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EXHIBIT 10.1
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FLEETWOOD CREDIT CORP.,
as Seller,
and
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Purchaser
________________________________________________________
RECEIVABLES PURCHASE AGREEMENT
Dated as of _________ 1, 199
________________________________________________________
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Interpretive Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.02. Representations and Warranties as to Fleetwood Credit . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.03. Representations and Warranties as to the Receivables . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.04. Covenants of Fleetwood Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE THREE
PAYMENT OF PURCHASE PRICE
Section 3.01. Payment of Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE FOUR
TERMINATION
Section 4.01. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
Section 5.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.02. Protection of Right, Title and Interest to Receivables . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.03. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(i)
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Section 5.05. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.06. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.07. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.08. No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.09. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.10. Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.11. Merger and Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.12. Table of Contents and Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.13. Seller Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.14. Merger, Consolidation or Assumption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Schedule A - Schedule of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
(ii)
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This Receivables Purchase Agreement, dated as of __________ 1, 199 ,
is between Fleetwood Credit Corp., a California corporation, as seller, and
Fleetwood Credit Receivables Corp., a California corporation, as purchaser.
In consideration of the premises and mutual agreements herein
contained, each party agrees as follows for the benefit of the other party and
for the benefit of the Indenture Trustee:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement, the
following words and phrases shall have the following meanings:
"Agreement" means this Receivables Purchase Agreement, as amended,
restated or supplemented from time to time.
"Purchaser" means FCRC, in its capacity as purchaser of the
Receivables under this Agreement and any successor thereto.
"Repurchased Receivable" means a Receivable repurchased by Fleetwood
Credit pursuant to Section 2.03(c).
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of _________ 1, 199 , among the Seller, the Servicer and the Issuer.
Section 1.02. Interpretive Provisions. Capitalized terms that are
used herein but not otherwise defined shall have the meanings ascribed thereto
in the Sale and Servicing Agreement. The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement; Section, subsection and Schedule references contained in this
Agreement are references to Sections, subsections and Schedules in or to this
Agreement unless otherwise specified; and the word "including" means including
without limitation.
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Receivables.
(a) In the case of the Initial Receivables, on the Closing Date
Fleetwood Credit does hereby sell, transfer, assign and otherwise convey to the
Purchaser, without recourse (subject to Fleetwood Credit's obligations
hereunder):
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(i) all right, title and interest of Fleetwood Credit in
and to the Initial Receivables listed in the Schedule of Receivables
and all monies due thereon and paid thereon or in respect thereof
(including proceeds of the repurchase of Initial Receivables by
Fleetwood Credit pursuant to Section 2.03(c)) on or after the Initial
Cutoff Date, exclusive of Accrued Interest as of the opening of
business on the Initial Cutoff Date;
(ii) the interest of Fleetwood Credit in the security
interests in the related Financed Vehicles granted by the Obligors
pursuant to the Initial Receivables;
(iii) the interest of Fleetwood Credit in any Liquidation
Proceeds, in any proceeds of any physical damage insurance policies
covering the related Financed Vehicles and in any proceeds of any
credit life or credit disability insurance policies relating to the
Initial Receivables or the related Obligors;
(iv) the interest of Fleetwood Credit in any proceeds from
Dealer repurchase obligations relating to the Initial Receivables; and
(v) all proceeds of the foregoing.
(b) In the case of the Subsequent Receivables, on the related
Subsequent Transfer Dates during the Funding Period, Fleetwood Credit will
sell, transfer, assign and otherwise convey to the Purchaser, without recourse
(subject to Fleetwood Credit's obligations hereunder):
(i) all right, title and interest of Fleetwood Credit in
and to the related Subsequent Receivables listed in the Schedule of
Receivables attached to the related Transfer Agreement and all monies
due thereon and paid thereon or in respect thereof (including proceeds
of the repurchase of Subsequent Receivables by Fleetwood Credit
pursuant to Section 2.03(c)) on or after the related Subsequent Cutoff
Date, exclusive of Accrued Interest as of the opening of business on
the Subsequent Cutoff Date;
(ii) the interest of Fleetwood Credit in the security
interests in the related Financed Vehicles granted by the Obligors
pursuant to the related Subsequent Receivables;
(iii) the interest of Fleetwood Credit in any Liquidation
Proceeds, in any proceeds of any physical damage insurance policies
covering the related Financed Vehicles and in any proceeds of any
credit life or credit disability insurance policies relating to such
Subsequent Receivables or the related Obligors;
(iv) the interest of Fleetwood Credit in any proceeds from
Dealer repurchase obligations relating to such Subsequent Receivables;
and
(v) all proceeds of the foregoing.
