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EXHIBIT 1.1
Brown & Wood LLP
Draft of
8/12/97
$__________
FLEETWOOD CREDIT 1997-B GRANTOR TRUST
_____% ASSET BACKED CERTIFICATES, CLASS A
_____% ASSET BACKED CERTIFICATES, CLASS B
UNDERWRITING AGREEMENT
__________,
1997
______________
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 1997-B Grantor Trust (the "Trust").
The Certificates will be issued pursuant to a pooling and servicing agreement,
dated as of __________ 1, 1997 (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.
Each Certificate will represent a fractional undivided interest in the
Trust. The assets of the Trust will include, among other things, a pool (the
"Receivables Pool") of simple interest retail installment sale contracts (the
"Receivables") secured by the new and used recreational vehicles financed
thereby (the "Financed Vehicles") and certain monies due under
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the Receivables on and after __________ 1, 1997 (the "Cutoff Date"), in each
case as more fully described in the Prospectus, as defined below. The
Receivables will be sold by Fleetwood Credit to the Seller pursuant to a
receivables purchase agreement, dated as of __________ 1, 1997 (the
"Receivables Purchase Agreement"), between Fleetwood Credit and the Seller, and
the Seller in turn will sell the Receivables to the Trust pursuant to the
Pooling and Servicing Agreement.
This Underwriting Agreement shall hereinafter be referred to as "this
Agreement." Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed thereto in the Pooling and Servicing Agreement.
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-1 (No. 333-_____),
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 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: (1) on the Effective Date, the
Registration Statement conformed, and on the date of this Agreement
the Registration Statement will conform, in all material respects with
the requirements of the Act and the rules and regulations of the
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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 (2) 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: (1) 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, (2) 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 (3) 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.
(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.
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
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equal to, in the case of (i) the Class A Certificates, __________% of the
aggregate principal amount thereof plus accrued interest at the Class A
Pass-Through Rate from (and including) the Cutoff Date to (but excluding) the
Closing Date and (ii) the Class B Certificates, __________% of the aggregate
principal amount thereof plus accrued interest at the Class B Pass-Through Rate
from (and including) the Cutoff Date to (but excluding) the Closing Date.
The Seller will deliver the Certificates to the Underwriters against
payment of the respective purchase price 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 10:00 A.M., New York City
time, on __________, 1997, 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 registered in the
name of Cede & Co., the nominee of The Depository Trust Company ("DTC") (the
"DTC Certificates"). 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 Trust, the Seller and the Underwriters
have agreed that the Closing Date will be not less than five business days
following the date hereof.
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 and will offer and sell the Certificates only as
permitted by the applicable securities laws or regulations of any jurisdiction.
The Underwriters agree that the Underwriters will not offer or sell any of the
Certificates in any jurisdiction outside the United States, except under
circumstances that will result in compliance with the applicable laws thereof,
and that the Underwriters will take at their own expense whatever action is
required to permit the Underwriters' purchase and resale of the Certificates in
each such jurisdiction. The Underwriters understand that no action has been
taken to permit a public offering in any jurisdiction outside the United States
where action would be required for such purpose. The Underwriters agree not to
cause any advertisement of the Certificates to be published outside the United
States in any newspaper or periodical or posted outside the United States in
any public place and not to issue any circular relating to the Certificates
outside the United States, except in any such case with the Company's express
consent and then only at the Underwriters' own risk and expense.
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
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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 also 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 16 months
after the effective date of the Registration Statement, 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 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 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
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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, the Seller and Fleetwood Credit will,
subject to the provisions of Section 8 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 Ratings Services ("Standard & 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, 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,
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
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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 to Fleetwood
Credit, dated the date of issuance of the 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.
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(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.
(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
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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 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, 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, 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 had at
all relevant times, and now has, the power, authority and
legal right to acquire, own and sell the 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 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
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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 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 Receivables and such other property
being transferred to the Trustee 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 Receivables to
the Trustee acting on behalf of the Trust, nor the assignment
of the security interest of the Seller in the Financed
Vehicles, nor the issuance and delivery of the Certificates,
nor the
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sale of the Certificates, nor the execution and delivery of
the Basic Documents or this Agreement, nor the consummation of
any other of the transactions contemplated herein or in the
Basic Documents nor 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 Trustee acting
on behalf of the Trust, ownership of the 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 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 Trustee 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 Certificates, each Basic Document and
this Agreement each conform in all material respects with the
description thereof contained in the Registration Statement
and the Prospectus.
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(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 or the Basic Documents 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 by the
Seller to the Trustee pursuant to the Pooling and Servicing
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 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 the Basic Documents, (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 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 the opinion of
Timothy M. Hayes, Esq., Senior Vice President and Assistant General
Counsel to Fleetwood Credit Corp., 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 a Receivable originated in Texas (each, a
"Texas Receivable"), notwithstanding that each such Texas
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 Texas
Receivable to the Trustee, the Trustee will have a perfected
security interest in each such Financed Vehicle which will be
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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, 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.
(iii) 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.
(f) The Underwriters shall have received an opinion of
Timothy M. Hayes, Esq., Senior Vice President and Assistant General
Counsel to Fleetwood Credit, or, insofar as such matters relate to
California law, 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, 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 had at all
relevant times, and now has, 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 a
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
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to the Seller the Receivables and other property of the Trust
being transferred to the Seller.
(iv) Neither the transfer of the 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 or this Agreement, nor the
consummation of any other of the transactions contemplated
herein or in the Basic Documents, nor the fulfillment of the
terms of the Certificates, the Basic Documents or this
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 Receivables 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
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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 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 or the Basic Documents except
filings with respect to the transfer of the Receivables by
Fleetwood Credit to the Seller pursuant to the Receivables
Purchase 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 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 the Basic Documents, (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 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."
(g) The Underwriters shall have received an opinion of
Arter & Hadden, 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.
(h) The Underwriters shall have received an opinion of
Arter & Hadden, 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
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Receivables as a sale, in substantially the form previously discussed
with the Underwriters and in any event satisfactory in form and in
substance to the Underwriters and counsel for the Underwriters.
(i) The Underwriters shall have received an opinion of
Arter & Hadden, special income tax counsel to the Seller, dated the
Closing Date and satisfactory in form and substance to the
Underwriters, to the effect that (i) 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 and (ii) the Trust will not be
classified as an association taxable as a corporation for California
income tax purposes.
(j) 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 Receivables constitute "chattel paper" as
such term is defined in the California Uniform Commercial
Code.
(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.
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(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.
(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 national banking association in good
standing under the laws of the United States 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.
(ii) The Pooling and Servicing Agreement has been
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, 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 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
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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 "A3" 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 and Contribution.
(a) The Seller and Fleetwood Credit will, jointly and severally,
indemnify and hold harmless each Underwriter and each person, if any, who
controls each Underwriter within the meaning of Section 15 of the Act as
follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred (A) arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), 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
(B) arising out of any untrue statement or alleged untrue statement of
a material fact contained in 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
light of the circumstances under which they were made, not misleading,
unless such untrue statement or omission or alleged untrue statement
or omission was made in reliance upon and in conformity with written
information furnished to the Seller or Fleetwood Credit by the
Representative expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any
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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 (i) 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;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or 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, if such settlement is effected with the written
consent of the Seller and Fleetwood Credit; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by the Representative),
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above.
This indemnity agreement will be in addition to any liability which
the Seller or Fleetwood Credit may otherwise have.
(b) The Underwriters agree, severally but not jointly, 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 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 the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Seller or Fleetwood Credit by the
Representative expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
This indemnity agreement will be in addition to any liability which
the Underwriters may otherwise have.
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(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section is
for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Seller and Fleetwood Credit on the
one hand, and the Underwriters, on the other, shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Seller and Fleetwood Credit and the
Underwriters in such proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount or
discounts on the cover of the Prospectus bears to the initial public offering
price or prices as set forth thereon and the Seller and Fleetwood Credit shall
be responsible for the balance; provided, however, that 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 and, provided further, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price of the Certificates purchased by such Underwriter pursuant to this
Agreement exceeds the amount of any damages which the Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. 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 and
Fleetwood Credit who signed the Registration Statement, and each person, if
any, who controls the Seller or Fleetwood Credit within the meaning of Section
15 of the Act shall have the same rights to contribution as the Seller and
Fleetwood Credit.
8. 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
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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.
9. 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 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.
10. 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 "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
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(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.
11. 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 __________, __________ (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).
12. 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.
13. 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.
14. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California.
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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:
------------------------------
Marvin T. Runyon, III
Senior Vice President
FLEETWOOD CREDIT RECEIVABLES CORP.
By:
------------------------------
Marvin T. Runyon, III
Senior Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
- --------------
For itself and as Representative of the Underwriters
By:
--------------------------------------------------
Name:
Title:
24
SCHEDULE A
Principal Principal
Amount of Amount of
Class A Class B
Underwriter Certificates Certificates
----------- ------------ ------------
___________ . . . . . . . . . . . . . . . . . . . . . $ $
----------- -----------
___________ . . . . . . . . . . . . . . . . . . . . .
----------- -----------
Total $ $
=========== ===========
A-1