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EXHIBIT 10.1
Brown & Wood LLP
Draft of
8/12/97
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FLEETWOOD CREDIT CORP.,
as Seller
and
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Purchaser
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RECEIVABLES PURCHASE AGREEMENT
Dated as of 1, 1997
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitional Provisions . . . . . . . . . . . . . . . . . 2
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Receivables . . . . . . . . . . . . . . . . . . . 2
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 . . . . . . . . . . . . . . . . . 8
ARTICLE THREE
PAYMENT OF PURCHASE PRICE
Section 3.01. Payment of Purchase Price . . . . . . . . . . . . . . . . . . . 9
ARTICLE FOUR
TERMINATION
Section 4.01. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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
Section 5.05. Severability of Provisions . . . . . . . . . . . . . . . . . . 11
Section 5.06. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.07. Further Assurances . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.08. No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . 11
Section 5.09. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 12
(i)
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Section 5.10. Third-Party Beneficiaries . . . . . . . . . . . . . . . . . . 12
Section 5.11. Merger and Integration . . . . . . . . . . . . . . . . . . . 12
Section 5.12. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.13. Seller Indemnification . . . . . . . . . . . . . . . . . . . 12
Section 5.14. Merger or Consolidation of, or Assumption of the
Obligations of, Fleetwood Credit . . . . . . . . . . . . . . 12
Schedule A - Schedule of Receivables . . . . . . . . . . . . . . . . . . . . . . A-1
(ii)
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RECEIVABLES PURCHASE AGREEMENT, dated as of __________ 1, 1997,
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 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 and all
amendments hereof and supplements hereto.
"Closing Date" means __________, 1997.
"Cutoff Date" means __________ 1, 1997.
"Fleetwood Credit" means Fleetwood Credit Corp. and any successor
thereto.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement dated as of __________ 1, 1997, among Fleetwood Credit Receivables
Corp., as seller, Fleetwood Credit, as servicer, and the Trustee.
"Purchaser" means Fleetwood Credit Receivables Corp., in its capacity
as purchaser of the Receivables under this Agreement and any successor thereto
(in the same capacity).
"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 repurchased by Fleetwood
Credit pursuant to Section 2.03(c).
"Schedule of Receivables" means the schedule of Receivables attached
as Schedule A hereto and as Schedule A to the Pooling and Servicing Agreement,
as it may be amended or supplemented from time to time.
"Standard Terms and Conditions" means the Standard Terms and
Conditions of Agreement (Senior/Subordinated) Effective __________ 1, 1997 for
Fleetwood Credit Grantor Trusts.
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"Trustee" means __________, as trustee under the Pooling and Servicing
Agreement, or any successor trustee thereunder.
Section 1.02. Other Definitional Provisions.
(a) All capitalized terms not otherwise defined in this Agreement
shall have the defined meanings used in the Pooling and Servicing Agreement.
(b) 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) 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):
(i) all right, title and interest of Fleetwood Credit in
and to the 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 Receivables by Fleetwood Credit pursuant
to Section 2.03(c)) on or after the Cutoff Date, exclusive of Accrued
Interest as of the opening of business on the Cutoff Date;
(ii) the interest of Fleetwood Credit in the security
interests in the related Financed Vehicles granted by the Obligors
pursuant to the 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
Receivables or the related Obligors;
(iv) the interest of Fleetwood Credit in any proceeds from
Dealer repurchase obligations relating to the Receivables; and
(v) all proceeds of the foregoing.
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(b) In connection with such conveyance, on or prior to the Closing
Date, Fleetwood Credit agrees to record and file, at its own expense, a
financing statement with respect to the 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 conveyance, Fleetwood Credit further agrees,
at its own expense, on or prior to the Closing Date, (i) to annotate and
indicate in its computer files that the 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 the Receivables, identified by account number and by the
Principal Balance of each Receivable as of the Cutoff Date. 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 conveyance hereunder be a sale. In
the event that the conveyance hereunder is not for any reason considered a
sale, 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
Receivables and the other property conveyed hereunder and all proceeds of any
of the foregoing and that this Agreement constitute a security agreement 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 and as of the Closing 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, 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 the servicing of
the Receivables as required by the Pooling and Servicing Agreement)
shall require such qualifications.
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(c) Power and Authority. Fleetwood Credit 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 Fleetwood Credit by all
necessary corporate action.
(d) Binding Obligation. This Agreement constitutes 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 the fulfillment of the terms hereof
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); 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, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this 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.
The representations and warranties set forth in this Section shall
survive the transfer and assignment of the Receivables to the Purchaser on the
Closing Date and the transfer and assignment of the Receivables by the
Purchaser to the Trust. Upon discovery by Fleetwood Credit, the Purchaser or
the 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 Cutoff Date (or as of such other date as
specified below) that:
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(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
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 shall be true and correct in all
material respects as of the opening of business on the Cutoff Date,
and no selection procedure adverse to the Purchaser shall have been
utilized in selecting the Receivables from the 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 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 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.