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(c) In connection with the conveyances contemplated by subsections
(a) and (b) above, on or prior to the Closing Date or the related Subsequent
Transfer Date, as the case may be, Fleetwood Credit agrees to record and file,
at its own expense, a financing statement with respect to the related
Receivables now existing and hereafter created for the sale of chattel paper
(as defined in Section 9105 of the UCC as in effect in the State of California)
meeting the requirements of applicable state law in such manner as is
sufficient to perfect the sale and assignment of such Receivables to the
Purchaser, and the proceeds thereof (and any continuation statements as are
required by applicable state law), and to deliver a file stamped copy of each
such financing statement (or continuation statement) or other evidence of such
filings (which may, for purposes of this Section, consist of telephone
confirmation of such filing with the file stamped copy of such filing to be
provided to the Purchaser in due course), as soon as is practicable after
Fleetwood Credit's receipt thereof.
In connection with such conveyances, Fleetwood Credit further agrees,
at its own expense, on or prior to the Closing Date or the related Subsequent
Transfer Date, as the case may be, (i) to annotate and indicate in its computer
files that the related Receivables have been transferred to the Purchaser
pursuant to this Agreement and (ii) to deliver to the Purchaser a computer
file, or printed or microfiche list, containing a true and complete list of all
of such Receivables, identified by account number and by the Principal Balance
of each Receivable as of the Initial Cutoff Date or the related Subsequent
Cutoff Date, as the case may be. Such file or list shall be marked as Schedule
A to this Agreement and is hereby incorporated into and made a part of this
Agreement.
The parties hereto intend that the conveyances hereunder and under
each Transfer Agreement be sales. In the event that the conveyances hereunder
and thereunder are not for any reason considered to be sales, the parties
intend that Fleetwood Credit be deemed to have granted to the Purchaser a first
priority perfected security interest in, to and under the related Receivables
and the other property conveyed hereunder and all proceeds of any of the
foregoing and that this Agreement and each Transfer Agreement constitute
security agreements under applicable law.
Section 2.02. Representations and Warranties as to Fleetwood Credit.
Fleetwood Credit hereby represents and warrants as of the date of this
Agreement, the Closing Date and each Subsequent Transfer Date (or as of such
other date as specified below) that:
(a) Organization and Good Standing. Fleetwood Credit is
a California corporation duly organized, validly existing and in good
standing under the laws of the State of California, and has power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted, and had at all relevant times, and shall have, power,
authority and legal right to acquire, own and sell the Receivables.
(b) Due Qualification. As of the Closing Date and each
Subsequent Transfer Date, Fleetwood Credit shall be duly qualified to
do business as a foreign corporation in good standing, and shall have
obtained all necessary licenses and approvals in all jurisdictions in
which the ownership or lease of property or the conduct of its
business (including
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the servicing of the Receivables as required by the Sale and Servicing
Agreement) shall require such qualifications.
(c) Power and Authority. Fleetwood Credit shall have the
power and authority to execute and deliver this Agreement and each
Transfer Agreement and to carry out its terms; and the execution,
delivery and performance of this Agreement and each Transfer Agreement
shall have been duly authorized by Fleetwood Credit by all necessary
corporate action.
(d) Binding Obligation. This Agreement constitutes, and
each Transfer Agreement will constitute, a legal, valid and binding
obligation of Fleetwood Credit, enforceable against Fleetwood Credit
in accordance with its terms, except as enforceability may be subject
to or limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights in general
and by general principles of equity, regardless of whether such
enforceability shall be considered in a Proceeding in equity or at
law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and each Transfer Agreement and the
fulfillment of the terms hereof and thereof shall not conflict with,
result in a breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of Fleetwood Credit, or
conflict with or breach any of the material terms or provisions of or
constitute (with or without notice or lapse of time) a default under,
any indenture, agreement or other instrument to which Fleetwood Credit
is a party or by which it may be bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than
this Agreement or any Transfer Agreement); nor violate any law or, to
the best of Fleetwood Credit's knowledge, any order, rule or
regulation applicable to Fleetwood Credit of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over Fleetwood Credit
or its properties.
(f) No Proceedings. There are no Proceedings or
investigations pending or, to the best knowledge of Fleetwood Credit,
threatened against Fleetwood Credit before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement or any
Transfer Agreement, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or any Transfer
Agreement or (iii) seeking any determination or ruling that, in the
reasonable judgment of Fleetwood Credit, would materially and
adversely affect the performance by Fleetwood Credit of its
obligations under this Agreement or any Transfer Agreement.
The representations and warranties set forth in this Section shall
survive the transfer and assignment of the related Receivables to the Purchaser
on the Closing Date or the related Subsequent Transfer Date, as the case may
be, and the transfer and assignment of the related
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Receivables by the Purchaser to the Trust. Upon discovery by Fleetwood Credit,
the Purchaser or the Indenture Trustee of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
Section 2.03. Representations and Warranties as to the Receivables.
(a) Eligibility of Receivables. Fleetwood Credit hereby
represents and warrants as of the Initial Cutoff Date with respect to the
Initial Receivables and as of the related Subsequent Cutoff Date with respect
to the Subsequent Receivables (or, in either case, as of such other date as
specified below) that:
(i) Characteristics of Receivables. Each Receivable (A)
shall have been (1) originated in the United States by a Dealer for
the retail sale of the related Financed Vehicle in the ordinary course
of such Dealer's business, (2) fully and properly executed by the
parties thereto, (3) purchased by Fleetwood Credit from such Dealer
under an agreement with Fleetwood Credit and (4) validly assigned by
such Dealer to Fleetwood Credit in accordance with its terms, (B)
shall have created or shall create a valid, subsisting and enforceable
first priority perfected security interest in favor of Fleetwood
Credit in the related Financed Vehicle, which security interest shall
be assignable, and shall be so assigned, by the Purchaser to the
Indenture Trustee, (C) shall contain customary and enforceable
provisions such that the rights and remedies of the holder thereof
shall be adequate for realization against the collateral of the
benefits of the security, (D) shall provide for level monthly payments
(provided that the payment in the first or last month in the life of
the Receivable may be minimally different from the level payment) that
fully amortize the Amount Financed by maturity and shall provide for a
finance charge or yield interest at its APR and (E) shall provide for,
in the event that such Receivable is prepaid in full, payment of an
amount that fully pays the Principal Balance and includes accrued but
unpaid interest at least through the date of prepayment in an amount
at least equal to its APR.
(ii) Schedule of Receivables. The information set forth
in the Schedule of Receivables, as supplemented by each Transfer
Agreement, shall be true and correct in all material respects as of
the opening of business on the Initial Cutoff Date or the related
Subsequent Cutoff Date, as the case may be, and no selection procedure
adverse to the Purchaser shall have been utilized in selecting the
Receivables from the receivables of Fleetwood Credit that met the
selection criteria set forth in this Section.
(iii) Compliance with Law. Each Receivable shall have
complied at the time it was originated or made, and shall comply at
the time of execution of this Agreement with respect to the Initial
Receivables and at the time of execution of the related Transfer
Agreement with respect to the related Subsequent Receivables, in all
material respects with all requirements of applicable federal, state
and local laws, and regulations thereunder, including usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss
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Warranty Act, Federal Reserve Board Regulations B and Z, state
adaptations of the National Consumer Act and of the Uniform Consumer
Credit Code and other consumer credit, equal credit opportunity and
disclosure laws.
(iv) Binding Obligation. Each Receivable shall constitute
the genuine, legal, valid and binding payment obligation in writing of
the related Obligor, enforceable by the holder thereof in accordance
with its terms, except as enforceability may be subject to or limited
by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at
law.
(v) No Government Obligor. None of the Receivables shall
be due from the United States or any state or local government or from
any agency, department or instrumentality of the United States or any
state or local government.
(vi) Security Interest in Financed Vehicle. Immediately
prior to the sale, assignment and transfer thereof, each Receivable
shall be secured by a validly perfected first security interest in the
related Financed Vehicle in favor of Fleetwood Credit as secured party
or all necessary and appropriate action with respect to such
Receivable shall have been taken to perfect a first priority security
interest in such Financed Vehicle in favor of Fleetwood Credit as
secured party.
(vii) Receivables in Force. No Receivable shall have been
satisfied, subordinated or rescinded, nor shall any Financed Vehicle
have been released from the lien granted by the related Receivable in
whole or in part.
(viii) No Waiver. No provision of a Receivable shall have
been waived in such a manner that such Receivable fails to meet all of
the other representations and warranties made by Fleetwood Credit
herein with respect thereto.
(ix) No Amendments. No Receivable shall have been amended
in such a manner that such Receivable fails to meet all of the other
representations and warranties made by Fleetwood Credit herein with
respect thereto.
(x) No Defenses. No facts shall be known to Fleetwood
Credit that would give rise to any right of rescission, setoff,
counterclaim or defense, nor shall the same have been asserted or
threatened, with respect to any Receivable.
(xi) No Liens. To the knowledge of Fleetwood Credit, no
Liens shall have been filed, including Liens for work, labor or
materials relating to a Financed Vehicle, that shall be prior to, or
equal or coordinate with, the security interest in such Financed
Vehicle granted by the related Receivable.
(xii) No Default. Except for payment defaults continuing
for a period of not more than 30 days as of the Initial Cutoff Date or
any Subsequent Cutoff Date, as the case
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may be, no default, breach, violation or event permitting acceleration
under the terms of any Receivable shall have occurred; no continuing
condition that with notice or the lapse of time would constitute a
default, breach, violation or event permitting acceleration under the
terms of any Receivable shall have arisen; and Fleetwood Credit shall
not have waived any of the foregoing.
(xiii) Insurance. Fleetwood Credit, in accordance with its
customary servicing procedures, shall have determined that each
Obligor has obtained physical damage insurance covering the related
Financed Vehicle.
(xiv) Good Title. It is the intention of Fleetwood Credit
that the transfer and assignment herein contemplated, taken as a
whole, constitute a sale of the Receivables from Fleetwood Credit to
the Purchaser and that the beneficial interest in and title to the
Receivables not be part of the debtor's estate in the event of the
filing of a bankruptcy petition by or against Fleetwood Credit under
any bankruptcy law; no Receivable has been sold, transferred, assigned
or pledged by Fleetwood Credit to any Person other than the Purchaser,
and no provision of a Receivable shall have been waived, except as
provided in clause (viii) above; immediately prior to the transfer and
assignment herein contemplated, Fleetwood Credit had good and
marketable title to each Receivable, free and clear of all Liens and
rights of others; immediately upon the transfer and assignment
thereof, the Purchaser shall have good and marketable title to each
Receivable, free and clear of all Liens and rights of others; and the
transfer and assignment herein contemplated has been perfected under
the UCC.
(xv) Lawful Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable under
this Agreement, any Transfer Agreement or pursuant to transfers of the
Certificates shall be unlawful, void or voidable.
(xvi) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Indenture Trustee a
first perfected ownership interest in the Receivables shall have been
made.
(xvii) One Original. There shall be only one original
executed copy of each Receivable.
(xviii) Additional Representations and Warranties of
Fleetwood Credit. (A) Each Receivable conveyed hereby shall have an
original maturity of not less than ___ months nor greater than ____
months; (B) each Receivable shall have an APR equal to or greater than
____%, each Initial Receivable shall have an APR equal to or less than
_____%, each Subsequent Receivable shall have an APR equal to or less
than _____%, the weighted average APR of the Initial Receivables as of
the Initial Cutoff Date shall not be less than _____% and the weighted
average APR of the Receivables (including the Subsequent Receivables)
as of each Subsequent Cutoff Date shall not be less than _____%; (C)
each Receivable shall have no payment that is more than 30 days past
due
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as of the Initial Cutoff Date or the related Subsequent Cutoff Date,
as the case may be; (D) each Receivable File shall be kept at one of
the locations listed in Schedule B to the Sale and Servicing
Agreement; (E) based on the Principal Balances of the Receivables as
of the Initial Cutoff Date or the related Subsequent Cutoff Date, as
the case may be, at least ___% of the Receivables (including the
Subsequent Receivables) shall be secured by motor homes; (F) the
weighted average remaining term of the Receivables (including the
Subsequent Receivables) shall be less than or equal to ____ months;
(G) in the case of any Obligor in the military service (including an
Obligor who is a member of the National Guard or is in the reserves)
whose Receivable is subject to either Relief Act, no such Obligor has
made a claim to Fleetwood Credit that (1) the amount of interest on
the related Receivable should be limited to ___% during the period of
such Obligor's active duty status pursuant to the Soldiers' and
Sailors' Relief Act or (2) payments on such Receivable should be
delayed pursuant to the Military Reservist Relief Act, in either case
unless a court has ruled otherwise upon application of Fleetwood
Credit; and (H) based on the Principal Balances of the Receivables as
of the Initial Cutoff Date or the related Subsequent Cutoff Date, as
the case may be, ___% and ___% of the Receivables (including the
Subsequent Receivables) shall be secured by new and used vehicles,
respectively.
(b) Notice of Breach. The representations and warranties set
forth in this Section shall speak as of the execution and delivery of this
Agreement and each Transfer Agreement, but shall survive the sale, transfer and
assignment of the Receivables to the Purchaser and any subsequent assignment or
transfer pursuant to Article Two of the Sale and Servicing Agreement. The
Purchaser, Fleetwood Credit or the Indenture Trustee, as the case may be, shall
inform the other parties promptly, in writing, upon discovery of any breach of
Fleetwood Credit's representations and warranties pursuant to this Section that
materially and adversely affects any Receivable.
(c) Repurchase of Receivables. In the event of a breach of (i)
any representation and warranty set forth in Section 2.03(a) or (ii) any
representation and warranty set forth in a Transfer Agreement, and in either
case unless the breach shall have been cured by the second Record Date
following the discovery (or, at Fleetwood Credit's option, the first Record
Date following the discovery), Fleetwood Credit shall repurchase any Receivable
materially and adversely affected by the breach, as of such Record Date. In
consideration of the repurchase of any such Receivable, Fleetwood Credit shall
remit the Repurchase Amount of such Receivable (less the amount of any
Liquidation Proceeds with respect to such Receivable deposited, or to be
deposited, by Fleetwood Credit, as Servicer, into the Collection Account
pursuant to Section 5.03 of the Sale and Servicing Agreement) to the Purchaser.
In the event that, as of the date of execution and delivery of this Agreement
or any Transfer Agreement, as the case may be, any Liens shall have been filed,
including Liens for work, labor or materials relating to a Financed Vehicle,
that shall be prior to, or equal or coordinate with, the Lien granted by the
related Receivable (whether or not Fleetwood Credit has knowledge thereof), and
such breach materially and adversely affects the interests of the Receivable,
Fleetwood Credit shall repurchase such Receivable on the terms and in the
manner specified above. Upon such repurchase, the Purchaser shall, without
further action, be deemed to transfer, assign, set-over and otherwise
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convey to Fleetwood Credit, without recourse, representation or warranty, all
the right, title and interest of the Purchaser in, to and under such
Repurchased Receivable, all monies due or to become due with respect thereto
and all proceeds thereof. The Purchaser or the Indenture Trustee, as
applicable, shall execute such documents and instruments of transfer or
assignment and take such other actions as shall reasonably be requested by
Fleetwood Credit to effect the conveyance of such Receivable pursuant to this
Section. The sole remedy of the Purchaser with respect to a breach of
Fleetwood Credit's representations and warranties pursuant to Section 2.03(a)
or with respect to the existence of any such Liens shall be to require
Fleetwood Credit to repurchase the related Receivables pursuant to this
Section.
Section 2.04. Covenants of Fleetwood Credit. Fleetwood Credit hereby
covenants that:
(a) Security Interests. Except for the conveyances
hereunder or under any Transfer Agreement, Fleetwood Credit will not
sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist any Lien on any Receivable,
whether now existing or hereafter created, or any interest therein;
Fleetwood Credit will immediately notify the Purchaser of the
existence of any Lien on any Receivable and such Receivable shall be
repurchased from the Purchaser by Fleetwood Credit in the manner and
with the effect specified in Section 2.03(c), and Fleetwood Credit
shall defend the right, title and interest of the Purchaser in, to and
under the Receivables, whether now existing or hereafter created,
against all Claims of third parties claiming through or under
Fleetwood Credit; provided, however, that nothing in this subsection
shall prevent or be deemed to prohibit Fleetwood Credit from suffering
to exist upon any of the Receivables, Liens for municipal or other
local Taxes if such Taxes shall not at the time be due and payable or
if Fleetwood Credit shall currently be contesting the validity of such
Taxes in good faith by appropriate Proceedings and shall have set
aside on its books adequate reserves with respect thereto.
(b) Delivery of Payments. From and after the appointment
of a successor Servicer pursuant to Section 8.02 of the Sale and
Servicing Agreement, Fleetwood Credit agrees to deliver in kind upon
receipt to such successor Servicer all payments received by Fleetwood
Credit in respect of the Receivables as soon as practicable after
receipt thereof by Fleetwood Credit.
(c) Conveyance of Receivables. Fleetwood Credit
covenants and agrees that it will not convey, assign, exchange or
otherwise transfer the Receivables to any Person prior to the
termination of this Agreement pursuant to Article Four hereof.
(d) No Impairment. Fleetwood Credit shall take no
action, nor omit to take any action, that would impair the rights of
the Purchaser in any Receivable, nor shall it, except as otherwise
provided in this Agreement or the Sale and Servicing Agreement,
reschedule, revise or defer payments due on any Receivable.
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ARTICLE THREE
PAYMENT OF PURCHASE PRICE
Section 3.01. Payment of Purchase Price. In consideration of the
sale by Fleetwood Credit to the Purchaser as provided in Section 2.01 of (a)
the Initial Receivables, on the Closing Date the Purchaser agrees to pay
Fleetwood Credit $______________, and (b) the Subsequent Receivables, on the
related Subsequent Transfer Date, the Purchaser agrees to pay Fleetwood Credit
an amount equal to the Aggregate Principal Balance of such Subsequent
Receivables as of the related Subsequent Cutoff Date.
ARTICLE FOUR
TERMINATION
Section 4.01. Termination. The respective obligations and
responsibilities of Fleetwood Credit and the Purchaser created hereby shall
terminate, except for Fleetwood Credit's indemnity obligations as provided
herein, upon the termination of the Trust as provided in Section 9.01 of the
Trust Agreement.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
Section 5.01. Amendment. This Agreement may be amended from time to
time by the Purchaser and Fleetwood Credit (i) to cure any ambiguity, to
correct or supplement any provision herein that may be inconsistent with any
other provision herein or to add any other provision with respect to matters or
questions arising under this Agreement that shall not be inconsistent with the
provisions of this Agreement or the Sale and Servicing Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel of
the Purchaser delivered to the Indenture Trustee, adversely affect in any
material respect the interests of the Trust and (ii) with the consent of the
Indenture Trustee, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement.
Section 5.02. Protection of Right, Title and Interest to Receivables.
(a) Fleetwood Credit at its expense shall cause this Agreement,
all amendments hereto or all financing statements and continuation statements
and any other necessary documents covering the Purchaser's right, title and
interest in and to the Receivables and other property conveyed by Fleetwood
Credit to the Purchaser hereunder to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Purchaser hereunder in and to all
of the Receivables and such other property.
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Fleetwood Credit shall deliver to the Purchaser file stamped copies of, or
filing receipts for, any document recorded, registered or filed as provided
above, as soon as available following such recording, registration or filing.
The Purchaser and the Indenture Trustee shall cooperate fully with Fleetwood
Credit in connection with the obligations set forth above and will execute any
and all documents reasonably required to fulfill the intent of this paragraph.
(b) Within 30 days after Fleetwood Credit makes any change in its
name, identity or corporate structure that would make any financing statement
or continuation statement filed in accordance with Section 5.02(a) seriously
misleading within the meaning of Section 9402(7) of the UCC as in effect in the
applicable State, Fleetwood Credit shall give the Purchaser notice of any such
change and shall execute and file such financing statements or amendments as
may be necessary to continue the perfection of the Purchaser's security
interest in the Receivables and the proceeds thereof.
(c) Fleetwood Credit will give the Purchaser prompt written notice
of any relocation of any office from which Fleetwood Credit keeps records
concerning the Receivables or of its principal executive office and whether, as
a result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing or continuation statement and shall execute
and file such financing or continuation statements or amendments as may be
necessary to continue the perfection of the interest of the Purchaser in the
Receivables and the proceeds thereof.
Section 5.03. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of California, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
Section 5.04. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt requested,
to in the case of (i) the Purchaser, to Fleetwood Credit Receivables Corp.,
22840 Savi Ranch Parkway, P.O. Box 87024, Yorba Linda, California 92687; (ii)
Fleetwood Credit Corp., 22840 Savi Ranch Parkway, P.O. Box 87024, Yorba Linda,
California 92687; (iii) the Indenture Trustee, to its Corporate Trust Office,
which, as of the date of this Agreement, is at ____________; or (iv) with
respect to any of the foregoing Persons, at such other address as shall be
designated by such Person in a written notice to the other foregoing Persons.
Section 5.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid or unenforceable, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions and terms of this Agreement and shall in no
way affect the validity or enforceability of the other covenants, agreements,
provisions and terms of this Agreement.
Section 5.06. Assignment. This Agreement may not be assigned by the
Purchaser or Fleetwood Credit except as contemplated by this Section and the
Sale and Servicing Agreement;
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provided, however, that simultaneously with the execution and delivery of this
Agreement, the Purchaser shall assign all of its right, title and interest
herein to the Indenture Trustee for the benefit of the Noteholders as provided
in the Indenture, to which Fleetwood Credit hereby expressly consents.
Fleetwood Credit agrees to perform its obligations hereunder for the benefit of
the Trust and that the Indenture Trustee may enforce the provisions of this
Agreement, exercise the rights of the Purchaser and enforce the obligations of
Fleetwood Credit hereunder without the consent of the Purchaser.
Section 5.07. Further Assurances. Fleetwood Credit and the Purchaser
agree to do and perform, from time to time, any and all acts and to execute any
and all further instruments required or reasonably requested by the other party
hereto or by the Indenture Trustee more fully to effect the purposes of this
Agreement, including, without limitation, the execution of any financing
statements, amendments, continuation statements or releases relating to the
Receivables for filing under the provisions of the UCC or other law of any
applicable jurisdiction.
Section 5.08. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Purchaser, the Indenture Trustee
or Fleetwood Credit, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
Section 5.09. Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
Section 5.10. Third Party Beneficiaries. This Agreement will inure
to the benefit of and be binding upon the parties hereto, and the Indenture
Trustee for the benefit of the Noteholders, which shall be considered a third
party beneficiary hereof. Except as otherwise provided in this Agreement, no
other Person will have any right or obligation hereunder.
Section 5.11. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 5.12. Table of Contents and Headings. The Table of Contents
and Article and Section headings herein are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
Section 5.13. Seller Indemnification. Fleetwood Credit shall
indemnify and hold harmless the Purchaser, the Trust and the Indenture Trustee
from and against any loss, liability, expense, damage or injury suffered or
sustained by reason of any acts, omissions or alleged acts
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or omissions arising out of activities of Fleetwood Credit pursuant to this
Agreement or as a result of the transactions contemplated hereby, including,
but not limited to, any judgment, award, settlement, reasonable attorneys' fees
and other costs or expenses incurred in connection with the defense of any
actual or threatened action, Proceeding or Claim; provided, however, that
Fleetwood Credit shall not indemnify the Purchaser, the Trust and the Indenture
Trustee if such acts, omissions or alleged acts or omissions constitute
negligence or willful misconduct by the Purchaser or the Indenture Trustee.
Section 5.14. Merger, Consolidation or Assumption.
(a) Fleetwood Credit shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets substantially
as an entirety to any Person, unless:
(i) the corporation formed by such consolidation or into
which Fleetwood Credit is merged or the Person that acquires by
conveyance or transfer the properties and assets of Fleetwood Credit
substantially as an entirety shall be organized and existing under the
laws of the United States or any State and, if Fleetwood Credit is not
the surviving entity, shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Purchaser and the
Indenture Trustee, in form satisfactory to the Purchaser and the
Indenture Trustee, the performance of every covenant and obligation of
Fleetwood Credit hereunder and shall benefit from all the rights
granted to Fleetwood Credit hereunder; and
(ii) Fleetwood Credit shall have delivered to the
Purchaser and the Indenture Trustee an Officer's Certificate of
Fleetwood Credit and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
agreement comply with this Section and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
(b) The obligations of Fleetwood Credit hereunder shall not be
assignable nor shall any Person succeed to the obligations of Fleetwood Credit
hereunder except in each case in accordance with the provisions of Section 5.06
and this Section.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first
above written.
FLEETWOOD CREDIT CORP.,
as Seller
By:
----------------------------------
Name:
Title:
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Purchaser
By:
-----------------------------------
Name:
Title:
ACCEPTED:
- ----------------------------,
as Indenture Trustee
By:
------------------------
Name:
Title: