes by, the Company in
the State of California;
4. The Registration Statement;
5. Resolutions of the Board of Directors of the Company
authorizing the filing of the Registration Statement;
6. The forms of (i) each Pooling and Servicing Agreement, Trust
Agreement or Indenture, as the case may be, as filed or
incorporated by reference as exhibits to the Registration
Statement (ii) Grantor Certificates included in any Pooling
and Servicing Agreement so filed or incorporated by reference
in the Registration Statement and (iii) Owner Securities
included in any Trust Agreement or Indenture, as the case may
be, so filed or incorporated by reference in the Registration
Statement.
7. Such other documents, records and statutes as I have deemed
necessary for the purpose of this opinion.
This opinion relates solely to California and federal law, and I do
not purport to be an expert as to, nor do I express any opinions as to, the
laws of any other jurisdiction.
This opinion is subject to the qualification that I have not examined
the securities but rather have examined specimens thereof. In addition, in
rendering this opinion. I have assumed that any state securities laws
applicable to the issuance of the securities have been complied with.
Based upon such review, and in reliance thereon, and after
consideration of such other legal questions as I have deemed necessary, it is
my opinion that, subject to the qualifications and assumptions referred to
above:
(a) When any (i) Pooling and Servicing Agreement relating
to a Series of Grantor Certificates has been duly and validly
authorized by all necessary action on the part of the Depositor and
has been duly executed and delivered by the Depositor, assuming the
due authorization, execution and delivery by the other parties
thereto, such Pooling and Servicing Agreement will constitute a legal,
valid and binding agreement of the Depositor, enforceable against the
Depositor in accordance with its terms, (ii) Trust Agreement relating
to a Series of Owner Certificates has been duly and validly authorized
2
<PAGE> 3
Fleetwood Credit Receivables Corp.
March 31, 1998
by all necessary action on the part of the Seller and has been duly
executed and delivered by the Seller, assuming the due authorization,
execution and delivery by the other parties thereto, such Trust
Agreement will constitute a legal, valid and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms,
and (iii) Indenture relating to a Series of Notes has been duly and
validly authorized by all necessary action on the part of the related
Owner Trust and has been duly executed and delivered by Owner Trust,
assuming the due authorization, execution and delivery by the other
parties thereto, such Indenture will constitute a legal, valid and
binding agreement of such Owner Trust, enforceable against such Owner
Trust in accordance with its terms, in each case as except as
enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium, fraudulent
conveyance or other similar laws relating to or affecting the
enforcement of creditors' rights generally or by general equitable
principles.
(b) When a Series of (i) Grantor Certificates has been
duly authorized by all necessary action on the part of the Depositor
(subject to the terms thereof being otherwise in compliance with
applicable law at such time), duly executed and authenticated by the
Grantor Trustee for such Series in accordance with the terms of the
related Pooling and Servicing Agreement and issued and delivered
against payment therefor as described in the Registration Statement,
such Grantor Certificates will be legally and validly issued, fully
paid and nonassessable, and the holders thereof will be entitled to
the benefits of the related Pooling and Servicing Agreement, (ii)
Owner Certificates has been duly authorized by all necessary action on
the part of the Seller (subject to the terms thereof being otherwise
in compliance with applicable law at such time), duly executed and
authenticated by the Owner Trustee for such Series in accordance with
the terms of the related Trust Agreement and issued and delivered
against payment therefor as described in the Registration Statement,
such Owner Certificates will be legally and validly issued, fully paid
and nonassessable, and the holders thereof will be entitled to the
benefits of the related Trust Agreement, and (iii) Notes has been duly
authorized by all necessary action on the part of the related Owner
Trust (subject to the terms thereof being otherwise in compliance with
applicable law at such time), duly executed and authenticated by the
Indenture Trustee for such Series in accordance with the terms of the
related Indenture and issued and delivered against payment therefor as
described in the Registration Statement, such Notes will be legally
and validly issued, fully paid and nonassessable and will be binding
obligations of the related Owner Trust, and the holders thereof will
be entitled to the benefits of the related Indenture.
3
<PAGE> 4
Fleetwood Credit Receivables Corp.
March 31, 1998
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of my name in the
Registration Statement under the caption "Legal Opinions." In giving
this consent, I do not thereby admit that I am in the category of
persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the
Commission.
Respectfully submitted,
/s/ FREDERIC C. LISKOW
Frederic C. Liskow
4
<PAGE> 1
EXHIBIT 8.1
ARTER & HADDEN LLP
ATTORNEYS AT LAW
founded 1843
Cleveland 1801 K Street, N.W./Suite 400K Irvine
Columbus Washington, D.C. 20006-1301 Los Angeles
Dallas 202/775-7100 telephone San Francisco
202/857-0172 facsimile
March 31, 1998
Fleetwood Credit Receivables Corp.
22840 Savi Ranch Parkway
Yorba Linda, California 92687
Re: Fleetwood Credit Receivables Corp.
Fleetwood Credit RV Receivables Trusts
Registration Statement on Form S-3, File No. 33-91848
Ladies and Gentlemen:
We have acted as counsel to Fleetwood Credit Receivables Corp. in
connection with the preparation and filing of Amendment No. 1 to the
registration statement on Form S-3 (such registration statement, the
"Registration Statement") being filed today with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended (the "Act"), in
respect of Fleetwood Credit RV Receivables Trusts Asset Backed Certificates (the
"Certificates") and Asset Backed Notes (the "Notes") which you plan to offer in
series. Our opinions formed the basis for the description of the federal income
tax consequences appearing under the heading "Certain Federal Income Tax
Consequences" of the applicable prospectus supplement contained in the
Registration Statement. Assuming issuance of Owner Certificates of a series and
assuming the federal income tax characterization of those Certificates as
partnership interests at that time, we confirm that the description under
"Certain Federal Income Tax Consequences" in the prospectus of the federal
income tax consequences with respect to a series of Owner Certificates presents
our opinion of the material tax issues relating to an investment in those Owner
Certificates. Assuming issuance of Notes as indebtedness at that time, we
confirm that the description under "Certain Federal Income Tax Consequences" in
the prospectus of the federal income tax consequences with respect to a series
of Notes presents our opinion of the material tax issues relating to an
investment in those Notes. Assuming issuance of Grantor Certificates of a series
and assuming the federal income tax characterization of those Grantor
Certificates as grantor trust interests at that time, we confirm that the
description under "Certain Federal Income Tax Consequences" in the prospectus of
the federal income tax consequences with respect to a series of Grantor
Certificates presents our opinion of the material tax issues relating to an
investment in those Grantor Certificates.
<PAGE> 2
[ARTER & HADDEN LLP LETTERHEAD]
Fleetwood Credit Receivables Corp.
March 31, 1998
Page 2
We hereby consent to the filing of this letter as Exhibit 8.1 to the
Registration Statement and to the reference to this firm in the Registration
Statement and related prospectus supplements under the heading "Certain Federal
Income Tax Consequences."
Very truly yours,
/s/ Arter & Hadden LLP
ARTER & HADDEN LLP
<PAGE> 1
EXHIBIT 10.1
================================================================================
FLEETWOOD CREDIT CORP.,
as Seller,
and
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Purchaser
________________________________________________________
RECEIVABLES PURCHASE AGREEMENT
Dated as of _________ 1, 199
________________________________________________________
================================================================================
<PAGE> 2
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS
<TABLE>
<S> <C> <C>
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Interpretive Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.02. Representations and Warranties as to Fleetwood Credit . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.03. Representations and Warranties as to the Receivables . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.04. Covenants of Fleetwood Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE THREE
PAYMENT OF PURCHASE PRICE
Section 3.01. Payment of Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE FOUR
TERMINATION
Section 4.01. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
Section 5.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.02. Protection of Right, Title and Interest to Receivables . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.03. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
(i)
<PAGE> 3
Page
<TABLE>
<S> <C> <C>
Section 5.05. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.06. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.07. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.08. No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.09. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.10. Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.11. Merger and Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.12. Table of Contents and Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.13. Seller Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.14. Merger, Consolidation or Assumption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Schedule A - Schedule of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
</TABLE>
(ii)
<PAGE> 4
This Receivables Purchase Agreement, dated as of __________ 1, 199 ,
is between Fleetwood Credit Corp., a California corporation, as seller, and
Fleetwood Credit Receivables Corp., a California corporation, as purchaser.
In consideration of the premises and mutual agreements herein
contained, each party agrees as follows for the benefit of the other party and
for the benefit of the Indenture Trustee:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement, the
following words and phrases shall have the following meanings:
"Agreement" means this Receivables Purchase Agreement, as amended,
restated or supplemented from time to time.
"Purchaser" means FCRC, in its capacity as purchaser of the
Receivables under this Agreement and any successor thereto.
"Repurchased Receivable" means a Receivable repurchased by Fleetwood
Credit pursuant to Section 2.03(c).
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of _________ 1, 199 , among the Seller, the Servicer and the Issuer.
Section 1.02. Interpretive Provisions. Capitalized terms that are
used herein but not otherwise defined shall have the meanings ascribed thereto
in the Sale and Servicing Agreement. The words "hereof", "herein" and
"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, subsection and Schedule references contained in this
Agreement are references to Sections, subsections and Schedules in or to this
Agreement unless otherwise specified; and the word "including" means including
without limitation.
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Receivables.
(a) In the case of the Initial Receivables, on the Closing Date
Fleetwood Credit does hereby sell, transfer, assign and otherwise convey to the
Purchaser, without recourse (subject to Fleetwood Credit's obligations
hereunder):
<PAGE> 5
(i) all right, title and interest of Fleetwood Credit in
and to the Initial Receivables listed in the Schedule of Receivables
and all monies due thereon and paid thereon or in respect thereof
(including proceeds of the repurchase of Initial Receivables by
Fleetwood Credit pursuant to Section 2.03(c)) on or after the Initial
Cutoff Date, exclusive of Accrued Interest as of the opening of
business on the Initial Cutoff Date;
(ii) the interest of Fleetwood Credit in the security
interests in the related Financed Vehicles granted by the Obligors
pursuant to the Initial Receivables;
(iii) the interest of Fleetwood Credit in any Liquidation
Proceeds, in any proceeds of any physical damage insurance policies
covering the related Financed Vehicles and in any proceeds of any
credit life or credit disability insurance policies relating to the
Initial Receivables or the related Obligors;
(iv) the interest of Fleetwood Credit in any proceeds from
Dealer repurchase obligations relating to the Initial Receivables; and
(v) all proceeds of the foregoing.
(b) In the case of the Subsequent Receivables, on the related
Subsequent Transfer Dates during the Funding Period, Fleetwood Credit will
sell, transfer, assign and otherwise convey to the Purchaser, without recourse
(subject to Fleetwood Credit's obligations hereunder):
(i) all right, title and interest of Fleetwood Credit in
and to the related Subsequent Receivables listed in the Schedule of
Receivables attached to the related Transfer Agreement and all monies
due thereon and paid thereon or in respect thereof (including proceeds
of the repurchase of Subsequent Receivables by Fleetwood Credit
pursuant to Section 2.03(c)) on or after the related Subsequent Cutoff
Date, exclusive of Accrued Interest as of the opening of business on
the Subsequent Cutoff Date;
(ii) the interest of Fleetwood Credit in the security
interests in the related Financed Vehicles granted by the Obligors
pursuant to the related Subsequent Receivables;
(iii) the interest of Fleetwood Credit in any Liquidation
Proceeds, in any proceeds of any physical damage insurance policies
covering the related Financed Vehicles and in any proceeds of any
credit life or credit disability insurance policies relating to such
Subsequent Receivables or the related Obligors;
(iv) the interest of Fleetwood Credit in any proceeds from
Dealer repurchase obligations relating to such Subsequent Receivables;
and
(v) all proceeds of the foregoing.
2
<PAGE> 6
(c) In connection with the conveyances contemplated by subsections
(a) and (b) above, on or prior to the Closing Date or the related Subsequent
Transfer Date, as the case may be, Fleetwood Credit agrees to record and file,
at its own expense, a financing statement with respect to the related
Receivables now existing and hereafter created for the sale of chattel paper
(as defined in Section 9105 of the UCC as in effect in the State of California)
meeting the requirements of applicable state law in such manner as is
sufficient to perfect the sale and assignment of such Receivables to the
Purchaser, and the proceeds thereof (and any continuation statements as are
required by applicable state law), and to deliver a file stamped copy of each
such financing statement (or continuation statement) or other evidence of such
filings (which may, for purposes of this Section, consist of telephone
confirmation of such filing with the file stamped copy of such filing to be
provided to the Purchaser in due course), as soon as is practicable after
Fleetwood Credit's receipt thereof.
In connection with such conveyances, Fleetwood Credit further agrees,
at its own expense, on or prior to the Closing Date or the related Subsequent
Transfer Date, as the case may be, (i) to annotate and indicate in its computer
files that the related Receivables have been transferred to the Purchaser
pursuant to this Agreement and (ii) to deliver to the Purchaser a computer
file, or printed or microfiche list, containing a true and complete list of all
of such Receivables, identified by account number and by the Principal Balance
of each Receivable as of the Initial Cutoff Date or the related Subsequent
Cutoff Date, as the case may be. Such file or list shall be marked as Schedule
A to this Agreement and is hereby incorporated into and made a part of this
Agreement.
The parties hereto intend that the conveyances hereunder and under
each Transfer Agreement be sales. In the event that the conveyances hereunder
and thereunder are not for any reason considered to be sales, the parties
intend that Fleetwood Credit be deemed to have granted to the Purchaser a first
priority perfected security interest in, to and under the related Receivables
and the other property conveyed hereunder and all proceeds of any of the
foregoing and that this Agreement and each Transfer Agreement constitute
security agreements under applicable law.
Section 2.02. Representations and Warranties as to Fleetwood Credit.
Fleetwood Credit hereby represents and warrants as of the date of this
Agreement, the Closing Date and each Subsequent Transfer Date (or as of such
other date as specified below) that:
(a) Organization and Good Standing. Fleetwood Credit is
a California corporation duly organized, validly existing and in good
standing under the laws of the State of California, and has power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted, and had at all relevant times, and shall have, power,
authority and legal right to acquire, own and sell the Receivables.
(b) Due Qualification. As of the Closing Date and each
Subsequent Transfer Date, Fleetwood Credit shall be duly qualified to
do business as a foreign corporation in good standing, and shall have
obtained all necessary licenses and approvals in all jurisdictions in
which the ownership or lease of property or the conduct of its
business (including
3
<PAGE> 7
the servicing of the Receivables as required by the Sale and Servicing
Agreement) shall require such qualifications.
(c) Power and Authority. Fleetwood Credit shall have the
power and authority to execute and deliver this Agreement and each
Transfer Agreement and to carry out its terms; and the execution,
delivery and performance of this Agreement and each Transfer Agreement
shall have been duly authorized by Fleetwood Credit by all necessary
corporate action.
(d) Binding Obligation. This Agreement constitutes, and
each Transfer Agreement will constitute, a legal, valid and binding
obligation of Fleetwood Credit, enforceable against Fleetwood Credit
in accordance with its terms, except as enforceability may be subject
to or limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights in general
and by general principles of equity, regardless of whether such
enforceability shall be considered in a Proceeding in equity or at
law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and each Transfer Agreement and the
fulfillment of the terms hereof and thereof shall not conflict with,
result in a breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of Fleetwood Credit, or
conflict with or breach any of the material terms or provisions of or
constitute (with or without notice or lapse of time) a default under,
any indenture, agreement or other instrument to which Fleetwood Credit
is a party or by which it may be bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than
this Agreement or any Transfer Agreement); nor violate any law or, to
the best of Fleetwood Credit's knowledge, any order, rule or
regulation applicable to Fleetwood Credit of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over Fleetwood Credit
or its properties.
(f) No Proceedings. There are no Proceedings or
investigations pending or, to the best knowledge of Fleetwood Credit,
threatened against Fleetwood Credit before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement or any
Transfer Agreement, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or any Transfer
Agreement or (iii) seeking any determination or ruling that, in the
reasonable judgment of Fleetwood Credit, would materially and
adversely affect the performance by Fleetwood Credit of its
obligations under this Agreement or any Transfer Agreement.
The representations and warranties set forth in this Section shall
survive the transfer and assignment of the related Receivables to the Purchaser
on the Closing Date or the related Subsequent Transfer Date, as the case may
be, and the transfer and assignment of the related
4
<PAGE> 8
Receivables by the Purchaser to the Trust. Upon discovery by Fleetwood Credit,
the Purchaser or the Indenture Trustee of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
Section 2.03. Representations and Warranties as to the Receivables.
(a) Eligibility of Receivables. Fleetwood Credit hereby
represents and warrants as of the Initial Cutoff Date with respect to the
Initial Receivables and as of the related Subsequent Cutoff Date with respect
to the Subsequent Receivables (or, in either case, as of such other date as
specified below) that:
(i) Characteristics of Receivables. Each Receivable (A)
shall have been (1) originated in the United States by a Dealer for
the retail sale of the related Financed Vehicle in the ordinary course
of such Dealer's business, (2) fully and properly executed by the
parties thereto, (3) purchased by Fleetwood Credit from such Dealer
under an agreement with Fleetwood Credit and (4) validly assigned by
such Dealer to Fleetwood Credit in accordance with its terms, (B)
shall have created or shall create a valid, subsisting and enforceable
first priority perfected security interest in favor of Fleetwood
Credit in the related Financed Vehicle, which security interest shall
be assignable, and shall be so assigned, by the Purchaser to the
Indenture Trustee, (C) shall contain customary and enforceable
provisions such that the rights and remedies of the holder thereof
shall be adequate for realization against the collateral of the
benefits of the security, (D) shall provide for level monthly payments
(provided that the payment in the first or last month in the life of
the Receivable may be minimally different from the level payment) that
fully amortize the Amount Financed by maturity and shall provide for a
finance charge or yield interest at its APR and (E) shall provide for,
in the event that such Receivable is prepaid in full, payment of an
amount that fully pays the Principal Balance and includes accrued but
unpaid interest at least through the date of prepayment in an amount
at least equal to its APR.
(ii) Schedule of Receivables. The information set forth
in the Schedule of Receivables, as supplemented by each Transfer
Agreement, shall be true and correct in all material respects as of
the opening of business on the Initial Cutoff Date or the related
Subsequent Cutoff Date, as the case may be, and no selection procedure
adverse to the Purchaser shall have been utilized in selecting the
Receivables from the receivables of Fleetwood Credit that met the
selection criteria set forth in this Section.
(iii) Compliance with Law. Each Receivable shall have
complied at the time it was originated or made, and shall comply at
the time of execution of this Agreement with respect to the Initial
Receivables and at the time of execution of the related Transfer
Agreement with respect to the related Subsequent Receivables, in all
material respects with all requirements of applicable federal, state
and local laws, and regulations thereunder, including usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss
5
<PAGE> 9
Warranty Act, Federal Reserve Board Regulations B and Z, state
adaptations of the National Consumer Act and of the Uniform Consumer
Credit Code and other consumer credit, equal credit opportunity and
disclosure laws.
(iv) Binding Obligation. Each Receivable shall constitute
the genuine, legal, valid and binding payment obligation in writing of
the related Obligor, enforceable by the holder thereof in accordance
with its terms, except as enforceability may be subject to or limited
by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at
law.
(v) No Government Obligor. None of the Receivables shall
be due from the United States or any state or local government or from
any agency, department or instrumentality of the United States or any
state or local government.
(vi) Security Interest in Financed Vehicle. Immediately
prior to the sale, assignment and transfer thereof, each Receivable
shall be secured by a validly perfected first security interest in the
related Financed Vehicle in favor of Fleetwood Credit as secured party
or all necessary and appropriate action with respect to such
Receivable shall have been taken to perfect a first priority security
interest in such Financed Vehicle in favor of Fleetwood Credit as
secured party.
(vii) Receivables in Force. No Receivable shall have been
satisfied, subordinated or rescinded, nor shall any Financed Vehicle
have been released from the lien granted by the related Receivable in
whole or in part.
(viii) No Waiver. No provision of a Receivable shall have
been waived in such a manner that such Receivable fails to meet all of
the other representations and warranties made by Fleetwood Credit
herein with respect thereto.
(ix) No Amendments. No Receivable shall have been amended
in such a manner that such Receivable fails to meet all of the other
representations and warranties made by Fleetwood Credit herein with
respect thereto.
(x) No Defenses. No facts shall be known to Fleetwood
Credit that would give rise to any right of rescission, setoff,
counterclaim or defense, nor shall the same have been asserted or
threatened, with respect to any Receivable.
(xi) No Liens. To the knowledge of Fleetwood Credit, no
Liens shall have been filed, including Liens for work, labor or
materials relating to a Financed Vehicle, that shall be prior to, or
equal or coordinate with, the security interest in such Financed
Vehicle granted by the related Receivable.
(xii) No Default. Except for payment defaults continuing
for a period of not more than 30 days as of the Initial Cutoff Date or
any Subsequent Cutoff Date, as the case
6
<PAGE> 10
may be, no default, breach, violation or event permitting acceleration
under the terms of any Receivable shall have occurred; no continuing
condition that with notice or the lapse of time would constitute a
default, breach, violation or event permitting acceleration under the
terms of any Receivable shall have arisen; and Fleetwood Credit shall
not have waived any of the foregoing.
(xiii) Insurance. Fleetwood Credit, in accordance with its
customary servicing procedures, shall have determined that each
Obligor has obtained physical damage insurance covering the related
Financed Vehicle.
(xiv) Good Title. It is the intention of Fleetwood Credit
that the transfer and assignment herein contemplated, taken as a
whole, constitute a sale of the Receivables from Fleetwood Credit to
the Purchaser and that the beneficial interest in and title to the
Receivables not be part of the debtor's estate in the event of the
filing of a bankruptcy petition by or against Fleetwood Credit under
any bankruptcy law; no Receivable has been sold, transferred, assigned
or pledged by Fleetwood Credit to any Person other than the Purchaser,
and no provision of a Receivable shall have been waived, except as
provided in clause (viii) above; immediately prior to the transfer and
assignment herein contemplated, Fleetwood Credit had good and
marketable title to each Receivable, free and clear of all Liens and
rights of others; immediately upon the transfer and assignment
thereof, the Purchaser shall have good and marketable title to each
Receivable, free and clear of all Liens and rights of others; and the
transfer and assignment herein contemplated has been perfected under
the UCC.
(xv) Lawful Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable under
this Agreement, any Transfer Agreement or pursuant to transfers of the
Certificates shall be unlawful, void or voidable.
(xvi) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Indenture Trustee a
first perfected ownership interest in the Receivables shall have been
made.
(xvii) One Original. There shall be only one original
executed copy of each Receivable.
(xviii) Additional Representations and Warranties of
Fleetwood Credit. (A) Each Receivable conveyed hereby shall have an
original maturity of not less than ___ months nor greater than ____
months; (B) each Receivable shall have an APR equal to or greater than
____%, each Initial Receivable shall have an APR equal to or less than
_____%, each Subsequent Receivable shall have an APR equal to or less
than _____%, the weighted average APR of the Initial Receivables as of
the Initial Cutoff Date shall not be less than _____% and the weighted
average APR of the Receivables (including the Subsequent Receivables)
as of each Subsequent Cutoff Date shall not be less than _____%; (C)
each Receivable shall have no payment that is more than 30 days past
due
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as of the Initial Cutoff Date or the related Subsequent Cutoff Date,
as the case may be; (D) each Receivable File shall be kept at one of
the locations listed in Schedule B to the Sale and Servicing
Agreement; (E) based on the Principal Balances of the Receivables as
of the Initial Cutoff Date or the related Subsequent Cutoff Date, as
the case may be, at least ___% of the Receivables (including the
Subsequent Receivables) shall be secured by motor homes; (F) the
weighted average remaining term of the Receivables (including the
Subsequent Receivables) shall be less than or equal to ____ months;
(G) in the case of any Obligor in the military service (including an
Obligor who is a member of the National Guard or is in the reserves)
whose Receivable is subject to either Relief Act, no such Obligor has
made a claim to Fleetwood Credit that (1) the amount of interest on
the related Receivable should be limited to ___% during the period of
such Obligor's active duty status pursuant to the Soldiers' and
Sailors' Relief Act or (2) payments on such Receivable should be
delayed pursuant to the Military Reservist Relief Act, in either case
unless a court has ruled otherwise upon application of Fleetwood
Credit; and (H) based on the Principal Balances of the Receivables as
of the Initial Cutoff Date or the related Subsequent Cutoff Date, as
the case may be, ___% and ___% of the Receivables (including the
Subsequent Receivables) shall be secured by new and used vehicles,
respectively.
(b) Notice of Breach. The representations and warranties set
forth in this Section shall speak as of the execution and delivery of this
Agreement and each Transfer Agreement, but shall survive the sale, transfer and
assignment of the Receivables to the Purchaser and any subsequent assignment or
transfer pursuant to Article Two of the Sale and Servicing Agreement. The
Purchaser, Fleetwood Credit or the Indenture Trustee, as the case may be, shall
inform the other parties promptly, in writing, upon discovery of any breach of
Fleetwood Credit's representations and warranties pursuant to this Section that
materially and adversely affects any Receivable.
(c) Repurchase of Receivables. In the event of a breach of (i)
any representation and warranty set forth in Section 2.03(a) or (ii) any
representation and warranty set forth in a Transfer Agreement, and in either
case unless the breach shall have been cured by the second Record Date
following the discovery (or, at Fleetwood Credit's option, the first Record
Date following the discovery), Fleetwood Credit shall repurchase any Receivable
materially and adversely affected by the breach, as of such Record Date. In
consideration of the repurchase of any such Receivable, Fleetwood Credit shall
remit the Repurchase Amount of such Receivable (less the amount of any
Liquidation Proceeds with respect to such Receivable deposited, or to be
deposited, by Fleetwood Credit, as Servicer, into the Collection Account
pursuant to Section 5.03 of the Sale and Servicing Agreement) to the Purchaser.
In the event that, as of the date of execution and delivery of this Agreement
or any Transfer Agreement, as the case may be, any Liens shall have been filed,
including Liens for work, labor or materials relating to a Financed Vehicle,
that shall be prior to, or equal or coordinate with, the Lien granted by the
related Receivable (whether or not Fleetwood Credit has knowledge thereof), and
such breach materially and adversely affects the interests of the Receivable,
Fleetwood Credit shall repurchase such Receivable on the terms and in the
manner specified above. Upon such repurchase, the Purchaser shall, without
further action, be deemed to transfer, assign, set-over and otherwise
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convey to Fleetwood Credit, without recourse, representation or warranty, all
the right, title and interest of the Purchaser in, to and under such
Repurchased Receivable, all monies due or to become due with respect thereto
and all proceeds thereof. The Purchaser or the Indenture Trustee, as
applicable, shall execute such documents and instruments of transfer or
assignment and take such other actions as shall reasonably be requested by
Fleetwood Credit to effect the conveyance of such Receivable pursuant to this
Section. The sole remedy of the Purchaser with respect to a breach of
Fleetwood Credit's representations and warranties pursuant to Section 2.03(a)
or with respect to the existence of any such Liens shall be to require
Fleetwood Credit to repurchase the related Receivables pursuant to this
Section.
Section 2.04. Covenants of Fleetwood Credit. Fleetwood Credit hereby
covenants that:
(a) Security Interests. Except for the conveyances
hereunder or under any Transfer Agreement, Fleetwood Credit will not
sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist any Lien on any Receivable,
whether now existing or hereafter created, or any interest therein;
Fleetwood Credit will immediately notify the Purchaser of the
existence of any Lien on any Receivable and such Receivable shall be
repurchased from the Purchaser by Fleetwood Credit in the manner and
with the effect specified in Section 2.03(c), and Fleetwood Credit
shall defend the right, title and interest of the Purchaser in, to and
under the Receivables, whether now existing or hereafter created,
against all Claims of third parties claiming through or under
Fleetwood Credit; provided, however, that nothing in this subsection
shall prevent or be deemed to prohibit Fleetwood Credit from suffering
to exist upon any of the Receivables, Liens for municipal or other
local Taxes if such Taxes shall not at the time be due and payable or
if Fleetwood Credit shall currently be contesting the validity of such
Taxes in good faith by appropriate Proceedings and shall have set
aside on its books adequate reserves with respect thereto.
(b) Delivery of Payments. From and after the appointment
of a successor Servicer pursuant to Section 8.02 of the Sale and
Servicing Agreement, Fleetwood Credit agrees to deliver in kind upon
receipt to such successor Servicer all payments received by Fleetwood
Credit in respect of the Receivables as soon as practicable after
receipt thereof by Fleetwood Credit.
(c) Conveyance of Receivables. Fleetwood Credit
covenants and agrees that it will not convey, assign, exchange or
otherwise transfer the Receivables to any Person prior to the
termination of this Agreement pursuant to Article Four hereof.
(d) No Impairment. Fleetwood Credit shall take no
action, nor omit to take any action, that would impair the rights of
the Purchaser in any Receivable, nor shall it, except as otherwise
provided in this Agreement or the Sale and Servicing Agreement,
reschedule, revise or defer payments due on any Receivable.
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ARTICLE THREE
PAYMENT OF PURCHASE PRICE
Section 3.01. Payment of Purchase Price. In consideration of the
sale by Fleetwood Credit to the Purchaser as provided in Section 2.01 of (a)
the Initial Receivables, on the Closing Date the Purchaser agrees to pay
Fleetwood Credit $______________, and (b) the Subsequent Receivables, on the
related Subsequent Transfer Date, the Purchaser agrees to pay Fleetwood Credit
an amount equal to the Aggregate Principal Balance of such Subsequent
Receivables as of the related Subsequent Cutoff Date.
ARTICLE FOUR
TERMINATION
Section 4.01. Termination. The respective obligations and
responsibilities of Fleetwood Credit and the Purchaser created hereby shall
terminate, except for Fleetwood Credit's indemnity obligations as provided
herein, upon the termination of the Trust as provided in Section 9.01 of the
Trust Agreement.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
Section 5.01. Amendment. This Agreement may be amended from time to
time by the Purchaser and Fleetwood Credit (i) to cure any ambiguity, to
correct or supplement any provision herein that may be inconsistent with any
other provision herein or to add any other provision with respect to matters or
questions arising under this Agreement that shall not be inconsistent with the
provisions of this Agreement or the Sale and Servicing Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel of
the Purchaser delivered to the Indenture Trustee, adversely affect in any
material respect the interests of the Trust and (ii) with the consent of the
Indenture Trustee, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement.
Section 5.02. Protection of Right, Title and Interest to Receivables.
(a) Fleetwood Credit at its expense shall cause this Agreement,
all amendments hereto or all financing statements and continuation statements
and any other necessary documents covering the Purchaser's right, title and
interest in and to the Receivables and other property conveyed by Fleetwood
Credit to the Purchaser hereunder to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Purchaser hereunder in and to all
of the Receivables and such other property.
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<PAGE> 14
Fleetwood Credit shall deliver to the Purchaser file stamped copies of, or
filing receipts for, any document recorded, registered or filed as provided
above, as soon as available following such recording, registration or filing.
The Purchaser and the Indenture Trustee shall cooperate fully with Fleetwood
Credit in connection with the obligations set forth above and will execute any
and all documents reasonably required to fulfill the intent of this paragraph.
(b) Within 30 days after Fleetwood Credit makes any change in its
name, identity or corporate structure that would make any financing statement
or continuation statement filed in accordance with Section 5.02(a) seriously
misleading within the meaning of Section 9402(7) of the UCC as in effect in the
applicable State, Fleetwood Credit shall give the Purchaser notice of any such
change and shall execute and file such financing statements or amendments as
may be necessary to continue the perfection of the Purchaser's security
interest in the Receivables and the proceeds thereof.
(c) Fleetwood Credit will give the Purchaser prompt written notice
of any relocation of any office from which Fleetwood Credit keeps records
concerning the Receivables or of its principal executive office and whether, as
a result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing or continuation statement and shall execute
and file such financing or continuation statements or amendments as may be
necessary to continue the perfection of the interest of the Purchaser in the
Receivables and the proceeds thereof.
Section 5.03. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of California, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
Section 5.04. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt requested,
to in the case of (i) the Purchaser, to Fleetwood Credit Receivables Corp.,
22840 Savi Ranch Parkway, P.O. Box 87024, Yorba Linda, California 92687; (ii)
Fleetwood Credit Corp., 22840 Savi Ranch Parkway, P.O. Box 87024, Yorba Linda,
California 92687; (iii) the Indenture Trustee, to its Corporate Trust Office,
which, as of the date of this Agreement, is at ____________; or (iv) with
respect to any of the foregoing Persons, at such other address as shall be
designated by such Person in a written notice to the other foregoing Persons.
Section 5.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid or unenforceable, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions and terms of this Agreement and shall in no
way affect the validity or enforceability of the other covenants, agreements,
provisions and terms of this Agreement.
Section 5.06. Assignment. This Agreement may not be assigned by the
Purchaser or Fleetwood Credit except as contemplated by this Section and the
Sale and Servicing Agreement;
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provided, however, that simultaneously with the execution and delivery of this
Agreement, the Purchaser shall assign all of its right, title and interest
herein to the Indenture Trustee for the benefit of the Noteholders as provided
in the Indenture, to which Fleetwood Credit hereby expressly consents.
Fleetwood Credit agrees to perform its obligations hereunder for the benefit of
the Trust and that the Indenture Trustee may enforce the provisions of this
Agreement, exercise the rights of the Purchaser and enforce the obligations of
Fleetwood Credit hereunder without the consent of the Purchaser.
Section 5.07. Further Assurances. Fleetwood Credit and the Purchaser
agree to do and perform, from time to time, any and all acts and to execute any
and all further instruments required or reasonably requested by the other party
hereto or by the Indenture Trustee more fully to effect the purposes of this
Agreement, including, without limitation, the execution of any financing
statements, amendments, continuation statements or releases relating to the
Receivables for filing under the provisions of the UCC or other law of any
applicable jurisdiction.
Section 5.08. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Purchaser, the Indenture Trustee
or Fleetwood Credit, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
Section 5.09. Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
Section 5.10. Third Party Beneficiaries. This Agreement will inure
to the benefit of and be binding upon the parties hereto, and the Indenture
Trustee for the benefit of the Noteholders, which shall be considered a third
party beneficiary hereof. Except as otherwise provided in this Agreement, no
other Person will have any right or obligation hereunder.
Section 5.11. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 5.12. Table of Contents and Headings. The Table of Contents
and Article and Section headings herein are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
Section 5.13. Seller Indemnification. Fleetwood Credit shall
indemnify and hold harmless the Purchaser, the Trust and the Indenture Trustee
from and against any loss, liability, expense, damage or injury suffered or
sustained by reason of any acts, omissions or alleged acts
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or omissions arising out of activities of Fleetwood Credit pursuant to this
Agreement or as a result of the transactions contemplated hereby, including,
but not limited to, any judgment, award, settlement, reasonable attorneys' fees
and other costs or expenses incurred in connection with the defense of any
actual or threatened action, Proceeding or Claim; provided, however, that
Fleetwood Credit shall not indemnify the Purchaser, the Trust and the Indenture
Trustee if such acts, omissions or alleged acts or omissions constitute
negligence or willful misconduct by the Purchaser or the Indenture Trustee.
Section 5.14. Merger, Consolidation or Assumption.
(a) Fleetwood Credit shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets substantially
as an entirety to any Person, unless:
(i) the corporation formed by such consolidation or into
which Fleetwood Credit is merged or the Person that acquires by
conveyance or transfer the properties and assets of Fleetwood Credit
substantially as an entirety shall be organized and existing under the
laws of the United States or any State and, if Fleetwood Credit is not
the surviving entity, shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Purchaser and the
Indenture Trustee, in form satisfactory to the Purchaser and the
Indenture Trustee, the performance of every covenant and obligation of
Fleetwood Credit hereunder and shall benefit from all the rights
granted to Fleetwood Credit hereunder; and
(ii) Fleetwood Credit shall have delivered to the
Purchaser and the Indenture Trustee an Officer's Certificate of
Fleetwood Credit and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
agreement comply with this Section and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
(b) The obligations of Fleetwood Credit hereunder shall not be
assignable nor shall any Person succeed to the obligations of Fleetwood Credit
hereunder except in each case in accordance with the provisions of Section 5.06
and this Section.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first
above written.
FLEETWOOD CREDIT CORP.,
as Seller
By:
----------------------------------
Name:
Title:
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Purchaser
By:
-----------------------------------
Name:
Title:
ACCEPTED:
- ----------------------------,
as Indenture Trustee
By:
------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 10.2
================================================================================
SALE AND SERVICING AGREEMENT
among
FLEETWOOD CREDIT RV RECEIVABLES 199 - OWNER TRUST,
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Seller,
and
FLEETWOOD CREDIT CORP.
as Servicer
Dated as of __________ 1, 199
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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ARTICLE ONE
DEFINITIONS
<S> <C> <C>
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Interpretive Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 1.03. Calculations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Initial Receivables . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.02. Conveyance of Subsequent Receivables . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.03. Actions as to Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE THREE
THE RECEIVABLES
Section 3.01. Representations and Warranties of the Seller . . . . . . . . . . . . . . . . . . . . 26
Section 3.02. Repurchase Upon Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 3.03. Custody of Receivable Files . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.04. Duties of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.05. Instructions; Authority to Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.06. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.07. Effective Period and Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.08. No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE FOUR
SERVICER LETTER OF CREDIT
Section 4.01. Servicer Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
</TABLE>
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ARTICLE FIVE
ADMINISTRATION AND SERVICING OF RECEIVABLES
<S> <C> <C>
Section 5.01. Duties of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 5.02. Collection of Receivable Payments . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 5.03. Realization upon Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 5.04. Maintenance of Security Interests in Financed Vehicles . . . . . . . . . . . . . . . 35
Section 5.05. Covenants, Representations and Warranties of Servicer . . . . . . . . . . . . . . . 36
Section 5.06. Purchase of Receivables upon Breach . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.07. Servicing Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.08. Servicer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.09. Annual Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.10. Annual Independent Certified Public Accountants' Report . . . . . . . . . . . . . . 39
Section 5.11. Access to Certain Documentation and Information . . . . . . . . . . . . . . . . . . 39
Section 5.12. Access to Certain Documentation and Information . . . . . . . . . . . . . . . . . . 39
ARTICLE SIX
DISTRIBUTIONS; YIELD SUPPLEMENT ACCOUNT;
STATEMENTS TO SECURITYHOLDERS
Section 6.01. Establishment of Trust Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 6.02. Collections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.03. Application of Collections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.04. Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.05. Non-Reimbursable Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.06. Additional Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.07. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.08. Yield Supplement Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.09. Reserve Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.10. Pre-Funding Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.11. Net Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.12. Statements to Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE SEVEN
THE SELLER
Section 7.01. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.02. Liability of Seller; Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . 51
</TABLE>
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<S> <C> <C>
Section 7.03. Merger or Consolidation of Seller . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 7.04. Limitation on Liability of Seller and Others . . . . . . . . . . . . . . . . . . . . 53
Section 7.05. Seller Not to Resign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE EIGHT
THE SERVICER
Section 8.01. Liability of Servicer; Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 8.02. Corporate Existence; Status as Servicer; Merger . . . . . . . . . . . . . . . . . . 56
Section 8.03. Performance of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 8.04. Servicer Not to Resign; Assignment . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 8.05. Limitation on Liability of Servicer and Others . . . . . . . . . . . . . . . . . . . 57
ARTICLE NINE
DEFAULT
Section 9.01. Servicer Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 9.02. Indenture Trustee to Act; Appointment of Successor . . . . . . . . . . . . . . . . . 59
Section 9.03. Repayment of Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 9.04. Notices to Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 9.05. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE TEN
TERMINATION
Section 10.01. Optional Purchase of All Receivables . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.02. Sale of All Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.02. Protection of Title to Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 11.03. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 11.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
</TABLE>
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<S> <C> <C>
Section 11.05. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.06. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.07. Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.08. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.09. Table of Contents and Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.10. Assignment by Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.11. Limitation of Liability of Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SCHEDULES
Schedule A - Schedule of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA-1
Schedule B - Location of Receivable Files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SB-1
EXHIBITS
Exhibit A - Form of Servicer Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B - Form of Transfer Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Exhibit C - Auction Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
Exhibit D - Form of Addition Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
</TABLE>
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<PAGE> 6
THIS SALE AND SERVICING AGREEMENT, dated as of _______ 1, 199 , is
among the Fleetwood Credit RV Receivables 199 - Owner Trust (the "Trust"), as
issuer (the "Issuer"), Fleetwood Credit Receivables Corp., a California
corporation, as seller (the "Seller"), and Fleetwood Credit Corp., a California
corporation, as servicer (the "Servicer").
WITNESSETH:
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Whenever used herein, unless the context
otherwise requires, the following words and phrases shall have the following
meanings:
"Accelerated Principal Distribution Amount" means, with respect to any
Distribution Date, an amount equal to equal to the portion, if any, of
Available Funds remaining after payment of (i) the Servicer Payment, (ii) the
Note Interest Distributable Amount, (iii) the portion of the Monthly Principal
Payment allocated to the Noteholders, (iv) the Certificate Interest
Distributable Amount and (v) the portion of the Monthly Principal Payment
allocated to the Certificateholders.
"Accrued Interest" on a Receivable, as of any Distribution Date, means
the amount of interest, if any, accrued on the Principal Balance of such
Receivable at the related APR since the most recent date upon which a payment
was made by or on behalf of the related Obligor in respect of such Receivable
through the end of the Collection Period immediately preceding the Collection
Period in which such Distribution Date occurs.
"Advance" has the meaning set forth in Section 6.04.
"Advisor" has the meaning set forth in Section 10.02(c).
"Affiliate" of any specified Person means any other Person controlling
or controlled by or under common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" or "controlled" have
meanings correlative to the foregoing.
"Aggregate Principal Balance" means, with respect to any Distribution
Date, the aggregate of the Principal Balances of all Receivables as of the end
of the Collection Period immediately preceding such Distribution Date.
<PAGE> 7
"APR" means, with respect to a Receivable, means the annual rate of
interest stated in such Receivable.
"Assignments" means, collectively, the original instrument of
assignment of a Receivable and all other documents securing such Receivable
made by the Seller to the Owner Trustee (or in the case of any Receivable
acquired by the Seller from another Person, from such other Person to the
Seller and from the Seller to the Owner Trustee), in a form sufficient under
the laws of the jurisdiction under which the security interest in the related
Financed Vehicle arises to permit the assignee to exercise all rights granted
by the Obligor under such Receivable and such other documents and all rights
available under applicable law to the Obligee under such Receivable and such
other documents and that may be (i) to the extent permitted by the laws of such
jurisdiction, a blanket instrument of assignment covering other Receivables as
well and (ii) to the extent permitted by the laws of the jurisdiction governing
such Receivable, an instrument of assignment running directly from the Seller
to the Owner Trustee.
"Auction" has the meaning set forth in Section 10.02.
"Auction Procedures" has the meaning set forth in Section 10.02.
"Auction Property" has the meaning set forth in Section 10.02.
"Authorized Officer" has the meaning set forth in the Indenture.
"Available Amount" means the sum of (i) Available Funds and (ii)
amounts on deposit in the Reserve Fund, after giving effect to the withdrawals
therefrom pursuant to Section 6.07(a).
"Available Funds" means, with respect to any Distribution Date, the
sum of (i) Investment Earnings received by the Indenture Trustee with respect
to the Pre-Funded Amount on deposit in the Pre-Funding Account (which earnings
are withdrawn from the Pre-Funding Account and deposited into the Collection
Account pursuant to Section 6.07(a)(i)); (ii) the Negative Carry Amount, if
any, for such Collection Period (which amount is withdrawn from the Reserve
Fund and deposited into the Collection Account pursuant to Section
6.07(a)(ii)); (iii) all cash received by the Servicer in respect of the
Receivables during the related Collection Period (including Non-Reimbursable
Payments and Advances but other than (a) late payment and extension fees and
administrative charges, if any, and (b) recoveries by the Servicer of amounts
on the Receivables that were repurchased by the Seller or purchased by the
Servicer prior to the related Collection Period); (iv) the Repurchase Amounts
of all Receivables purchased or to be purchased in respect of the related
Collection Period; and (v) the Yield Supplement Deposit Amount for the related
Collection Period.
"Basic Documents" has the meaning set forth in the Indenture.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which banking institutions in the States of California, Delaware or New
York are authorized or obligated by law, executive order or government decree
to remain closed.
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<PAGE> 8
"Certificate Balance" means, (i) on the Closing Date, the Original
Certificate Balance, and (ii) as of any subsequent date, the Original
Certificate Balance, reduced by (a) all distributions actually made on or prior
to the related Distribution Date to Certificateholders allocable to principal
and (b) Realized Losses allocable to the Certificates.
"Certificate Distributable Amount" means, with respect to any
Distribution Date, the sum of the Certificate Principal Distributable Amount
and the Certificate Interest Distributable Amount.
"Certificate Distribution Account" has the meaning set forth in
Section 6.01(a).
"Certificate Final Scheduled Distribution Date" means the ________ ___,
____ Distribution Date.
"Certificate Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess of the Certificate Monthly Interest Distributable
Amount for the immediately preceding Distribution Date and any outstanding
Certificate Interest Carryover Shortfall on such preceding Distribution Date,
over the amount in respect of interest on the Certificates deposited into the
Certificate Distribution Account on such preceding Distribution Date, plus
interest on such excess, to the extent permitted by law, at the Pass-Through
Rate for the related Interest Period.
"Certificate Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of the Certificate Monthly Interest Distributable
Amount and the Certificate Interest Carryover Shortfall.
"Certificate Monthly Interest Distributable Amount" means, with
respect to any Distribution Date, 30 days' interest at the Pass-Through Rate on
the Certificate Balance as of the first day of the immediately preceding
Collection Period (after giving effect to all distributions of principal to be
made on the Distribution Date occurring in such immediately preceding
Collection Period) or, in the case of the first Distribution Date, the Original
Certificate Balance.
"Certificate Monthly Principal Distributable Amount" means, with
respect to any Distribution Date, the Certificate Percentage of the Monthly
Principal Payment.
"Certificate Owner" has the meaning set forth in the Trust Agreement.
"Certificate Percentage" means (i) for each Distribution Date to and
including the later to occur of (a) the Distribution Date on which the
principal amount of the Class A-1 Notes is reduced to zero and (b) the
__________, 199__ Distribution Date, zero, and (ii) for each Distribution Date
thereafter to and including the Distribution Date on which the Certificate
Balance is reduced to zero, the percentage equivalent of a fraction, the
numerator of which is the Certificate Balance on the Distribution Date
immediately preceding the Distribution Date for which the Certificate
Percentage is being calculated (after giving effect to all distributions made
on such preceding Distribution Date) and the denominator of which is the Pool
Balance on the
3
<PAGE> 9
last day of the second Collection Period preceding the Collection Period in
which the Distribution Date for which the Certificate Percentage is being
calculated occurs; provided, however, that on each Distribution Date following
the occurrence of a Rating Event, until the principal amount of all Outstanding
Notes is paid in full or such rating is restored, the Certificate Percentage
shall mean zero.
"Certificate Pool Factor" means, as of any Distribution Date, a
seven-digit decimal computed by the Servicer prior to each distribution with
respect to the Certificates indicating the remaining Certificate Balance, as of
such Distribution Date (after giving effect to distributions to be made on such
Distribution Date), as a fraction of the Original Certificate Balance.
"Certificate Principal Carryover Shortfall" means, with respect to any
Distribution Date, the excess of the Certificate Monthly Principal
Distributable Amount for the immediately preceding Distribution Date and any
outstanding Certificate Principal Carryover Shortfall on such preceding
Distribution Date, over the amount in respect of principal deposited in the
Certificate Distribution Account on such preceding Distribution Date.
"Certificate Principal Distributable Amount" means, with respect to
any Distribution Date, the sum of the Certificate Monthly Principal
Distributable Amount and the Certificate Principal Carryover Shortfall as of
the close of the immediately preceding Distribution Date; provided, however,
that the Certificate Principal Distributable Amount shall not exceed the
Certificate Balance. In addition, on the Certificate Final Scheduled
Distribution Date, the principal required to be deposited into the Certificate
Distribution Account shall include the amount of any principal due and
remaining unpaid on each Receivable as of the Certificate Final Scheduled
Distribution Date so as to reduce the Certificate Balance to zero, and
remaining after any required distribution to the Note Distribution Account.
"Certificate Register" has the meaning set forth in the Trust
Agreement.
"Certificateholder" has the meaning set forth in the Trust Agreement.
"Claims" means all liabilities, claims and expenses (including
reasonable legal and other professional fees and expenses).
"Class" means all Notes the form of which is identical except for
variation in denomination, principal amount, owner or designation of class.
"Class A-1 Final Scheduled Distribution Date" means the _______ 15,
199__ Distribution Date.
"Class A-1 Rate" means ____% per annum, computed on the basis of a
360-day year and the actual number of days elapsed since the immediately
preceding Distribution Date.
"Class A-2 Final Scheduled Distribution Date" means the ___________
15, ____ Distribution Date.
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<PAGE> 10
"Class A-2 Rate" initially means ____% per annum, computed on the
basis of a 360-day year consisting of twelve 30-day months and, in respect of
any Interest Period shall mean a percentage equal to the lesser of (i) the sum
of (a) LIBOR for such Interest Period and (b) ____% and (ii) ____%.
"Class A-3 Final Scheduled Distribution Date" means the ________,
____ Distribution Date.
"Class A-3 Rate" means _____% per annum.
"Closing Date" means ____________, 199__.
"Collected Interest" means, with respect to a Collection Period, the
sum of (i) the portion of all payments received by the Servicer on or in
respect of the Receivables during such Collection Period allocable to interest
and (ii) the amounts described in clauses (i), (ii) and (v) of the definition
of "Available Funds".
"Collected Principal" means, with respect to each Collection Period,
the portion of all Available Funds received by the Servicer on or in respect of
the Receivables during such Collection Period allocable to principal.
"Collection Account" has the meaning set forth in Section 6.01(a).
"Collection Period" means, with respect to any Distribution Date, the
period commencing on the first day of the month immediately preceding the month
in which such Distribution Date occurs (or, in the case of the first
Distribution Date, from ________ 1, 199__) and ending the last day of such
immediately preceding month.
"Corporate Trust Office" means the principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Agreement is
located at _______________, Attention: ____________; or at such other address
as the Indenture Trustee may designate from time to time by notice to the
Securityholders, the Servicer, the Seller and the Letter of Credit Bank, if
any.
"Dealer" means the dealer that sold a Financed Vehicle and that
originated and assigned the related Receivable to Fleetwood Credit under an
agreement with Fleetwood Credit.
"Defaulted Receivable" means a Receivable (other than a Repurchased
Receivable) as to which (i) all or any part of a scheduled payment is 180 days
delinquent or (ii) the Servicer has determined, in accordance with its
customary servicing procedures, that eventual payment in full is unlikely and
has repossessed and liquidated the related Financed Vehicle within such 180 day
period.
"Definitive Certificates" has the meaning set forth in the Trust
Agreement.
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<PAGE> 11
"Definitive Notes" has the meaning set forth in the Indenture.
"Definitive Securities" means Definitive Notes or Definitive
Certificates, as the context may require.
"Delivery" means, when used with respect to Trust Account Property:
(i) with respect to Physical Property, (A) the Indenture
Trustee or the Owner Trustee, as the case may be, or its Financial
Intermediary acquires possession of the Physical Property, and
evidence that any such Physical Property that is in registrable form
has been registered in the name of the Owner Trustee, its Financial
Intermediary, its custodian or its nominee; (B) the Financial
Intermediary, not a clearing corporation, sends the Indenture Trustee
or the Owner Trustee, as the case may be, confirmation of the transfer
and also by book entry or otherwise identifies as belonging to the
Indenture Trustee or the Owner Trustee, as the case may be, the
Physical Property in the Financial Intermediaries possession; or (C)
with respect to a clearing corporation, appropriate entries to the
account of the Indenture Trustee or the Owner Trustee, as the case may
be, or a Person designated by him or her and, if certificated, it is
both, in the custody of the clearing corporation or another clearing
corporation, a custodian bank or a nominee of any of them and, in
bearer form or endorsed in blank by the appropriate Person or
registered in the name of the clearing corporation, custodian bank, or
a nominee of any of them;
(ii) with respect to any Trust Account Property that is a
book-entry security held through the Federal Reserve System pursuant
to federal book-entry regulations, the following procedures, all in
accordance with applicable law, including applicable federal
regulations and Articles 8 and 9 of the UCC: (A) book-entry
registration of such property to an appropriate book-entry account
maintained with a Federal Reserve Bank by the Indenture Trustee or the
Owner Trustee, as the case may be, of a deposit advice or other
written confirmation of such book-entry registration, (B) the making
by any such custodian of entries in its books and records identifying
such book-entry security held through the Federal Reserve System
pursuant to federal book-entry regulations as belonging to the
Indenture Trustee or the Owner Trustee, as the case may be, and
indicating that such custodian holds such Trust Account Property
solely as agent for the Indenture Trustee or the Owner Trustee, as the
case may be, and the making by the Indenture Trustee or the Owner
Trustee, as the case may be, of entries in its books and records
establishing that it holds such Trust Account Property solely as
trustee pursuant to Section 6.01, and (C) such additional or
alternative procedures as may hereafter become necessary to effect
complete transfer of ownership of any such Trust Account Property to
the Indenture Trustee or the Owner Trustee, as the case may be,
consistent with changes in applicable law or regulations or the
interpretation thereof; and
(iii) with respect to any Trust Account Property that is an
uncertificated security under Article 8 of the UCC and that is not
governed by clause (ii) above, registration of the transfer to, and
ownership of such Trust Account Property by, the
6
<PAGE> 12
Indenture Trustee or the Owner Trustee, as the case may be, its
custodian or its nominee by the issuer of such Trust Account Property.
"Deposit Date" means the Business Day immediately preceding each
Distribution Date.
"Determination Date" means the eighth calendar day of each month or,
if such day is not a Business Day, the immediately succeeding Business Day.
"Distribution Date" means the fifteenth day of each calendar month,
or, if such day is not a Business Day, the next succeeding Business Day,
commencing ________ __, 199_.
"Event of Default" has the meaning set forth in the Indenture.
"Excess Amounts" means, with respect to a Distribution Date, all
collections on or in respect of the Receivables during the related Collection
Period on deposit in the Collection Account and the Distribution Accounts,
after payment of the Servicer Payment and distributions of interest and
principal in respect of the Securities on such Distribution Date.
"FCRC" means Fleetwood Credit Receivables Corp., a California
corporation, and its successors.
"FHLMC" means the Federal Home Loan Mortgage Corporation, and its
successors.
"Final Funding Period Distribution Date" means the Distribution Date
on which the Securities are to be partially prepaid pursuant to Section
6.10(b), which Distribution Date shall be (i) the Distribution Date immediately
succeeding the date on which the Funding Period ends or (ii) the Distribution
Date on which the Funding Period ends if the Funding Period ends on a
Distribution Date.
"Financed Vehicle" means, as to any Receivable, a new or used
recreational vehicle, together with all accessions thereto, securing the
related Obligor's indebtedness under such Receivable.
"Financial Intermediary" means a bank, broker, clearing corporation or
the Person (or the nominee of any of them) that in the ordinary course of its
business maintains security accounts for its customers and is acting in such
capacity.
"Fiscal Quarter" means each of the following three-month periods: (i)
January, February and March; (ii) April, May and June; (iii) July, August and
September; and (iv) October, November and December.
"Fleetwood Credit" means Fleetwood Credit Corp., a California
corporation, and its successors.
"FNMA" means the Federal National Mortgage Association, and its
successors.
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<PAGE> 13
"Funding Period" means the period from the Closing Date until the
earliest to occur of (i) the date on which the remaining Pre-Funded Amount is
less than $100,000.00, (ii) the date on which an Event of Default or Servicer
Default occurs or (iii) the close of business on the ________, 199__
Distribution Date.
"Holder" means a Noteholder or a Certificateholder, as the context may
require.
"Indenture" means the Indenture, dated as of ___________ 1, 199 ,
between the Issuer and the Indenture Trustee.
"Indenture Trustee" means ____________, as trustee under the
Indenture, and its successors, and any successor trustee under the Indenture.
"Independent Director" means a director of the Seller who is not (i) a
director, officer or employee of any Affiliate of the Seller; (ii) an
individual related to any officer or director of any Affiliate of the Seller;
(iii) a holder (directly or indirectly) of more than 10% of any voting
securities of any Affiliate of the Seller; or (iv) an individual related to a
holder (directly or indirectly) of more than 10% of any voting securities of
any Affiliate of the Seller.
"Initial Cutoff Date" means _________ __, 199 .
"Initial Receivable" means the Receivables initially transferred by
the Seller to the Trust on the Closing Date, which Receivables are listed on
the Schedule of Receivables.
"Initial Servicer Letter of Credit Amount" shall have the meaning
specified in the Servicer Letter of Credit, if any.
"Insolvency Event" means (i) the entry of a decree or order by a
court, agency or supervisory authority having jurisdiction in the premises for
the appointment of a trustee in bankruptcy, conservator, receiver or liquidator
for the Servicer (or, so long as the Servicer is Fleetwood Credit, the Seller)
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar Proceedings, or for the winding up or liquidation of
their respective affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or (ii) the consent
by the Servicer (or, so long as the Servicer is Fleetwood Credit, the Seller)
to the appointment of a trustee in bankruptcy, conservator or receiver or
liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of
assets and liabilities or similar Proceedings of or relating to the Servicer
(or, so long as the Servicer is Fleetwood Credit, the Seller) of or relating to
substantially all of its property; or admission by the Servicer (or, so long as
the Servicer is Fleetwood Credit, the Seller) in writing of its inability to
pay its debts generally as they become due, filing of a petition to take
advantage of any applicable insolvency or reorganization statute, assignment
for the benefit of creditors or voluntary suspension of payment of its
obligations.
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<PAGE> 14
"Insurance Policy" means the policy or policies of physical damage,
credit life or disability insurance, if any, covering individual Financed
Vehicles or Obligors, as the case may be.
"Insurance Proceeds" means proceeds paid pursuant to any Insurance
Policy and amounts (exclusive of rebated premiums) paid by any insurer under
any other insurance policy relating to a Financed Vehicle, a Receivable or an
Obligor.
"Interest Period" means, with respect to any Distribution Date and any
Class of Notes, the period from and including the immediately preceding
Distribution Date on which interest has been paid (or, in the case of the first
Distribution Date, from and including the Closing Date) to but excluding such
Distribution Date.
"Interest Rate" means the Class A-1 Rate, the Class A-2 Rate or the
Class A-3 Rate, as the context may require.
"Investment Earnings" means, with respect to any Trust Account, the
investment earnings (net of investment losses) on funds on deposit in such
Trust Account.
"Issuer" has the meaning set forth in the Preamble.
"Liability" means any liability or expense, including any
indemnification obligation.
"Letter of Credit Bank" means any Person that has provided a Servicer
Letter of Credit in accordance with Section 4.01.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind.
"Liquidation Expenses" means reasonable out-of-pocket expenses (not to
exceed Liquidation Proceeds), other than any overhead expenses, incurred by the
Servicer in connection with the realization of the full amounts due under any
Receivable (including the attempted liquidation of a Receivable that is brought
current and is no longer in default during such attempted liquidation) and the
sale of any property acquired in respect thereof that are not recoverable under
any Insurance Policy.
"Liquidation Proceeds" means amounts received by the Servicer (before
reimbursement for Liquidation Expenses) in connection with the realization of
the amounts due and to become due under any Defaulted Receivable and the sale
of any property acquired in respect thereof.
"Loss" means any loss, liability, claim, damage or reasonable expense,
including reasonable fees and expenses of counsel and reasonable expenses of
litigation.
"Mandatory Redemption" has the meaning set forth in the Indenture.
"Mandatory Prepayment" has the meaning set forth in the Trust
Agreement.
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<PAGE> 15
"Monthly Principal Payment" means, with respect to any Distribution
Date, (i) the Pool Balance as of the last day of the second Collection Period
preceding the Collection Period in which such Distribution Date occurs (or,
with respect to the first Distribution Date, the Original Pool Balance) less
(ii) the Pool Balance as of the last day of the Collection Period relating to
such Distribution Date.
"Moody's" means Moody's Investors Service, Inc., and its successors.
"Negative Carry Amount" means, with respect to a Collection Period, an
amount equal to the difference between (i) 30 days' interest on the Pre-Funded
Amount on deposit in the Pre-Funding Account as of the first day of such
Collection Period at a rate equal to the weighted average of the Interest Rates
and the Pass-Through Rate and (ii) the amount described in clause (i) of the
definition of "Available Funds".
"Negative Carry Amount Deposit" means an amount equal to (i) two
month's interest on the Pre-Funded Amount on deposit in the Pre-Funding Account
as of the Closing Date at a rate equal to the weighted average of the Interest
Rates and the Pass-Through Rate (weighted by Original Note Balance and Original
Certificate Balance) less (ii) ____% of the Pre-Funded Amount on deposit in the
Pre-Funding Account as of the Closing Date.
"Non-Reimbursable Payment" has the meaning set forth in Section 6.05.
"Note Distributable Amount" means, with respect to any Distribution
Date, the sum of the Note Principal Distributable Amount and the Note Interest
Distributable Amount.
"Note Distribution Account" has the meaning set forth in Section
6.01(a).
"Note Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess of the Note Monthly Interest Distributable Amount
for the immediately preceding Distribution Date and any outstanding Note
Interest Carryover Shortfall on such preceding Distribution Date, over the
amount in respect of interest that is actually deposited in the Note
Distribution Account on such preceding Distribution Date, plus, to the extent
permitted by applicable law, interest on the amount of interest due but not
paid to Noteholders on the preceding Distribution Date at the related Interest
Rate for each Class of Notes for the related Interest Period.
"Note Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of the Note Monthly Interest Distributable Amount
for such Distribution Date and the Note Interest Carryover Shortfall for such
Distribution Date.
"Note Monthly Interest Distributable Amount" means, with respect to
any Distribution Date, interest accrued for the related Interest Period on each
Class of Notes at the related Interest Rate for such Class on the Outstanding
Amount of such Class on the immediately preceding Distribution Date (or, in the
case of the first Distribution Date, on the Closing Date), after giving
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<PAGE> 16
effect to all payments of principal to the Noteholders of such Class on or
prior to such Distribution Date.
"Note Monthly Principal Distributable Amount" means, with respect to
any Distribution Date, the Note Percentage of the Monthly Principal Payment.
"Note Owner" has the meaning set forth in the Indenture.
"Note Percentage" means, (i) for each Distribution Date to and
including the later to occur of (a) the Distribution Date on which the
principal amount of the Class A-1 Notes is reduced to zero and (b) the ________
199__ Distribution Date, 100%, (ii) for each Distribution Date thereafter to
and including the Distribution Date on which the principal amount of the Class
A-3 Notes is reduced to zero, the percentage equivalent of a fraction, the
numerator of which is the Outstanding Amount on the Distribution Date
immediately preceding the Distribution Date for which the Note Percentage is
being calculated (after giving effect to all distributions made on such
immediately preceding Distribution Date) and the denominator of which is the
Pool Balance on the last day of the second Collection Period preceding the
Collection Period in which the Distribution Date for which the Note Percentage
is being calculated occurs; provided, however, that on each Distribution Date
following the occurrence of a Rating Event, until the principal amount of the
Notes is paid in full or such rating is restored, the Note Percentage shall
mean 100%, and (iii) for each Distribution Date thereafter, zero.
"Note Pool Factor" means, for each Class of Notes, a seven-digit
decimal computed by the Servicer prior to each distribution with respect to
such Notes indicating the Outstanding Amount of such Class of Notes, as of the
related Distribution Date (after giving effect to payments to be made on such
Distribution Date), as a fraction of the Original Note Balance of such Class of
Notes.
"Note Principal Carryover Shortfall" means, with respect to any
Distribution Date, the excess of the Note Monthly Principal Distributable
Amount for the immediately preceding Distribution Date and any outstanding Note
Principal Carryover Shortfall on such preceding Distribution Date over the
amount in respect of principal that is actually deposited in the Note
Distribution Account on such preceding Distribution Date.
"Note Principal Distributable Amount" means, with respect to any
Distribution Date, the sum of the Note Monthly Principal Distributable Amount
and the Accelerated Principal Distributable Amount, if any, for such
Distribution Date and the Note Principal Carryover Shortfall as of the close of
the preceding Distribution Date; provided, however, that the Note Principal
Distributable Amount with respect to a Class of Notes shall not exceed the
Outstanding Amount of such Class; and provided, further, that the Note
Principal Distributable Amount on the Class A-1 Final Scheduled Distribution
Date shall not be less than the amount necessary (after giving effect to other
amounts to be deposited in the Note Distribution Account on such Distribution
Date and allocable to principal) to reduce the Class A-1 Note Balance to zero;
and on the Class A-2 Final Scheduled Distribution Date, the Note Principal
Distributable Amount shall not be less than the amount necessary (after giving
effect to other amounts to be deposited
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<PAGE> 17
in the Note Distribution Account on such Distribution Date and allocable to
principal) to reduce the Class A-2 Note Balance to zero. On the Class A-3
Final Scheduled Distribution Date, the principal required to be deposited in
the Note Distribution Account will include the amount of any principal due and
remaining unpaid on each Receivable in the Trust as of the Class A-3 Final
Scheduled Distribution Date so as to reduce the Class A-3 Note Balance to zero.
"Note Register" has the meaning set forth in the Indenture.
"Noteholder" has the meaning set forth in the Indenture.
"Obligee" means the Person to whom an Obligor is indebted under a
Receivable.
"Obligor" means, with respect to a Receivable, the retail purchaser or
co-purchasers of the related Financed Vehicle and any other Person that owes
payments under such Receivable.
"Offered Securities" has the meaning set forth in Section 7.03(c)(ii).
"Officer's Certificate" means a certificate signed by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of any Person delivering such certificate and delivered to
the Person to whom such certificate is required to be delivered. In the case
of an Officer's Certificate of the Servicer, at least one of the signing
officers must be a Servicing Officer. Unless otherwise specified, any
reference herein to an Officer's Certificate shall be to an Officer's
Certificate of the Servicer.
"Opinion of Counsel" means a written opinion of counsel (who may be
counsel to the Seller or the Servicer) acceptable to the Indenture Trustee or
the Owner Trustee, as the case may be.
"Original Certificate Balance" means $____________.
"Original Class A-1 Note Balance" means $____________.
"Original Class A-2 Note Balance" means $____________.
"Original Class A-3 Note Balance" means $____________.
"Original Note Balance" means the Original Class A-1 Note Balance, the
Original Class A-2 Note Balance or the Original Class A-3 Note Balance, as the
context may require.
"Original Pool Balance" means $_____________.
"Outstanding" means, with respect to the Securities, as of the date of
determination, all Notes of one Class or of all Classes, all Certificates or
all Securities, as the case may be, theretofore authenticated and delivered
except:
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(i) Securities theretofore cancelled by the related
Registrar or delivered to the applicable Registrar for cancellation;
(ii) Securities or portions thereof the payment for which
money in the necessary amount has been theretofore deposited with the
related Trustee or any Paying Agent, as the case may be, in trust for
the Holders of such Securities (provided, however, that if such
Securities are to be redeemed or repurchased, notice of such
redemption or repurchase has been duly given or provision for such
notice has been made, satisfactory to the related Trustee); and
(iii) Securities in exchange for or in lieu of other
Securities that have been authenticated and delivered unless proof
satisfactory to the related Trustee is presented that any such
Securities are held by a protected purchaser (as defined in Article 8
of the UCC);
provided, that in determining whether the Holders of Securities representing a
specified percentage of Voting Interest have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
other Basic Document, Securities owned by the Issuer, any other obligor upon
the Securities, the Seller, the Servicer or any of their respective Affiliates
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the related Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities that such Trustee knows to be so owned shall be so disregarded.
Securities so owned that have been pledged in good faith may be regarded as
Outstanding if the related pledgee establishes to the satisfaction of the
related Trustee such pledgee's right so to act with respect to such Securities
and that such pledgee is not the Seller, Fleetwood Credit, the Issuer (or any
other obligor upon the Securities) or any of their respective Affiliates.
"Outstanding Amount" has the meaning set forth in the Indenture.
"Owner Trustee" means ___________, a _________, as trustee of the
Trust, and its successors, and any successor trustee under the Trust Agreement.
"Owner Trustee Corporate Trust Office" has the meaning set forth in
the Trust Agreement.
"Pass-Through Rate" means ____% per annum.
"Permitted Investments" means any one or more of the following
obligations or securities, all of which shall be denominated in United States
dollars:
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by, the
United States or any agency or instrumentality of the United States
the obligations of which are backed by the full faith and credit of
the United States;
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(ii) general obligations of or obligations guaranteed as
to timely payment of principal and interest by FNMA, FHLMC or any
State or the Commonwealth of Puerto Rico then rated the highest
available credit rating of each Rating Agency for such obligations;
(iii) demand and time deposits in, certificates of deposit
of, banker's acceptances issued by, or federal funds sold by any
depository institution or trust company (including the Indenture
Trustee or the Owner Trustee) incorporated under the laws of the
United States or any State and subject to supervision and examination
by federal or state banking authorities, so long as at the time of
such investment or contractual commitment providing for such
investment either (a) the long-term, unsecured debt obligations of
such depository institution or trust company have credit ratings from
Moody's at least equal to "Aa2" and shall have commercial paper or
other short-term debt obligations rated at least "A-1+" by Standard &
Poor's and "P-1" by Moody's or (b) the investment is guaranteed by an
entity the long-term, unsecured debt obligations of which have been
rated "AAA" by Standard & Poor's and at least "Aa2" by Moody's or
otherwise will not result in the qualification, reduction or
withdrawal by Moody's or Standard & Poor's of its then-applicable
rating on any Class of Notes or the Certificates; if the investments
in this paragraph fall below the specified ratings, the invested
monies shall be moved to Permitted Investments as soon as the
investment matures; however, no new monies may be invested in any
instrument that is not currently a Permitted Investment;
(iv) repurchase obligations with respect to (a) any
security described in clause (i) above or (b) any other security
issued or guaranteed as to timely payment of principal and interest by
an agency or instrumentality of the United States, in either case
entered into with a depository institution or trust company (including
the Indenture Trustee or the Owner Trustee), acting as principal and
the counterparty, the long-term unsecured debt obligations of which
are rated "AAA" by Standard & Poor's and at least "Aa2" by Moody's and
commercial paper or other short-term debt obligations are rated at
least "A-1+" by Standard & Poor's and "P-1" by Moody's;
(v) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States or any State that at the time of such investment or contractual
commitment providing for such investment have long-term, unsecured
debt obligations rated "AAA" by Standard & Poor's and at least "Aa2"
by Moody's or better and shall have commercial paper or other
short-term debt obligations rated at least "A-1+" by Standard & Poor's
and "P-1" by Moody's; provided, however, that securities issued by any
corporation will not be Permitted Investments to the extent that
investment therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the Trust to
exceed 10% of the sum of the Aggregate Principal Balances of the
Receivables and all Permitted Investments held as part of the Trust;
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(vi) commercial paper given the highest rating by each
Rating Agency at the time of such investment; provided, that the
issuer of such commercial paper must have a long-term unsecured debt
rating of at least A1 from Moody's and A+ from Standard & Poor's; and
(vii) any other investments that meet the criteria of each
Rating Agency as being consistent with their then-current rating of
each Class of Notes and the Certificates.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, trust,
business trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Physical Property" means certificated securities, bankers'
acceptances, commercial paper, negotiable certificates of deposit and any other
obligations that evidence a right to the payment of money and is not itself a
security agreement or lease and is of a type that is in ordinary course of
business transferred by delivery with necessary endorsement or assignment.
"Pool Balance" means, as of the first day of a Collection Period, the
Aggregate Principal Balance of the related Receivables at the end of the
immediately preceding Collection Period, after giving effect to all payments of
principal received from or on behalf of Obligors and all payments of principal
on Receivables to be repurchased remitted by the Seller or the Servicer, as the
case may be, all for such immediately preceding Collection Period. The Pool
Balance shall be computed by allocating payments on or in respect of the
Receivables to principal and to interest using the simple interest method, and
will increase during the Funding Period by the principal amount (not to exceed
$______________) of the Subsequent Receivables conveyed to the Trust as of the
related Subsequent Cutoff Dates.
"Pre-Funded Amount" means (i) at the Closing Date, $_____________, and
(ii) at any other date, the amount then on deposit in the Pre-Funding Account.
"Principal Balance" means, with respect to any Receivable as of any
date, the Amount Financed, without regard to any offsets or judicial reductions
thereof, minus the sum of (i) that portion of all payments received on or prior
to such date by the Servicer and allocable as a payment of principal pursuant
to Section 6.03, (ii) any refunded portion of extended warranty protection plan
costs, or of physical damage, credit life or disability insurance premiums
included in the Amount Financed unless such refund must be paid to the related
Obligor and (iii) any payment of the Repurchase Amount allocable to principal
with respect to each Receivable which became a Defaulted Receivable or
Repurchased Receivable during or prior to the related Collection Period.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Rating Agency" means each of Moody's and Standard & Poor's.
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"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given ten Business Days (or such shorter period
as is acceptable to the related Rating Agency) prior notice thereof and shall
have notified the Seller, the Servicer and the Issuer in writing that such
action will not result in a Rating Event.
"Rating Event" means, as of any date, any qualification, reduction or
withdrawal by either Rating Agency of its then current rating of any Class of
Notes.
"Realized Losses" means, with respect to a Collection Period, the
amount by which (i) the Aggregate Principal Balance of all Receivables that
became Defaulted Receivables during such Collection Period exceeds (ii) the sum
of (a) the aggregate Liquidation Proceeds recovered in respect of principal of
such Defaulted Receivables during such Collection Period and (b) recoveries in
respect of all Defaulted Receivables received during such Collection Period, to
the extent not otherwise included in the amount determined pursuant to clause
(a) above.
"Receivable" means each simple interest retail installment sales
contract executed by an Obligor and pursuant to which such Obligor purchased,
financed or pledged the Financed Vehicle described therein, agreed to pay the
deferred purchase price (i.e., the purchase price net of any down payment) or
amount borrowed, together with interest, as therein provided in connection with
such purchase or loan, granted a security interest in such Financed Vehicle,
and undertook to perform certain other obligations as specified in such
Receivable, and that has been (or, in the case of Subsequent Receivables, will
be) conveyed to the Trust.
"Receivable Documents" means, with respect to each Receivable: (i)
the Receivable; (ii) the original Title Document for the related Financed
Vehicle or a duplicate copy thereof issued or certified by the Registrar of
Titles that issued the original thereof, together with evidence of perfection
of the security interest in the related Financed Vehicle granted by such
Receivable, as determined by the Servicer to be permitted or required to
perfect such security interest under the laws of the applicable jurisdiction
(or, in the case of a Receivable listed on the Schedule of Receivables, written
evidence from the Dealer selling such Financed Vehicle that the Title Document
for such Financed Vehicle showing the Seller as first lienholder has been
applied for); (iii) the related Assignments; (iv) any agreement modifying the
Receivable (including any extension agreement); and (v) documents evidencing
the existence of an Insurance Policy covering such Financed Vehicle.
"Receivable Files" means the Receivable Documents and all other papers
and computerized records customarily kept by the Servicer in servicing retail
installment sales contracts comparable to the Receivables.
"Receivables Purchase Agreement" means that certain receivables
purchase agreement, dated as of ____________ 1, 199 , between the Seller and
FCRC, as purchaser.
"Record Date" means, with respect to a Distribution Date, the date
immediately preceding such Distribution Date or, if Definitive Securities are
issued, the last day of the immediately preceding calendar month.
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"Registrar of Titles" means the agency, department or office having
the responsibility for maintaining records of titles to motor vehicles and
issuing documents evidencing such titles in the jurisdiction in which a
particular Financed Vehicle is registered.
"Repurchase Amount" means, with respect to a Receivable, an amount
equal to the unpaid Principal Balance owed by the related Obligor plus interest
thereon at a rate equal to the Required Rate to the last day of the month of
repurchase.
"Repurchased Receivable" means a Receivable repurchased as of the
related Servicer Report Date by the Servicer pursuant to Section 5.06 or by the
Seller pursuant to Section 3.02.
"Required Deposit Rating" means that the short-term credit rating of
the related entity is at least equal to Prime-1 by Moody's and A-1+ by Standard
& Poor's.
"Required Rate" means the sum of (i) the weighted average of the
Interest Rates and the Pass-Through Rate and (ii) the Servicing Fee Rate.
"Required Servicer Rating" means, with respect to the Servicer, that
the short-term unsecured debt obligations of the Servicer are rated at least
equal to Prime-1 by Moody's and A-1 by Standard & Poor's.
"Reserve Fund" has the meaning set forth in Section 6.01(a).
"Reserve Fund Initial Deposit" means $__________ (i.e., $______ plus
the Negative Carry Amount Deposit).
"Reserve Fund Property" means the Reserve Fund Initial Deposit and all
other amounts deposited in or credited to the Reserve Fund from time to time,
including all Permitted Investments made with amounts on deposit in the Reserve
Fund and all Investment Earnings, distributions on and proceeds of the
foregoing.
"Reset Percentage" shall have the meaning specified in the Servicer
Letter of Credit, if any.
"Schedule of Receivables" means the schedule of receivables attached
as Schedule A hereto, as it may be amended or supplemented (including pursuant
to any Transfer Agreement) from time to time.
"Securities" means the Notes and the Certificates.
"Securityholders" means the Holders of the Notes or the Certificates,
as the context may require.
"Security Owner" means a Note Owner or a Certificate Owner, as the
context may require.
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"Seller" means FCRC, in its capacity as the Seller of the Receivables
under this Agreement, and each successor thereto (in the same capacity)
pursuant to Section 7.03.
"Servicer" means Fleetwood Credit, in its capacity as the servicer of
the Receivables under Section 5.01, and, in each case upon succession in
accordance herewith, each successor servicer in the same capacity pursuant to
Section 5.01 and each successor servicer pursuant to Section 9.02.
"Servicer Default" means an event specified in Section 9.01.
"Servicer Letter of Credit" means, if the Servicer desires to remit
collections on or in respect of the Receivables to the Collection Account on a
monthly basis but the conditions of clause (a) of Section 6.02 are not
otherwise satisfied, an irrevocable letter of credit, issued by the Letter of
Credit Bank and naming the Indenture Trustee as beneficiary, substantially in,
except as otherwise provided in this Agreement, the form attached hereto as
Exhibit A.
"Servicer Letter of Credit Amount" has the meaning set forth in
Section 4.01(a).
"Servicer Letter of Credit Percentage" shall have the meaning
specified in the Servicer Letter of Credit, if any.
"Servicer Payment" means the sum of (i) the amount paid the Servicer
to reimburse the Servicer for any outstanding Advances and (ii) the Servicing
Fee (including any unpaid Servicing Fees with respect to one or more prior
Collection Periods).
"Servicer Report Date" means, with respect to any Distribution Date,
the fifth Business Day prior to such Distribution Date.
"Servicer's Certificate" has the meaning set forth in Section 5.08.
"Servicing Fee" means the fee payable to the Servicer for services
rendered during the related Collection Period pursuant to Section 5.07, which
amount, for a Collection Period, shall equal the product of 1/12 of the
Servicing Fee Rate times the Pool Balance as of the Record Date immediately
preceding the first day of such Collection Period, except that in the case of
the first Collection Period, the Servicing Fee shall equal the product of 1/12
of the Servicing Fee Rate times the Original Pool Balance.
"Servicing Fee Rate" means 1.00% per annum.
"Servicing Officer" means any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Receivables whose name
appears on a list of servicing officers furnished to the Indenture Trustee and
the Owner Trustee by the Servicer pursuant to Section 5.01.
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"Specified Reserve Fund Balance" means, with respect to (i) the first
Distribution Date, an amount equal to $____________ (i.e., $__________ plus an
amount equal to the Negative Carry Amount Deposit), and (ii) each Distribution
Date thereafter, an amount equal to the lesser of (a) $________ or (b) ____% of
the sum of the Outstanding Amount and the Certificate Balance (after giving
effect to distributions of principal to be made on such Distribution Date).
Notwithstanding the foregoing, in no event shall the Specified Reserve Fund
Balance be less than $_________. However, on each Distribution Date following
any Fiscal Quarter in which losses or delinquencies in respect of the
Receivables exceed ____%, the Specified Reserve Fund Balance will be equal to
the greater of the amount provided for in the first sentence of this definition
or an amount equal to the Pool Balance as of the last day of the related
Collection Period multiplied by a percentage determined by subtracting from
____% a fraction (expressed as a percentage) equal to one minus a fraction, the
numerator of which will equal the Outstanding Amount and the denominator of
which will equal the Pool Balance, in each case as of the last day of the three
related Collection Periods in such Fiscal Quarter; provided, however, that
following any Fiscal Quarter thereafter in which the losses and delinquencies
in respect of the Receivables are less than ____%, the Specified Reserve Fund
Balance shall return to the amount provided for in the first two sentences of
this definition. In addition, if on any Distribution Date cumulative losses in
respect of the Receivables exceed _____% of the sum of the Original Pool
Balance and the Aggregate Principal Balance of all Subsequent Receivables
conveyed to the Trust as of the related Subsequent Cutoff Dates, the Specified
Reserve Fund Balance shall remain at the level in effect as of such date and
shall not be reduced further in accordance with the first sentence of this
definition.
"Standard & Poor's" means Standard & Poor's, a division of The
McGraw-Hill Companies, Inc., and its successors.
"State" means any of the 50 states of the United States, or the
District of Columbia.
"Subsequent Cutoff Date" means the date in the related month of
transfer, designated by Fleetwood Credit and the Seller in a related Transfer
Agreement, upon which Fleetwood Credit will be obligated to sell, and the
Seller will be obligated to purchase, Subsequent Receivables.
"Subsequent Receivables" means the Receivables transferred by the
Seller to the Trust pursuant to the Receivables Purchase Agreement and a
related Transfer Agreement on the related Subsequent Transfer Date, which
Receivables are listed on Schedule A to such Transfer Agreement.
"Subsequent Transfer Date" means the Business Day specified by
Fleetwood Credit and the Seller during the month in which the related
Subsequent Cutoff Date occurs.
"Taxes" means any taxes, including any sales, gross receipts, general
corporation, personal property, privilege or license taxes.
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"Title Document" means, with respect to any Financed Vehicle, the
certificate of title for, or other evidence of ownership of, such Financed
Vehicle issued by the Registrar of Titles in the jurisdiction in which such
Financed Vehicle is registered.
"Transfer Agreement" means each Transfer Agreement, dated as of the
related Subsequent Cutoff Date, among the Seller, Fleetwood Credit and the
Owner Trustee, pursuant to which Subsequent Receivables are conveyed to the
Trust, substantially in the form attached as Exhibit B hereto.
"Trust" has the meaning set forth in the preamble.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), including the Yield Supplement Account Initial
Deposit, and all proceeds of the foregoing.
"Trust Accounts" has the meaning set forth in Section 6.01(a).
"Trust Agreement" means the Trust Agreement, dated as of __________,
199 , between the Seller and the Owner Trustee.
"Trust Estate" has the meaning set forth in the Trust Agreement.
"Trustee" means the Owner Trustee or the Indenture Trustee, as the
context may require.
"UCC" means the Uniform Commercial Code as in effect in the applicable
jurisdiction.
"United States" means the United States of America.
"Vehicle Receivables" has the meaning set forth in Section 7.03(c)(i).
"Voting Interests" means the aggregate voting strength evidenced by
the Certificates or the Notes, as the case may be; provided, however, that
where the Voting Interests are relevant in determining whether the vote of the
requisite percentage of Certificateholders or Noteholders, as the case may be,
necessary to effect any consent, waiver, request or demand shall have been
obtained, the Voting Interests shall be deemed to be reduced by the amount
equal to the Voting Interests (without giving effect to this provision)
represented by the interests evidenced by any such Security registered in the
name of the Seller, the Servicer or any Person controlling, controlled by or
under common control with the Seller or the Servicer.
"Yield Supplement Account" has the meaning set forth in Section
6.01(a).
"Yield Supplement Account Initial Deposit" means the amount equal to
the Yield Supplement Amount.
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"Yield Supplement Amount" means an amount equal to the aggregate
amount by which (i) interest on the Principal Balance of each Initial
Receivable for the period commencing on the Initial Cutoff Date and ending with
the scheduled maturity of each such Receivable (assuming that payments on such
Receivables are made as scheduled and no prepayments are made) at a rate equal
to the Required Rate, exceeds (ii) interest on such Principal Balance at the
APR of such Receivable.
"Yield Supplement Deposit Amount" means the aggregate Yield Supplement
Amount in respect of the Receivables for the related Collection Period, if any.
Section 1.02. Interpretive Provisions. For all purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, (i) terms used herein include, as appropriate, all genders
and the plural as well as the singular, (ii) references to this Agreement
include all Exhibits hereto, (iii) references to words such as "herein",
"hereof" and the like shall refer to this Agreement as a whole and not to any
particular part, Article or Section herein, (iv) references to an Article or
Section such as "Article One" or "Section 1.01" shall refer to the applicable
Article or Section of this Agreement, (v) the term "include" and all variations
thereof shall mean "include without limitation", (vi) the term "or" shall
include "and/or", (vii) the term "proceeds" shall have the meaning ascribed to
such term in the UCC, (viii) references to "writing" include printing, typing,
lithography and other means of reproducing words in a visible form, (ix)
references to agreements and other contractual instruments include all
amendments, modifications and supplements thereto or any changes therein
entered into in accordance with their respective terms and not prohibited by
this Agreement, (x) references to Persons include their permitted successors
and assigns, (xi) all accounting terms used but not specifically defined herein
shall be construed in accordance with generally accepted accounting principles
in the United States, and (xii) all references to the Record Date prior to the
first Record Date in the life of the Trust shall be to the Initial Cutoff Date.
Section 1.03. Calculations. Except as otherwise provided herein, all
interest rate calculations hereunder will be made on the basis of a 360-day
year and twelve 30-day months, and will be carried out to at least six decimal
places. Collections of interest on Receivables will be calculated in
accordance with the terms thereof.
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ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Initial Receivables. In consideration of
the Issuer's delivery to or upon the order of the Seller of executed and
authenticated Notes and Certificates, in authorized denominations and in
aggregate amounts equal to the sum of the Original Certificate Balance and the
Original Note Balance, the Seller does hereby sell, transfer, assign and
otherwise convey to the Issuer, in trust for the benefit of the
Securityholders, without recourse (subject to the Seller's obligations herein):
(a) all right, title and interest of the Seller in and to
the Initial Receivables listed in Schedule A hereto and all monies due
thereon and paid thereon or in respect thereof (including proceeds of
the repurchase of Initial Receivables by the Seller pursuant to
Section 3.02 or 10.01 or the repurchase of Initial Receivables by the
Servicer, or any successor to the Servicer, pursuant to Section 5.06
or 10.01) on or after the Initial Cutoff Date, exclusive of Accrued
Interest as of the opening of business on the Initial Cutoff Date;
(b) the interest of the Seller in the security interests
in the Financed Vehicles granted by the related Obligors pursuant to
the Initial Receivables;
(c) the interest of the Seller in any Liquidation
Proceeds, in any proceeds of any physical damage Insurance Policies
covering the Financed Vehicles and in any proceeds of any credit life
or credit disability Insurance Policies relating to the Initial
Receivables or the related Obligors;
(d) the interest of the Seller in any proceeds from
Dealer repurchase obligations relating to the Initial Receivables;
(e) the interest of the Seller under the Receivables
Purchase Agreement;
(f) all other assets comprising the estate of the Trust;
and
(g) all proceeds of the foregoing.
Section 2.02. Conveyance of Subsequent Receivables.
(a) Subject to the conditions set forth in Section 2.02(b), in
consideration of the Issuer's delivery to or upon the order of the Seller of
the purchase price for the Subsequent Receivables, in each case as described
below and set forth in the related Transfer Agreement, the Seller shall on each
Subsequent Transfer Date sell, transfer, assign and otherwise convey to the
Issuer, in trust for the benefit of the Securityholders, without recourse
(subject to the Seller's obligations herein):
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(i) all right, title and interest of the Seller in and to
the Subsequent Receivables listed on Schedule A to the related
Transfer Agreement, and all monies due thereon and paid thereon or in
respect thereof (including proceeds of the repurchase of such
Subsequent Receivables by the Seller pursuant to Section 3.02 or
Section 10.01 or the purchase of such Subsequent Receivables by the
Servicer pursuant to Section 5.06 or Section 10.01) on or after the
related Subsequent Cutoff Date;
(ii) the interest of the Seller in the security interests
in the Financed Vehicles granted by the related Obligors pursuant to
the Subsequent Receivables;
(iii) the interest of the Seller in any Liquidation
Proceeds and Insurance Proceeds relating to the Subsequent Receivables
or the related Obligors;
(iv) the interest of the Seller in any proceeds from
Dealer repurchase obligations relating to the Subsequent Receivables;
and
(v) all proceeds of the foregoing.
The purchase price to be paid by the Trust on each Subsequent Transfer
Date for the Subsequent Receivables so sold shall be set forth in the related
Transfer Agreement and shall be paid from monies released from the Pre-Funding
Account pursuant to Section 6.10. Such purchase price shall equal the
Aggregate Principal Balance of such Subsequent Receivables as of the related
Subsequent Cutoff Date.
(b) The Seller shall transfer to the Issuer the Subsequent
Receivables and the other property and rights related thereto described in
Section 2.02(a) only upon the satisfaction of each of the following conditions
on or prior to the related Subsequent Transfer Date:
(i) the Seller shall have timely provided the Owner
Trustee and each Rating Agency with a written addition notice, in
substantially the form of Exhibit C hereto, and shall have provided
any information reasonably requested by any of the foregoing with
respect to the Subsequent Receivables;
(ii) the Seller shall have delivered to the Owner Trustee
an executed Transfer Agreement in substantially the form of Exhibit B
hereto, which shall include a list of the Subsequent Receivables so
transferred;
(iii) the Seller shall have caused the Servicer to deposit
in the Collection Account all collections on or in respect of the
Subsequent Receivables received on or after the related Subsequent
Cutoff Date but prior to the related Subsequent Transfer Date;
provided, however, that for so long as (A) Fleetwood Credit shall be
the Servicer and (B) the Servicer shall be entitled pursuant to
Section 6.02 to remit collections on a monthly rather than daily
basis, the Seller shall cause the Servicer to deposit such collections
in the Collection Account on the Business Day immediately preceding
the Distribution Date immediately succeeding the related Subsequent
Transfer Date;
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(iv) as of each Subsequent Transfer Date, neither the
Servicer nor the Seller was insolvent nor will either of them have
been made insolvent by such transfer nor is any of them aware of any
pending insolvency;
(v) such addition will not result in a material adverse
federal or California tax consequence to the Trust or the
Securityholders;
(vi) the Funding Period shall not have terminated;
(vii) the Seller shall have delivered to the Owner Trustee
and each Rating Agency an Officer's Certificate confirming the
satisfaction of each condition precedent specified in this paragraph
and in Section 5 of the related Transfer Agreement;
(viii) the Seller shall have delivered to each Rating Agency
and the Owner Trustee an Opinion of Counsel with respect to the
transfer of the Subsequent Receivables;
(ix) the Seller shall have taken all actions required to
maintain the first perfected ownership interest of the Trust in the
assets of the Trust (including the Subsequent Receivables);
(x) no selection procedures believed by the Seller or the
Servicer to be adverse to the interests of the Securityholders shall
have been utilized in selecting the Subsequent Receivables;
(xi) the Seller and the Owner Trustee shall have been
advised in writing by each Rating Agency on or before the Business Day
immediately preceding the related Subsequent Transfer Date that the
conveyance of the Subsequent Receivables will not result in a Rating
Event; and
(xii) the Seller shall have provided the Owner Trustee with
a supplement to the Schedule of Receivables setting forth the
Subsequent Receivables to be transferred on such Subsequent Transfer
Date.
The Owner Trustee shall not be required to investigate or otherwise
verify compliance with the conditions specified above (except in respect of its
own receipt of documents specified above) and shall be entitled to rely upon
the Officer's Certificates and Opinions of Counsel to be delivered pursuant to
paragraphs (vii) and (viii) above for such purposes.
Section 2.03. Actions as to Receivables.
(a) Fleetwood Credit has filed or caused to be filed (or, in the
case of the Subsequent Receivables, will file or will cause to be filed) UCC-1
financing statements naming Fleetwood Credit as secured party and describing
the Receivables as collateral with the Office of the Secretary of State of the
State of California. The Seller has filed or caused to be filed (or, in the
case of the Subsequent Receivables, will file or will cause to be filed) UCC-1
financing
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statements, executed by the Seller as debtor, naming the Owner Trustee as
secured party and describing the Receivables being sold by it to the Owner
Trustee on behalf of the Trust as collateral, with the Office of the Secretary
of State of the State of California. The Trust has filed or caused to be filed
(or, in the case of the Subsequent Receivables, will file or will cause to be
filed) UCC-1 financing statements, executed by the Trust as debtor, naming the
Indenture Trustee, on behalf of the Noteholders, as secured party and
describing the Receivables as collateral, with the office of the Secretary of
State of the States of Delaware and California. The grant of a security
interest to the Indenture Trustee and the rights of the Indenture Trustee in
the Receivables shall be governed by the Indenture.
(b) If any change in the name, identity or corporate structure of
the Seller or Fleetwood Credit or the relocation of the chief executive office
of any of them would make any financing or continuation statement or notice of
Lien filed under this Agreement or the other Basic Documents seriously
misleading within the meaning of applicable provisions of the UCC or any title
statute, the Servicer, within the time period required by applicable law, shall
file such financing statements or amendments as may be required to preserve and
protect the interests of the Trustees and the Securityholders in the
Receivables, Financed Vehicles and the proceeds thereof. Promptly thereafter,
the Servicer shall deliver to the Trustees an Opinion of Counsel stating that,
in the opinion of such counsel, all financing statements or amendments
necessary fully to preserve and protect the interests of the Trustees and the
Securityholders in the Receivables, Financed Vehicles and the proceeds thereof
have been filed, and reciting the details of such filings.
(c) From time to time, the Servicer shall cause to be taken such
actions as are necessary to continue the perfection of the respective interests
of the Indenture Trustee and the Owner Trustee in the Receivables and to
continue the first priority security interest of the Indenture Trustee in the
Financed Vehicles and their proceeds (other than, as to such priority, any
statutory Lien arising by operation of law after the related Cutoff Date, in
each case that is prior to such interest), including the filing of financing
statements, amendments thereto or continuation statements and the making of
notations on records or documents of title. The Servicer shall pay all
reasonable costs and disbursements in connection with the perfection and the
maintenance of perfection, as against all third parties, of the Indenture
Trustee's right, title and interest in and to the Receivables and in connection
with maintaining the first priority security interest in the Financed Vehicles
and the proceeds thereof.
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ARTICLE THREE
THE RECEIVABLES
Section 3.01. Representations and Warranties of the Seller. The
Seller hereby makes the following representations and warranties as to the
Receivables on which the Issuer is deemed to have relied in acquiring the
Receivables. Such representations and warranties speak as of the execution and
delivery of this Agreement in the case of the Initial Receivables, and as of
the related Subsequent Transfer Date in the case of the Subsequent Receivables,
but shall in each case survive the sale, transfer and assignment of the related
Receivables to the Issuer, any subsequent assignment or transfer and the pledge
thereof to the Indenture Trustee pursuant to the Indenture:
(a) Characteristics of Receivables. Each Receivable (i)
shall have been (A) originated in the United States by a Dealer for
the retail sale of the related Financed Vehicle in the ordinary course
of such Dealer's business, (B) fully and properly executed by the
parties thereto, (C) purchased by Fleetwood Credit from such Dealer
under an agreement with Fleetwood Credit and (D) validly assigned by
such Dealer to Fleetwood Credit in accordance with its terms and shall
have been subsequently sold by Fleetwood Credit to the Seller, (ii)
shall have created or shall create a valid, subsisting and enforceable
first priority perfected security interest in favor of Fleetwood
Credit in the related Financed Vehicle, which security interest has
been assigned by Fleetwood Credit to the Seller and shall be
assignable, and shall be so assigned, by the Seller to the Indenture
Trustee, (iii) shall contain customary and enforceable provisions such
that the rights and remedies of the holder thereof shall be adequate
for realization against the collateral of the benefits of the
security, (iv) shall provide for level monthly payments (provided that
the payment in the first or last month in the life of the Receivable
may be minimally different from the level payment) that fully amortize
the Amount Financed by maturity and provide for a finance charge or
yield interest at its APR and (v) shall provide for, in the event that
such Receivable is prepaid in full, a payment that fully pays the
Principal Balance thereof and includes accrued but unpaid interest at
least through the date of prepayment in an amount at least equal to
its APR.
(b) Schedule of Receivables. The information set forth
in the Schedule of Receivables shall be true and correct in all
material respects as of the opening of business on the Initial Cutoff
Date or the related Subsequent Cutoff Date, as the case may be, and no
selection procedures adverse to the Securityholders shall have been
utilized in selecting the Receivables from those Receivables of
Fleetwood Credit that met the selection criteria set forth in this
Section.
(c) Compliance with Law. Each Receivable shall have
complied at the time it was originated or made, and shall comply at
the time of execution of this Agreement in all material respects with
all requirements of applicable federal, state and local laws, and
regulations thereunder, including usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, the
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Fair Debt Collection Practices Act, the Federal Trade Commission Act,
the Magnuson-Moss Warranty Act, Federal Reserve Board Regulations B and
Z, state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit, equal credit
opportunity and disclosure laws.
(d) Binding Obligation. Each Receivable shall constitute
the genuine, legal, valid and binding payment obligation in writing of
the related Obligor, enforceable by the holder thereof in accordance
with its terms, except as enforceability may be subject to or limited
by bankruptcy, insolvency, reorganization, liquidation and other
similar laws affecting the enforcement of creditors' rights in general
and by general principles of equity, regardless of whether such
enforceability shall be considered in a Proceeding in equity or at
law.
(e) No Government Obligor. None of the Receivables shall
be due from the United States or any state or local government thereof
or from any agency, department or instrumentality of the United States
or any state or local government.
(f) Security Interest in Financed Vehicle. Immediately
prior to the sale, assignment and transfer thereof, each Receivable
shall be secured by a validly perfected first security interest in the
related Financed Vehicle in favor of Fleetwood Credit as secured party
or all necessary and appropriate action with respect to such
Receivable shall have been taken to perfect a first priority security
interest in such Financed Vehicle in favor of Fleetwood Credit as
secured party.
(g) Receivables in Force. No Receivable shall have been
satisfied, subordinated or rescinded, nor shall any Financed Vehicle
have been released from the Lien granted by the related Receivable in
whole or in part.
(h) No Waiver. No provision of a Receivable shall have
been waived in such a manner that such Receivable fails to meet all of
the other representations and warranties made by the Seller herein
with respect thereto.
(i) No Amendments. No Receivable shall have been amended
in such a manner that such Receivable fails to meet all of the other
representations and warranties made by the Seller herein with respect
thereto.
(j) No Defenses. No facts shall be known to the Seller
that would give rise to any right of rescission, setoff, counterclaim
or defense, nor shall the same have been asserted or threatened, with
respect to any Receivable.
(k) No Liens. To the knowledge of the Seller, no Liens
shall have been filed, including Liens for work, labor or materials
relating to a Financed Vehicle, that shall be prior to, or equal or
coordinate with, the security interest in such Financed Vehicle
granted by the related Receivable.
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(l) No Default. Except for payment defaults continuing
for a period of not more than 30 days as of the Initial Cutoff Date or
the related Subsequent Cutoff Date, as the case may be, no default,
breach, violation or event permitting acceleration under the terms of
any Receivable shall have occurred; no continuing condition that with
notice or the lapse of time would constitute a default, breach,
violation or event permitting acceleration under the terms of any
Receivable shall have arisen; and the Seller shall not have waived any
of the foregoing.
(m) Insurance. Fleetwood Credit, in accordance with its
customary servicing procedures, shall have determined that each
Obligor has obtained physical damage insurance covering the related
Financed Vehicle.
(n) Good Title. It is the intention of the Seller that
the transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Receivables from the Seller to the Trust and
that the beneficial interest in and title to the Receivables not be
part of the debtor's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law. No
Receivable has been sold, transferred, assigned or pledged by the
Seller to any Person other than the Trust, and no provision of a
Receivable shall have been waived, except as provided in paragraph (h)
above; immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to each
Receivable free and clear of all Liens and rights of others;
immediately upon the transfer and assignment thereof, the Trust shall
have good and marketable title to each Receivable, free and clear of
all Liens and rights of others; and the transfer and assignment herein
contemplated has been perfected under the UCC.
(o) Lawful Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable under
this Agreement or any Transfer Agreement or pursuant to transfers of
the Securities shall be unlawful, void or voidable.
(p) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Indenture Trustee a
first perfected ownership interest in the Receivables shall have been
made.
(q) One Original. There shall be only one original
executed copy of each Receivable.
(r) Agreement/Transfer Agreement. The additional
representations and warranties as to the Receivables in this Agreement
or in the related Transfer Agreement, as the case may be, shall be
true and correct.
Section 3.02. Repurchase Upon Breach. The Seller, the Servicer or
the Owner Trustee, as the case may be, shall inform the other parties promptly,
in writing, upon the discovery of any breach of the Seller's representations
and warranties set forth herein or in any Transfer Agreement that materially
and adversely affects any Receivable. Unless such breach shall have
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been cured by the second Record Date following the discovery thereof (or, at
the Seller's option, the first Record Date following such discovery), the
Seller shall repurchase any Receivable materially and adversely affected by
such breach, as of such Record Date. If necessary, the Seller shall enforce
the obligation of Fleetwood Credit under the Receivables Purchase Agreement to
repurchase such Receivable from the Seller. In consideration of the purchase
of any such Receivable, the Seller shall remit the Repurchase Amount of such
Receivable (less the amount of any Liquidation Proceeds with respect to such
Receivable deposited, or to be deposited, by the Servicer into the Collection
Account pursuant to Section 5.03) to the Collection Account in the manner
specified in Section 6.06(a)(i). In the event that, as of the date of
execution and delivery of this Agreement, any Liens shall have been filed,
including Liens for work, labor or materials relating to a Financed Vehicle,
that shall be prior to, or equal or coordinate with, the Lien granted by the
related Receivable (whether or not the Seller has knowledge thereof), and such
breach materially and adversely affects the interests of the Trust in such
Receivable, the Seller shall repurchase such Receivable on the terms and in the
manner specified above. The sole remedy of the Owner Trustee, the Trust or the
Securityholders with respect to a breach of the Seller's representations and
warranties set forth herein or in any Transfer Agreement or with respect to the
existence of any such Liens shall be to require the Seller to repurchase
Receivables pursuant to this Section and to enforce Fleetwood Credit's
obligation to the Seller to repurchase such Receivables from the Seller
pursuant to the Receivables Purchase Agreement.
Section 3.03. Custody of Receivable Files. To assure uniform quality
in servicing the Receivables and to reduce administrative costs, the Owner
Trustee, upon the execution and delivery of this Agreement, revocably appoints
the Servicer, and the Servicer accepts such appointment, to act as the agent of
the Owner Trustee as custodian of the following documents or instruments which
are hereby constructively delivered to the Owner Trustee with respect to each
Receivable on or prior to the Closing Date and each Subsequent Receivable on or
prior to the related Subsequent Transfer Date:
(a) the original of the Receivable;
(b) all documents evidencing the existence of physical
damage insurance covering the related Financed Vehicle;
(c) the original credit application, executed by the
Obligor;
(d) the original Title Document or such documents that
the Servicer or the Seller shall keep on file, in accordance with its
customary procedures, evidencing the security interest in the related
Financed Vehicle; and
(e) any and all other documents that the Seller or the
Servicer, as the case may be, shall keep on file, in accordance with
its customary procedures, relating to such Receivable or the related
Obligor or Financed Vehicle.
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Section 3.04. Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer, in its capacity as custodian,
shall hold the Receivable Files on behalf of the Owner Trustee for the use and
benefit of all present and future Securityholders, and maintain such accurate
and complete accounts, records and computer systems pertaining to each
Receivable File as shall enable the Owner Trustee to comply with this
Agreement. In performing its duties as custodian, the Servicer shall act with
reasonable care, using that degree of skill and attention that it exercises
with respect to the receivable files of comparable recreational vehicle
receivables that the Servicer services for itself or others. The Servicer
shall conduct, or cause to be conducted, periodic reviews of the files of all
receivables owned or serviced by it which shall include the Receivable Files
held by it under this Agreement, and of the related accounts, records and
computer systems, in such a manner as shall enable the Owner Trustee to verify
the accuracy of the Servicer's record keeping. The Servicer shall promptly
report to the Owner Trustee any failure on its part to hold the Receivable
Files and maintain its accounts, records and computer systems as herein
provided and promptly take appropriate action to remedy any such failure.
(b) Maintenance of and Access to Records. The Servicer shall
maintain each Receivable File at one of its offices specified in Schedule B to
this Agreement, or at such other office as shall be specified to the Owner
Trustee by 30 days' prior written notice. The Servicer shall make available to
the Owner Trustee or its duly authorized representatives, attorneys or auditors
the Receivable Files and the related accounts, records and computer systems
maintained by the Servicer at such times as the Owner Trustee may reasonably
request.
(c) Release of Documents. Upon instruction from the Owner
Trustee, the Servicer shall release any document in the Receivable Files to the
Owner Trustee or its agent or designee, as the case may be, at such place or
places as the Owner Trustee may designate, as soon as practicable. The
Servicer shall not be responsible for any loss occasioned by the failure of the
Owner Trustee to return any document or any delay in doing so.
Section 3.05. Instructions; Authority to Act. The Servicer shall be
deemed to have received proper instructions (a copy of which shall be furnished
to the Owner Trustee) with respect to the Receivable Files upon its receipt of
written instructions signed by an Authorized Officer of the Owner Trustee. A
certified copy of a bylaw or of a resolution of the board of directors of the
Owner Trustee shall constitute conclusive evidence of the authority of any such
Authorized Officer to act and shall be considered in full force and effect
until receipt by the Servicer of written notice to the contrary given by the
Owner Trustee.
Section 3.06. Indemnification. Subject to Section 9.02, the Servicer
shall indemnify the Trust, the Trustees and the Securityholders for any Losses
that may be imposed on, incurred by or asserted against the Trust, the Trustees
or the Securityholders as the result of any improper act or omission in any way
relating to the maintenance and custody by the Servicer of the Receivable
Files, or the failure of the Servicer to perform its duties and service the
Receivables in compliance with the terms of this Agreement; provided, however,
that the Servicer shall not be liable to any Trustee for any portion of any
such amount resulting from the willful misfeasance,
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bad faith or negligence of such Trustee. The Servicer shall also indemnify and
hold harmless the Trust, the Trust Estate and the Securityholders against any
Taxes that may be asserted at any time against any of them with respect to the
Receivables and the costs and expenses in defending against such Taxes. The
Servicer shall immediately notify the Trustees if a Claim is made by a third
party with respect to the Receivables, shall assume, with the consent of the
Trustees, the defense of any such Claim, pay all costs and expenses in
connection therewith, including counsel fees, and shall promptly pay, discharge
and satisfy any judgment or decree that may be entered against it or the Trust.
The Servicer, as custodian, shall indemnify the Owner Trustee for any
Loss that may be imposed on, incurred or asserted against the Owner Trustee as
the result of any improper act or omission in any way relating to the
maintenance and custody by the Servicer, as custodian, of the Receivable Files;
provided, however, that the Servicer shall not be liable for any portion of any
such amount resulting from the willful misfeasance, bad faith or negligence of
the Owner Trustee.
Section 3.07. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Initial Cutoff Date
and shall continue in full force and effect until terminated pursuant to this
Section. If the Servicer shall resign in accordance with the provisions of
this Agreement or if all of the rights and obligations of the Servicer shall
have been terminated pursuant to Section 9.01, the appointment of the Servicer
as custodian shall be terminated by (i) the Owner Trustee, (ii) the Indenture
Trustee, (iii) Noteholders evidencing not less than 51% of the Voting Interest
thereof or (iv) Certificateholders evidencing not less than 51% of the Voting
Interest thereof, in each case in the same manner as the Trustees or the
Securityholders may terminate the rights and obligations of the Servicer
pursuant to Section 9.01. The Owner Trustee may terminate the Servicer's
appointment as custodian, with cause at any time upon written notification to
the Servicer, and without cause upon 30 days' prior written notification to the
Servicer. As soon as practicable after any termination of such appointment,
the Servicer shall, at its own expense, deliver the Receivable Files to the
Owner Trustee or its agent at such place or places as the Owner Trustee may
reasonably designate, and shall cooperate in good faith to effect such
delivery. Notwithstanding the termination of the Servicer as custodian, the
Owner Trustee agrees that upon any such termination, the Owner Trustee shall
provide, or cause its agent to provide, access to the Receivable Files to the
Servicer for the purpose of carrying out its duties and responsibilities with
respect to the servicing of the Receivables hereunder.
Section 3.08. No Petition. The Servicer, the Owner Trustee and the
Indenture Trustee each covenants and agrees that prior to the date which is one
year and one day after the date upon which the Securities have been paid in
full, it will not institute against, or join any other Person in instituting
against the Seller any bankruptcy, reorganization, arrangement, insolvency or
liquidation Proceeding or other Proceedings under any federal or state
bankruptcy or similar law. This Section shall survive the termination of this
Agreement or the termination of the Servicer, the Owner Trustee or the
Indenture Trustee, as the case may be.
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ARTICLE FOUR
SERVICER LETTER OF CREDIT
Section 4.01. Servicer Letter of Credit.
(a) If the Servicer has obtained a Servicer Letter of Credit, on
any Distribution Date which immediately follows a Collection Period during
which the Servicer is permitted to remit collections on a monthly rather than a
daily basis pursuant to Section 6.02 and the Servicer shall have failed to make
in full the remittances to the Collection Account pursuant to Section 6.02
required for distribution to Certificateholders on such Distribution Date by
12:00 P.M., New York City time, on the Business Day immediately preceding such
Distribution Date, the Owner Trustee shall immediately deliver a demand for
payment under the Servicer Letter of Credit to the Letter of Credit Bank
requesting payment in the amount of the shortfall between the amount of funds
that are required to be remitted by the Servicer to the Collection Account as
set forth in the related Servicer's Certificate and the amount of funds
actually so remitted. Upon receipt of a completed demand for payment by the
Owner Trustee under the Servicer Letter of Credit, the Letter of Credit Bank
shall pay or cause to be paid, at the time and in the manner provided in the
Servicer Letter of Credit, an amount equal to the lesser of (i) the amount
demanded by the Owner Trustee and (ii) the amount available under the Servicer
Letter of Credit (the "Servicer Letter of Credit Amount") to the Owner Trustee
for deposit to the Collection Account. Except as otherwise provided in the
Servicer Letter of Credit, the Servicer Letter of Credit Amount shall equal the
lesser of (A) the product of the Initial Servicer Letter of Credit Amount and
the Reset Percentage or (B) the Pool Balance as of the related Record Date.
For the purposes of Section 6.05 or 9.01(a), amounts deposited by the Owner
Trustee pursuant to this Section shall be deemed to constitute Servicer
remittances with respect to which the demand on the Servicer Letter of Credit
was made.
(b) Any Servicer Letter of Credit may be terminated by the Owner
Trustee at any time when the Servicer has the Required Servicer Rating with
respect to each Rating Agency; provided, however, that prior to any such
termination of the Servicer Letter of Credit, the Servicer shall furnish to the
Owner Trustee, from each Rating Agency as to which the Servicer does not have
the Required Servicer Rating, a letter to the effect that a Rating Event will
not occur and, if applicable, an Officer's Certificate of the Servicer to the
effect that the Servicer has the Required Servicer Rating with respect to each
other Rating Agency, if any. Notwithstanding the foregoing, if the short term
debt obligations of the Servicer are subsequently downgraded below the Required
Servicer Rating by any Rating Agency, the Servicer shall be required to obtain
an insurance policy, letter of credit or surety bond acceptable to each Rating
Agency (as evidenced by a letter from each Rating Agency to the effect that a
Rating Event will not occur) which insurance policy or surety bond, if it shall
not replace the Servicer Letter of Credit, shall be drawn upon prior to any
draws made upon the Servicer Letter of Credit pursuant to this Section, or the
Servicer shall remit collections to the Collection Account on a daily basis
pursuant to Section 6.02. In addition, the Servicer may cancel the Servicer
Letter of Credit for so long as the Servicer is required to remit collections
to the Collection Account on a daily basis pursuant to Section 6.02. The
Servicer shall provide notice of such cancellation of the Servicer
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Letter of Credit pursuant to the immediately preceding sentence to each Rating
Agency. The Servicer shall also provide notice of the renewal, if any, of the
Servicer Letter of Credit to each Rating Agency and the Owner Trustee.
(c) Notwithstanding the other provisions of this Section, in the
event that on any day during a Collection Period during which the Servicer is
permitted to remit collections on a monthly rather than a daily basis as a
result of having obtained a Servicer Letter of Credit pursuant to Section 6.02
and the aggregate amount of collections described in the first sentence of
Section 6.02 exceeds the product of the Servicer Letter of Credit Percentage
and the Servicer Letter of Credit Amount, then the Servicer shall cause the
amount of such excess to be deposited into the Collection Account on the next
succeeding Business Day.
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ARTICLE FIVE
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 5.01. Duties of Servicer.
(a) The Servicer, as agent for the Owner Trustee, shall
administer the Receivables with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to all comparable
recreational vehicle receivables that it services for itself or others. The
Servicer's duties shall include collecting and posting of all payments,
responding to inquiries of Obligors or by federal, state or local government
authorities with respect to the Receivables, investigating delinquencies,
reporting tax information to Obligors in accordance with its customary
practices and accounting for collections and furnishing monthly and annual
statements to the Trustees with respect to distributions and making Advances
and Non-Reimbursable Payments as herein provided. The Servicer shall follow
its customary standards, policies and procedures in performing its duties as
Servicer. Without limiting the generality of the foregoing, the Servicer shall
be authorized and empowered by the Owner Trustee to execute and deliver, on
behalf of itself, the Trust or the Securityholders or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Receivables
or the related Financed Vehicles. If the Servicer shall commence a Proceeding
to enforce a Receivable, including a Defaulted Receivable, the Owner Trustee,
on behalf of the Trust, shall thereupon be deemed to have automatically
assigned, solely for the purpose of collection on behalf of the party retaining
an interest in such Receivable, such Receivable and the other property conveyed
to the Trust with respect to such Receivable to the Servicer for the purposes
of participating in such Proceeding. If in any enforcement Proceeding it shall
be held that the Servicer may not enforce a Receivable on the grounds that it
shall not be a real party in interest or a holder entitled to enforce such
Receivable, the Owner Trustee shall, at the Servicer's expense and direction,
take steps to enforce such Receivable, including bringing Proceedings in its
name or the name of the Securityholders. The Owner Trustee shall furnish the
Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
Section 5.02. Collection of Receivable Payments. The Servicer shall
make reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due, and shall
follow such collection procedures as it follows with respect to all comparable
recreational vehicle receivables that it services for itself or others. If, as
a result of extending of payments (including any increase in the number of
payments) in the ordinary course of the Servicer's collection procedures, any
Receivable shall be outstanding on the Certificate Final Scheduled Distribution
Date, then the Servicer shall repurchase such Receivable pursuant to Section
5.06 or Section 10.01. In addition, in the event that any such rescheduling or
extension of a Receivable (i) modifies the terms of such Receivable in such a
manner as to constitute a cancellation of such Receivable and the creation of a
new receivable, (ii) extends the stated maturity of such Receivable beyond the
scheduled maturity of the Receivable having the latest scheduled maturity as of
the related Subsequent Cutoff Date; then in
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each case the Servicer shall purchase such Receivable pursuant to Section 5.06,
and the related Receivable shall not be included in the Trust. For the purpose
of such repurchases pursuant to Section 5.06, notice shall be deemed to have
been received by the Servicer at such time as shall make repurchase mandatory
as of the related Record Date. Notwithstanding the foregoing, extensions or
modifications of the payment schedule of a Receivable shall not be made unless
the related Receivable is in default or a default thereunder is imminent or if
such extension or modification is required by law. The Servicer may, in
accordance with its customary standards, policies and procedures, in its
discretion (i) waive any late payment charge or any other fees that may be
collected in the ordinary course of servicing a Receivable and (ii) waive the
payment by the related Obligor of Accrued Interest on any Receivable; provided
that, in connection with any such waiver of Accrued Interest, the Servicer
shall make an Advance in respect of the Accrued Interest so waived in
accordance with Section 6.04, it being understood and agreed that,
notwithstanding anything to the contrary contained in this Agreement, the
obligation of the Servicer hereunder shall be absolute and shall be performed
regardless of whether the Servicer determines that such Advance shall be
recoverable and that the Servicer shall have no right of reimbursement
therefor.
Section 5.03. Realization upon Receivables. On behalf of the Trust,
the Servicer shall use its best efforts, consistent with its customary
servicing procedures, to repossess or otherwise take possession of the Financed
Vehicle securing any Receivable that the Servicer shall have determined to be
or that the Servicer believes will become a Defaulted Receivable (and shall
specify such Receivables to the Owner Trustee no later than the Determination
Date following the end of the Collection Period in which the Servicer shall
have made such determination). The Servicer shall follow such customary and
usual practices and procedures as it shall deem necessary or advisable in its
servicing of recreational vehicle receivables, which may include reasonable
efforts to realize upon any recourse to Dealers, consigning a Financed Vehicle
to a dealer for resale and selling a Financed Vehicle at public or private
sale. The Servicer shall be entitled to recover all reasonable out-of-pocket
expenses incurred by it in the course of converting a Financed Vehicle into
cash proceeds. The Liquidation Proceeds realized in connection with any such
action with respect to a Receivable shall be deposited by the Servicer in the
Collection Account in the manner specified in Section 6.06(a)(ii) and shall be
applied to reduce (or to satisfy, as the case may be) the Repurchase Amount of
the Receivable, if such Receivable is to be repurchased by the Seller pursuant
to Section 3.02 or by the Servicer pursuant to Section 5.06; provided, however,
that if such Liquidation Proceeds are recovered subsequent to the purchase of a
Receivable by the Seller, such Liquidation Proceeds shall be paid to the Seller
within two Business Days of receipt or, if received with respect to a
Receivable purchased by the Servicer, may be retained by the Servicer or
deposited in the Collection Account in satisfaction of other obligations of the
Servicer hereunder. The foregoing shall be subject to the proviso that, in any
case in which a Financed Vehicle shall have suffered damage, the Servicer shall
not expend funds in connection with the repair or the repossession of such
Financed Vehicle unless it shall determine in its discretion that such repair
or repossession will increase the Liquidation Proceeds of the related
Receivable by an amount equal to or greater than the amount of such expenses.
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Section 5.04. Maintenance of Security Interests in Financed Vehicles.
The Servicer, in accordance with its customary servicing procedures, shall take
such steps as are necessary to maintain perfection of the security interest
created by each Receivable in the related Financed Vehicle including the filing
of financing statements and continuation statements with respect to the transfer
of the security interest in such Financed Vehicle to the Trust. The Owner
Trustee hereby authorizes the Servicer, and the Servicer hereby agrees, to take
such steps as are necessary to reperfect such security interest on behalf of the
Trust in the event of the relocation of a Financed Vehicle or for any other
reason. In the event that the assignment of a Receivable to the Trust is
insufficient, without a notation on the related Financed Vehicle's Title
Document, to grant to the Trust a first perfected security interest in the
related Financed Vehicle, the Servicer hereby agrees to serve as the agent of
the Trust for the purpose of perfecting the security interest in such Financed
Vehicle and that the Servicer's listing as the secured party on the Title
Document is in its capacity as agent of the Trust.
Section 5.05. Covenants, Representations and Warranties of Servicer.
(a) The Servicer shall make the following covenants on which the
Owner Trustee will rely in accepting the Receivables in trust and upon which
the Owner Trustee or the Indenture Trustee, as the case may be, may rely in
authenticating the Securities:
(i) Security Interest to Remain in Force. Except as
contemplated by this Agreement, the Financed Vehicle securing each
Receivable shall not be released by the Servicer from the security
interest granted by the Receivable in whole or in part.
(ii) No Impairment. The Servicer shall not impair the
rights of the Securityholders in the Receivables.
(iii) Amendments. The Servicer shall not increase the
number of payments under a Receivable except as permitted pursuant to
Section 5.02, nor increase the Amount Financed under a Receivable.
(b) The Servicer shall make the following representations upon
which the Owner Trustee shall rely in accepting the Initial Receivables in
trust, upon which the Owner Trustee and the Indenture Trustee, as the case may
be, may rely in executing and authenticating the Securities and on which the
Owner Trustee shall rely in accepting any Subsequent Receivables in trust. The
representations shall speak as of the execution and delivery of this Agreement
in the case of the Initial Receivables, and as of the related Subsequent
Transfer Date in the case of the Subsequent Receivables, and in each case shall
survive the sale of the Receivables to the Trust:
(i) Organization and Good Standing. The Servicer shall
have been duly organized and shall be validly existing as a
corporation in good standing under the laws of the State of
California, with power and authority to own its properties and to
conduct its business as such properties shall be currently owned and
such business is presently conducted, and had at all relevant times,
and shall have, power, authority and legal right
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to acquire, own, sell and service the Receivables and to hold the
Receivable Files as custodian on behalf of the Owner Trustee.
(ii) Due Qualification. The Servicer shall be duly
qualified to do business as a foreign corporation in good standing,
and shall have obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business (including the servicing of the Receivables as
required hereby) shall require such qualifications.
(iii) Power and Authority. The Servicer shall have the
power and authority to execute and deliver this Agreement and to carry
out its terms; and the execution, delivery and performance of this
Agreement shall have been duly authorized by the Servicer by all
necessary corporate action.
(iv) Binding Obligations. This Agreement shall constitute
a legal, valid and binding obligation of the Servicer enforceable in
accordance with its terms, except as enforceability may be subject to
or limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such
enforceability shall be considered in a Proceeding in equity or at
law.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of
this Agreement shall not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or
bylaws of the Servicer, or conflict with or breach any of the material
terms or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement or other instrument
to which the Servicer is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument (other than this Agreement); nor violate any law or,
to the best of the Servicer's knowledge, any order, rule or regulation
applicable to the Servicer of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its
properties.
(vi) No Proceedings. There are no Proceedings or
investigations pending, or to the Servicer's best knowledge,
threatened, before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the
Servicer or its properties: (A) asserting the invalidity of this
Agreement or the Securities, (B) seeking to prevent the issuance of
the Securities or the consummation of any of the transactions hereby,
(C) seeking any determination or ruling that might materially and
adversely affect the performance by the Servicer of its obligations
under, or the validity or enforceability of, this Agreement or the
Securities or (D) relating to the Servicer and which might adversely
affect the federal income tax attributes of the Securities.
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Section 5.06. Purchase of Receivables upon Breach. The Servicer or
the Owner Trustee, as the case may be, shall inform the other party and the
Indenture Trustee promptly, in writing, upon the discovery of any breach by the
Servicer of its obligations pursuant to Section 5.05(a) that materially and
adversely affects the interest of the Trust in any Receivable or pursuant to
Section 5.02 in the case of a Receivable for which the related payment schedule
has been extended or modified. Unless the breach shall have been cured by the
second Record Date following the date of such discovery (or, at the Servicer's
election, the first following Record Date), the Servicer shall purchase any
Receivable materially and adversely affected by such breach as of such second
Record Date. In consideration of the purchase of such Receivable, the Servicer
shall remit the Repurchase Amount (less any Liquidation Proceeds deposited, or
concurrently being deposited, in the Collection Account with respect to such
Receivable pursuant to Section 5.03) to the Collection Account in the manner
specified in Section 6.06(a). The sole remedy of the Trustees, the Trust or
the Securityholders against the Servicer with respect to a breach pursuant to
Sections 5.01, 5.04 or 5.05 shall be to require the Servicer to purchase
Receivables pursuant to this Section.
Section 5.07. Servicing Compensation. As compensation for the
performance of its obligations under this Agreement and subject to the terms of
this Section, the Servicer shall be entitled to receive on each Distribution
Date the Servicing Fee. The Servicer shall also be entitled to receive as
additional servicing compensation all late payment and extension fees, and
other administrative fees with respect to the Receivables, collected (from
whatever source) on the Receivables; provided, however, such late payment and
other fees shall not form a part of the Servicing Fee and the Servicer shall be
entitled to such fees as and when collected.
Section 5.08. Servicer's Certificate. On or before each
Determination Date, the Servicer shall deliver to the Owner Trustee and the
Letter of Credit Bank, if any, a certificate (the "Servicer's Certificate")
containing all information necessary to make the distributions pursuant to
Section 6.07 in respect of the Collection Period preceding the date of such
Servicer's Certificate and all information necessary for the Trustees to send
statements to Securityholders pursuant to the Indenture or the Trust Agreement,
as the case may be. The Servicer shall also specify to the Owner Trustee no
later than the Determination Date following the Record Date as of which the
Seller shall be required to repurchase or the Servicer shall be required to
purchase a Receivable, the identity of any such Receivable and the identity of
any Receivable that the Servicer shall have determined to be a Defaulted
Receivable during the preceding Collection Period. Receivables purchased or to
be purchased by the Servicer or the Seller and Receivables as to which the
Servicer has determined during the Collection Period that eventual payment in
full is unlikely and with respect to which payment of the Repurchase Amount has
been provided from whatever source as of any Record Date shall be identified by
the Seller's account number with respect to such Receivable (as specified in
the Schedule of Receivables). Each Rating Agency may request such additional
information as the Servicer may be able to reasonably provide.
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Section 5.09. Annual Statement as to Compliance.
(a) The Servicer shall deliver to the Owner Trustee and the
Letter of Credit Bank, if any, on or before April 30 of each year, beginning
with the first April 30 that occurs at least six months after the Initial
Cutoff Date, an Officer's Certificate, stating that (i) a review of the
activities of the Servicer during the preceding 12-month period ending the
preceding December 31 (or shorter period in the case of the first such
certificate) and of its performance hereunder has been made under such
officer's supervision and (ii) to the best of such officer's knowledge, based
on such review, the Servicer has fulfilled all its obligations hereunder
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof.
(b) The Servicer shall deliver to the Owner Trustee and the
Letter of Credit Bank, if any, promptly after having obtained knowledge
thereof, but in no event later than five Business Days thereafter, an Officer's
Certificate of any event which with the giving of notice or lapse of time, or
both, would become a Servicer Default under clause (a) or (b) of Section 9.01.
The Seller shall deliver to the Owner Trustee and Letter of Credit Bank, if
any, promptly after having obtained knowledge thereof, but in no event later
than five Business Days thereafter, an Officer's Certificate of any event which
with the giving of notice or lapse of time, or both, would become a Servicer
Default under clause (b) of Section 9.01.
Section 5.10. Annual Independent Certified Public Accountants'
Report. The Servicer shall cause a firm of independent certified public
accountants (who may also render other services to the Servicer or to the
Seller) to deliver to the Owner Trustee and the Letter of Credit Bank, if any,
on or before April 30 of each year beginning with the first April 30 that
occurs at least six months after the Initial Cutoff Date, a report addressed to
the board of directors of the Servicer, the Owner Trustee and the Letter of
Credit Bank, if any, to the effect that such firm has examined the financial
statements of the Servicer for the fiscal year ending the preceding December 31
and issued its report thereon and that such examination (i) was made in
accordance with generally accepted auditing standards, and accordingly included
such tests of the accounting records and such other auditing procedures as such
firm considered necessary in the circumstances, and (ii) except as described in
such report, disclosed no exceptions or errors in the records relating to
receivables serviced for others that, in such firm's opinion, requires such
firm to report. Such report shall indicate that such firm is independent of
the Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
Section 5.11. Access to Certain Documentation and Information. The
Servicer shall provide to the Securityholders access to the Receivable Files in
such cases where the Securityholders shall be required by applicable statutes
or regulations to review such documentation. Access shall be afforded without
charge, but only upon reasonable request and during the normal business hours
at the respective offices of the Servicer. Nothing in this Section shall
affect the obligation of the Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors, and the failure of the
Servicer to provide access to information as a result of such obligation shall
not constitute a breach of this Section.
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Section 5.12. Access to Certain Documentation and Information.
(a) The Owner Trustee shall provide to any Securityholder or
Security Owner that so requests in writing a copy of (i) any Servicer's
Certificate, (ii) any annual statement as to compliance described in Section
5.09(a), (iii) any annual report described in Section 5.10, (iv) any statement
to Securityholders described in Section 6.12 or (v) this Agreement (without
Exhibits). The Owner Trustee may require such Securityholder or Security Owner
to pay a reasonable sum to cover the cost of the Owner Trustee's complying with
such request.
(b) The Owner Trustee shall forward to each Rating Agency a copy
of each (i) Servicer's Certificate described in Section 5.08, (ii) annual
statement as to compliance described in Section 5.09(a), (iii) Officer's
Certificate described in Section 5.09(b), (iv) annual independent certified
public accountants' report described in Section 5.10, (v) statement to
Securityholders described in Section 6.12 and (vi) other report it may receive
pursuant hereto at its address specified in Section 11.04.
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ARTICLE SIX
DISTRIBUTIONS; YIELD SUPPLEMENT ACCOUNT;
STATEMENTS TO SECURITYHOLDERS
Section 6.01. Establishment of Trust Accounts.
(a) Prior to the Closing Date, the Servicer shall establish the
following accounts (the "Trust Accounts"):
(i) an account in the name of the Indenture Trustee (the
"Collection Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the
Securityholders;
(ii) an account in the name of the Indenture Trustee (the
"Yield Supplement Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Securityholders;
(iii) an account in the name of the Indenture Trustee (the
"Note Distribution Account") bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Noteholders;
(iv) an account in the name of the Indenture Trustee (the
"Pre-Funding Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the
Securityholders;
(v) an account in the name of the Indenture Trustee (the
"Reserve Fund"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the
Securityholders; and
(vi) an account in the name of the Owner Trustee (the
"Certificate Distribution Account") bearing a designation clearly
indicating that the funds deposited therein are held for the benefit
of the Certificateholders.
Each Trust Account shall be a segregated trust account initially
established with the Indenture Trustee and maintained (i) with the Indenture
Trustee so long as the Indenture Trustee has the Required Deposit Rating or
(ii) in a non-interest bearing segregated trust account bearing a designation
clearly indicating that the funds deposited therein are held in trust for the
benefit of the Securityholders, located in the corporate trust department of a
depository institution or trust company having corporate trust powers under
applicable federal and state laws (which may include the Indenture Trustee)
organized under the laws of the United States or any State and, if required by
any Rating Agency, having the Required Deposit Rating.
(b) For so long as the bank or trust company then maintaining the
Trust Accounts has the Required Deposit Rating, all amounts held in the Trust
Accounts shall, to the extent
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permitted by applicable laws, rules and regulations, be invested, as directed
by the Servicer, in Permitted Investments. In the event that the Indenture
Trustee no longer has the Required Deposit Rating, then the Servicer shall,
with the Indenture Trustee's assistance as necessary, cause the Trust Accounts
(including, so long as the Funding Period has not ended, the Pre-Funding
Account) to be moved within 15 days of such occurrence (i) to a bank or trust
company that has the Required Deposit Rating or (ii) to a non-interest bearing
segregated trust account bearing a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the
Securityholders, located in the corporate trust department of a depository
institution or trust company having corporate trust powers under applicable
federal and state laws (which may include the Indenture Trustee) organized
under the laws of the United States or any State and, if required by any Rating
Agency, having the Required Deposit Rating. Investment Earnings with respect
to the Pre-Funding Account shall be deposited into the Collection Account.
Investment Earnings on investment with respect to the Collection Account shall
be credited to the Collection Account.
Section 6.02. Collections. The Servicer shall remit to the
Collection Account on a daily basis within two Business Days of receipt
thereof, all payments by or on behalf of the Obligors (other than the amounts
listed in subclauses (i)(a) and (b) of the definition of Available Funds as not
constituting Available Funds) on or in respect of the Receivables (other than
Repurchased Receivables) and all Liquidation Proceeds both as collected during
each Collection Period.
Fleetwood Credit has requested that the Servicer be permitted to make
remittances of collections on a less frequent basis than that specified in the
immediately preceding sentence upon the Servicer's compliance with the specific
terms and conditions set forth below in this Section and for so long as such
terms and conditions are fulfilled. Accordingly, notwithstanding the
provisions of the first sentence of this Section, the Servicer shall be
permitted to remit such collections to the Collection Account in Automated
Clearinghouse Corporation next-day funds or immediately available funds no
later than 12:00 P.M., New York City time, on the Business Day immediately
preceding each Distribution Date, but only for so long as (a)(i) except as
provided in clause (b) below, the short-term credit rating of the Servicer is
at least equal to the Required Servicer Rating with respect to each Rating
Agency, and (ii) no Servicer Default shall have occurred and be continuing;
provided, however, that immediately following the non-compliance with clause
(i) above or in the event an Insolvency Event has occurred (notwithstanding any
applicable grace period), the Servicer shall remit such collections to the
Collection Account on a daily basis within two Business Days of receipt
thereof, or (b)(i) if the condition specified in clause (a)(ii) above is
satisfied, and (ii) the Servicer shall have obtained a Servicer Letter of
Credit issued in favor of the Owner Trustee by a depository institution or
insurance company, as the case may be, having the Required Deposit Rating and
providing that the Owner Trustee may draw thereon in the event that the
Servicer fails to deposit collections into the Collection Account on a monthly
basis; provided, that in connection with clause (b) above, the Servicer
provides to the Owner Trustee, from each Rating Agency with respect to which
the Servicer does not have the Required Servicer Rating, a letter to the effect
that the satisfaction of the conditions in clause (b) above and allowing the
Servicer to make monthly deposits will not result in a Rating Event and, if
applicable, an Officer's Certificate from the Servicer to the effect that the
Servicer has the Required Servicer Rating with respect to each other Rating
Agency, if any; and provided further,
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that if the Servicer shall have obtained a Servicer Letter of Credit in
accordance with clause (b) above, the Servicer shall be required to remit such
collections in the manner provided for in Section 4.01(c) under the conditions
specified in such Section. The Owner Trustee shall not be deemed to have
knowledge of any event or circumstance under clause (a)(ii) above that would
require daily remittance by the Servicer to the Collection Account unless it
has received notice of such event or circumstance from the Seller or the
Servicer in an Officer's Certificate or from Securityholders as provided in
Section 9.01. For purposes of this Article the phrase "payments made on behalf
of Obligors" shall mean payments made by Persons other than the Seller, the
Servicer or the Letter of Credit Bank, if any.
Any funds held by the Servicer that it determines are to be remitted
(or any of its own funds which the Seller or the Servicer determines to pay to
the Letter of Credit Bank) in respect of a failure previously to remit
collections which failure resulted in a payment under any Servicer Letter of
Credit pursuant to Section 4.01 shall not be remitted to the Collection
Account, but shall instead be paid immediately and directly to the Letter of
Credit Bank. Any such payment to the Letter of Credit Bank shall be
accompanied by a copy of the Servicer's Certificate related to the previous
failure to remit funds and an Officer's Certificate which includes a statement
identifying, by reference to the items in such Servicer's Certificate, each
shortfall in Servicer remittances to which such payment relates. The Servicer
shall also provide the Owner Trustee with copies of each such Servicer's
Certificate and Officer's Certificate delivered with any such payment to the
Letter of Credit Bank.
Section 6.03. Application of Collections. As of each Record Date,
all collections for the related Collection Period, with respect to payments
made by or on behalf of an Obligor on each Receivable (including a Defaulted
Receivable), shall be applied by the Servicer as follows: (i) to late payment
and extension fees; (ii) to interest accrued on the Receivable; (iii) to
principal due on the Receivable; and (iv) to administrative charges, if any.
Any excess after the application of clauses (i) through (iv) shall be applied
to prepay the Principal Balance of such Receivable.
Section 6.04. Advances. On the Business Day immediately preceding
each Distribution Date, the Servicer shall deposit into the Collection Account,
in Automated Clearinghouse Corporation next-day funds or immediately available
funds, an amount equal to Accrued Interest in respect of each Receivable (each,
an "Advance"). The Servicer shall be entitled to reimbursement for
unreimbursed Advances, without interest, with respect to a Receivable from
subsequent Collected Interest or Collected Principal, as the case may be,
allocable with respect to such Receivable, Liquidation Proceeds of or the
Repurchase Amount of such Receivable or as otherwise provided in Section 6.06,
except as otherwise provided in Sections 5.03 and 5.06. Except as otherwise
provided in Section 5.03, the Servicer shall not be required to make an Advance
to the extent that the Servicer, in its sole discretion, shall determine that
such Advance will not be recoverable from subsequent payments by or on behalf
of the related Obligor, Liquidation Proceeds or the Repurchase Amount with
respect to such Receivable (whether such Receivable is purchased by the Seller
or the Servicer, to the extent such right of reimbursement is not waived in
connection with any such repurchase) or otherwise.
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Section 6.05. Non-Reimbursable Payments. On or before each Deposit
Date, the Servicer shall deposit into the Collection Account, in Automated
Clearinghouse Corporation next-day funds or immediately available funds, an
amount (the "Non-Reimbursable Payment") equal to the amount of interest that
accrued on the aggregate Collected Principal for the related Collection Period,
at a rate equal to the Required Rate, from the date of collection of each
payment of principal on or in respect of the Receivables comprising part of
such aggregate Collected Principal through the last day of the such Collection
Period, based on a year with the actual number of days in such year and
consisting of twelve months with the actual number of days in such month. The
Servicer shall not be entitled to reimbursement for any Non-Reimbursable
Payment from the Trust, the Trustees, the Seller or the Letter of Credit Bank,
if any.
Section 6.06. Additional Deposits.
(a) The following additional deposits shall be made to the
Collection Account: (i) the Servicer or the Seller, as the case may be, shall
remit the aggregate Repurchase Amount with respect to Repurchased Receivables
pursuant to Sections 3.02, 5.06 and 10.01, (ii) the Servicer shall remit the
aggregate Liquidation Proceeds received during each Collection Period (less any
Liquidation Proceeds paid to the Seller or retained by the Servicer) pursuant
to Section 5.03, (iii) the Owner Trustee shall deposit (A) the aggregate of any
amounts received from any Letter of Credit Bank pursuant to Article Four or (B)
from the sale of Receivables pursuant to Section 10.01, in each case on the
date of receipt thereof, and (iv) on the Distribution Date immediately
succeeding the date in which the Funding Period ends (or on the Distribution
Date on which the Funding Period ends, if the Funding Period ends on a
Distribution Date), the Indenture Trustee shall remit the remaining Pre-Funded
Amount on deposit in the Pre-Funding Account to the Collection Account pursuant
to Section 6.10.
(b) Except as otherwise provided in Section 6.02, all deposits
required to be made in respect of a Collection Period pursuant to this Section
by the Seller or the Servicer may be made in the form of a single deposit by
the Seller or the Servicer, as the case may be, and shall be made in Automated
Clearinghouse Corporation next-day funds or immediately available funds, no
later than 12:00 P.M., New York City time, on the Business Day preceding each
Distribution Date.
Section 6.07. Distributions.
(a) On each Distribution Date, the Indenture Trustee shall cause
to be made the following transfers and distributions in immediately available
funds in the amounts set forth in the Servicer's Certificate for such
Distribution Date:
(i) from monies on deposit in the Pre-Funding Account to
the Collection Account, Investment Earnings with respect to the
Pre-Funded Amount during the related Collection Period; and
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(ii) from monies on deposit in the Reserve Fund to the
Collection Account, an amount equal to the Negative Carry Amount for
the related Collection Period, if any.
(b) On each Distribution Date, the Servicer shall instruct the
Indenture Trustee (based on the information contained in the Servicer's
Certificate delivered on the related Servicer Report Date pursuant to Section
5.08) to make the following deposits and distributions for receipt by the
Servicer or deposit in the applicable account by ___:00 __.m. (______ time), to
the extent of the Available Amount for such Distribution Date, in the following
order of priority:
(i) to the Servicer, from Collected Interest, the
Servicer Payment (including any unpaid Servicing Fees with respect to
one or more prior Collection Periods), by wire transfer of immediately
available funds; provided, however, that the Servicer Payment shall be
provided from Available Funds only to the extent, as determined by the
Servicer pursuant to Section 6.03, such funds represent payment in
respect of the Receivables allocable to interest;
(ii) to the Note Distribution Account, from the Available
Amount (after giving effect to the reduction in the Available Amount
described in clause (i) above), the Note Interest Distributable
Amount;
(iii) to the Note Distribution Account, from the Available
Amount (after giving effect to the reduction in the Available Amount
described in clauses (i) and (ii) above), the Note Principal
Distributable Amount;
(iv) to the Certificate Distribution Account, from the
Available Amount (after giving effect to the reduction in the
Available Amount described in clauses (i) through (iii) above), the
Certificate Interest Distributable Amount;
(v) to the Certificate Distribution Account, from the
Available Amount (after giving effect to the reduction in the
Available Amount described in clauses (i) through (iv) above), the
Certificate Principal Distributable Amount; and
(vi) in the event that the distributions described in
clauses (i) through (v) above have been funded exclusively from
Available Funds, any Excess Amounts shall be deposited into the
Reserve Fund until the amount on deposit therein equals the Specified
Reserve Fund Balance, and any excess thereof shall be deposited (A)
into the Note Distribution Account for payment to the Noteholders as
an Accelerated Principal Distribution Amount or (B) on and after any
Distribution Date on which the Notes have been paid in full, if such
excess is equal to or greater than the Certificate Balance, into the
Certificate Distribution Account for payment of principal to the
Certificateholders. If the amount on deposit in the Reserve Fund on
such Distribution Date (after giving effect to all deposits thereto
and withdrawals therefrom on such Distribution Date) is greater than
the Specified Reserve Fund Balance, the Indenture Trustee shall
release and distribute such excess, together with any Excess Amounts
not required to be deposited into the Reserve Fund, to the Seller.
Notwithstanding the foregoing, during the Funding Period,
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(A) all Excess Amounts shall be deposited into the Reserve Fund and
shall not be deposited into the Note Distribution Account and (B) any
amount on deposit in the Reserve Fund in excess of the Specified
Reserve Fund Balance shall be retained in the Reserve Fund and shall
not be distributed to the Seller; in each case until the Distribution
Date immediately succeeding the date on which the Funding Period ends
(or on the Distribution Date on which the Funding Period ends if the
Funding Period ends on a Distribution Date).
Section 6.08. Yield Supplement Account. On or prior to the Closing
Date, the Owner Trustee, on behalf of the Seller, shall deposit the Yield
Supplement Account Initial Deposit into the Yield Supplement Account from the
net proceeds of the sale of the Securities. Amounts held in the Yield
Supplement Account shall be invested by the Indenture Trustee in Permitted
Investments. Upon termination of this Agreement pursuant to Section 10.01, any
amounts on deposit in the Yield Supplement Account, after payments of amounts
due to the Securityholders, shall be paid to the Seller.
Section 6.09. Reserve Fund.
(a) On or prior to the Closing Date, the Seller shall deposit an
amount equal to the Reserve Fund Initial Deposit into the Reserve Fund.
(b) Amounts on deposit in the Reserve Fund shall be available for
distribution as provided in Section 6.07, in accordance with and subject to the
following: if the amount on deposit in the Reserve Fund (after giving effect
to all deposits thereto and withdrawals therefrom on such Distribution Date) is
greater than the Specified Reserve Fund Balance, the Indenture Trustee shall
release and distribute all such amounts to the Seller. Upon any such
distribution to the Seller, the Securityholders shall have no further rights
in, or claims to, such amounts.
(c) Amounts held in the Reserve Fund shall be invested in
Permitted Investments in accordance with written instructions from the Seller
and such investments shall not be sold or disposed of prior to their maturity.
Investment Earnings attributable to the Reserve Fund Property shall not be
subject to any Claims or rights of the Securityholders or the Servicer. All
such investments shall be made in the name of the Indenture Trustee or its
nominee, as collateral agent, and all net income and gain realized thereon
shall be solely for the benefit of the Seller and shall be payable by the
Indenture Trustee to the Seller on each Distribution Date. Any realized losses
on investment of the Reserve Fund Property shall be charged first against
undistributed Investment Earnings attributable to the Reserve Fund Property and
then against the Reserve Fund Property.
(d) With respect to the Reserve Fund Property, the Indenture
Trustee agrees that:
(i) Any Reserve Fund Property that is held in deposit
accounts shall be held solely in the name of the Indenture Trustee, as
collateral agent, at the Indenture Trustee (in a segregated trust
account if the Indenture Trustee does not have the Required Deposit
Rating) or at one or more depository institutions that have the
Required Deposit Rating.
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Each such deposit account shall be subject to the exclusive custody
and control of the Indenture Trustee, and the Indenture Trustee shall
have sole signature authority with respect thereto.
(ii) Any Reserve Fund Property that constitutes Physical
Property shall be delivered to the Indenture Trustee, as collateral
agent, in accordance with clause (i) of the definition of "Delivery"
and shall be held, pending maturity or disposition, solely by the
Indenture Trustee, as collateral agent, or a Financial Intermediary
acting solely for the Indenture Trustee, as collateral agent.
(iii) Any Reserve Fund Property that is a book-entry
security held through the Federal Reserve System pursuant to federal
book-entry regulations shall be delivered in accordance with clause
(ii) of the definition of "Delivery" and shall be maintained by the
Indenture Trustee, as collateral agent, pending maturity or
disposition, through continued book-entry registration of such Reserve
Fund Property as described in such paragraph.
(iv) Any Reserve Fund Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (iii) above shall be delivered to the Indenture Trustee, as
collateral agent, in accordance with clause (iii) of the definition of
"Delivery" and shall be maintained by the Indenture Trustee, as
collateral agent, pending maturity or disposition, through continued
registration of the Indenture Trustee's or its Financial
Intermediary's (or its custodian's or its nominee's) ownership of such
security, in its capacity as collateral agent.
Effective upon Delivery of any Reserve Fund Property in the form of
Physical Property, book-entry securities or uncertificated securities, the
Indenture Trustee shall be deemed to have purchased such Reserve Fund Property
for value, in good faith and without notice of any adverse Claim thereto.
(e) The Indenture Trustee shall not enter into any subordination
or intercreditor agreement with respect to the Reserve Fund Property.
(f) Upon termination of this Agreement in accordance with Section
10.01, any amounts on deposit in the Reserve Fund, after payment of amounts due
to the Securityholders, shall be paid to the Seller.
Section 6.10. Pre-Funding Account.
(a) On the Closing Date, the Seller shall deposit in the
Pre-Funding Account an amount equal to the Pre- Funded Amount from the proceeds
of the sale of the Securities. On each Subsequent Transfer Date, the Servicer
shall instruct the Indenture Trustee in writing to withdraw from the
Pre-Funding Account an amount equal to the Principal Balance of the Subsequent
Receivables (as of the related Subsequent Cutoff Date) sold to the Trust on
such Subsequent Transfer Date, which instruction shall specify the amount
thereof, and pay such
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amount to or upon the order of the Seller upon satisfaction of the conditions
set forth in this Agreement and in the related Transfer Agreement with respect
to such transfer.
(b) If (i) the Pre-Funded Amount has not been reduced to zero by
the close of business on the Final Funding Period Distribution Date or (ii) the
Pre-Funded Amount has been reduced to $100,000 or less on any Distribution Date
during the Funding Period, in either case after giving effect to any reductions
in the Pre-Funded Amount on such Distribution Date pursuant to Section 6.10(b),
the Servicer shall instruct the Indenture Trustee to withdraw such remaining
portion of the Pre-Funded Amount from the Pre-Funding Account and deposit it in
the related Distribution Account on such Distribution Date to be applied to a
Mandatory Redemption in accordance with Section 10.01(b) of the Indenture or a
Mandatory Prepayment in accordance with Section 3.15(b) of the Trust Agreement,
in addition to the payment of principal and interest that otherwise would be
payable with respect to such Securities on such Distribution Date.
Section 6.11. Net Deposits. For so long as (i) Fleetwood Credit
shall be the Servicer and (ii) the Servicer shall be entitled pursuant to
Section 6.02 to remit collections on a monthly rather than daily basis, the
Servicer may make the remittances pursuant to Sections 6.02, 6.04, 6.05 and
6.06 net of amounts to be distributed to the Servicer pursuant to Section 6.07.
Notwithstanding the foregoing, the Servicer shall account for all of the above
described remittances and distributions in the Servicer's Certificate as if the
amounts were deposited or distributed separately.
Section 6.12. Statements to Securityholders.
(a) On each Distribution Date, (i) the Indenture Trustee shall
include with each distribution to each Noteholder of record as of the related
Record Date and (ii) the Owner Trustee shall include with each distribution to
each Certificateholder of record as of the related Record Date, a statement,
prepared by the Servicer, based upon the information in the Servicer's
Certificate furnished pursuant to Section 5.08, setting forth for such
Distribution Date the following information as of the related Record Date or
such Distribution Date, as the case may be:
(i) the amount of such distribution allocable to
principal (stated separately for each Class of Notes and the
Certificates);
(ii) the amount of such distribution allocable to interest
(stated separately for each Class of Notes and the Certificates);
(iii) the Note Percentage and the Certificate Percentage as
of the close of business on the last day of such Collection Period;
(iv) the Aggregate Principal Balance as of the close of
business on the last day of such Collection Period;
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(v) the amount of the Servicing Fee paid to the Servicer
with respect to the related Collection Period;
(vi) the amount of any Certificate Interest Carryover
Shortfall, Certificate Principal Carryover Shortfall, Note Interest
Carryover Shortfall and Note Principal Carryover Shortfall on such
Distribution Date and the change in such amounts from those with
respect to the immediately preceding Distribution Date;
(vii) the Note Pool Factor for each Class of Notes and the
Certificate Pool Factor as of such Distribution Date, after giving
effect to payments allocated to principal reported under clause (i)
above; and
(viii) the amount on deposit in the Yield Supplement Account
on such Distribution Date, after giving effect to distributions made
on such Distribution Date, and the change in such balance from the
immediately preceding Distribution Date.
Each amount set forth pursuant to subclauses (i), (ii), (iv) or (v) above shall
be expressed as a dollar amount per $1,000.00 of Original Note Balance or
Original Certificate Balance, as the case may be.
(b) Within the prescribed period of time for tax reporting
purposes after the end of each calendar year during the term of the Trust, but
not later than the latest date permitted by law, the related Trustee shall mail
to each Person who at any time during such calendar year shall have been a
Securityholder, a statement, prepared by the Servicer, containing the sum of
the amounts set forth in clauses (i), (ii), (iv) and (v) above for such
calendar year or, in the event such Person shall have been a Securityholder
during a portion of such calendar year, for the applicable portion of such
year, for the purposes of such Securityholder's preparation of federal income
tax returns. In addition, the Servicer shall furnish to the Trustees for
distribution to such Person at such time any other information necessary under
applicable law for the preparation of such income tax returns.
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ARTICLE SEVEN
THE SELLER
Section 7.01. Corporate Existence. During the term of this
Agreement, the Seller will keep in full force and effect its existence, rights
and franchises as a corporation under the laws of the jurisdiction of its
incorporation and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the other Basic
Documents and each other instrument or agreement necessary or appropriate to
the proper administration of this Agreement and the transactions contemplated
hereby. In addition, all transactions and dealings between the Seller and its
Affiliates will be conducted on an arm's-length basis.
Section 7.02. Liability of Seller; Indemnities. The Seller shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Seller under this Agreement.
The Seller shall indemnify, defend and hold harmless the Issuer, the
Trustees and the Servicer from and against any Taxes that may at any time be
asserted against any such Person with respect to the transactions contemplated
herein and in the other Basic Documents (but, in the case of the Issuer, not
including any Taxes asserted with respect to, and as of the date of, the sale
of the Receivables to the Issuer or the issuance and original sale of the
Securities, or asserted with respect to ownership of the Receivables, or
federal or other income Taxes arising out of distributions on the Securities)
and costs and expenses in defending against the same.
The Seller shall indemnify, defend and hold harmless the Issuer, the
Trustees and the Securityholders from and against any Liability incurred by
reason of the Seller's willful misfeasance, bad faith or negligence (other than
errors in judgment) in the performance of its duties under this Agreement, or
by reason of reckless disregard of its obligations and duties under this
Agreement.
The Seller shall indemnify, defend and hold harmless the Issuer and
the Trustees from and against any Losses arising out of or incurred in
connection with the acceptance or performance of the trusts and duties herein
and, in the case of the Owner Trustee, in the Trust Agreement and, in the case
of the Indenture Trustee, in the Indenture, except to the extent that such
Loss, in the case of (i) the Owner Trustee, shall be due to the willful
misfeasance, bad faith or negligence of the Owner Trustee or shall arise from
the breach by the Owner Trustee of any of its representations or warranties set
forth in Section 7.03 of the Trust Agreement, or (ii) the Indenture Trustee,
shall be due to the willful misfeasance, bad faith or negligence of the
Indenture Trustee.
If the Seller shall have made any indemnity payments pursuant to this
Section and the Person to or on behalf of whom such payments are made
thereafter shall collect any of such amounts from others, such Person shall
promptly repay such amounts to the Seller, without interest.
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Section 7.03. Merger or Consolidation of Seller.
(a) The Seller shall not consolidate with or merge into any other
corporation or convey, transfer or lease substantially all of its assets as an
entirety to any Person unless the corporation formed by such consolidation or
into which the Seller has merged or the Person that acquires by conveyance,
transfer or lease substantially all the assets of the Seller as an entirety,
can lawfully perform the obligations of the Seller hereunder and executes and
delivers to the Trustees an agreement in form and substance reasonably
satisfactory to the Trustees, which agreement contains an assumption by such
successor entity of the due and punctual performance and observance of each
covenant and condition to be performed or observed by the Seller under this
Agreement. The Seller shall provide notice of any merger, consolidation or
succession pursuant to this Section to each Rating Agency and will deliver to
the Trustees a letter from each Rating Agency to the effect that such merger,
consolidation or succession will not result in a Rating Event. The Seller and
Fleetwood Credit shall maintain separate corporate offices.
(b) Subject to paragraph (c) below, the purpose of the Seller
shall be to engage in any lawful activity for which a corporation may be
organized under the General Corporation Law of California other than the
banking business, the trust company business or the practice of a profession
permitted to be incorporated by the California Corporations Code.
(c) Notwithstanding paragraph (b) above, the actual business
activities of the Seller shall be limited to the following purposes, and
activities incident to and necessary or convenient to accomplish such purposes:
(i) to acquire, own, hold, sell, transfer, assign, pledge, finance, refinance
and otherwise deal with, retail installment sales contracts secured by new and
used recreational vehicles ("Vehicle Receivables"); (ii) to authorize, issue,
sell and deliver one or more series of obligations, consisting of one or more
classes of notes, certificates or other securities (the "Offered Securities")
that are collateralized by or evidence an interest in Vehicle Receivables and
are rated in the highest available category by at least one nationally
recognized statistical rating agency; and (iii) to negotiate, authorize,
execute, deliver and assume the obligations of any agreement relating to the
activities set forth in clauses (i) and (ii) above, including but not limited
to any sale and servicing agreement, indenture, reimbursement agreement, credit
support agreement, receivables purchase agreement or underwriting agreement or
to engage in any lawful activity that is incidental to the activities
contemplated by any such agreement. So long as any outstanding debt of the
Seller or any Offered Securities are rated by any nationally recognized
statistical rating organization, the Seller shall not issue notes or otherwise
incur debt unless (A) the Seller has made a written request to the related
nationally recognized statistical rating organization to issue notes or incur
borrowings, which notes or borrowings are rated by the related nationally
recognized statistical rating organization the same as or higher than the
rating afforded such debt or securities, or (B) such notes or borrowings (I)
are fully subordinated (and shall provide for payment only after payment in
respect of all outstanding rated debt or Offered Securities) or are nonrecourse
against any assets of the Seller other than the assets pledged to secure such
notes or borrowings, (II) do not constitute a Claim against the Seller in the
event such assets are insufficient to pay such notes or borrowings and (III)
where such notes or borrowings are secured by the rated debt or Offered
Securities, are fully
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subordinated (and that shall provide for payment only after payment in respect
of all outstanding rated debt or Offered Securities) to such rated debt or
Offered Securities.
(d) Notwithstanding any other provision of this Section and any
provision of law, the Seller shall not do any of the following:
(i) engage in any business or activity other than as set
forth in clause (b) above;
(ii) without the affirmative vote of a majority of the
members of the board of directors of the Seller (which must include
the affirmative vote of at least two duly appointed Independent
Directors): (A) dissolve or liquidate, in whole or in part, or
institute Proceedings to be adjudicated bankrupt or insolvent; (B)
consent to the institution of bankruptcy or insolvency Proceedings
against it; (C) file a petition seeking or consent to reorganization
or relief under any applicable federal or state law relating to
bankruptcy; (D) consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) with
respect to the corporation or a substantial part of its property; (E)
make a general assignment for the benefit of creditors; (F) admit in
writing its inability to pay its debts generally as they become due;
or (G) take any corporate action in furtherance of the actions set
forth in clauses (A) through (F) above; provided, however, that no
director may be required by any shareholder of the Seller to consent
to the institution of bankruptcy or insolvency Proceedings against the
Seller so long as it is solvent; or
(iii) merge or consolidate with any other corporation,
company or entity or sell all or substantially all of its assets or
acquire all or substantially all of the assets or capital stock or
other ownership interest of any other corporation, company or entity
(except for the acquisition of Vehicle Receivables and the sale of
Vehicle Receivables to one or more trusts in accordance with the terms
of paragraph (c) above, that shall not be otherwise restricted by this
paragraph).
Section 7.04. Limitation on Liability of Seller and Others. The
Seller and any director, officer, employee or agent of the Seller may rely in
good faith on any document of any kind, prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Seller
and any director, officer, employee or agent of the Seller shall be reimbursed
by the Owner Trustee or the Indenture Trustee, as the case may be, for any
Liability incurred by reason of such Trustee's willful misfeasance, bad faith
or negligence (except for errors in judgment) in the performance of their
respective duties hereunder, or by reason of reckless disregard of their
respective obligations and duties hereunder. The Seller shall not be under any
obligation to appear in, prosecute or defend any Proceeding that shall not be
incidental to its obligations under this Agreement, and that in its opinion may
involve it in any Liability. The indemnities contained in this Section shall
survive the resignation or termination of the Owner Trustee or the termination
of this Agreement.
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Section 7.05. Seller Not to Resign. Subject to the provisions of
Section 7.03, the Seller shall not resign from the obligations and duties
hereby imposed on it as Seller hereunder.
Section 7.06. Seller May Own Securities. The Seller and any
Affiliate thereof may in its individual or any other capacity become the owner
or pledgee of Securities with the same rights as it would have if it were not
the Seller or an Affiliate thereof, except as expressly provided herein or in
any other Basic Document. Securities so owned by or pledged to the Seller or
such Affiliate shall have an equal and proportionate benefit under the
provisions of this Agreement, without preference, priority or distinction as
among all of the Notes or Certificates, as the case may be.
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ARTICLE EIGHT
THE SERVICER
Section 8.01. Liability of Servicer; Indemnities. Subject to Section
9.02, the Servicer shall be liable in accordance herewith only to the extent of
the obligations specifically undertaken by the Servicer under this Agreement.
Such obligations shall include the obligation to indemnify, defend and hold
harmless:
(a) the Issuer, the Trustees and the Securityholders from
and against any Losses (i) arising out of or resulting from the use,
ownership or operation by the Servicer or any of its Affiliates of a
Financed Vehicle and (ii) arising out of or imposed upon the Issuer,
the Owner Trustee, the Indenture Trustee or any Securityholder, as the
case may be, through the negligence, willful misfeasance or bad faith
of the Servicer in the performance of its duties under this Agreement
or by reason of reckless disregard of its obligations and duties under
this Agreement;
(b) the Issuer and the Trustees from and against any
Taxes that may at any time be asserted against the Owner Trustee, the
Indenture Trustee or the Issuer, as the case may be, with respect to
the transactions contemplated herein (but not including any Taxes
asserted with respect to, and as of the date of, the sale of the
Receivables to the Issuer or the issuance and original sale of the
Securities, or asserted with respect to ownership of the Receivables,
or federal or other income Taxes arising out of distributions on the
Securities) and costs and expenses in defending against the same; and
(c) the Trustees from and against any Losses arising out
of or incurred in connection with the acceptance or performance of the
trusts and duties herein contained, except to the extent that such
Loss (i) shall be due to the willful misfeasance, bad faith or
negligence (except for errors in judgment) of the Owner Trustee or the
Indenture Trustee, as the case may be; (ii) relates to any Tax other
than the Taxes with respect to which either the Seller or Servicer
shall be required to indemnify the Owner Trustee or the Indenture
Trustee, as the case may be; (iii) shall arise from the Owner
Trustee's or the Indenture Trustee's breach of any of their respective
representations or warranties set forth herein, in the Trust Agreement
or in the Indenture; or (iv) shall be one as to which the Seller is
required to indemnify the Owner Trustee or the Indenture Trustee, as
the case may be.
Indemnification under this Section shall survive the resignation or
removal of the Owner Trustee or the Indenture Trustee or the termination of
this Agreement and shall include reasonable fees and expenses of counsel and
expenses of litigation. If the Servicer shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such payments
are made thereafter collects any of such amounts from others, such Person shall
promptly repay such amounts to the Servicer, without interest.
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Section 8.02. Corporate Existence; Status as Servicer; Merger. The
Servicer shall not consolidate with or merge into any other corporation or
convey, transfer or lease all or substantially all of its assets as an entirety
to any Person unless the corporation formed by such consolidation or into which
the Servicer has merged or the Person that acquires by conveyance, transfer or
lease substantially all the assets of the Servicer as an entirety can lawfully
perform the obligations of the Servicer hereunder and executes and delivers to
the Trustees an agreement in form and substance reasonably satisfactory to the
Trustees, that contains an assumption by such successor entity of the due and
punctual performance or observance of each covenant and condition to be
performed or observed by the Servicer under this Agreement. Notice of any
consolidation, merger or succession pursuant to this Section shall be sent by
the Servicer to each Rating Agency.
Section 8.03. Performance of Obligations.
(a) The Servicer shall punctually perform and observe all of its
obligations and agreements contained in this Agreement.
(b) The Servicer shall not take any action, or permit any action
to be taken by others, that would excuse any Person from any of its covenants
or obligations under any of the Receivable Documents or under any other
instrument included in the Trust Estate, or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any of the Receivable Documents or any such
instrument, except as expressly provided herein and therein.
Section 8.04. Servicer Not to Resign; Assignment.
(a) The Servicer shall not resign from the duties and obligations
hereby imposed on it except upon determination by its board of directors that
by reason of change in applicable legal requirements the continued performance
by the Servicer of its duties hereunder would cause it to be in violation of
such legal requirements in a manner that would result in a material adverse
effect on the Servicer or its financial condition, said determination to be
evidenced by a resolution of its board of directors to such effect accompanied
by an Opinion of Counsel, satisfactory to the Trustees, to such effect. No
such resignation shall become effective unless and until (i) a new servicer
acceptable to the Trustees is willing to service the Receivables and enters
into a servicing agreement with the Trust in form and substance substantially
similar to this Agreement and satisfactory to the Trustees and (ii) the Rating
Agency Condition is satisfied with respect to the selection of such new
servicer. No such resignation shall affect the obligation of the Servicer to
purchase Receivables pursuant to Section 5.06.
(b) Except as specifically permitted in this Agreement, the
Servicer may not assign this Agreement or any of its rights, powers, duties or
obligations hereunder; provided, that the Servicer may assign this Agreement in
connection with a consolidation, merger, conveyance, transfer or lease made in
compliance with Section 8.02.
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(c) Except as provided in Sections 8.04(a) and 8.04(b), the duties
and obligations of the Servicer under this Agreement shall continue until this
Agreement shall have been terminated as provided in Section 10.01 or the Trust
shall have been dissolved as provided by the terms of the Trust Agreement, and
shall survive the exercise by the Owner Trustee or the Indenture Trustee of any
right or remedy under this Agreement, or the enforcement by the Owner Trustee,
the Indenture Trustee or any Securityholder of any provision of the Securities
or this Agreement.
(d) The resignation of the Servicer in accordance with this
Section shall not affect the rights of the Seller hereunder. If the Servicer
resigns pursuant to this Section, its appointment as custodian can be
terminated pursuant to Section 3.07.
Section 8.05. Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of its directors, officers,
employees or agents shall be under any Liability to the Issuer or the
Securityholders, except as provided under this Agreement, for any action taken
or for refraining from the taking of any action pursuant to this Agreement or
for errors in judgment; provided, however, that this provision shall not
protect the Servicer or any such Person against any Liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
(except errors in judgment) in the performance of duties or by reason of
reckless disregard of obligations and duties under this Agreement. The
Servicer and any director, officer, employee or agent of the Servicer may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising under this Agreement.
(b) The Servicer and any director, officer, employee or agent of
the Servicer shall be reimbursed by the Owner Trustee or the Indenture Trustee,
as the case may be, for any Liability incurred by reason of such Trustee's
willful misfeasance, bad faith or negligence (except errors in judgment) in the
performance of such Trustee's duties under this Agreement or by reason of
reckless disregard of its obligations and duties under this Agreement.
Except as provided in this Agreement, the Servicer shall be under no
obligation to appear in, prosecute or defend any Proceeding that shall not be
incidental to its duties to service the Receivables in accordance with this
Agreement, and that in its opinion may involve it in any Liability; provided,
however, that the Servicer may undertake such reasonable action as it may deem
necessary or desirable in respect of (i) this Agreement and the other Basic
Documents, (ii) the rights and duties of the parties to this Agreement and the
other Basic Documents and (iii) the interests of the Securityholders under the
Basic Documents.
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ARTICLE NINE
DEFAULT
Section 9.01. Servicer Default. If any one of the following events
(a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (or the Seller, so long
as Fleetwood Credit is the Servicer) to deliver (i) to the related
Trustee for distribution to the Securityholders any required payment
or (ii) a Servicer's Certificate with respect to any Payment Date or
Distribution Date, which failure continues unremedied for three
Business Days after discovery by an officer of the Servicer (or the
Seller, so long as Fleetwood Credit is the Servicer), or written
notice of such failure is given (A) to the Servicer or the Seller, as
the case may be, by the related Trustee or (B) to the Seller or the
Servicer, as the case may be, and to the related Trustee by
Noteholders evidencing not less than 25% of the Voting Interest
thereof, voting together as a single Class, or, if the Notes have been
paid in full, by Certificateholders evidencing not less than 25% of
the Voting Interest thereof;
(b) any failure by the Servicer (or the Seller, so long
as Fleetwood Credit is the Servicer) duly to observe or perform in any
material respect any covenant or agreement in this Agreement, which
failure materially and adversely affects the rights of the
Securityholders and that continues unremedied for 60 days after the
giving of written notice of such failure is given as described in
clause (i) above; or
(c) the occurrence of an Insolvency Event;
then, and in each case, so long as such Servicer Default shall not have been
remedied, the Indenture Trustee or Noteholders evidencing not less than 51% of
the Voting Interest thereof (or, if the Notes have been paid in full and the
Indenture has been discharged in accordance with its terms, by the Owner
Trustee or Certificateholders evidencing not less than 51% of the Voting
Interest thereof), voting together as a single class, by notice given in
writing to the Servicer (and to the Indenture Trustee if given by Noteholders),
may terminate all of the rights and obligations of the Servicer hereunder. On
or after the receipt by the Servicer of such written notice, all authority and
power of the Servicer hereunder, whether with respect to the Securities, the
Receivables or otherwise, shall, without further action, pass to and be vested
in the Indenture Trustee or such successor Servicer as may be appointed under
Section 9.02; and, without limitation, the Indenture Trustee shall be hereby
authorized and empowered to execute and deliver, on behalf of the predecessor
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the Receivables and related documents,
or otherwise. The predecessor Servicer shall cooperate with the successor
Servicer and the Indenture Trustee in effecting the termination of the
responsibilities and rights of the predecessor Servicer hereunder, including
the transfer to the successor Servicer for administration by it of all cash
amounts that shall at the time be held by the predecessor Servicer for deposit,
shall have been deposited by the predecessor Servicer in the
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Collection Account or shall thereafter be received with respect to a
Receivable. All reasonable costs and expenses (including attorneys' fees)
incurred in connection with transferring the Receivable Files to the successor
Servicer and amending this Agreement to reflect such succession as Servicer
pursuant to this Section shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs and expenses.
Section 9.02. Indenture Trustee to Act; Appointment of Successor.
Upon the Servicer's receipt of notice of termination pursuant to Section 9.01
or resignation pursuant to Section 8.04, the Indenture Trustee shall be the
successor to the Servicer in its capacity as servicer under this Agreement, and
shall be subject to all the responsibilities, duties and liabilities relating
thereto placed on the Servicer by the terms and provisions of this Agreement,
except that the Indenture Trustee shall not be obligated to purchase
Receivables pursuant to Section 5.06, unless the obligation to repurchase arose
after the date of the notice of termination given to the Servicer pursuant to
Section 9.01 or be subject to any obligation of the Servicer to indemnify or
hold harmless any Person as set forth in this Agreement arising from the acts
or omissions of the previous Servicer. As compensation therefor, the Indenture
Trustee shall be entitled to such compensation (whether payable out of the
Collection Account or otherwise) as the Servicer would have been entitled to
under this Agreement if no such notice of termination shall have been given.
In the event that the Indenture Trustee is unwilling or unable so to act, it
may appoint or petition a court of competent jurisdiction to appoint a
successor with a net worth of at least $100,000,000 and the regular business of
which includes the servicing of recreational vehicle or motor vehicle
receivables. The Indenture Trustee may make such arrangements for compensation
to be paid, which in no event may be greater than the servicing compensation
paid to the Servicer hereunder. Notwithstanding such termination, the Servicer
shall be entitled to payment of certain amounts payable to it prior to such
termination, for services rendered prior to such termination. Pending
appointment of any such successor Servicer, the Indenture Trustee shall act in
such capacity as provided above. The Indenture Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary
to effectuate any such succession.
Section 9.03. Repayment of Advances. If the identity of the Servicer
shall change, the predecessor Servicer shall be entitled to receive
reimbursement for outstanding Advances pursuant to Section 6.04 with respect to
all Advances made by the predecessor Servicer.
Section 9.04. Notices to Securityholders. Upon any termination of,
or appointment of a successor to, the Servicer pursuant to this Article, the
Owner Trustee shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register, and the Indenture Trustee shall give prompt written notice thereof to
the Noteholders at their respective addresses appearing in the Note Register
and to each Rating Agency.
Section 9.05. Waiver of Past Defaults. Noteholders evidencing not
less than 51% of the Voting Interest thereof, or, if all Notes have been paid
in full and the Indenture has been discharged in accordance with its terms,
Certificateholders evidencing not less than 51% of the Voting Interest thereof
(in the case of any default that does not adversely affect the Indenture
Trustee or the Noteholders) may, on behalf of all Securityholders, waive in
writing any Servicer
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Default and its consequences, except a default in making any required deposits
to or payments from any of the Trust Accounts in accordance with this Agreement
or in respect of a covenant or provision hereof that cannot be modified without
the consent of each Securityholder. Upon any such waiver of a past Servicer
Default, such Servicer Default shall cease to exist, and any Servicer Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereto.
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ARTICLE TEN
TERMINATION
Section 10.01. Optional Purchase of All Receivables. On each
Distribution Date following a Record Date as of which the Pool Balance is 10%
or less of the sum of the Original Pool Balance and the Aggregate Principal
Balance of all Subsequent Receivables conveyed to the Trust as of the related
Subsequent Cutoff Dates, the Seller or the Servicer, or any successor to the
Servicer, shall have the option to purchase the corpus of the Trust. To
exercise such option, the Seller or the Servicer, or any successor to the
Servicer, as the case may be, shall notify the Owner Trustee in writing, no
later than the tenth day of the month in which the Record Date as of which such
purchase is to be effected and, if there are any book-entry Securities, the
Clearing Agency in accordance with the related Letter of Representations, and
shall deposit pursuant to Section 6.06 in the Collection Account an amount
equal to the aggregate Repurchase Amount for the Receivables (including
Defaulted Receivables), plus the appraised value of any other property held by
the Trust (less Liquidation Expenses), such value to be determined by an
appraiser mutually agreed upon by the Servicer and the Owner Trustee, and shall
succeed to all interests in and to the Trust; provided, however, the Seller or
the Servicer, or any successor to the Servicer, as the case may be, may not
effect any such purchase if the long-term unsecured debt obligations of the
related entity are rated less than Baa3, unless the Owner Trustee shall have
received an Opinion of Counsel that such purchase will not constitute a
fraudulent conveyance. The payment shall be made in the manner specified in
Section 6.06(a)(i), and shall be distributed pursuant to Section 6.07. In the
event that both the Seller and the Servicer, or any successor to the Servicer,
elect to purchase the Receivables pursuant to this Section, the party first
notifying the Owner Trustee (based on the Owner Trustee's receipt of such
notice) shall be permitted to purchase the Receivables.
Section 10.02. Sale of All Receivables. If none of the Seller, the
Servicer or any successor to the Servicer exercises its optional termination
right pursuant to Section 10.01 within 90 days after the last day of the
Collection Period as of which such right can first be exercised, in accordance
with the procedures and schedule set forth as Exhibit D hereto (the "Auction
Procedures"), the Indenture Trustee shall conduct an auction (the "Auction") of
the Receivables remaining in the Trust (such Receivables hereinafter referred
to as the "Auction Property") in order to effect a termination of the Trust
pursuant to Section 9.01(a)(iv) of the Trust Agreement on the second
Distribution Date succeeding the last day of the Collection Period as of which
the Pool Balance is 10% or less of the sum of the Original Pool Balance and the
Aggregate Principal Balance of all Subsequent Receivables conveyed to the Trust
as of the related Subsequent Cutoff Dates. Fleetwood Credit may, but shall not
be required to, bid at the Auction. The Indenture Trustee shall sell and
transfer the Auction Property to the highest bidder therefor at the Auction
provided that:
(a) the Auction has been conducted in accordance with the
Auction Procedures;
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(b) the Indenture Trustee has received good faith bids
for the Auction Property from at least two bidders;
(c) one or more financial advisors, as advisor to the
Indenture Trustee (each, an "Advisor"), shall have advised the
Indenture Trustee in writing that at least two of such bidders
(including the winning bidder) are participants in the market for
motor vehicle retail installment sale contracts willing and able to
purchase the Auction Property;
(d) the highest bid in respect of the Auction Property is
not less than the aggregate fair market value of the Auction Property
(as set forth in a written opinion of the Advisor to the Indenture
Trustee);
(e) any bid submitted by Fleetwood Credit or any
Affiliate of Fleetwood Credit shall reasonably represent the fair
market value of the Auction Property, as independently verified and
represented in writing by a qualified independent third party
evaluator (which may include an investment banking firm), selected by
the Indenture Trustee; and
(f) the highest bid would result in proceeds from the
sale of the Auction Property which will be at least equal to the sum
of (i) the greater of (A) the aggregate Repurchase Amount for the
Receivables (including Defaulted Receivables), plus the appraised
value of any other property held by the Trust (less liquidation
expenses) or (B) an amount that when added to amounts on deposit in
the Collection Account that would constitute Available Funds for such
second succeeding Distribution Date would result in proceeds
sufficient to distribute the sum of (I) the Note Distributable Amount
plus any unpaid Note Interest Carryover Shortfall and any unpaid Note
Principal Carryover Shortfall with respect to one or more prior
Distribution Dates and (II) the Certificate Distributable Amount plus
any unpaid Certificate Interest Carryover Shortfall and any unpaid
Certificate Principal Carryover Shortfall, and (ii) the sum of (A) an
amount sufficient to reimburse the Servicer for any unreimbursed
Advances and (B) the Servicing Fee payable on such final Distribution
Date, including any unpaid Servicing Fees with respect to one or more
prior Collection Periods.
Provided that all of the conditions set forth in clauses (a) through
(f) above have been met, the Indenture Trustee shall sell and transfer the
Auction Property, without recourse, to such highest bidder in accordance with
and upon completion of the Auction Procedures. The Indenture Trustee shall
deposit the purchase price for the Auction Property in the Collection Account
at least one Business Day prior to such second succeeding Distribution Date.
In addition, the Auction must stipulate that the Servicer be retained to
service the Receivables on terms substantially similar to those herein. In the
event that any of such conditions are not met or such highest bidder fails or
refuses to comply with any of the Auction Procedures, the Indenture Trustee
shall decline to consummate such sale and transfer. In the event such sale and
transfer is not consummated in accordance with the foregoing, however, the
Indenture Trustee may from time to time in the future, but shall not under any
further obligation to, solicit bids for sale of the assets of the Trust upon
the same terms and conditions as set forth above.
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ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Amendment.
(a) This Agreement may be amended by the parties hereto without
the consent of any Securityholder, (i) to cure any ambiguity, to correct or
supplement any provisions in this Agreement that are inconsistent with the
provisions herein, or to add any other provisions with respect to matters or
questions arising under this Agreement that shall not be inconsistent with the
provisions of this Agreement, (ii) to add or provide for any credit enhancement
for any Class of Notes or the Certificates, (iii) to the extent necessary to
reflect a change in the timing of remittances by the Servicer pursuant to
Section 6.02 or (iv) to change any provision applicable for determining the
Specified Reserve Fund Balance or amount of any Servicer Letter of Credit;
provided, however, that any such action shall not, as evidenced by an Opinion
of Counsel, materially and adversely affect the interests of any
Securityholder; and provided further, that in connection with any amendment
pursuant to clause (iii) above, the Servicer shall deliver to the Owner Trustee
a letter from each Rating Agency to the effect that such amendment will not
cause a Rating Event.
(b) This Agreement may also be amended from time to time by the
parties hereto, with the consent of the Noteholders evidencing not less than
51% of the Voting Interest thereof and Certificateholders evidencing not less
than 51% of the Voting Interest thereof, voting together as a single class, for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; provided,
however, that no such amendment shall (i) except as otherwise provided in
Section 11.01(a), increase or reduce in any manner the amount of or accelerate
or delay the timing of collections of payments on or in respect of the
Receivables or distributions on the Notes or the Certificates or (ii) reduce
the aforesaid percentage of Voting Interests with respect to which the
Noteholders or the Certificateholders are required to consent to any such
amendment, without the consent of the Securityholders affected thereby.
(c) It shall not be necessary for the consent of Securityholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Securityholders shall be subject
to such reasonable requirements as the related Trustee may prescribe.
(d) Prior to the execution of any amendment to this Agreement,
each Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement. The Indenture Trustee or the Owner Trustee may, but shall not be
obligated to, enter into any such amendment that affects such Trustee's own
rights, duties or immunities under this Agreement or otherwise.
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Section 11.02. Protection of Title to Trust.
(a) Each of the Seller and the Servicer shall execute and file
such financing statements and cause to be executed and filed such continuation
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interest of the Certificateholders,
the Letter of Credit Bank, if any, and the Trustees in the Receivables and in
the proceeds thereof. Each of the Seller and the Servicer shall deliver (or
cause to be delivered) to the Trustees file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed by the Servicer in
accordance with paragraph (a) above seriously misleading within the meaning of
Section 9-402(7) of the UCC, unless it shall have given the Trustees at least
60 days' prior written notice thereof and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Seller and the Servicer shall give the Trustees at least
60 days' prior written notice of any relocation of their respective principal
executive offices if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement and shall
promptly file any such amendment. The Servicer shall at all times maintain
each office from which it shall service the Receivables, and its principal
executive office, within the United States.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection
Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement of the Receivables to the
Trust, the Servicer's master computer records (including any back-up archives)
that refer to a Receivable shall indicate clearly the interest of the Indenture
Trustee in such Receivable and that such Receivable is owned by the Trust.
Indication of the Trust's ownership of a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only when, such
Receivable shall have been paid in full, repurchased or assigned pursuant to
this Agreement.
(f) If at any time the Seller or the Servicer shall propose to
sell, grant a security interest in or otherwise transfer any interest in any
recreational vehicle receivables to any prospective purchaser, lender or other
transferee, the Servicer shall give to such prospective purchaser, creditor or
other transferee computer tapes, records or print-outs (including any
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restored from back-up archives) that, if they shall refer in any manner
whatsoever to any Receivable, shall indicate clearly that such Receivable has
been sold and is owned by the Trust.
(g) The Servicer shall permit the Trustees and their respective
agents at any time during normal business hours and upon reasonable notice to
inspect, audit and make copies of and abstracts from the Servicer's records
regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Trustees,
within five Business Days of such request, a list of all Receivables (by
contract number and name of Obligor) then held as part of the Trust, together
with a reconciliation of such list to the Schedule of Receivables and to each
of the Servicer's Certificates furnished before such request indicating removal
of Receivables from the Trust.
(i) The Servicer shall deliver to the Indenture Trustee promptly
after the execution and delivery of this Agreement and of each amendment
thereto, an Opinion of Counsel stating that, in the opinion of such Counsel,
(i) all financing statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the interest of the
Indenture Trustee in the Receivables, and reciting the details of such filings
or referring to prior Opinions of Counsel in which such details are given or
(ii) no such action shall be necessary to preserve and protect such interest.
(j) The Seller shall, to the extent required by applicable law,
cause the Securities to be registered with the Commission pursuant to Section
12(b) or 12(g) of the Exchange Act within the time periods specified in such
sections.
Section 11.03. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of California and the obligations,
rights, and remedies of the parties hereunder shall be determined in accordance
with such laws, except that the duties of the Trustees shall be governed by the
laws of the State of New York.
Section 11.04. Notices. All demands, notices and communications
under this Agreement shall be in writing and shall be delivered or mailed by
registered or certified first class United States mail (postage prepaid, return
receipt requested), hand delivery, prepaid courier service or telecopier, and
addressed in each case as follows: (i) if the Seller or the Servicer, at 22840
Savi Ranch Parkway, Yorba Linda, California 92687, Attention: ___________,
(ii) if to the Issuer or the Owner Trustee, at the Corporate Trust Office
(with, in the case of the Issuer, a copy to the Seller), (iii) if the Indenture
Trustee, at ________________, Attention: _____________, (iv) if to Moody's, at
99 Church Street, New York, New York 10007, Attention: ABS Monitoring
Department, (v) if to Standard & Poor's, at 26 Broadway, 15th Floor, New York,
New York 10004, Attention: Asset Backed Surveillance Department, or (vi) with
respect to any of the foregoing Persons, at such other address as shall be
designated by such Person in a written notice to the other foregoing Persons.
Delivery shall occur only upon actual receipt or rejected tender of such
communication by an officer of the recipient entitled to receive such notices
located at the address of such recipient for notices hereunder. Any notice
required or permitted to be to be mailed to a Securityholder shall be given by
first class mail, postage prepaid, at the address of
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such Holder as shown in the Note Register or the Certificate Register, as the
case may be. Any notice so mailed within the time prescribed herein shall be
conclusively presumed to have been duly given, whether or not such
Securityholder shall receive such notice.
Section 11.05. Severability of Provisions. If one or more of the
covenants, agreements, provisions or terms of this Agreement (including any
amendment or supplement hereto) shall be for any reason whatsoever held invalid
or unenforceable, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement, as the same may be amended or supplemented, and shall in no
way affect the validity or enforceability of the other covenants, agreements,
provisions or terms of this Agreement or any amendment or supplement hereto or
of the Notes or Certificates or the rights of the related Securityholders.
Section 11.06. Assignment. Notwithstanding anything to the contrary
contained herein, as provided in Sections 7.03 and 8.02, this Agreement may not
be assigned by the Seller or the Servicer without the prior written consent of
Noteholders of each Class evidencing not less than 66 2/3% of the Voting
Interest of such Class and Certificateholders evidencing not less than 66 2/3%
of the Voting Interest thereof.
Section 11.07. Third Party Beneficiaries. Except as otherwise
specifically provided herein, the parties hereto hereby manifest their intent
that no third party shall be deemed a third party beneficiary of this
Agreement, and specifically that the Obligors are not third party beneficiaries
of this Agreement.
Section 11.08. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original, but all of which counterparts shall together constitute but
one and the same instrument.
Section 11.09. Table of Contents and Headings. The Table of Contents
and Article and Section headings herein are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Section 11.10. Assignment by Issuer. The Seller hereby acknowledges
and consents to any mortgage, pledge, assignment and grant of a security
interest by the Issuer to the Indenture Trustee pursuant to the Indenture for
the benefit of the Noteholders of all right, title and interest of the Issuer
in, to and under the Receivables or the assignment of any or all of the
Issuer's rights and obligations hereunder to the Indenture Trustee.
Section 11.11. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this instrument has
been countersigned by ______________ not in its individual capacity but solely
in its capacity as Owner Trustee of the Issuer and in no event shall
______________ in its individual capacity or any beneficial owner of the Issuer
have any Liability for the representations, warranties, covenants, agreements
or other obligations of the Issuer hereunder, as to all of which recourse shall
be had solely to the assets of the Issuer. For all purposes of this Agreement,
in the performance of any duties or obligations of the Issuer
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hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles Six, Seven and Eight of the Trust
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first
above written.
THE FLEETWOOD CREDIT RV
RECEIVABLES 199 - OWNER TRUST,
as Issuer
By:
----------------------------------,
as Owner Trustee
By:
----------------------------------
Name:
Title:
FLEETWOOD CREDIT RECEIVABLES
CORP.,
as Seller
By:
----------------------------------
Name:
Title:
FLEETWOOD CREDIT CORP.,
as Servicer
By:
----------------------------------
Name:
Title:
Acknowledged and accepted as of the day
and year first above written:
- --------------------------------,
as Indenture Trustee
By:
----------------------------
Name:
Title:
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SCHEDULE A
SCHEDULE OF RECEIVABLES
[Omitted--Schedule of Receivables on file at the
offices of the Seller, the Servicer, the Owner
Trustee and the Indenture Trustee.]
SA-1
<PAGE> 74
SCHEDULE B
LOCATION OF RECEIVABLE FILES
SB-1
<PAGE> 75
EXHIBIT A
[FORM OF SERVICER LETTER OF CREDIT]
____________, _____
Credit No. ___________
__________________________________
__________________________________
__________________________________
__________________________________
Attention: Corporate Trust Office
Ladies and Gentlemen:
At the request and for the account of our customer, Fleetwood Credit
Corp., a California corporation ("Fleetwood Credit"), we (the "Letter of Credit
Bank") hereby establish in your favor this Servicer Letter of Credit, wherein
you, as trustee (the "Trustee") under that certain Trust Agreement (the "Trust
Agreement") dated as of ________, 199 , between Fleetwood Credit Receivables
Corp, a California corporation. ("FCRC"), as seller (the "Seller"), and you,
pursuant to which $______________ in aggregate principal amount of ____% Money
Market Asset Backed Notes, Class A-1, ____% Floating Rate Asset Backed Notes,
Class A-2, ____% Asset Backed Notes, Class A-3 (collectively, the "Notes"), and
____% Asset Backed Certificates (the "Certificates" and, together with the
Notes, the "Securities") of the Fleetwood Credit RV Receivables 199 - Owner
Trust (the "Trust") have been issued, are hereby irrevocably authorized to draw
upon the terms and conditions hereinafter set forth, in an aggregate amount not
exceeding $_______ (hereinafter, as reduced from time to time in accordance
with the provisions hereof, the "Stated Amount"). This Servicer Letter of
Credit is effective immediately and expires at the close of business on
__________, ____ (the "Expiration Date") at the counters of the Letter of
Credit Bank's _____________ Branch. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in that certain sale
and servicing agreement, dated as of ___________, 199 (the "Sale and Servicing
Agreement"), among the Trust, the Seller and Fleetwood Credit, as servicer.
Funds under this Servicer Letter of Credit are available to you
against your written certificate signed by one who states therein that he is
your duly authorized officer, appropriately completed, in the form of Annex 1
hereto for payment of certain amounts due from, but unpaid by, Fleetwood Credit
under the Basic Documents.
A-1
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We hereby agree that each demand made under and in compliance with the
terms of this Servicer Letter of Credit will be duly honored by us upon due
delivery of the certificate(s), as specified above, appropriately completed
(together with such enclosures, if any, required thereby), if presented as
specified on or before the expiration date hereof. If a presentation in
respect of payment is made by you hereunder at or prior to 12:00 Noon, [LOS
ANGELES] time, on a Business Day, and provided that the documents so presented
conform to the terms and conditions hereof, payment shall be made to you of the
amount specified, in immediately available funds, not later than 9:00 a.m.,
[LOS ANGELES] time, on the following Business Day. If a presentation in
respect of payment is made by you hereunder after 12:00 Noon, [LOS ANGELES]
time, on a Business Day, such presentation shall be deemed to have been made
prior to 12:00 Noon, [LOS ANGELES] time, on the next succeeding Business Day.
You agree to use your best efforts to provide us telephonic notice at the time
any presentation in respect of payment is made hereunder; provided, however,
that failure to provide such telephonic notice shall not affect our obligation
to make payment in respect of any such presentation in respect of payment. If
requested by you, payment under this Servicer Letter of Credit will be wire
transferred to an account specified by you in the related certificate. As used
herein, "Business Day" shall mean any day other than a Saturday, a Sunday, or a
day on which you or banking institutions in New York, New York or [LOS
ANGELES], California shall be authorized or obligated by law, executive order
or governmental decree to be closed.
If a drawing made by you hereunder does not, in any instance, conform
to the terms and conditions of this Servicer Letter of Credit, we shall give
you prompt notice that the purported drawing was not effected in accordance
with the terms and conditions of this Servicer Letter of Credit, stating the
reasons therefor and that we are holding any documents presented in connection
therewith at your disposal or are returning the same to you, as we may elect.
Only you, as Owner Trustee, may make a drawing under this Servicer
Letter of Credit. Upon the payment of the amount specified in the related
certificate(s) presented hereunder, we shall be fully discharged of our
obligation under this Servicer Letter of Credit with respect to such
certificate(s) and we shall not thereafter be obligated to make any further
payments under this Servicer Letter of Credit in respect of such certificate(s)
to you or any other person. By paying to you an amount demanded in accordance
herewith, we make no representation as to the correctness of the amount
demanded.
This Servicer Letter of Credit shall automatically terminate at our
close of business in [LOS ANGELES], California on the first to occur of the
following dates (the "Termination Date"): (i) the Expiration Date, or if said
date shall not be a Business Day, on the Business Day next succeeding said
date, (ii) the date of receipt by us of your written certificate signed by your
authorized officer, appropriately completed, in the form of Annex 2 hereto,
(iii) the payment by us of the final drawing available to be made hereunder or
(iv) on the date specified in our letter to you in the form of Annex 5 hereto.
If we are not then in default hereunder by reason of our having wrongfully
failed to honor a demand for payment hereunder, this Servicer Letter of Credit
shall be promptly surrendered to us upon the Termination Date.
A-2
<PAGE> 77
Drawings in respect of payments hereunder honored by us shall not, in
the aggregate, exceed the Stated Amount in effect immediately prior to such
drawing. Each drawing honored by us hereunder shall pro tanto reduce the
Stated Amount in effect immediately prior to such drawing.
The Stated Amount under the Servicer Letter of Credit shall be
automatically further reduced at the close of business on the 15th day of each
month, or if such day is not a Business Day, the next following Business Day,
commencing on __________ 15, ____ (each, a "Reset Date"), so that the Stated
Amount at the close of business on such Reset Date will equal the lesser of (i)
the Stated Amount as theretofore in effect or (ii) the product of $_________
and the Reset Percentage; provided that the Stated Amount as of the close of
business on any Reset Date shall be further reduced if the Stated Amount would
otherwise exceed the Pool Balance. For purposes of this Servicer Letter of
Credit, the Reset Percentage on any Reset Date shall be equal to a fraction the
numerator of which is the number of Receivables in the Trust at the close of
business on the last day of the calendar month preceding the calendar month in
which such Reset Date occurs (as evidenced by the Servicer's Certificate for
such calendar month) and the denominator of which is the original number of
Receivables in the Trust as of _______________. Although the adjustment on
each Reset Date shall occur automatically, by acceptance of this Servicer
Letter of Credit you agree on or as soon as practicable following each Reset
Date on which any reduction has been effected pursuant to the preceding
sentence, and in any event within one Business Day after our written request
(which may be by telex or telecopier) on any subsequent date on which a drawing
certificate is presented hereunder, to deliver to us your certificate in the
form of Annex 3 hereto (each, a "Reduction Certificate"), appropriately
completed, setting forth the calculation of the Stated Amount as so adjusted;
but the failure to deliver such Reduction Certificate shall not otherwise
affect the effectiveness of any such reduction.
This Servicer Letter of Credit shall be governed by the internal laws
of the State of California, including, without limitation, Article 5 of the
Uniform Commercial Code as in effect in the State of California. This Servicer
Letter of Credit shall be supplemented by the provisions (to the extent that
such provisions are not inconsistent with this Servicer Letter of Credit and
said Article 5) of the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce, Publication No. 500, except
Article 45 thereof.
All documents presented to us in connection with any demand for
payment hereunder, as well as all notices and other communications to us in
respect of this Servicer Letter of Credit shall be in writing, or shall be
transmitted by tested telex or telecopier (promptly confirmed in either case in
writing), and shall be addressed to us at ___________________, specifically
referring thereon to this Servicer Letter of Credit by number.
You may transfer your rights under this Servicer Letter of Credit in
their entirety (but not in part) to any transferee who has succeeded you as
trustee pursuant to the Basic Documents and such transferred rights may be
successively transferred. The transfer of your rights under this Servicer
Letter of Credit to any such transferee shall be effected upon the presentation
to us of
A-3
<PAGE> 78
this Servicer Letter of Credit accompanied by a transfer letter in the form
attached hereto as Annex 4.
This Servicer Letter of Credit sets forth in full our undertaking, and
such undertaking shall not in any way be modified, amended, amplified or
limited by reference to any document, instrument or agreement referred to
herein (including, without limitation, the Certificates), except only Annexes 1
through 5 hereto; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement except as set forth
above.
Very truly yours,
-------------------------------
By:
---------------------------
Name:
Title:
A-4
<PAGE> 79
ANNEX 1 TO SERVICER
LETTER OF CREDIT NO. ___
CERTIFICATE FOR "ANNEX 1 DRAWING"
The undersigned, ___________________, as trustee (the "Owner
Trustee"), acting through the undersigned duly authorized officer of the Owner
Trustee, hereby certifies to _____________________ (the "Letter of Credit
Bank"), with reference to the Bank's Servicer Letter of Credit No. __________
(the "Servicer Letter of Credit"; any capitalized terms used herein that are
not otherwise defined shall have the meanings ascribed thereto in the Servicer
Letter of Credit) issued in favor of the Owner Trustee, that:
(1) The Owner Trustee is the Owner Trustee under the
Basic Documents.
(2) Fleetwood Credit, as servicer ("Servicer") under the
Basic Documents, has notified us, as Owner Trustee under the Basic
Documents, pursuant to a Servicer's Certificate (a copy of which is
attached hereto) furnished pursuant to Section 5.08 of the Sale and
Servicing Agreement that the following amount was required to be
remitted by the Servicer to the Collection Account pursuant to the
Sale and Servicing Agreement with respect to the Distribution Date
occurring on [insert applicable Distribution Date]: $[insert amount
required to be remitted].
(3) Fleetwood Credit has failed to deposit the following
portion of amounts owed by it with respect to such Distribution Date
as set forth in paragraph (2) above: $[insert amount of deficiency].
(4) The Owner Trustee is making a drawing under the
Servicer Letter of Credit in the amount of $__________ which amount
equals the lesser of (a) the amount set forth in paragraph (3) and (b)
the amount identified by the Servicer in the Servicer's Certificate
referred to in paragraph (2) above as being available on the date
hereof to be drawn under the Servicer Letter of Credit.
(5) The Owner Trustee has not received notice from
Fleetwood Credit or any other person or entity contesting the accuracy
of such Servicer's Certificate.
(6) The account to which payment under the Servicer
Letter of Credit is to be wire transferred is Account No. __________,
maintained at ________________________.
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IN WITNESS WHEREOF, the Owner Trustee has executed and delivered this
certificate as of the _____ day of ___________.
-------------------------------
as Owner Trustee
By:
---------------------------
Name:
Title:
A-6
<PAGE> 81
ANNEX 2 TO SERVICER
LETTER OF CREDIT NO. ___
CERTIFICATE FOR THE TERMINATION
OF SERVICER LETTER OF CREDIT NO. ___
The undersigned, a duly authorized officer of _______________, as
trustee (the "Owner Trustee"), hereby certifies to __________________ (the
"Letter of Credit Bank") with reference to the Servicer Letter of Credit Bank's
Irrevocable Servicer Letter of Credit No. __________ (the "Servicer Letter of
Credit"; capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Servicer Letter of Credit) issued in
favor of the Owner Trustee, that [the Sale and Servicing Agreement has been
terminated in accordance with its terms and the Collection Account defined
therein contains sufficient funds to pay in full all outstanding Securities
issued thereunder] or [in accordance with Section 4.01 of the Sale and
Servicing Agreement, the Servicer Letter of Credit has been terminated on the
date hereof] or [the Owner Trustee has received the Letter of Credit Bank's
letter in the form of Annex 5 to the Servicer Letter of Credit].* Accordingly,
we herewith return to you for cancellation the Servicer Letter of Credit which
is terminated, as of the date hereof, pursuant to its terms.
Date: __________________
-----------------------------
as Owner Trustee
By:
-------------------------
Authorized Officer
- -------------------------------------
* Select appropriate alternative.
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ANNEX 3 TO SERVICER
LETTER OF CREDIT NO. ___
CERTIFICATE FOR THE REDUCTION OF THE STATED
AMOUNT OF SERVICER LETTER OF CREDIT NO. ___
The undersigned, a duly authorized officer of _____________________,
as trustee (the "Owner Trustee"), hereby certifies to _______________ (the
"Letter of Credit Bank") with reference to the Letter of Credit Bank's Servicer
Letter of Credit No. __________ (the "Servicer Letter of Credit"; capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in the Servicer Letter of Credit) issued in favor of the Owner
Trustee, that:
(1) The Owner Trustee is the Owner Trustee under the
Basic Documents.
(2) On the basis of the Servicer's Certificate attached
hereto, the Owner Trustee hereby confirms that effective [insert Reset
Date] the Stated Amount of the Servicer Letter of Credit has been
reduced from $__________ to $__________, which amount equals the
product of $__________ and the Reset Percentage; provided that if the
Stated Amount would exceed the Pool Balance set forth in such
certificate as of the end of last month, the Stated Amount shall be
reduced to the amount of the Pool Balance.
(3) This Certificate has been prepared and presented in
strict compliance with the terms of the Sale and Servicing Agreement
and the Servicer Letter of Credit.
IN WITNESS WHEREOF, the Owner Trustee has executed and delivered this
certificate as of the _______ day of __________, ____.
,
------------------------------
as Owner Trustee
By:
---------------------------
Name:
Title:
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<PAGE> 83
ANNEX 4 TO SERVICER
LETTER OF CREDIT NO. ___
_____________, _____
__________________________________
__________________________________
__________________________________
__________________________________
Re: Servicer Letter of Credit No. _________
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
----------------------------------
(Name and Address of Transferee)
all rights of the undersigned beneficiary to draw under the above-captioned
Servicer Letter of Credit (the "Servicer Letter of Credit"). The transferee
has succeeded the undersigned as Owner Trustee under the Sale and Servicing
Agreement (as defined in the Servicer Letter of Credit).
By this transfer, all rights of the undersigned beneficiary in the
Servicer Letter of Credit are transferred to the transferee and the transferee
shall hereafter have the sole rights as beneficiary thereof; provided, however,
that no rights shall be deemed to have been transferred to the transferee until
such transfer complies with the requirements of the Servicer Letter of Credit
pertaining to transfers.
The Servicer Letter of Credit is returned herewith and in accordance
therewith we ask that this transfer be effective and that you cause the
transfer of the Servicer Letter of Credit to
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our transferee or that, if so requested by the transferee, you cause the
issuance of a new Servicer Letter of Credit in favor of the transferee with
provisions consistent with the Servicer Letter of Credit.
Very truly yours,
--------------------------------------
as predecessor Owner Trustee
By:
----------------------------------
Name:
Title:
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<PAGE> 85
ANNEX 5 TO SERVICER
LETTER OF CREDIT NO. ___
________,___
[Insert name of Beneficiary]
[Address]
Attention: _______________
Re: Servicer Letter of Credit No. ____
of __________
Ladies and Gentlemen:
On the date hereof we have received notice from Fleetwood Credit Corp.,
a California corporation ("Fleetwood Credit"), that its short-term rating has
been upgraded to [the Required Servicer Rating] by [insert name of applicable
Rating Agency].
[On the date hereof, as a result of such upgrading] or [At the close
of business on the [immediately] [second]* succeeding Distribution Date (as
defined in the Servicer Letter of Credit) following the date hereof, as a
result of such downgrading]**, the Servicer Letter of Credit is hereby
terminated. Please deliver the Servicer Letter of Credit to us for
cancellation as soon as practicable following such date, accompanied by your
certificate in the form of Annex 2 to the Servicer Letter of Credit.
Very truly yours,
------------------------------
By:
----------------------------
Name:
Title:
- -------------------------------
* Insert "immediately" if the date of this letter is after the 15th day of
the month. Insert "second" if the date of this letter is on or prior to
the 15th day of the month.
** Select appropriate alternative.
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<PAGE> 86
EXHIBIT B
FORM OF TRANSFER AGREEMENT
TRANSFER NO. __ OF SUBSEQUENT RECEIVABLES, dated __________, 199__,
among FLEETWOOD CREDIT CORP., a California corporation ("Fleetwood
Credit"), FLEETWOOD CREDIT RECEIVABLES CORP., a California corporation
(the "Seller"), and _______________, as trustee (the "Trustee")
pursuant to the Sale and Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Fleetwood Credit, the Seller and the Trustee are parties to
the Sale and Servicing Agreement, dated as of _________ 1, 199 (the "Sale and
Servicing Agreement");
WHEREAS, Fleetwood Credit and the Seller are parties to the
Receivables Purchase Agreement, dated as of _________ 1, 199 (the "Receivables
Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, Fleetwood
Credit desires to convey certain Subsequent Receivables (as hereinafter
defined) to the Seller and pursuant to the Sale and Servicing Agreement and
this Agreement the Seller desires to convey such Subsequent Receivables to the
Trust; and
WHEREAS, the Trustee is willing to accept such conveyance subject to
the terms and conditions hereof;
NOW, THEREFORE, the Trustee, the Seller and Fleetwood Credit hereby
agree as follows:
Section 1. Defined Terms. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Sale and
Servicing Agreement.
"Agreement" means this Transfer Agreement and all amendments and
supplements hereto.
"Subsequent Cutoff Date" means, with respect to the Subsequent
Receivables conveyed hereby, ________ 1, 199__.
"Subsequent Receivables" means the Receivables identified on the
supplement to Schedule A to the Sale and Servicing Agreement attached hereto.
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<PAGE> 87
"Subsequent Transfer Date" means, with respect to the Subsequent
Receivables conveyed hereby, __________, 199__.
Section 2. Schedule of Receivables. Annexed hereto is a supplement
to Schedule A to the Sale and Servicing Agreement listing the Subsequent
Receivables to be conveyed by the Seller to the Trust pursuant to this
Agreement on the Subsequent Transfer Date.
Section 3. Conveyance of Subsequent Receivables. Subject to the
conditions set forth in Section 5, in consideration of the Trustee's delivery
on behalf of the Trust to or upon the order of the Seller of an amount equal to
$__________ (i.e., the aggregate Principal Balance of the Subsequent
Receivables as of the Subsequent Cutoff Date), the Seller does hereby sell,
transfer, assign and otherwise convey to the Trust, without recourse (subject
to the Seller's obligations hereunder):
(a) all right, title and interest of the Seller in and to
the Subsequent Receivables listed on Schedule A and all monies due
thereon and paid thereon or in respect thereof (including proceeds of
the repurchase of such Subsequent Receivables by the Seller pursuant
to Section 3.02 or 10.01 of the Sale and Servicing Agreement or the
purchase of such Subsequent Receivables by Fleetwood Credit pursuant
to Section 5.06 or 10.01 of the Sale and Servicing Agreement) on or
after the Subsequent Cutoff Date;
(b) the interest of the Seller in the security interests
in the related Financed Vehicles granted by the related Obligors
pursuant to such Subsequent Receivables;
(c) the interest of the Seller in any Liquidation
Proceeds, in any proceeds of any physical damage Insurance Policies
covering the related Financed Vehicles and in any proceeds of any
credit life or credit disability Insurance Policies relating to such
Subsequent Receivables or the related Obligors;
(d) the interest of the Seller in any proceeds from
Dealer repurchase obligations relating to such Subsequent Receivables;
and
(e) all proceeds of the foregoing.
Section 4. Representations and Warranties of the Seller.
(a) The Seller does hereby make the following representations on
which the Trustee may rely in accepting the Subsequent Receivables in trust
pursuant to the Sale and Servicing Agreement. The representations shall speak
as of the execution and delivery of this Agreement and as of the Subsequent
Transfer Date, and in each case shall survive the sale, transfer and assignment
of the Subsequent Receivables to the Trustee.
(i) Organization and Good Standing. The Seller shall
have been duly organized and shall be validly existing as a
corporation in good standing under the laws of the State of
California, with power and authority to own its properties and to
conduct
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its business as such properties are currently owned and such business
is presently conducted, and had at all relevant times, and shall now
have, power, authority and legal right to acquire, own and sell the
Subsequent Receivables.
(ii) Due Qualification. The Seller shall be duly
qualified to do business as a foreign corporation in good standing,
and shall have obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(iii) Power and Authority. The Seller shall have the power
and authority to execute and deliver this Agreement and to carry out
its terms; the Seller shall have full power and authority to sell and
assign the property to be sold and assigned to and deposited with the
Trustee as part of the Trust and shall have duly authorized such sale
and assignment to the Trustee by all necessary corporate action; and
the execution, delivery and performance of this Agreement shall have
been duly authorized by the Seller by all necessary corporate action.
(iv) Valid Sale; Binding Obligations. This Agreement
shall evidence a valid sale, transfer and assignment of the Subsequent
Receivables, enforceable against creditors of and purchasers from the
Seller; and shall constitute a legal, valid and binding obligation of
the Seller enforceable against the Seller in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability shall be
considered in a Proceeding in equity or at law.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of
this Agreement shall not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or
bylaws of the Seller, or conflict with or breach any of the material
terms or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement or other instrument
to which the Seller is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument (other than this Agreement, the Receivables Purchase
Agreement and the Sale and Servicing Agreement); nor violate any law
or, to the best of the Seller's knowledge, any order, rule or
regulation applicable to Seller of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties.
(vi) No Proceedings. There are no Proceedings or
investigations pending or, to the best knowledge of the Seller,
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:
(A) asserting the invalidity of this Agreement, (B) seeking to prevent
the consummation of any of the transactions
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<PAGE> 89
contemplated by this Agreement, or (C) seeking any determination or
ruling that might materially and adversely affect the performance by
the Seller of its obligations under, or the validity or enforceability
of, this Agreement.
(b) The Seller does hereby make the following representations and
warranties as to the Subsequent Receivables on which the Trustee may rely in
accepting the Subsequent Receivables in trust. The representations shall speak
as of the execution and delivery of this Agreement and as of the Subsequent
Transfer Date, and in each case shall survive the sale, transfer and assignment
of the Subsequent Receivables to the Trustee.
(i) Characteristics of Subsequent Receivables. Each Subsequent
Receivable (A) shall have been originated in the United States by a Dealer for
the retail sale of the related Financed Vehicle in the ordinary course of such
Dealer's business, shall have been fully and properly executed by the parties
thereto, shall have been purchased by Fleetwood Credit from such Dealer under
an agreement with Fleetwood Credit and shall have been validly assigned by such
Dealer to Fleetwood Credit in accordance with its terms and shall have been
subsequently sold by Fleetwood Credit to the Seller; (B) shall have created or
shall create a valid, subsisting and enforceable first priority security
interest in favor of Fleetwood Credit in the related Financed Vehicle, which
security interest has been assigned by Fleetwood Credit to the Seller, and
shall be assignable, and shall be so assigned, by the Seller to the Trustee;
(C) shall contain customary and enforceable provisions such that the rights and
remedies of the holder thereof shall be adequate for the realization against
the collateral of the benefits of the security; (D) shall provide for level
monthly payments (provided that the payment in the first or last month in the
life of the Subsequent Receivable may be minimally different from the level
payment) that fully amortize the Amount Financed by maturity and yield interest
at its APR; and (E) shall provide for, in the event that such Subsequent
Receivable is prepaid, a prepayment that fully pays the Principal Balance and
includes accrued but unpaid interest at least through the date of prepayment in
an amount calculated by using an interest rate at least equal to its APR.
(ii) Schedule of Receivables. The information set forth
in the supplement to the Schedule of Receivables annexed hereto shall
be true and correct in all material respects as of the opening of
business on the Subsequent Cutoff Date, and no selection procedure
adverse to the Certificateholders shall have been utilized in
selecting the Subsequent Receivables from those Receivables of
Fleetwood Credit which met the selection criteria set forth in this
Section.
(iii) Compliance with Law. Each Subsequent Receivable and
each sale of the related Financed Vehicle shall have complied at the
time it was originated or made, and shall comply at the time of
execution of this Agreement in all material respects with all
requirements of applicable federal, state and local laws, and
regulations thereunder, including usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, Federal Reserve Board Regulations B and Z,
state adaptations of the National Consumer
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Act and of the Uniform Consumer Credit Code and other consumer credit,
equal credit opportunity and disclosure laws.
(iv) Binding Obligation. Each Subsequent Receivable shall
constitute the genuine, legal, valid and binding payment obligation in
writing of the related Obligor, enforceable by the holder thereof in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation and other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity regardless of whether such enforceability
shall be considered in a Proceeding in equity or at law.
(v) No Government Obligor. None of the Subsequent
Receivables shall be due from the United States or any state or local
government thereof or from any agency, department or instrumentality
of the United States or any state or local government.
(vi) Security Interest in Financed Vehicles. Immediately
prior to the sale, assignment and transfer thereof, each Subsequent
Receivable shall be secured by a validly perfected first security
interest in the related Financed Vehicle in favor of Fleetwood Credit
as secured party or all necessary and appropriate action with respect
to such Subsequent Receivable shall have been taken to perfect a first
priority security interest in such Financed Vehicle in favor of
Fleetwood Credit as secured party.
(vii) Receivables in Force. No Subsequent Receivable shall
have been satisfied, subordinated or rescinded, nor shall any related
Financed Vehicle have been released from the Lien granted by the
related Subsequent Receivable in whole or in part.
(viii) No Waiver. No provision of a Subsequent Receivable
shall have been waived in such a manner that such Subsequent
Receivable fails to meet all of the other representations and
warranties made by the Seller herein with respect thereto.
(ix) No Amendments. No Subsequent Receivable shall have
been amended in such a manner that such Subsequent Receivable fails to
meet all of the other representations and warranties made by the
Seller herein with respect thereto.
(x) No Defenses. No facts shall be known to the Seller
that would give rise to any right of rescission, setoff, counterclaim
or defense, nor shall the same have been asserted or threatened with
respect to any Subsequent Receivable.
(xi) No Liens. To the knowledge of the Seller, no Liens
or Claims shall have been filed, including Liens for work, labor or
materials relating to a Subsequent Financed Vehicle, that shall be
liens prior to, or equal or coordinate with, the security interest in
such Financed Vehicle granted by the related Subsequent Receivable.
(xii) No Default. Except for payment defaults continuing
for a period of not more than 30 days as of the Subsequent Cutoff
Date, no default, breach, violation or
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event permitting acceleration under the terms of any Subsequent
Receivable shall have occurred; and no continuing condition that with
notice or the lapse of time would constitute a default, breach,
violation or event permitting acceleration under the terms of any
Subsequent Receivable shall have arisen; and the Seller shall not have
waived any of the foregoing.
(xiii) Insurance. Fleetwood Credit, in accordance with its
customary servicing procedures, shall have determined that each
Obligor has obtained physical damage insurance covering the related
Financed Vehicle.
(xiv) Good Title. It is the intention of the Seller that
the transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Subsequent Receivables from the Seller to the
Trust and that the beneficial interest in and title to the Subsequent
Receivables not be a part of the debtor's estate in the event of a
filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Subsequent Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the
Trustee, and no provision of a Subsequent Receivable shall have been
waived, except as provided in clause (viii) above; immediately prior
to the transfer and assignment herein contemplated, the Seller had
good and marketable title to each Subsequent Receivable free and clear
of all Liens and rights of others; immediately upon the transfer and
assignment thereof, the Trustee, for the benefit of the
Certificateholders, shall have good and marketable title to each
Subsequent Receivable, free and clear of all Liens and rights of
others; and the transfer and assignment herein contemplated has been
perfected under the UCC.
(xv) Lawful Assignment. No Subsequent Receivable shall
have been originated in, or shall be subject to the laws of, any
jurisdiction under which the sale, transfer and assignment of such
Subsequent Receivable under the Agreement or pursuant to transfers of
the Certificates shall be unlawful, void or voidable.
(xvi) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Trustee a first
perfected ownership interest in the Subsequent Receivables shall have
been made.
(xvii) One Original. There shall be only one original
executed copy of each Subsequent Receivable.
(xviii) Additional Representations and Warranties. (A) Each
Subsequent Receivable shall have an original maturity of not less than
___ months nor greater than ___ months and, as of the Subsequent
Cutoff Date, a scheduled remaining maturity of not less than ___
months nor greater than ___ months; (B) the weighted average remaining
term of the Receivables (including the Subsequent Receivables) as of
the Subsequent Transfer Date shall not be greater than ___ months; (C)
each Subsequent Receivable shall have an Annual Percentage Rate equal
to or greater than ____% and equal to or less than ____%; (D) the
weighted average APR of the Receivables (including the Subsequent
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<PAGE> 92
Receivables) is not less than ____%; (E) each Subsequent Receivable
shall have no payment that is more than 30 days past due as of the
related Subsequent Cutoff Date; (F) such Subsequent Receivables were
originated on or prior to __________, 199__; and (G) the related
Receivable Files shall be kept at one or more of the locations listed
in Schedule B to the Sale and Servicing Agreement.
Section 5. Conditions Precedent. The obligation of the Trust to
acquire the Subsequent Receivables hereunder is subject to the satisfaction, on
or prior to the Subsequent Transfer Date, of the following conditions
precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by (i) Fleetwood Credit in Section 2.03 of the Receivables
Purchase Agreement and (ii) the Seller in Section 4 of this Agreement and
Section 3.01 of the Sale and Servicing Agreement, shall be true and correct as
of the date of this Agreement and as of the Subsequent Transfer Date.
(b) Sale and Servicing Agreement Conditions. Each of the
conditions set forth in Section 2.02(b) to the Sale and Servicing
Agreement shall have been satisfied.
(c) Receivables Purchase Agreement Conditions. Fleetwood
Credit shall have complied with the requirements of Section 2.03 of
the Receivables Purchase Agreement and shall have delivered all
documents required to be delivered pursuant to Section 2.01 of the
Receivables Purchase Agreement.
(d) Security Interest Perfection. In connection with the
conveyance contemplated by this Agreement, the Seller agrees to record
and file, at its own expense, a financing statement with respect to
the related Subsequent Receivables now existing and hereafter created
for the sale of chattel paper (as defined in Section 9105 of the UCC
as in effect in the State of California) meeting the requirements of
applicable state law in such manner as is sufficient to perfect the
sale and assignment of such Subsequent Receivables to the Trust, and
the proceeds thereof (and any continuation statements as are required
by applicable state law), and to deliver a file-stamped copy of each
such financing statement (or continuation statement) or other evidence
of such filings (which may, for purposes of this Section, consist of
telephone confirmation of such filing with the file-stamped copy of
each such filing to be provided to the Trustee in due course), as soon
as is practicable after the Seller's receipt thereof.
In connection with such conveyance, the Seller further agrees,
at its own expense, on or prior to the Subsequent Transfer Date (i) to
annotate and indicate in its computer files that the Subsequent
Receivables have been transferred to the Trust pursuant to the
Agreement and (ii) to deliver to the Trustee a computer file printed
or microfiche list containing a true and complete list of all such
Subsequent Receivables, identified by account number and by the
Principal Balance of each Subsequent Receivable as of the related
Subsequent Cutoff Date.
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(e) Additional Information. The Seller shall have
delivered to the Trustee on behalf of the Trust such information as
was reasonably requested by the Trustee on behalf of the Trust to
satisfy itself as to (i) the accuracy of the representations and
warranties set forth in Section 4 of this Agreement and Section 3.01
of the Sale and Servicing Agreement and (ii) the satisfaction of the
conditions set forth in this Section.
The Trustee shall not be required to investigate or otherwise verify
satisfaction of the conditions listed above, but shall be entitled to
conclusively rely upon Opinions of Counsel and Officer's Certificates of the
Servicer confirming such fulfillment.
Section 6. Ratification of Agreement. As supplemented by this
Agreement, the Sale and Servicing Agreement is in all respects ratified and
confirmed and the Sale and Servicing Agreement as so supplemented by this
Agreement shall be read, taken and construed as one and the same instrument.
Section 7. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of California and the obligations, rights
and remedies of the parties under this Agreement shall be determined in
accordance with such laws; provided, however, the immunities, authority and
standard of care of the Trustee shall be governed by the jurisdiction in which
its principal office is located.
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IN WITNESS WHEREOF, the Trustee, Fleetwood Credit and the Seller have
caused this Agreement to be duly executed and delivered by their respective
duly authorized officers as of the day and the year first above written.
FLEETWOOD CREDIT CORP.
By:
----------------------------------
Name:
Title:
FLEETWOOD CREDIT RECEIVABLES CORP.
By:
----------------------------------
Name:
Title:
--------------------------------,
as Trustee
By:
----------------------------------
Name:
Title:
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<PAGE> 95
EXHIBIT C
AUCTION PROCEDURES
The following sets forth the auction procedures (the "Auction
Procedures") to be followed in connection with a sale effected pursuant to
Section 10.02 of the Sale and Servicing Agreement, dated as of __________ 1,
199 (the "Agreement"), among Fleetwood Credit Receivables Corp., as Seller,
Fleetwood Credit Corp., as Servicer, and the Fleetwood Credit RV Receivables
199 - Owner Trust (the "Trust"). Capitalized terms used herein that are not
otherwise defined shall have the meanings described thereto in the Agreement.
I. Pre-Auction Process
(a) Upon receiving notice of the Auction Date, the
Advisor will initiate its general Auction procedures consisting of the
following: (i) with the assistance of the Servicer, prepare a general
solicitation package along with a confidentiality agreement; (ii)
derive a list of qualified bidders, in a commercially reasonable
manner; (iii) initiate contact with all qualified bidders; (iv) send a
confidentiality agreement to all qualified bidders; (v) upon receipt
of a signed confidentiality agreement, send solicitation packages to
all interested bidders on behalf of the Indenture Trustee; and (vi)
notify the Servicer of all potential bidders and anticipated
timetable.
(b) The general solicitation package will include: (i)
the prospectus from the public offering of the Securities; (ii) a copy
of all monthly servicing reports or a copy of all annual servicing
reports and the prior year's monthly servicing reports; (iii) a form
of a Purchase and Sale Agreement and Servicing Agreement; (iv) a
description of the minimum purchase price required to cause the
Indenture Trustee to sell the Auction Property as set forth in Section
10.02 of the Agreement; (v) a formal bidsheet; (vi) a detailed
timetable; and (vii) a preliminary data tape of the Pool Balance as of
the related Distribution Date reflecting the same data attributes used
to create the Initial Cutoff Date tables for the prospectus dated
____________, 199 relating to the public offering of the Securities.
(c) The Indenture Trustee, with the assistance of the
Servicer and the Advisor, will maintain an auction package beginning
at the time of closing of the transaction, which will contain terms
(i) through (iii) listed in the preceding paragraph. If the Advisor
is unable to perform its role as advisor to the Indenture Trustee, the
Servicer acting in its capacity under the Agreement will select a
successor Advisor and inform the Indenture Trustee of its actions.
(d) The Advisor will send solicitation packages to all
bidders at least 15 Business Days before the Auction Date. Bidders
will be required to submit any due diligence questions in writing to
the Advisor for determination of their relevancy, no later
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<PAGE> 96
than ten Business Days before the Auction Date. The Servicer and the
Advisor will be required to satisfy all relevant questions at least
five Business Days prior to the Auction Date and distribute the
questions and answers to all bidders.
II. Auction Process
(a) ________________ and/or ____________ (the
"Underwriters"), in their roles as Advisor to the Indenture Trustee,
will be allowed to bid in the Auction, but will not be required to do
so.
(b) The Servicer will also be allowed to bid in the
Auction if it deems appropriate, but will not be required to do so.
(c) On the Auction Date, all bids will be due by
facsimile to the offices of the Indenture Trustee by 1:00 p.m., New
York City time, with the winning bidder to be notified by 2:00 p.m.,
New York City time. All acceptable bids (as described in Section
10.02 of the Agreement) will be due on a conforming basis on the bid
sheet contained in the solicitation package.
(d) If the Indenture Trustee receives fewer than two
market value bids from participants in the market for motor vehicle
retail installment sale contracts willing and able to purchase the
Auction Property, the Indenture Trustee shall decline to consummate
the sale.
(e) Upon notification to the winning bidder, a good faith
deposit equal to 1% of the Pool Balance will be required to be wired
to the Indenture Trustee upon acceptance of the bid. This deposit,
along with any interest income attributable to it, will be credited to
the purchase price but will not be refundable. The Indenture Trustee
will establish a separate account for the acceptance of the good faith
deposit, until such time as the account is fully funded and all monies
are transferred into the Collection Account, such time not to exceed
one Business Day before the related Distribution Date (as described
above).
(f) The winning bidder will receive on the Auction Date a
copy of the draft Purchase and Sale Agreement, Servicing Agreement and
Servicer's Representations and Warranties (which shall be
substantially identical to the representations and warranties set
forth in Section 5.05 of the Agreement).
(g) Either Underwriter, in its capacity as Advisor to the
Indenture Trustee, will provide to the Indenture Trustee a letter
concluding whether or not the winning bid is a fair market value bid.
Such Underwriter will also provide this letter if it is the winning
bidder. In the case where such Underwriter or the Servicer is the
winning bidder it will in its letter provide for market comparables
and valuations.
C-2
<PAGE> 97
(h) The Auction will stipulate that the Servicer be
retained to service the Receivables sold pursuant to the terms of the
Purchase and Sale Agreement and Servicing Agreement.
C-3
<PAGE> 98
EXHIBIT D
[FCRC LETTERHEAD]
__________, 199
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10017
Standard & Poor's, a division of
The McGraw-Hill Companies, Inc.
25 Broadway
New York, New York 10017
____________________
____________________
____________________
Re: Fleetwood Credit RV Receivables 199 - Owner Trust
Asset-Backed Securities
Dear Sirs:
Reference is made to that certain Sale and Servicing Agreement, dated
as of ____________ 1, 199 (the "Sale and Servicing Agreement"), among
Fleetwood Credit Corp., as servicer (the "Servicer"), Fleetwood Credit
Receivables Corp., as seller (the "Seller"), and the Fleetwood Credit RV
Receivables 199 - Owner Trust (the "Trust"). Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Sale and Servicing Agreement.
Pursuant to Section 2.02 of the Sale and Servicing Agreement, you are
hereby notified that the Seller intends to sell to the Trust on __________,
199__ (the "Subsequent Transfer Date") the Subsequent Receivables described in
Exhibit A attached hereto. In this regard, please be advised of the following:
(i) The Subsequent Cutoff Date with respect to each
Subsequent Receivable originated prior to __________, 199__ is
__________, 199__;
(ii) The Subsequent Cutoff Date with respect to each
Subsequent Receivable originated on or after __________, 199__ is its
date of origination;
(iii) The Aggregate Principal Balance of Subsequent
Receivables, as of the related Subsequent Cutoff Dates, to be sold to
the Trust on the Subsequent Transfer Date specified above is
$___________; and
D-1
<PAGE> 99
(iv) The Aggregate Principal Balance of Subsequent
Receivables sold to the Trust as of the related Subsequent Cutoff
Dates, after giving effect to the transaction contemplated herein,
equals $__________ [Note: must be less than or equal to
$_____________, after giving effect to all transfers of Subsequent
Receivables].
Very truly yours,
FLEETWOOD CREDIT RECEIVABLES CORP.
By:
-----------------------------------
Name:
Title:
D-2
<PAGE> 1
EXHIBIT 10.3
TRANSFER AGREEMENT
TRANSFER NO. ___ OF SUBSEQUENT RECEIVABLES, dated ____________, 199__,
among FLEETWOOD CREDIT CORP., a California corporation ("Fleetwood
Credit"), FLEETWOOD CREDIT RECEIVABLES CORP., a California corporation
(the "Seller"), and _________, as trustee (the "Trustee") pursuant to
the Pooling and Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Fleetwood Credit, the Seller and the Trustee are parties to
the Pooling and Servicing Agreement, dated as of _________ 1, 199__ (the
"Pooling and Servicing Agreement");
WHEREAS, Fleetwood Credit and the Seller are parties to the
Receivables Purchase Agreement, dated as of __________ 1, 199__ (the
"Receivables Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, Fleetwood
Credit desires to convey certain Subsequent Receivables (as hereinafter
defined) to the Seller and pursuant to the Pooling and Servicing Agreement and
this Agreement the Seller desires to convey such Subsequent Receivables to the
Trust; and
WHEREAS, the Trustee is willing to accept such conveyance subject to
the terms and conditions hereof.
NOW, THEREFORE, the Trustee, the Seller and Fleetwood Credit hereby
agree as follows:
Section 1. Defined Terms. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement.
"Agreement" means this Transfer Agreement and all amendments hereof
and supplements hereto.
"Subsequent Cutoff Date" means, with respect to the Subsequent
Receivables conveyed hereby, _________, 199__.
"Subsequent Receivables" means the Receivables identified on the
supplement to Schedule A to the Pooling and Servicing Agreement attached
hereto.
<PAGE> 2
"Subsequent Transfer Date" means, with respect to the Subsequent
Receivables conveyed hereby, ___________, 199__.
Section 2. Schedule of Receivables. Annexed hereto is a supplement
to Schedule A to the Pooling and Servicing Agreement listing the Subsequent
Receivables to be conveyed by the Seller to the Trust pursuant to this
Agreement on the Subsequent Transfer Date.
Section 3. Conveyance of Subsequent Receivables. Subject to the
conditions set forth in Section 5 hereof, in consideration of the Trustee's
delivery on behalf of the Trust to or upon the order of the Seller of an amount
equal to $___________ (i.e., the aggregate Principal Balance of the Subsequent
Receivables as of the Subsequent Cutoff Date), the Seller does hereby sell,
transfer, assign and otherwise convey to the Trust, without recourse (subject
to the Seller's obligations hereunder):
(a) all right, title and interest of the Seller in and to
the Subsequent Receivables listed on Schedule A hereto and all monies
due thereon and paid thereon or in respect thereof (including proceeds
of the repurchase of such Subsequent Receivables by the Seller
pursuant to Section 12.02 or 21.02 of the Pooling and Servicing
Agreement or the purchase of such Subsequent Receivables by Fleetwood
Credit pursuant to Section 13.07 or 21.02 of the Pooling and Servicing
Agreement) on or after the Subsequent Cutoff Date;
(b) the interest of the Seller in the security interests
in the related Financed Vehicles granted by the related Obligors
pursuant to such Subsequent Receivables;
(c) the interest of the Seller in any Liquidation
Proceeds, in any proceeds of any physical damage insurance policies
covering the related Financed Vehicles and in any proceeds of any
credit life or credit disability insurance policies relating to such
Subsequent Receivables or the related Obligors;
(d) the interest of the Seller in any proceeds from
Dealer repurchase obligations relating to such Subsequent Receivables;
and
(e) all proceeds of the foregoing.
Section 4. Representations and Warranties of the Seller.
(a) The Seller does hereby make the following representations on
which the Trustee shall rely in accepting the Subsequent Receivables in trust
pursuant to the Pooling and Servicing Agreement. The representations shall
speak as of the execution and delivery of this Agreement and as of the
Subsequent Transfer Date, and in each case shall survive the sale, transfer and
assignment of the Subsequent Receivables to the Trustee.
2
<PAGE> 3
(i) Organization and Good Standing. The Seller shall
have been duly organized and shall be validly existing as a
corporation in good standing under the laws of the State of
California, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is presently conducted, and had at all relevant times, and
shall now have, power, authority and legal right to acquire, own and
sell the Subsequent Receivables.
(ii) Due Qualification. The Seller shall be duly
qualified to do business as a foreign corporation in good standing,
and shall have obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(iii) Power and Authority. The Seller shall have the power
and authority to execute and deliver this Agreement and to carry out
its terms; the Seller shall have full power and authority to sell and
assign the property to be sold and assigned to and deposited with the
Trustee as part of the Trust and shall have duly authorized such sale
and assignment to the Trustee by all necessary corporate action; and
the execution, delivery and performance of this Agreement shall have
been duly authorized by the Seller by all necessary corporate action.
(iv) Valid Sale; Binding Obligations. This Agreement
shall evidence a valid sale, transfer and assignment of the Subsequent
Receivables, enforceable against creditors of and purchasers from the
Seller; and shall constitute a legal, valid and binding obligation of
the Seller enforceable against the Seller in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or at law.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of
this Agreement shall not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or
bylaws of the Seller, or conflict with or breach any of the material
terms or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement or other instrument
to which the Seller is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument (other than this Agreement, the Receivables Purchase
Agreement and the Pooling and Servicing Agreement); nor violate any
law or, to the best of the Seller's knowledge, any order, rule or
regulation applicable to Seller of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties.
3
<PAGE> 4
(vi) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Seller,
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:
(a) asserting the invalidity of this Agreement, (b) seeking to prevent
the consummation of any of the transactions contemplated by this
Agreement, or (c) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this
Agreement.
(b) The Seller does hereby make the following representations and
warranties as to the Subsequent Receivables on which the Trustee shall rely in
accepting the Subsequent Receivables in trust. The representations shall speak
as of the execution and delivery of this Agreement and as of the Subsequent
Transfer Date, and in each case shall survive the sale, transfer and assignment
of the Subsequent Receivables to the Trustee.
(i) Characteristics of Subsequent Receivables. Each
Subsequent Receivable (a) shall have been originated in the United
States by a Dealer for the retail sale of the related Financed Vehicle
in the ordinary course of such Dealer's business, shall have been
fully and properly executed by the parties thereto, shall have been
purchased by Fleetwood Credit from such Dealer under an agreement with
Fleetwood Credit and shall have been validly assigned by such Dealer
to Fleetwood Credit in accordance with its terms and shall have been
subsequently sold by Fleetwood Credit to the Seller; (b) shall have
created or shall create a valid, subsisting and enforceable first
priority security interest in favor of Fleetwood Credit in the related
Financed Vehicle, which security interest has been assigned by
Fleetwood Credit to the Seller, and shall be assignable, and shall be
so assigned, by the Seller to the Trustee; (c) shall contain customary
and enforceable provisions such that the rights and remedies of the
holder thereof shall be adequate for the realization against the
collateral of the benefits of the security; (d) shall provide for
level monthly payments (provided that the payment in the first or last
month in the life of the Subsequent Receivable may be minimally
different from the level payment) that fully amortize the Amount
Financed by maturity and yield interest at its APR; and (e) shall
provide for, in the event that such Subsequent Receivable is prepaid,
a prepayment that fully pays the Principal Balance and includes
accrued but unpaid interest at least through the date of prepayment in
an amount calculated by using an interest rate at least equal to its
APR.
(ii) Schedule of Receivables. The information set forth
in the supplement to the Schedule of Receivables annexed hereto shall
be true and correct in all material respects as of the opening of
business on the Subsequent Cutoff Date, and no selection procedure
adverse to the Certificateholders shall have been utilized in
selecting the Subsequent Receivables from those Receivables of
Fleetwood Credit which met the selection criteria set forth in this
Section.
4
<PAGE> 5
(iii) Compliance with Law. Each Subsequent Receivable and
each sale of the related Financed Vehicle shall have complied at the
time it was originated or made, and shall comply at the time of
execution of this Agreement in all material respects with all
requirements of applicable federal, state and local laws, and
regulations thereunder, including usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, Federal Reserve Board Regulations B and Z,
state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit, equal credit
opportunity and disclosure laws.
(iv) Binding Obligation. Each Subsequent Receivable shall
constitute the genuine, legal, valid and binding payment obligation in
writing of the related Obligor, enforceable by the holder thereof in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation and other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity regardless of whether such enforceability
shall be considered in a proceeding in equity or at law.
(v) No Government Obligor. None of the Subsequent
Receivables shall be due from the United States or any state or local
government thereof or from any agency, department or instrumentality
of the United States or any state or local government.
(vi) Security Interest in Financed Vehicles. Immediately
prior to the sale, assignment and transfer thereof, each Subsequent
Receivable shall be secured by a validly perfected first security
interest in the related Financed Vehicle in favor of Fleetwood Credit
as secured party or all necessary and appropriate action with respect
to such Subsequent Receivable shall have been taken to perfect a first
priority security interest in such Financed Vehicle in favor of
Fleetwood Credit as secured party.
(vii) Receivables in Force. No Subsequent Receivable shall
have been satisfied, subordinated or rescinded, nor shall any related
Financed Vehicle have been released from the lien granted by the
related Subsequent Receivable in whole or in part.
(viii) No Waiver. No provision of a Subsequent Receivable
shall have been waived in such a manner that such Subsequent
Receivable fails to meet all of the other representations and
warranties made by the Seller herein with respect thereto.
(ix) No Amendments. No Subsequent Receivable shall have
been amended in such a manner that such Subsequent Receivable fails to
meet all of the other representations and warranties made by the
Seller herein with respect thereto.
5
<PAGE> 6
(x) No Defenses. No facts shall be known to the Seller
which would give rise to any right of rescission, setoff, counterclaim
or defense, nor shall the same have been asserted or threatened, with
respect to any Subsequent Receivable.
(xi) No Liens. To the knowledge of the Seller, no liens
or claims shall have been filed, including liens for work, labor or
materials relating to a Financed Vehicle related to a Subsequent
Receivable, that shall be liens prior to, or equal or coordinate with,
the security interest in such Financed Vehicle granted by the related
Subsequent Receivable.
(xii) No Default. Except for payment defaults continuing
for a period of not more than 30 days as of the Subsequent Cutoff
Date, no default, breach, violation or event permitting acceleration
under the terms of any Subsequent Receivable shall have occurred; and
no continuing condition that with notice or the lapse of time would
constitute a default, breach, violation or event permitting
acceleration under the terms of any Subsequent Receivable shall have
arisen; and the Seller shall not have waived any of the foregoing.
(xiii) Insurance. Fleetwood Credit, in accordance with its
customary servicing procedures, shall have determined that each
Obligor had obtained physical damage insurance covering the related
Financed Vehicle.
(xiv) Good Title. It is the intention of the Seller that
the transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Subsequent Receivables from the Seller to the
Trust and that the beneficial interest in and title to the Subsequent
Receivables not be a part of the debtor's estate in the event of a
filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Subsequent Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the
Trustee, and no provision of a Subsequent Receivable shall have been
waived, except as provided in clause (viii) above; immediately prior
to the transfer and assignment herein contemplated, the Seller had
good and marketable title to each Subsequent Receivable free and clear
of all Liens and rights of others; immediately upon the transfer and
assignment thereof, the Trustee, for the benefit of the
Certificateholders, shall have good and marketable title to each
Subsequent Receivable, free and clear of all Liens and rights of
others; and the transfer and assignment herein contemplated has been
perfected under the UCC.
(xv) Lawful Assignment. No Subsequent Receivable shall
have been originated in, or shall be subject to the laws of, any
jurisdiction under which the sale, transfer and assignment of such
Subsequent Receivable under the Agreement or pursuant to transfers of
the Certificates shall be unlawful, void or voidable.
6
<PAGE> 7
(xvi) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Trustee a first
perfected ownership interest in the Subsequent Receivables shall have
been made.
(xvii) One Original. There shall be only one original
executed copy of each Subsequent Receivable.
(xviii) Additional Representations and Warranties. (a) Each
Subsequent Receivable shall have an original maturity of not less than
___ months nor greater than ____ months and, as of the Subsequent
Cutoff Date, a scheduled remaining maturity of not less than ___
months nor greater than ____ months; (b) the weighted average
remaining term of the Receivables (including the Subsequent
Receivables) as of the Subsequent Transfer Date is not greater than
____ months; (c) each Subsequent Receivable shall have an Annual
Percentage Rate equal to or greater than _____% and equal to or less
than ______%; (d) the weighted average APR of the Receivables
(including the Subsequent Receivables) is not less than _____%; (e)
each Subsequent Receivable shall have no payment that is more than 30
days past due as of the related Subsequent Cutoff Date; (f) such
Subsequent Receivables were originated on or prior to __________,
199__; and (g) the related Receivable Files shall be kept at one or
more of the locations listed in Schedule B to the Pooling and
Servicing Agreement.
Section 5. Conditions Precedent. The obligation of the Trust to
acquire the Subsequent Receivables hereunder is subject to the satisfaction, on
or prior to the Subsequent Transfer Date, of the following conditions
precedent:
(a) Representations and Warranties. (i) Each of the
representations and warranties made by Fleetwood Credit in Section
2.03 of the Receivables Purchase Agreement and (ii) each of the
representations and warranties made by the Seller in Section 4 of this
Agreement and Sections 7.01 and 17.01 of the Pooling and Servicing
Agreement, shall be true and correct as of the date of this Agreement
and as of the Subsequent Transfer Date.
(b) Pooling and Servicing Agreement Conditions. Each of
the conditions set forth in Section 2.02(b) to the Pooling and
Servicing Agreement shall have been satisfied.
(c) Receivables Purchase Agreement Conditions. Fleetwood
Credit shall have complied with the requirements of Section 2.03 of
the Receivables Purchase Agreement and shall have delivered all
documents required to be delivered pursuant to Section 2.01 of the
Receivables Purchase Agreement.
(d) Security Interest Perfection. In connection with the
conveyance contemplated by this Agreement, the Seller agrees to record
and file, at its own expense, a financing statement with respect to
the related Subsequent Receivables now existing and hereafter created
for the sale of chattel paper (as defined in Section 9105 of the UCC
as in
7
<PAGE> 8
effect in the State of California) meeting the requirements of
applicable state law in such manner as is sufficient to perfect the
sale and assignment of such Subsequent Receivables to the Trust, and
the proceeds thereof (and any continuation statements as are required
by applicable state law), and to deliver a file-stamped copy of each
such financing statement (or continuation statement) or other evidence
of such filings (which may, for purposes of this Section, consist of
telephone confirmation of such filing with the file stamped copy of
each such filing to be provided to the Trustee in due course), as soon
as is practicable after the Seller's receipt thereof.
In connection with such conveyance, the Seller
further agrees, at its own expense, on or prior to the Subsequent
Transfer Date (i) to annotate and indicate in its computer files that
the Subsequent Receivables have been transferred to the Trust pursuant
to the Agreement and (ii) to deliver to the Trustee a computer file
printed or microfiche list containing a true and complete list of all
such Subsequent Receivables, identified by account number and by the
Principal Balance of each Subsequent Receivable as of the related
Subsequent Cutoff Date.
(e) Additional Information. The Seller shall have
delivered to the Trustee on behalf of the Trust such information as
was reasonably requested by the Trustee on behalf of the Trust to
satisfy itself as to (i) the accuracy of the representations and
warranties set forth in Section 4 of this Agreement and Sections 7.01
and 17.01 of the Pooling and Servicing Agreement and (ii) the
satisfaction of the conditions set forth in this Section.
The Trustee shall not be required to investigate or otherwise verify
satisfaction of the conditions listed above, but shall be entitled to
conclusively rely upon Opinions of Counsel and Officer's Certificates of the
Servicer confirming such fulfillment.
Section 6. Ratification of Agreement. As supplemented by this
Agreement, the Pooling and Servicing Agreement is in all respects ratified and
confirmed and the Pooling and Servicing Agreement as so supplemented by this
Agreement shall be read, taken and construed as one and the same instrument.
Section 7. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of California and the obligations, rights
and remedies of the parties under this Agreement shall be determined in
accordance with such laws; provided, however, the immunities, authority and
standard of care of the Trustee shall be governed by the jurisdiction in which
its principal office is located.
8
<PAGE> 9
IN WITNESS WHEREOF, the Trustee, Fleetwood Credit and the Seller have
caused this Agreement to be duly executed and delivered by their respective
duly authorized officers as of the day and the year first above written.
FLEETWOOD CREDIT CORP.
By:
-----------------------------------
Name:
Title:
FLEETWOOD CREDIT RECEIVABLES CORP.
By:
-----------------------------------
Name:
Title:
---------------------------------------
as Trustee
By:
-----------------------------------
Name:
Title:
9
<PAGE> 1
EXHIBIT 10.4
YIELD SUPPLEMENT AGREEMENT
__________, 199
____________________
____________________
____________________
____________________
Ladies and Gentlemen:
Fleetwood Credit Corp., a California corporation ("Fleetwood Credit"),
hereby confirms arrangements made as of the date hereof with you to be
effective upon receipt by us of the enclosed copy of this letter agreement (the
"Yield Supplement Agreement"), executed by you. Capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed thereto in
that certain sale and servicing agreement, dated as of ________ 1, 199 (the
"Agreement"), among Fleetwood Credit Receivables Corp., a California
corporation ("FCRC"), as seller (the "Seller"), Fleetwood Credit, as servicer
(the "Servicer"), and the Fleetwood Credit RV Receivables 199 - Owner Trust
(the "Trust").
1. On or prior to each Determination Date, by delivery of a
Servicer's Certificate pursuant to Section 5.08 of the Agreement, the Servicer
shall notify the Owner Trustee of the Yield Supplement Deposit Amount for the
related Distribution Date.
2. To the extent that the amount on deposit in the Yield Supplement
Account is less than the Yield Supplement Deposit Amount for the related
Distribution Date, we agree to make a payment to the Owner Trustee of
additional amounts until the amount on deposit therein equals the Yield
Supplement Deposit Amount by wire transfer of same day funds, to such account
as the Owner Trustee may designate in writing to us no later than ___:00 __.M.,
________ time, on the Business Day immediately preceding such Distribution
Date.
3. Our agreement set forth in this Yield Supplement Agreement is our
primary obligation and such obligation is irrevocable, absolute and
unconditional, shall not be subject to any counterclaim, setoff or defense
(other than full and strict compliance by us with our obligations hereunder)
and shall remain in full force and effect without regard to, and shall not be
released, discharged or in any way affected by, any circumstances or condition
whatsoever.
4. The Owner Trustee's interest in this Yield Supplement Agreement
shall be transferable to any Owner Trustee or successor Owner Trustee under the
Agreement.
<PAGE> 2
5. This Yield Supplement Agreement will be governed by and construed
in accordance with the internal laws of the State of California.
6. Except as otherwise provided in the Agreement, this Yield
Supplement Agreement shall terminate on the earlier to occur of (a) termination
of the Agreement pursuant to Section 10.01 thereof and (b) the Certificate
Final Scheduled Distribution Date.
7. Except as otherwise provided herein, all notices pursuant to this
Yield Supplement Agreement shall be in writing and shall be effective upon
receipt thereof. All notices shall be directed as set forth below, or to such
other address or to the attention of such other person as the relevant party
shall have designated for such purpose in a written notice.
Fleetwood Credit Receivables Corp.:
22840 Savi Ranch Parkway
Yorba Linda, California 92687
Attention: Senior Vice President
Fleetwood Credit Corp.:
22840 Savi Ranch Parkway
Yorba Linda, California 92687
Attention: Senior Vice President
The Owner Trustee:
_____________________
_____________________
_____________________
Attention: ____________
8. This Yield Supplement Agreement may be executed in one or more
counterparts and by the different parties hereto on separate counterparts, all
of which shall be deemed to be one and the same document.
9. In consideration for all future payments, if any, with respect to
Yield Supplement Amounts to the Trustee pursuant to paragraph 2 hereof, the
Owner Trustee shall pay to the Seller on the Closing Date under the Agreement
such amount as the Seller and the Owner Trustee shall separately agree.
10. This Agreement may not be assigned by the Seller or Fleetwood
Credit except as contemplated by this Section and the Agreement; provided,
however, that simultaneously with the execution and delivery of this Agreement,
the Seller shall assign all of its right, title and interest herein to the
Indenture Trustee for the benefit of the Noteholders, to which Fleetwood Credit
hereby expressly consents. Fleetwood Credit agrees to perform its obligations
hereunder for the benefit of the Trust and that the Owner Trustee may enforce
the provisions of this Agreement, exercise the rights of the Seller and enforce
the obligations of Fleetwood Credit hereunder without the consent of the
Seller.
2
<PAGE> 3
11. Fleetwood Credit and the Seller agree to do and perform, from
time to time, any and all acts and to execute any and all further instruments
required or reasonably requested by the other party hereto or by the Owner
Trustee more fully to effect the purposes of this Agreement.
If the foregoing satisfactorily sets forth the terms and conditions of
our agreement, please indicate your acceptance thereof by signing in the space
provided below and returning to us the enclosed duplicate original of this
letter.
Very truly yours,
FLEETWOOD CREDIT CORP.
By:
--------------------------
Name:
Title:
Agreed and accepted
as of __________, 199
_________________________,
as Trustee
By:
-----------------------
Name:
Title:
FLEETWOOD CREDIT RECEIVABLES CORP.
By:
----------------------
Name:
Title:
3
<PAGE> 1
EXHIBIT 10.5
================================================================================
ADMINISTRATION AGREEMENT
among
FLEETWOOD CREDIT RV RECEIVABLES 199 - OWNER TRUST,
as Issuer,
FLEETWOOD CREDIT CORP.,
as Administrator,
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Seller,
and
________________,
as Indenture Trustee
Dated as of ____________ 1, 199
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<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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Page
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<S> <C> <C>
Section 1. Duties of the Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2. Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4. Additional Information to be Furnished to the Issuer . . . . . . . . . . . . . . . . . 8
Section 5. Independence of the Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 6. No Joint Venture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 7. Other Activities of Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 8. Term of Agreement; Resignation and Removal of Administrator . . . . . . . . . . . . . 9
Section 9. Action upon Termination, Resignation or Removal . . . . . . . . . . . . . . . . . . . 10
Section 10. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 11. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 12. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 13. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 14. Table of Contents and Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 15. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 16. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 17. Limitation of Liability of Owner Trustee and Indenture Trustee . . . . . . . . . . . . 12
Section 18. Third Party Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
(i)
<PAGE> 3
This Administration Agreement, dated as of ____________ 1, 199 is
among the Fleetwood Credit RV Receivables 199 - Owner Trust, as issuer (the
"Issuer"), Fleetwood Credit Corp., a California corporation ("Fleetwood
Credit"), as administrator (in such capacity, the "Administrator"), Fleetwood
Credit Receivables Corp., a California corporation, as seller (the "Seller"),
and ______________, a __________, as indenture trustee (the "Indenture
Trustee").
WITNESSETH:
WHEREAS, the Issuer is issuing ____% Asset Backed Notes, Class A-1,
____% Floating Rate Asset Backed Notes, Class A-2, and ____% Asset Backed
Notes, Class A-3 (collectively, the "Notes"), pursuant to that certain
indenture, dated as of __________ 1, 199 (the "Indenture"), between the Issuer
and the Indenture Trustee;
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and of certain beneficial ownership interests of
the Issuer, including (i) that certain sale and servicing Agreement, dated as
of ___________ 1, 199 (the "Sale and Servicing Agreement"), among the Issuer,
the Seller and Fleetwood Credit, as servicer (in such capacity, the
"Servicer"), and (ii) a Letter of Representations, dated __________, 199 (the
"Note Depository Agreement"), among the Issuer, the Indenture Trustee and The
Depository Trust Company ("DTC") relating to the Notes, (iii) a Letter of
Representations, dated __________, 199 (together with the Note Depository
Agreement, the "Depository Agreements"), among the Issuer, ____________, a
__________ (the "Owner Trustee"), and DTC and (iv) the Indenture (together with
the Sale and Servicing Agreement and the Depository Agreements, the "Related
Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (i) the Notes
and the collateral therefor pledged pursuant to the Indenture (the
"Collateral") and (ii) the beneficial ownership interests in the Issuer (the
registered holders of such interests being referred to herein as the "Owners");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
<PAGE> 4
Section 1. Duties of the Administrator.
(a) Duties with Respect to the Depository Agreements and the
Indenture.
(i) The Administrator shall perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under
the Depository Agreements. The Administrator shall consult with the
Owner Trustee regarding the duties of the Issuer or the Owner Trustee
under the Indenture and the Depository Agreements. The Administrator
shall monitor the performance of the Issuer and shall advise the Owner
Trustee when action is necessary to comply with the respective duties
of the Issuer and the Owner Trustee under the Indenture and the
Depository Agreements. The Administrator shall prepare for execution
by the Issuer, or shall cause the preparation by other appropriate
persons of, all such documents, reports, filings, instruments,
certificates and opinions that it shall be the duty of the Issuer or
the Owner Trustee to prepare, file or deliver pursuant to the
Indenture and the Depository Agreements. In furtherance of the
foregoing, the Administrator shall take all appropriate action that
the Issuer or the Owner Trustee is required to take pursuant to the
Indenture including, without limitation, such of the foregoing as are
required with respect to the following matters under the Indenture
(references are to Sections of the Indenture):
(A) the duty to cause the Note Register to be
kept and to give the Indenture Trustee notice of any
appointment of a new Note Registrar and the location, or
change in location, of the Note Register (Section 2.04);
(B) the notification of Noteholders and the
Rating Agencies of the final principal payment on the Notes
(Section 2.07(b));
(C) the fixing or causing to be fixed of any
special record date and the notification of the Indenture
Trustee and Noteholders with respect to special payment dates,
if any (Section 2.07(c));
(D) the preparation of or obtaining of the
documents and instruments required for execution and
authentication of the Notes and delivery of the same to the
Indenture Trustee (Section 2.02);
(E) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of Collateral (Section 2.12);
(F) the maintenance of an office in the Borough
of Manhattan, The City of New York, for registration of
transfer or exchange of Notes (Section 3.02);
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<PAGE> 5
(G) the duty to cause newly appointed Paying
Agents, if any, to deliver to the Indenture Trustee the
instrument specified in the Indenture regarding funds held in
trust (Section 3.03);
(H) the direction to the Indenture Trustee to
deposit monies with Paying Agents, if any, other than the
Indenture Trustee (Section 3.03);
(I) the obtaining and preservation of the
Issuer's qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect
the validity and enforceability of the Indenture, the Notes,
the Collateral and each other instrument and agreement
included in the Trust Estate (Section 3.04);
(J) the preparation of all supplements and
amendments to the Indenture and all financing statements,
continuation statements, instruments of further assurance and
other instruments and the taking of such other action as is
necessary or advisable to protect the Trust Estate (Section
3.05);
(K) the delivery of the Opinion of Counsel on the
Closing Date and the annual delivery of Opinions of Counsel as
to the Trust Estate, and the annual delivery of the Officer's
Certificate and certain other statements as to compliance with
the Indenture (Sections 3.06 and 3.09);
(L) the notification of the Indenture Trustee and
each Rating Agency of a Servicer Default under the Sale and
Servicing Agreement and, if such Servicer Default arises from
the failure of the Servicer to perform any of its duties or
obligations under the Sale and Servicing Agreement with
respect to the Receivables, the taking of all reasonable steps
available to remedy such failure (Section 3.07(d));
(M) the duty to cause the Servicer to comply with
Sections 5.08, 5.09, 5.10 and 6.12 and Article Ten of the Sale
and Servicing Agreement (Section 3.14);
(N) the preparation and obtaining of documents
and instruments required for the release of the Issuer from
its obligations under the Indenture (Section 3.10(b));
(O) the delivery of written notice to the
Indenture Trustee and each Rating Agency of each Event of
Default and each Servicer Default or the default by the Seller
under the Sale and Servicing Agreement (Section 3.18);
(P) the monitoring of the Issuer's obligations as
to the satisfaction and discharge of the Indenture and the
preparation of an Officer's Certificate and the
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<PAGE> 6
obtaining of the Opinion of Counsel and the Independent
Certificate relating thereto (Section 4.01);
(Q) the compliance with any written directive of
the Controlling Party with respect to the sale of the Trust
Estate in a commercially reasonable manner if an Event of
Default shall have occurred and be continuing (Section 5.04);
(R) the preparation and delivery of notice to
Noteholders of the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee (Section 6.07);
(S) the preparation of any written instruments
required to confirm more fully the authority of any co-trustee
or separate trustee and any written instruments necessary in
connection with the resignation or removal of the Indenture
Trustee or any co-trustee or separate trustee (Sections 6.09
and 6.11);
(T) the furnishing of the Indenture Trustee with
the names and addresses of Noteholders during any period when
the Indenture Trustee is not the Note Registrar (Section
7.01);
(U) the preparation and, after execution by the
Issuer, the filing with the Commission, any applicable state
agencies and the Indenture Trustee of documents required to be
filed on a periodic basis with, and summaries thereof as may
be required by rules and regulations prescribed by, the
Commission and any applicable state agencies and the
transmission of such summaries, as necessary, to the
Noteholders (Section 7.03);
(V) the opening of one or more accounts in the
Issuer's name, the preparation and delivery of Issuer Orders,
Officer's Certificates and Opinions of Counsel and all other
actions necessary with respect to investment and reinvestment
of funds in the Trust Accounts (Sections 8.02 and 8.03);
(W) the preparation of an Issuer Request and
Officer's Certificate and the obtaining of an Opinion of
Counsel and Independent Certificates, if necessary, for the
release of the Trust Estate (Sections 8.04 and 8.05);
(X) the preparation of Issuer Orders and the
obtaining of Opinions of Counsel with respect to the execution
of supplemental indentures and the mailing to the Noteholders
of notices with respect to such supplemental indentures
(Sections 9.01, 9.02 and 9.03);
(Y) the execution, authentication and delivery of
new Notes conforming to any supplemental indenture (Section
9.06);
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<PAGE> 7
(Z) the duty to notify Noteholders and the Rating
Agencies of redemption of the Notes or to cause the Indenture
Trustee to provide such notification (Section 10.02);
(BB) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent Certificates
with respect to any requests by the Issuer to the Indenture
Trustee to take any action under the Indenture (Section
11.01(a));
(CC) the preparation and delivery of Officer's
Certificates and the obtaining of Independent Certificates, if
necessary, for the release of property from the Lien of the
Indenture (Section 11.01(b));
(DD) the notification of the Rating Agencies, upon
the failure of the Issuer, the Owner Trustee or the Indenture
Trustee to give such notification, of the information required
pursuant to Section 11.04 of the Indenture (Section 11.04);
(EE) the preparation and delivery to Noteholders
and the Indenture Trustee of any agreements with respect to
alternate payment and notice provisions (Section 11.06);
(FF) the recording of the Indenture, if applicable
(Section 11.15); and
(GG) the preparation of Definitive Notes in
accordance with the instructions of the Clearing Agency
(Section 2.11).
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time
reasonable compensation for all services rendered by the
Indenture Trustee under the Indenture (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the
Indenture, reimburse the Indenture Trustee upon its request
for all reasonable expenses, disbursements and advances
incurred or made by the Indenture Trustee in accordance with
any provision of the Indenture (including the reasonable
compensation, expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its
agents for, and hold them harmless against, any Loss incurred
without negligence or bad faith on their part, arising out of
or in connection with the acceptance or administration of the
transactions contemplated by the Indenture, including the
reasonable costs and expenses of defending themselves against
any Claim or Liability in connection
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<PAGE> 8
with the exercise or performance of any of their powers or
duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents
for, and hold them harmless against, any Loss incurred without
negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the
transactions contemplated by the Trust Agreement, including
the reasonable costs and expenses of defending themselves
against any Claim or Liability in connection with the exercise
or performance of any of their powers or duties under the
Trust Agreement.
(b) Additional Duties.
(i) In addition to the duties set forth in Section
1(a)(i), the Administrator shall perform such calculations and shall
prepare or shall cause the preparation by other appropriate persons
of, and shall execute on behalf of the Issuer or the Owner Trustee,
all such documents, reports, filings, instruments, certificates and
opinions that the Issuer or the Owner Trustee are required to prepare,
file or deliver pursuant to the Related Agreements or Section 5.05 of
the Trust Agreement, and at the request of the Owner Trustee shall
take all appropriate action that the Issuer or the Owner Trustee are
required to take pursuant to the Related Agreements. In furtherance
thereof, the Owner Trustee shall, on behalf of itself and of the
Issuer, execute and deliver to the Administrator and to each successor
Administrator appointed pursuant to the terms hereof, one or more
powers of attorney substantially in the form of Exhibit A, appointing
the Administrator the attorney-in-fact of the Owner Trustee and the
Issuer for the purpose of executing on behalf of the Owner Trustee and
the Issuer all such documents, reports, filings, instruments,
certificates and opinions. Subject to Section 5, and in accordance
with the directions of the Owner Trustee, the Administrator shall
administer, perform or supervise the performance of such other
activities in connection with the Collateral (including the Related
Agreements) as are not covered by any of the foregoing provisions and
as are expressly requested by the Owner Trustee and are reasonably
within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be
responsible for promptly notifying the Owner Trustee in the event that
any withholding tax is imposed on the Trust's payments (or allocations
of income) to an Owner as contemplated in Section 5.02(c) of the Trust
Agreement. Any such notice shall specify the amount of any
withholding tax required to be withheld by the Owner Trustee pursuant
to such provision.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be
responsible for performance of the duties of the Owner Trustee set
forth in Section 5.05(i), (ii), (iii) and (iv), the penultimate
sentence of Section 5.05 and Section 5.06(a) of the Trust Agreement
with respect to, among other things, accounting and reports to Owners;
provided, however, that the Owner Trustee
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<PAGE> 9
shall retain responsibility for the distribution of the Schedule K-1s
necessary to enable each Owner to prepare its federal and state income
tax returns.
(iv) The Administrator shall satisfy its obligations with
respect to clauses (ii) and (iii) above by retaining, at the expense
of the Trust payable by the Administrator, a firm of independent
public accountants (the "Accountants") acceptable to the Owner
Trustee, which shall perform the obligations of the Administrator
thereunder. In connection with paragraph (ii) above, the Accountants
will provide prior to December 31, 199 , a letter in form and
substance satisfactory to the Owner Trustee as to whether any tax
withholding is then required and, if required, the procedures to be
followed with respect thereto to comply with the requirements of the
Code. The Accountants shall be required to update the letter in each
instance that any additional tax withholding is subsequently required
or any previously required tax withholding shall no longer be
required.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.02 of the Trust Agreement
required to be performed in connection with the resignation or removal
of the Owner Trustee, and any other duties expressly required to be
performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may enter
into transactions or otherwise deal with any of its Affiliates;
provided, however, that the terms of any such transactions or dealings
shall be in accordance with any directions received from the Issuer
and shall be, in the Administrator's opinion, no less favorable to the
Issuer than would be available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the Administrator
shall not take any action unless within a reasonable time before the
taking of such action, the Administrator shall have notified the Owner
Trustee of the proposed action and the Owner Trustee shall not have
withheld consent or provided an alternative direction. For the
purpose of the preceding sentence, "non-ministerial matters" shall
include, without limitation:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or lawsuit
brought by or against the Issuer (other than in connection
with the collection of the Receivables);
(C) the amendment, change or modification of the
Related Agreements;
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<PAGE> 10
(D) the appointment of successor Note Registrars,
successor Paying Agents and successor Indenture Trustees
pursuant to the Indenture or the appointment of successor
Administrators or a successor Servicer, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture
Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not,
(A) make any payments to the Noteholders under the Related Agreements,
(B) sell the Trust Estate pursuant to clause (d) of Section 5.04 of
the Indenture, (C) take any other action that the Issuer directs the
Administrator not to take on its behalf or (D) take any other action
which may be construed as having the effect of varying the investment
of the Holders.
Section 2. Records. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Issuer
at any time during normal business hours.
Section 3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to an annual
payment of compensation which shall be solely an obligation of the Servicer.
Section 4. Additional Information to be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
Section 5. Independence of the Administrator. For all purposes of
this Agreement, the Administrator shall be an independent contractor and shall
not be subject to the supervision of the Issuer or the Owner Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or the
Owner Trustee in any way and shall not otherwise be deemed an agent of the
Issuer or the Owner Trustee.
Section 6. No Joint Venture. Nothing contained in this Agreement
shall (i) constitute the Administrator and either of the Issuer or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) be construed to impose
any liability as such on any of them or (iii) be deemed to confer on any of
them any express, implied or apparent authority to incur any obligation or
liability on behalf of the others.
Section 7. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other Person or entity even though such
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<PAGE> 11
person or entity may engage in business activities similar to those of the
Issuer, the Owner Trustee or the Indenture Trustee.
Section 8. Term of Agreement; Resignation and Removal of
Administrator. This Agreement shall continue in force until the dissolution of
the Issuer, upon which event this Agreement shall automatically terminate.
(a) Subject to Section 8(e), the Administrator may resign
its duties hereunder by providing the Issuer with at least 60 days'
prior written notice.
(b) Subject to Section 8(e), the Issuer may remove the
Administrator without cause by providing the Administrator with at
least 60 days' prior written notice.
(c) Subject to Section 8(e), at the sole option of the
Issuer, the Administrator may be removed immediately upon written
notice of termination from the Issuer to the Administrator if any of
the following events shall occur:
(i) the Administrator shall default in the
performance of any of its duties under this Agreement and,
after notice of such default, shall not cure such default
within ten days (or, if such default cannot be cured in such
time, shall not give within ten days such assurance of cure as
shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises
shall enter a decree or order for relief, and such decree or
order shall not have been vacated within 60 days, in respect
of the Administrator in any involuntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official
for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary
case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, shall consent to the
entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or
similar official for the Administrator or any substantial part
of its property, shall consent to the taking of possession by
any such official of any substantial part of its property,
shall make any general assignment for the benefit of creditors
or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified
in clauses (ii) or (iii) above shall occur, it shall give written
notice thereof to the Issuer and the Indenture Trustee within seven
days after the occurrence of such event.
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<PAGE> 12
(d) No resignation or removal of the Administrator
pursuant to this Section shall be effective until (i) a successor
Administrator shall have been appointed by the Issuer and (ii) such
successor Administrator shall have agreed in writing to be bound by
the terms of this Agreement in the same manner as the Administrator is
bound hereunder.
(e) The appointment of any successor Administrator shall
be effective only after satisfaction of the Rating Agency Condition
with respect to the proposed appointment.
(f) Subject to Section 8(d) and 8(e), the Administrator
acknowledges that upon the appointment of a Successor Servicer
pursuant to the Sale and Servicing Agreement, the Administrator shall
immediately resign and such Successor Servicer shall automatically
become the Administrator under this Agreement; provided, however, that
this paragraph shall not apply at such times as the Trustee shall be
the Successor Servicer.
Section 9. Action upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to the first
sentence of Section 8 or the resignation or removal of the Administrator
pursuant to Section 8(a), (b) or (c), respectively, the Administrator shall be
entitled to be paid all fees and reimbursable expenses accruing to it to the
date of such termination, resignation or removal. The Administrator shall
forthwith upon such termination pursuant to the first sentence of Section 8
deliver to the Issuer all property and documents of or relating to the
Collateral then in the custody of the Administrator. In the event of the
resignation or removal of the Administrator pursuant to Section 8(a), (b) or
(c), respectively, the Administrator shall cooperate with the Issuer and take
all reasonable steps requested to assist the Issuer in making an orderly
transfer of the duties of the Administrator.
Section 10. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows: (i) if to the Issuer
or the Owner Trustee, at the Corporate Trust Office; (ii) if to the
Administrator, at 22840 Savi Ranch Parkway, Yorba Linda, California 92687,
Attention: Senior Vice President; (iii) if to the Indenture Trustee, at
________________, Attention: ____________; or (iv) with respect to any of the
foregoing Persons, at such other address as shall be designated by such Person
in a written notice to the other foregoing Persons. Delivery shall occur only
upon actual receipt or rejected tender of such communication by an officer of
the recipient entitled to receive such notices located at the address of such
recipient for notices hereunder.
Section 11. Amendments. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the parties hereto,
with the written consent of the Owner Trustee but without the consent of the
Securityholders, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying
in any manner the rights of the Securityholders; provided that such amendment
will not, in the Opinion of Counsel satisfactory to the Indenture Trustee,
materially and adversely affect the interest of any Securityholder. This
Agreement may also be amended by the parties hereto with the written consent of
the Owner Trustee and Noteholders evidencing at least a majority of the Voting
Interest thereof and Certificateholders evidencing at least a majority of the
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<PAGE> 13
Voting Interest thereof for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of Securityholders; provided, however, that
no such amendment may (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on the Receivables
or distributions required to be made for the benefit of the Securityholders or
(ii) reduce the aforesaid percentage of Securityholders required to consent to
any such amendment, without the consent of all Securityholders.
Notwithstanding the foregoing, the Administrator may not amend this Agreement
without the permission of the Seller, which permission shall not be
unreasonably withheld.
Section 12. Successors and Assigns. This Agreement may not be
assigned by the Administrator unless such assignment is previously consented to
in writing by the Issuer and the Owner Trustee and subject to the satisfaction
of the Rating Agency Condition in respect thereof. An assignment with such
consent and satisfaction, if accepted by the assignee, shall bind the assignee
hereunder in the same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by the
Administrator without the consent of the Issuer or the Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator; provided, that such successor
organization executes and delivers to the Issuer and the Trustees an agreement,
in form and substance reasonably satisfactory to the Trustees, in which such
corporation or other organization agrees to be bound hereunder by the terms of
said assignment in the same manner as the Administrator is bound hereunder.
Subject to the foregoing, this Agreement shall bind any successors or assigns
of the parties hereto.
Section 13. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, EXCEPT THAT
THE DUTIES OF THE INDENTURE TRUSTEE SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK.
Section 14. Table of Contents and Headings. The Table of Contents
and Article and Section headings herein are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Section 15. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original, but all of which counterparts shall together constitute but
one and the same instrument.
Section 16. Severability. If one or more of the covenants,
agreements, provisions or terms of this Agreement (including any amendment or
supplement hereto) shall be for any reason whatsoever held invalid or
unenforceable, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement, as the same may be amended or supplemented, and shall in no
way affect the validity
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or enforceability of the other covenants, agreements, provisions or terms of
this Agreement or any amendment or supplement hereto.
Section 17. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary,
this instrument has been countersigned by _______________ not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall ______________ in its individual capacity or any beneficial owner
of the Issuer have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder, as to all
of which recourse shall be had solely to the assets of the Issuer. For all
purposes of this Agreement, in the performance of any duties or obligations of
the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles Six, Seven and Eight of
the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by _______________ not in its individual
capacity but solely as Indenture Trustee and in no event shall ________________
have any liability for the representations, warranties, covenants, agreements
or other obligations of the Issuer hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which recourse
shall be had solely to the assets of the Issuer.
Section 18. Third Party Beneficiary. The Owner Trustee is a third
party beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
FLEETWOOD CREDIT RV RECEIVABLES
199 - OWNER TRUST
By:
---------------------------------,
as Owner Trustee
By:
---------------------------------
Name:
Title:
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Seller
By:
---------------------------------
Name:
Title:
---------------------------
as Indenture Trustee
By:
---------------------------------
Name:
Title:
FLEETWOOD CREDIT CORP.,
as Administrator
By:
---------------------------------
Name:
Title:
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