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(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 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.
(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 Cutoff Date, 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
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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 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.
(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 180
months; (B) each Receivable shall have an APR equal to or greater than
_____%, each Receivable shall have an APR equal to or less than _____%
and the weighted average APR of the Receivables as of the Cutoff Date
shall not be less than _____%; (C) each Receivable shall have no
payment that is more than 30 days past due as of the Cutoff Date; (D)
each Receivable File shall be kept at one of the locations listed in
Schedule B to the Pooling and Servicing Agreement; (E) based on the
Principal Balances of the Receivables as of the Cutoff Date, at least
_____% of the Receivables shall be secured by motor homes; (F) the
weighted average remaining term of the Receivables as of the Cutoff
Date shall be less than or equal to _____ months; and (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 6% 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.
(b) Notice of Breach. The representations and warranties set
forth in this Section shall speak as of the execution and delivery of this
Agreement but shall survive the sale, transfer and assignment of the
Receivables to the Purchaser pursuant to Article Two of the Pooling and
Servicing Agreement. The Purchaser, Fleetwood Credit or the 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 which materially and adversely affects any Receivable.
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(c) Repurchase of Receivables. In the event of a breach of any
representation and warranty set forth in Section 2.03(a), 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, in the Certificate Account pursuant to Section 13.03 of the
Pooling and Servicing Agreement) to the Purchaser. 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 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
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 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, 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.
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(b) Delivery of Payments. From and after the appointment
of a Successor Servicer pursuant to Section 19.02 of the Standard
Terms and Conditions, 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, which would impair the rights of
the Purchaser in any Receivable, nor shall it, except as otherwise
provided in this Agreement or the Pooling and Servicing Agreement,
reschedule, revise or defer payments due on any Receivable.
ARTICLE THREE
PAYMENT OF PURCHASE PRICE
Section 3.01. Payment of Purchase Price. In consideration of the
sale of the Receivables from Fleetwood Credit to the Purchaser as provided in
Section 2.01, on the Closing Date the Purchaser agrees to pay Fleetwood Credit
$____________.
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 Article Twenty One of
the Standard Terms and Conditions.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
Section 5.01. Amendment.
(a) This Agreement may be amended from time to time by the
Purchaser and Fleetwood Credit to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with any other provision herein
or to add any other provision with respect to matters or questions arising
under this Agreement which shall not be inconsistent with the provisions of
this Agreement or the Pooling and Servicing Agreement; provided, however,
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that such action shall not, as evidenced by an Opinion of Counsel of the
Purchaser delivered to the Trustee, adversely affect in any material respect
the interests of the Trust.
(b) This Agreement may also be amended from time to time by the
Purchaser and Fleetwood Credit with the consent of the 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 and/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. 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 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 subsection.
(b) Within 30 days after Fleetwood Credit makes any change in its
name, identity or corporate structure which 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 (a) the Purchaser, to Fleetwood
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Credit Receivables Corp., 22840 Savi Ranch Parkway, P.O. Box 87024, Yorba
Linda, California 92686-7024, Attention: Treasurer; (b) Fleetwood Credit Corp.,
22840 Savi Ranch Parkway, P.O. Box 87024, Yorba Linda, California 92686-7024,
Attention: Vice President-Treasurer; and (c) the Trustee, to __________ at its
Corporate Trust Office; or, as to any of such Persons, at such other address as
shall be designated by such Person in a written notice to the other 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 uneforceable, 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
Pooling and Servicing Agreement; 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 Trustee for the benefit of the
Certificateholders as provided in Section 2.01 of the Pooling and Servicing
Agreement, to which Fleetwood Credit hereby expressly consents. Fleetwood
Credit agrees to perform its obligations hereunder for the benefit of the Trust
and that the 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 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 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 Trustee for
the benefit of the
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Certificateholders, which shall be considered to be 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. Headings. The 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 Trustee from and
against any loss, liability, expense, damage or injury suffered or sustained by
reason of any acts, omissions or alleged acts 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 Trustee if such acts, omissions or
alleged acts or omissions constitute negligence or willful misconduct by the
Purchaser or the Trustee.
Section 5.14. Merger or Consolidation of, or Assumption of the
Obligations of, Fleetwood Credit.
(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 which 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
Trustee, in form satisfactory to the Purchaser and the 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 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.
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(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:
-----------------------------
Marvin T. Runyon, III
Senior Vice President
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Purchaser
By:
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Marvin T. Runyon, III
Senior Vice President
ACCEPTED:
,
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as Trustee
By:
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Name:
Title: