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EXHIBIT 10.2
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SALE AND SERVICING AGREEMENT
among
FLEETWOOD CREDIT RV RECEIVABLES 199 - OWNER TRUST,
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Seller,
and
FLEETWOOD CREDIT CORP.
as Servicer
Dated as of __________ 1, 199
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TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Interpretive Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 1.03. Calculations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Initial Receivables . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.02. Conveyance of Subsequent Receivables . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.03. Actions as to Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE THREE
THE RECEIVABLES
Section 3.01. Representations and Warranties of the Seller . . . . . . . . . . . . . . . . . . . . 26
Section 3.02. Repurchase Upon Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 3.03. Custody of Receivable Files . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.04. Duties of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.05. Instructions; Authority to Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.06. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.07. Effective Period and Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.08. No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE FOUR
SERVICER LETTER OF CREDIT
Section 4.01. Servicer Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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ARTICLE FIVE
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 5.01. Duties of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 5.02. Collection of Receivable Payments . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 5.03. Realization upon Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 5.04. Maintenance of Security Interests in Financed Vehicles . . . . . . . . . . . . . . . 35
Section 5.05. Covenants, Representations and Warranties of Servicer . . . . . . . . . . . . . . . 36
Section 5.06. Purchase of Receivables upon Breach . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.07. Servicing Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.08. Servicer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.09. Annual Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.10. Annual Independent Certified Public Accountants' Report . . . . . . . . . . . . . . 39
Section 5.11. Access to Certain Documentation and Information . . . . . . . . . . . . . . . . . . 39
Section 5.12. Access to Certain Documentation and Information . . . . . . . . . . . . . . . . . . 39
ARTICLE SIX
DISTRIBUTIONS; YIELD SUPPLEMENT ACCOUNT;
STATEMENTS TO SECURITYHOLDERS
Section 6.01. Establishment of Trust Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 6.02. Collections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.03. Application of Collections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.04. Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.05. Non-Reimbursable Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.06. Additional Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.07. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.08. Yield Supplement Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.09. Reserve Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.10. Pre-Funding Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.11. Net Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.12. Statements to Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE SEVEN
THE SELLER
Section 7.01. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.02. Liability of Seller; Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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Section 7.03. Merger or Consolidation of Seller . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 7.04. Limitation on Liability of Seller and Others . . . . . . . . . . . . . . . . . . . . 53
Section 7.05. Seller Not to Resign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE EIGHT
THE SERVICER
Section 8.01. Liability of Servicer; Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 8.02. Corporate Existence; Status as Servicer; Merger . . . . . . . . . . . . . . . . . . 56
Section 8.03. Performance of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 8.04. Servicer Not to Resign; Assignment . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 8.05. Limitation on Liability of Servicer and Others . . . . . . . . . . . . . . . . . . . 57
ARTICLE NINE
DEFAULT
Section 9.01. Servicer Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 9.02. Indenture Trustee to Act; Appointment of Successor . . . . . . . . . . . . . . . . . 59
Section 9.03. Repayment of Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 9.04. Notices to Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 9.05. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE TEN
TERMINATION
Section 10.01. Optional Purchase of All Receivables . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.02. Sale of All Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.02. Protection of Title to Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 11.03. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 11.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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Section 11.05. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.06. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.07. Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.08. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.09. Table of Contents and Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.10. Assignment by Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.11. Limitation of Liability of Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SCHEDULES
Schedule A - Schedule of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA-1
Schedule B - Location of Receivable Files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SB-1
EXHIBITS
Exhibit A - Form of Servicer Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B - Form of Transfer Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Exhibit C - Auction Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
Exhibit D - Form of Addition Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
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THIS SALE AND SERVICING AGREEMENT, dated as of _______ 1, 199 , is
among the Fleetwood Credit RV Receivables 199 - Owner Trust (the "Trust"), as
issuer (the "Issuer"), Fleetwood Credit Receivables Corp., a California
corporation, as seller (the "Seller"), and Fleetwood Credit Corp., a California
corporation, as servicer (the "Servicer").
WITNESSETH:
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Whenever used herein, unless the context
otherwise requires, the following words and phrases shall have the following
meanings:
"Accelerated Principal Distribution Amount" means, with respect to any
Distribution Date, an amount equal to equal to the portion, if any, of
Available Funds remaining after payment of (i) the Servicer Payment, (ii) the
Note Interest Distributable Amount, (iii) the portion of the Monthly Principal
Payment allocated to the Noteholders, (iv) the Certificate Interest
Distributable Amount and (v) the portion of the Monthly Principal Payment
allocated to the Certificateholders.
"Accrued Interest" on a Receivable, as of any Distribution Date, means
the amount of interest, if any, accrued on the Principal Balance of such
Receivable at the related APR since the most recent date upon which a payment
was made by or on behalf of the related Obligor in respect of such Receivable
through the end of the Collection Period immediately preceding the Collection
Period in which such Distribution Date occurs.
"Advance" has the meaning set forth in Section 6.04.
"Advisor" has the meaning set forth in Section 10.02(c).
"Affiliate" of any specified Person means any other Person controlling
or controlled by or under common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" or "controlled" have
meanings correlative to the foregoing.
"Aggregate Principal Balance" means, with respect to any Distribution
Date, the aggregate of the Principal Balances of all Receivables as of the end
of the Collection Period immediately preceding such Distribution Date.
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"APR" means, with respect to a Receivable, means the annual rate of
interest stated in such Receivable.
"Assignments" means, collectively, the original instrument of
assignment of a Receivable and all other documents securing such Receivable
made by the Seller to the Owner Trustee (or in the case of any Receivable
acquired by the Seller from another Person, from such other Person to the
Seller and from the Seller to the Owner Trustee), in a form sufficient under
the laws of the jurisdiction under which the security interest in the related
Financed Vehicle arises to permit the assignee to exercise all rights granted
by the Obligor under such Receivable and such other documents and all rights
available under applicable law to the Obligee under such Receivable and such
other documents and that may be (i) to the extent permitted by the laws of such
jurisdiction, a blanket instrument of assignment covering other Receivables as
well and (ii) to the extent permitted by the laws of the jurisdiction governing
such Receivable, an instrument of assignment running directly from the Seller
to the Owner Trustee.
"Auction" has the meaning set forth in Section 10.02.
"Auction Procedures" has the meaning set forth in Section 10.02.
"Auction Property" has the meaning set forth in Section 10.02.
"Authorized Officer" has the meaning set forth in the Indenture.
"Available Amount" means the sum of (i) Available Funds and (ii)
amounts on deposit in the Reserve Fund, after giving effect to the withdrawals
therefrom pursuant to Section 6.07(a).
"Available Funds" means, with respect to any Distribution Date, the
sum of (i) Investment Earnings received by the Indenture Trustee with respect
to the Pre-Funded Amount on deposit in the Pre-Funding Account (which earnings
are withdrawn from the Pre-Funding Account and deposited into the Collection
Account pursuant to Section 6.07(a)(i)); (ii) the Negative Carry Amount, if
any, for such Collection Period (which amount is withdrawn from the Reserve
Fund and deposited into the Collection Account pursuant to Section
6.07(a)(ii)); (iii) all cash received by the Servicer in respect of the
Receivables during the related Collection Period (including Non-Reimbursable
Payments and Advances but other than (a) late payment and extension fees and
administrative charges, if any, and (b) recoveries by the Servicer of amounts
on the Receivables that were repurchased by the Seller or purchased by the
Servicer prior to the related Collection Period); (iv) the Repurchase Amounts
of all Receivables purchased or to be purchased in respect of the related
Collection Period; and (v) the Yield Supplement Deposit Amount for the related
Collection Period.
"Basic Documents" has the meaning set forth in the Indenture.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which banking institutions in the States of California, Delaware or New
York are authorized or obligated by law, executive order or government decree
to remain closed.
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"Certificate Balance" means, (i) on the Closing Date, the Original
Certificate Balance, and (ii) as of any subsequent date, the Original
Certificate Balance, reduced by (a) all distributions actually made on or prior
to the related Distribution Date to Certificateholders allocable to principal
and (b) Realized Losses allocable to the Certificates.
"Certificate Distributable Amount" means, with respect to any
Distribution Date, the sum of the Certificate Principal Distributable Amount
and the Certificate Interest Distributable Amount.
"Certificate Distribution Account" has the meaning set forth in
Section 6.01(a).
"Certificate Final Scheduled Distribution Date" means the ________ ___,
____ Distribution Date.
"Certificate Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess of the Certificate Monthly Interest Distributable
Amount for the immediately preceding Distribution Date and any outstanding
Certificate Interest Carryover Shortfall on such preceding Distribution Date,
over the amount in respect of interest on the Certificates deposited into the
Certificate Distribution Account on such preceding Distribution Date, plus
interest on such excess, to the extent permitted by law, at the Pass-Through
Rate for the related Interest Period.
"Certificate Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of the Certificate Monthly Interest Distributable
Amount and the Certificate Interest Carryover Shortfall.
"Certificate Monthly Interest Distributable Amount" means, with
respect to any Distribution Date, 30 days' interest at the Pass-Through Rate on
the Certificate Balance as of the first day of the immediately preceding
Collection Period (after giving effect to all distributions of principal to be
made on the Distribution Date occurring in such immediately preceding
Collection Period) or, in the case of the first Distribution Date, the Original
Certificate Balance.
"Certificate Monthly Principal Distributable Amount" means, with
respect to any Distribution Date, the Certificate Percentage of the Monthly
Principal Payment.
"Certificate Owner" has the meaning set forth in the Trust Agreement.
"Certificate Percentage" means (i) for each Distribution Date to and
including the later to occur of (a) the Distribution Date on which the
principal amount of the Class A-1 Notes is reduced to zero and (b) the
__________, 199__ Distribution Date, zero, and (ii) for each Distribution Date
thereafter to and including the Distribution Date on which the Certificate
Balance is reduced to zero, the percentage equivalent of a fraction, the
numerator of which is the Certificate Balance on the Distribution Date
immediately preceding the Distribution Date for which the Certificate
Percentage is being calculated (after giving effect to all distributions made
on such preceding Distribution Date) and the denominator of which is the Pool
Balance on the
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last day of the second Collection Period preceding the Collection Period in
which the Distribution Date for which the Certificate Percentage is being
calculated occurs; provided, however, that on each Distribution Date following
the occurrence of a Rating Event, until the principal amount of all Outstanding
Notes is paid in full or such rating is restored, the Certificate Percentage
shall mean zero.
"Certificate Pool Factor" means, as of any Distribution Date, a
seven-digit decimal computed by the Servicer prior to each distribution with
respect to the Certificates indicating the remaining Certificate Balance, as of
such Distribution Date (after giving effect to distributions to be made on such
Distribution Date), as a fraction of the Original Certificate Balance.
"Certificate Principal Carryover Shortfall" means, with respect to any
Distribution Date, the excess of the Certificate Monthly Principal
Distributable Amount for the immediately preceding Distribution Date and any
outstanding Certificate Principal Carryover Shortfall on such preceding
Distribution Date, over the amount in respect of principal deposited in the
Certificate Distribution Account on such preceding Distribution Date.
"Certificate Principal Distributable Amount" means, with respect to
any Distribution Date, the sum of the Certificate Monthly Principal
Distributable Amount and the Certificate Principal Carryover Shortfall as of
the close of the immediately preceding Distribution Date; provided, however,
that the Certificate Principal Distributable Amount shall not exceed the
Certificate Balance. In addition, on the Certificate Final Scheduled
Distribution Date, the principal required to be deposited into the Certificate
Distribution Account shall include the amount of any principal due and
remaining unpaid on each Receivable as of the Certificate Final Scheduled
Distribution Date so as to reduce the Certificate Balance to zero, and
remaining after any required distribution to the Note Distribution Account.
"Certificate Register" has the meaning set forth in the Trust
Agreement.
"Certificateholder" has the meaning set forth in the Trust Agreement.
"Claims" means all liabilities, claims and expenses (including
reasonable legal and other professional fees and expenses).
"Class" means all Notes the form of which is identical except for
variation in denomination, principal amount, owner or designation of class.
"Class A-1 Final Scheduled Distribution Date" means the _______ 15,
199__ Distribution Date.
"Class A-1 Rate" means ____% per annum, computed on the basis of a
360-day year and the actual number of days elapsed since the immediately
preceding Distribution Date.
"Class A-2 Final Scheduled Distribution Date" means the ___________
15, ____ Distribution Date.
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"Class A-2 Rate" initially means ____% per annum, computed on the
basis of a 360-day year consisting of twelve 30-day months and, in respect of
any Interest Period shall mean a percentage equal to the lesser of (i) the sum
of (a) LIBOR for such Interest Period and (b) ____% and (ii) ____%.
"Class A-3 Final Scheduled Distribution Date" means the ________,
____ Distribution Date.
"Class A-3 Rate" means _____% per annum.
"Closing Date" means ____________, 199__.
"Collected Interest" means, with respect to a Collection Period, the
sum of (i) the portion of all payments received by the Servicer on or in
respect of the Receivables during such Collection Period allocable to interest
and (ii) the amounts described in clauses (i), (ii) and (v) of the definition
of "Available Funds".
"Collected Principal" means, with respect to each Collection Period,
the portion of all Available Funds received by the Servicer on or in respect of
the Receivables during such Collection Period allocable to principal.
"Collection Account" has the meaning set forth in Section 6.01(a).
"Collection Period" means, with respect to any Distribution Date, the
period commencing on the first day of the month immediately preceding the month
in which such Distribution Date occurs (or, in the case of the first
Distribution Date, from ________ 1, 199__) and ending the last day of such
immediately preceding month.
"Corporate Trust Office" means the principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Agreement is
located at _______________, Attention: ____________; or at such other address
as the Indenture Trustee may designate from time to time by notice to the
Securityholders, the Servicer, the Seller and the Letter of Credit Bank, if
any.
"Dealer" means the dealer that sold a Financed Vehicle and that
originated and assigned the related Receivable to Fleetwood Credit under an
agreement with Fleetwood Credit.
"Defaulted Receivable" means a Receivable (other than a Repurchased
Receivable) as to which (i) all or any part of a scheduled payment is 180 days
delinquent or (ii) the Servicer has determined, in accordance with its
customary servicing procedures, that eventual payment in full is unlikely and
has repossessed and liquidated the related Financed Vehicle within such 180 day
period.
"Definitive Certificates" has the meaning set forth in the Trust
Agreement.
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"Definitive Notes" has the meaning set forth in the Indenture.
"Definitive Securities" means Definitive Notes or Definitive
Certificates, as the context may require.
"Delivery" means, when used with respect to Trust Account Property:
(i) with respect to Physical Property, (A) the Indenture
Trustee or the Owner Trustee, as the case may be, or its Financial
Intermediary acquires possession of the Physical Property, and
evidence that any such Physical Property that is in registrable form
has been registered in the name of the Owner Trustee, its Financial
Intermediary, its custodian or its nominee; (B) the Financial
Intermediary, not a clearing corporation, sends the Indenture Trustee
or the Owner Trustee, as the case may be, confirmation of the transfer
and also by book entry or otherwise identifies as belonging to the
Indenture Trustee or the Owner Trustee, as the case may be, the
Physical Property in the Financial Intermediaries possession; or (C)
with respect to a clearing corporation, appropriate entries to the
account of the Indenture Trustee or the Owner Trustee, as the case may
be, or a Person designated by him or her and, if certificated, it is
both, in the custody of the clearing corporation or another clearing
corporation, a custodian bank or a nominee of any of them and, in
bearer form or endorsed in blank by the appropriate Person or
registered in the name of the clearing corporation, custodian bank, or
a nominee of any of them;
(ii) with respect to any Trust Account Property that is a
book-entry security held through the Federal Reserve System pursuant
to federal book-entry regulations, the following procedures, all in
accordance with applicable law, including applicable federal
regulations and Articles 8 and 9 of the UCC: (A) book-entry
registration of such property to an appropriate book-entry account
maintained with a Federal Reserve Bank by the Indenture Trustee or the
Owner Trustee, as the case may be, of a deposit advice or other
written confirmation of such book-entry registration, (B) the making
by any such custodian of entries in its books and records identifying
such book-entry security held through the Federal Reserve System
pursuant to federal book-entry regulations as belonging to the
Indenture Trustee or the Owner Trustee, as the case may be, and
indicating that such custodian holds such Trust Account Property
solely as agent for the Indenture Trustee or the Owner Trustee, as the
case may be, and the making by the Indenture Trustee or the Owner
Trustee, as the case may be, of entries in its books and records
establishing that it holds such Trust Account Property solely as
trustee pursuant to Section 6.01, and (C) such additional or
alternative procedures as may hereafter become necessary to effect
complete transfer of ownership of any such Trust Account Property to
the Indenture Trustee or the Owner Trustee, as the case may be,
consistent with changes in applicable law or regulations or the
interpretation thereof; and
(iii) with respect to any Trust Account Property that is an
uncertificated security under Article 8 of the UCC and that is not
governed by clause (ii) above, registration of the transfer to, and
ownership of such Trust Account Property by, the
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Indenture Trustee or the Owner Trustee, as the case may be, its
custodian or its nominee by the issuer of such Trust Account Property.
"Deposit Date" means the Business Day immediately preceding each
Distribution Date.
"Determination Date" means the eighth calendar day of each month or,
if such day is not a Business Day, the immediately succeeding Business Day.
"Distribution Date" means the fifteenth day of each calendar month,
or, if such day is not a Business Day, the next succeeding Business Day,
commencing ________ __, 199_.
"Event of Default" has the meaning set forth in the Indenture.
"Excess Amounts" means, with respect to a Distribution Date, all
collections on or in respect of the Receivables during the related Collection
Period on deposit in the Collection Account and the Distribution Accounts,
after payment of the Servicer Payment and distributions of interest and
principal in respect of the Securities on such Distribution Date.
"FCRC" means Fleetwood Credit Receivables Corp., a California
corporation, and its successors.
"FHLMC" means the Federal Home Loan Mortgage Corporation, and its
successors.
"Final Funding Period Distribution Date" means the Distribution Date
on which the Securities are to be partially prepaid pursuant to Section
6.10(b), which Distribution Date shall be (i) the Distribution Date immediately
succeeding the date on which the Funding Period ends or (ii) the Distribution
Date on which the Funding Period ends if the Funding Period ends on a
Distribution Date.
"Financed Vehicle" means, as to any Receivable, a new or used
recreational vehicle, together with all accessions thereto, securing the
related Obligor's indebtedness under such Receivable.
"Financial Intermediary" means a bank, broker, clearing corporation or
the Person (or the nominee of any of them) that in the ordinary course of its
business maintains security accounts for its customers and is acting in such
capacity.
"Fiscal Quarter" means each of the following three-month periods: (i)
January, February and March; (ii) April, May and June; (iii) July, August and
September; and (iv) October, November and December.
"Fleetwood Credit" means Fleetwood Credit Corp., a California
corporation, and its successors.
"FNMA" means the Federal National Mortgage Association, and its
successors.
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"Funding Period" means the period from the Closing Date until the
earliest to occur of (i) the date on which the remaining Pre-Funded Amount is
less than $100,000.00, (ii) the date on which an Event of Default or Servicer
Default occurs or (iii) the close of business on the ________, 199__
Distribution Date.
"Holder" means a Noteholder or a Certificateholder, as the context may
require.
"Indenture" means the Indenture, dated as of ___________ 1, 199 ,
between the Issuer and the Indenture Trustee.
"Indenture Trustee" means ____________, as trustee under the
Indenture, and its successors, and any successor trustee under the Indenture.
"Independent Director" means a director of the Seller who is not (i) a
director, officer or employee of any Affiliate of the Seller; (ii) an
individual related to any officer or director of any Affiliate of the Seller;
(iii) a holder (directly or indirectly) of more than 10% of any voting
securities of any Affiliate of the Seller; or (iv) an individual related to a
holder (directly or indirectly) of more than 10% of any voting securities of
any Affiliate of the Seller.
"Initial Cutoff Date" means _________ __, 199 .
"Initial Receivable" means the Receivables initially transferred by
the Seller to the Trust on the Closing Date, which Receivables are listed on
the Schedule of Receivables.
"Initial Servicer Letter of Credit Amount" shall have the meaning
specified in the Servicer Letter of Credit, if any.
"Insolvency Event" means (i) the entry of a decree or order by a
court, agency or supervisory authority having jurisdiction in the premises for
the appointment of a trustee in bankruptcy, conservator, receiver or liquidator
for the Servicer (or, so long as the Servicer is Fleetwood Credit, the Seller)
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar Proceedings, or for the winding up or liquidation of
their respective affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or (ii) the consent
by the Servicer (or, so long as the Servicer is Fleetwood Credit, the Seller)
to the appointment of a trustee in bankruptcy, conservator or receiver or
liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of
assets and liabilities or similar Proceedings of or relating to the Servicer
(or, so long as the Servicer is Fleetwood Credit, the Seller) of or relating to
substantially all of its property; or admission by the Servicer (or, so long as
the Servicer is Fleetwood Credit, the Seller) in writing of its inability to
pay its debts generally as they become due, filing of a petition to take
advantage of any applicable insolvency or reorganization statute, assignment
for the benefit of creditors or voluntary suspension of payment of its
obligations.
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"Insurance Policy" means the policy or policies of physical damage,
credit life or disability insurance, if any, covering individual Financed
Vehicles or Obligors, as the case may be.
"Insurance Proceeds" means proceeds paid pursuant to any Insurance
Policy and amounts (exclusive of rebated premiums) paid by any insurer under
any other insurance policy relating to a Financed Vehicle, a Receivable or an
Obligor.
"Interest Period" means, with respect to any Distribution Date and any
Class of Notes, the period from and including the immediately preceding
Distribution Date on which interest has been paid (or, in the case of the first
Distribution Date, from and including the Closing Date) to but excluding such
Distribution Date.
"Interest Rate" means the Class A-1 Rate, the Class A-2 Rate or the
Class A-3 Rate, as the context may require.
"Investment Earnings" means, with respect to any Trust Account, the
investment earnings (net of investment losses) on funds on deposit in such
Trust Account.
"Issuer" has the meaning set forth in the Preamble.
"Liability" means any liability or expense, including any
indemnification obligation.
"Letter of Credit Bank" means any Person that has provided a Servicer
Letter of Credit in accordance with Section 4.01.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind.
"Liquidation Expenses" means reasonable out-of-pocket expenses (not to
exceed Liquidation Proceeds), other than any overhead expenses, incurred by the
Servicer in connection with the realization of the full amounts due under any
Receivable (including the attempted liquidation of a Receivable that is brought
current and is no longer in default during such attempted liquidation) and the
sale of any property acquired in respect thereof that are not recoverable under
any Insurance Policy.
"Liquidation Proceeds" means amounts received by the Servicer (before
reimbursement for Liquidation Expenses) in connection with the realization of
the amounts due and to become due under any Defaulted Receivable and the sale
of any property acquired in respect thereof.
"Loss" means any loss, liability, claim, damage or reasonable expense,
including reasonable fees and expenses of counsel and reasonable expenses of
litigation.
"Mandatory Redemption" has the meaning set forth in the Indenture.
"Mandatory Prepayment" has the meaning set forth in the Trust
Agreement.
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"Monthly Principal Payment" means, with respect to any Distribution
Date, (i) the Pool Balance as of the last day of the second Collection Period
preceding the Collection Period in which such Distribution Date occurs (or,
with respect to the first Distribution Date, the Original Pool Balance) less
(ii) the Pool Balance as of the last day of the Collection Period relating to
such Distribution Date.
"Moody's" means Moody's Investors Service, Inc., and its successors.
"Negative Carry Amount" means, with respect to a Collection Period, an
amount equal to the difference between (i) 30 days' interest on the Pre-Funded
Amount on deposit in the Pre-Funding Account as of the first day of such
Collection Period at a rate equal to the weighted average of the Interest Rates
and the Pass-Through Rate and (ii) the amount described in clause (i) of the
definition of "Available Funds".
"Negative Carry Amount Deposit" means an amount equal to (i) two
month's interest on the Pre-Funded Amount on deposit in the Pre-Funding Account
as of the Closing Date at a rate equal to the weighted average of the Interest
Rates and the Pass-Through Rate (weighted by Original Note Balance and Original
Certificate Balance) less (ii) ____% of the Pre-Funded Amount on deposit in the
Pre-Funding Account as of the Closing Date.
"Non-Reimbursable Payment" has the meaning set forth in Section 6.05.
"Note Distributable Amount" means, with respect to any Distribution
Date, the sum of the Note Principal Distributable Amount and the Note Interest
Distributable Amount.
"Note Distribution Account" has the meaning set forth in Section
6.01(a).
"Note Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess of the Note Monthly Interest Distributable Amount
for the immediately preceding Distribution Date and any outstanding Note
Interest Carryover Shortfall on such preceding Distribution Date, over the
amount in respect of interest that is actually deposited in the Note
Distribution Account on such preceding Distribution Date, plus, to the extent
permitted by applicable law, interest on the amount of interest due but not
paid to Noteholders on the preceding Distribution Date at the related Interest
Rate for each Class of Notes for the related Interest Period.
"Note Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of the Note Monthly Interest Distributable Amount
for such Distribution Date and the Note Interest Carryover Shortfall for such
Distribution Date.
"Note Monthly Interest Distributable Amount" means, with respect to
any Distribution Date, interest accrued for the related Interest Period on each
Class of Notes at the related Interest Rate for such Class on the Outstanding
Amount of such Class on the immediately preceding Distribution Date (or, in the
case of the first Distribution Date, on the Closing Date), after giving
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effect to all payments of principal to the Noteholders of such Class on or
prior to such Distribution Date.
"Note Monthly Principal Distributable Amount" means, with respect to
any Distribution Date, the Note Percentage of the Monthly Principal Payment.
"Note Owner" has the meaning set forth in the Indenture.
"Note Percentage" means, (i) for each Distribution Date to and
including the later to occur of (a) the Distribution Date on which the
principal amount of the Class A-1 Notes is reduced to zero and (b) the ________
199__ Distribution Date, 100%, (ii) for each Distribution Date thereafter to
and including the Distribution Date on which the principal amount of the Class
A-3 Notes is reduced to zero, the percentage equivalent of a fraction, the
numerator of which is the Outstanding Amount on the Distribution Date
immediately preceding the Distribution Date for which the Note Percentage is
being calculated (after giving effect to all distributions made on such
immediately preceding Distribution Date) and the denominator of which is the
Pool Balance on the last day of the second Collection Period preceding the
Collection Period in which the Distribution Date for which the Note Percentage
is being calculated occurs; provided, however, that on each Distribution Date
following the occurrence of a Rating Event, until the principal amount of the
Notes is paid in full or such rating is restored, the Note Percentage shall
mean 100%, and (iii) for each Distribution Date thereafter, zero.
"Note Pool Factor" means, for each Class of Notes, a seven-digit
decimal computed by the Servicer prior to each distribution with respect to
such Notes indicating the Outstanding Amount of such Class of Notes, as of the
related Distribution Date (after giving effect to payments to be made on such
Distribution Date), as a fraction of the Original Note Balance of such Class of
Notes.
"Note Principal Carryover Shortfall" means, with respect to any
Distribution Date, the excess of the Note Monthly Principal Distributable
Amount for the immediately preceding Distribution Date and any outstanding Note
Principal Carryover Shortfall on such preceding Distribution Date over the
amount in respect of principal that is actually deposited in the Note
Distribution Account on such preceding Distribution Date.
"Note Principal Distributable Amount" means, with respect to any
Distribution Date, the sum of the Note Monthly Principal Distributable Amount
and the Accelerated Principal Distributable Amount, if any, for such
Distribution Date and the Note Principal Carryover Shortfall as of the close of
the preceding Distribution Date; provided, however, that the Note Principal
Distributable Amount with respect to a Class of Notes shall not exceed the
Outstanding Amount of such Class; and provided, further, that the Note
Principal Distributable Amount on the Class A-1 Final Scheduled Distribution
Date shall not be less than the amount necessary (after giving effect to other
amounts to be deposited in the Note Distribution Account on such Distribution
Date and allocable to principal) to reduce the Class A-1 Note Balance to zero;
and on the Class A-2 Final Scheduled Distribution Date, the Note Principal
Distributable Amount shall not be less than the amount necessary (after giving
effect to other amounts to be deposited
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in the Note Distribution Account on such Distribution Date and allocable to
principal) to reduce the Class A-2 Note Balance to zero. On the Class A-3
Final Scheduled Distribution Date, the principal required to be deposited in
the Note Distribution Account will include the amount of any principal due and
remaining unpaid on each Receivable in the Trust as of the Class A-3 Final
Scheduled Distribution Date so as to reduce the Class A-3 Note Balance to zero.
"Note Register" has the meaning set forth in the Indenture.
"Noteholder" has the meaning set forth in the Indenture.
"Obligee" means the Person to whom an Obligor is indebted under a
Receivable.
"Obligor" means, with respect to a Receivable, the retail purchaser or
co-purchasers of the related Financed Vehicle and any other Person that owes
payments under such Receivable.
"Offered Securities" has the meaning set forth in Section 7.03(c)(ii).
"Officer's Certificate" means a certificate signed by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of any Person delivering such certificate and delivered to
the Person to whom such certificate is required to be delivered. In the case
of an Officer's Certificate of the Servicer, at least one of the signing
officers must be a Servicing Officer. Unless otherwise specified, any
reference herein to an Officer's Certificate shall be to an Officer's
Certificate of the Servicer.
"Opinion of Counsel" means a written opinion of counsel (who may be
counsel to the Seller or the Servicer) acceptable to the Indenture Trustee or
the Owner Trustee, as the case may be.
"Original Certificate Balance" means $____________.
"Original Class A-1 Note Balance" means $____________.
"Original Class A-2 Note Balance" means $____________.
"Original Class A-3 Note Balance" means $____________.
"Original Note Balance" means the Original Class A-1 Note Balance, the
Original Class A-2 Note Balance or the Original Class A-3 Note Balance, as the
context may require.
"Original Pool Balance" means $_____________.
"Outstanding" means, with respect to the Securities, as of the date of
determination, all Notes of one Class or of all Classes, all Certificates or
all Securities, as the case may be, theretofore authenticated and delivered
except:
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(i) Securities theretofore cancelled by the related
Registrar or delivered to the applicable Registrar for cancellation;
(ii) Securities or portions thereof the payment for which
money in the necessary amount has been theretofore deposited with the
related Trustee or any Paying Agent, as the case may be, in trust for
the Holders of such Securities (provided, however, that if such
Securities are to be redeemed or repurchased, notice of such
redemption or repurchase has been duly given or provision for such
notice has been made, satisfactory to the related Trustee); and
(iii) Securities in exchange for or in lieu of other
Securities that have been authenticated and delivered unless proof
satisfactory to the related Trustee is presented that any such
Securities are held by a protected purchaser (as defined in Article 8
of the UCC);
provided, that in determining whether the Holders of Securities representing a
specified percentage of Voting Interest have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
other Basic Document, Securities owned by the Issuer, any other obligor upon
the Securities, the Seller, the Servicer or any of their respective Affiliates
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the related Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities that such Trustee knows to be so owned shall be so disregarded.
Securities so owned that have been pledged in good faith may be regarded as
Outstanding if the related pledgee establishes to the satisfaction of the
related Trustee such pledgee's right so to act with respect to such Securities
and that such pledgee is not the Seller, Fleetwood Credit, the Issuer (or any
other obligor upon the Securities) or any of their respective Affiliates.
"Outstanding Amount" has the meaning set forth in the Indenture.
"Owner Trustee" means ___________, a _________, as trustee of the
Trust, and its successors, and any successor trustee under the Trust Agreement.
"Owner Trustee Corporate Trust Office" has the meaning set forth in
the Trust Agreement.
"Pass-Through Rate" means ____% per annum.
"Permitted Investments" means any one or more of the following
obligations or securities, all of which shall be denominated in United States
dollars:
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by, the
United States or any agency or instrumentality of the United States
the obligations of which are backed by the full faith and credit of
the United States;
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(ii) general obligations of or obligations guaranteed as
to timely payment of principal and interest by FNMA, FHLMC or any
State or the Commonwealth of Puerto Rico then rated the highest
available credit rating of each Rating Agency for such obligations;
(iii) demand and time deposits in, certificates of deposit
of, banker's acceptances issued by, or federal funds sold by any
depository institution or trust company (including the Indenture
Trustee or the Owner Trustee) incorporated under the laws of the
United States or any State and subject to supervision and examination
by federal or state banking authorities, so long as at the time of
such investment or contractual commitment providing for such
investment either (a) the long-term, unsecured debt obligations of
such depository institution or trust company have credit ratings from
Moody's at least equal to "Aa2" and shall have commercial paper or
other short-term debt obligations rated at least "A-1+" by Standard &
Poor's and "P-1" by Moody's or (b) the investment is guaranteed by an
entity the long-term, unsecured debt obligations of which have been
rated "AAA" by Standard & Poor's and at least "Aa2" by Moody's or
otherwise will not result in the qualification, reduction or
withdrawal by Moody's or Standard & Poor's of its then-applicable
rating on any Class of Notes or the Certificates; if the investments
in this paragraph fall below the specified ratings, the invested
monies shall be moved to Permitted Investments as soon as the
investment matures; however, no new monies may be invested in any
instrument that is not currently a Permitted Investment;
(iv) repurchase obligations with respect to (a) any
security described in clause (i) above or (b) any other security
issued or guaranteed as to timely payment of principal and interest by
an agency or instrumentality of the United States, in either case
entered into with a depository institution or trust company (including
the Indenture Trustee or the Owner Trustee), acting as principal and
the counterparty, the long-term unsecured debt obligations of which
are rated "AAA" by Standard & Poor's and at least "Aa2" by Moody's and
commercial paper or other short-term debt obligations are rated at
least "A-1+" by Standard & Poor's and "P-1" by Moody's;
(v) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States or any State that at the time of such investment or contractual
commitment providing for such investment have long-term, unsecured
debt obligations rated "AAA" by Standard & Poor's and at least "Aa2"
by Moody's or better and shall have commercial paper or other
short-term debt obligations rated at least "A-1+" by Standard & Poor's
and "P-1" by Moody's; provided, however, that securities issued by any
corporation will not be Permitted Investments to the extent that
investment therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the Trust to
exceed 10% of the sum of the Aggregate Principal Balances of the
Receivables and all Permitted Investments held as part of the Trust;
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(vi) commercial paper given the highest rating by each
Rating Agency at the time of such investment; provided, that the
issuer of such commercial paper must have a long-term unsecured debt
rating of at least A1 from Moody's and A+ from Standard & Poor's; and
(vii) any other investments that meet the criteria of each
Rating Agency as being consistent with their then-current rating of
each Class of Notes and the Certificates.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, trust,
business trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Physical Property" means certificated securities, bankers'
acceptances, commercial paper, negotiable certificates of deposit and any other
obligations that evidence a right to the payment of money and is not itself a
security agreement or lease and is of a type that is in ordinary course of
business transferred by delivery with necessary endorsement or assignment.
"Pool Balance" means, as of the first day of a Collection Period, the
Aggregate Principal Balance of the related Receivables at the end of the
immediately preceding Collection Period, after giving effect to all payments of
principal received from or on behalf of Obligors and all payments of principal
on Receivables to be repurchased remitted by the Seller or the Servicer, as the
case may be, all for such immediately preceding Collection Period. The Pool
Balance shall be computed by allocating payments on or in respect of the
Receivables to principal and to interest using the simple interest method, and
will increase during the Funding Period by the principal amount (not to exceed
$______________) of the Subsequent Receivables conveyed to the Trust as of the
related Subsequent Cutoff Dates.
"Pre-Funded Amount" means (i) at the Closing Date, $_____________, and
(ii) at any other date, the amount then on deposit in the Pre-Funding Account.
"Principal Balance" means, with respect to any Receivable as of any
date, the Amount Financed, without regard to any offsets or judicial reductions
thereof, minus the sum of (i) that portion of all payments received on or prior
to such date by the Servicer and allocable as a payment of principal pursuant
to Section 6.03, (ii) any refunded portion of extended warranty protection plan
costs, or of physical damage, credit life or disability insurance premiums
included in the Amount Financed unless such refund must be paid to the related
Obligor and (iii) any payment of the Repurchase Amount allocable to principal
with respect to each Receivable which became a Defaulted Receivable or
Repurchased Receivable during or prior to the related Collection Period.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Rating Agency" means each of Moody's and Standard & Poor's.
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"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given ten Business Days (or such shorter period
as is acceptable to the related Rating Agency) prior notice thereof and shall
have notified the Seller, the Servicer and the Issuer in writing that such
action will not result in a Rating Event.
"Rating Event" means, as of any date, any qualification, reduction or
withdrawal by either Rating Agency of its then current rating of any Class of
Notes.
"Realized Losses" means, with respect to a Collection Period, the
amount by which (i) the Aggregate Principal Balance of all Receivables that
became Defaulted Receivables during such Collection Period exceeds (ii) the sum
of (a) the aggregate Liquidation Proceeds recovered in respect of principal of
such Defaulted Receivables during such Collection Period and (b) recoveries in
respect of all Defaulted Receivables received during such Collection Period, to
the extent not otherwise included in the amount determined pursuant to clause
(a) above.
"Receivable" means each simple interest retail installment sales
contract executed by an Obligor and pursuant to which such Obligor purchased,
financed or pledged the Financed Vehicle described therein, agreed to pay the
deferred purchase price (i.e., the purchase price net of any down payment) or
amount borrowed, together with interest, as therein provided in connection with
such purchase or loan, granted a security interest in such Financed Vehicle,
and undertook to perform certain other obligations as specified in such
Receivable, and that has been (or, in the case of Subsequent Receivables, will
be) conveyed to the Trust.
"Receivable Documents" means, with respect to each Receivable: (i)
the Receivable; (ii) the original Title Document for the related Financed
Vehicle or a duplicate copy thereof issued or certified by the Registrar of
Titles that issued the original thereof, together with evidence of perfection
of the security interest in the related Financed Vehicle granted by such
Receivable, as determined by the Servicer to be permitted or required to
perfect such security interest under the laws of the applicable jurisdiction
(or, in the case of a Receivable listed on the Schedule of Receivables, written
evidence from the Dealer selling such Financed Vehicle that the Title Document
for such Financed Vehicle showing the Seller as first lienholder has been
applied for); (iii) the related Assignments; (iv) any agreement modifying the
Receivable (including any extension agreement); and (v) documents evidencing
the existence of an Insurance Policy covering such Financed Vehicle.
"Receivable Files" means the Receivable Documents and all other papers
and computerized records customarily kept by the Servicer in servicing retail
installment sales contracts comparable to the Receivables.
"Receivables Purchase Agreement" means that certain receivables
purchase agreement, dated as of ____________ 1, 199 , between the Seller and
FCRC, as purchaser.
"Record Date" means, with respect to a Distribution Date, the date
immediately preceding such Distribution Date or, if Definitive Securities are
issued, the last day of the immediately preceding calendar month.
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"Registrar of Titles" means the agency, department or office having
the responsibility for maintaining records of titles to motor vehicles and
issuing documents evidencing such titles in the jurisdiction in which a
particular Financed Vehicle is registered.
"Repurchase Amount" means, with respect to a Receivable, an amount
equal to the unpaid Principal Balance owed by the related Obligor plus interest
thereon at a rate equal to the Required Rate to the last day of the month of
repurchase.
"Repurchased Receivable" means a Receivable repurchased as of the
related Servicer Report Date by the Servicer pursuant to Section 5.06 or by the
Seller pursuant to Section 3.02.
"Required Deposit Rating" means that the short-term credit rating of
the related entity is at least equal to Prime-1 by Moody's and A-1+ by Standard
& Poor's.
"Required Rate" means the sum of (i) the weighted average of the
Interest Rates and the Pass-Through Rate and (ii) the Servicing Fee Rate.
"Required Servicer Rating" means, with respect to the Servicer, that
the short-term unsecured debt obligations of the Servicer are rated at least
equal to Prime-1 by Moody's and A-1 by Standard & Poor's.
"Reserve Fund" has the meaning set forth in Section 6.01(a).
"Reserve Fund Initial Deposit" means $__________ (i.e., $______ plus
the Negative Carry Amount Deposit).
"Reserve Fund Property" means the Reserve Fund Initial Deposit and all
other amounts deposited in or credited to the Reserve Fund from time to time,
including all Permitted Investments made with amounts on deposit in the Reserve
Fund and all Investment Earnings, distributions on and proceeds of the
foregoing.
"Reset Percentage" shall have the meaning specified in the Servicer
Letter of Credit, if any.
"Schedule of Receivables" means the schedule of receivables attached
as Schedule A hereto, as it may be amended or supplemented (including pursuant
to any Transfer Agreement) from time to time.
"Securities" means the Notes and the Certificates.
"Securityholders" means the Holders of the Notes or the Certificates,
as the context may require.
"Security Owner" means a Note Owner or a Certificate Owner, as the
context may require.
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"Seller" means FCRC, in its capacity as the Seller of the Receivables
under this Agreement, and each successor thereto (in the same capacity)
pursuant to Section 7.03.
"Servicer" means Fleetwood Credit, in its capacity as the servicer of
the Receivables under Section 5.01, and, in each case upon succession in
accordance herewith, each successor servicer in the same capacity pursuant to
Section 5.01 and each successor servicer pursuant to Section 9.02.
"Servicer Default" means an event specified in Section 9.01.
"Servicer Letter of Credit" means, if the Servicer desires to remit
collections on or in respect of the Receivables to the Collection Account on a
monthly basis but the conditions of clause (a) of Section 6.02 are not
otherwise satisfied, an irrevocable letter of credit, issued by the Letter of
Credit Bank and naming the Indenture Trustee as beneficiary, substantially in,
except as otherwise provided in this Agreement, the form attached hereto as
Exhibit A.
"Servicer Letter of Credit Amount" has the meaning set forth in
Section 4.01(a).
"Servicer Letter of Credit Percentage" shall have the meaning
specified in the Servicer Letter of Credit, if any.
"Servicer Payment" means the sum of (i) the amount paid the Servicer
to reimburse the Servicer for any outstanding Advances and (ii) the Servicing
Fee (including any unpaid Servicing Fees with respect to one or more prior
Collection Periods).
"Servicer Report Date" means, with respect to any Distribution Date,
the fifth Business Day prior to such Distribution Date.
"Servicer's Certificate" has the meaning set forth in Section 5.08.
"Servicing Fee" means the fee payable to the Servicer for services
rendered during the related Collection Period pursuant to Section 5.07, which
amount, for a Collection Period, shall equal the product of 1/12 of the
Servicing Fee Rate times the Pool Balance as of the Record Date immediately
preceding the first day of such Collection Period, except that in the case of
the first Collection Period, the Servicing Fee shall equal the product of 1/12
of the Servicing Fee Rate times the Original Pool Balance.
"Servicing Fee Rate" means 1.00% per annum.
"Servicing Officer" means any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Receivables whose name
appears on a list of servicing officers furnished to the Indenture Trustee and
the Owner Trustee by the Servicer pursuant to Section 5.01.
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"Specified Reserve Fund Balance" means, with respect to (i) the first
Distribution Date, an amount equal to $____________ (i.e., $__________ plus an
amount equal to the Negative Carry Amount Deposit), and (ii) each Distribution
Date thereafter, an amount equal to the lesser of (a) $________ or (b) ____% of
the sum of the Outstanding Amount and the Certificate Balance (after giving
effect to distributions of principal to be made on such Distribution Date).
Notwithstanding the foregoing, in no event shall the Specified Reserve Fund
Balance be less than $_________. However, on each Distribution Date following
any Fiscal Quarter in which losses or delinquencies in respect of the
Receivables exceed ____%, the Specified Reserve Fund Balance will be equal to
the greater of the amount provided for in the first sentence of this definition
or an amount equal to the Pool Balance as of the last day of the related
Collection Period multiplied by a percentage determined by subtracting from
____% a fraction (expressed as a percentage) equal to one minus a fraction, the
numerator of which will equal the Outstanding Amount and the denominator of
which will equal the Pool Balance, in each case as of the last day of the three
related Collection Periods in such Fiscal Quarter; provided, however, that
following any Fiscal Quarter thereafter in which the losses and delinquencies
in respect of the Receivables are less than ____%, the Specified Reserve Fund
Balance shall return to the amount provided for in the first two sentences of
this definition. In addition, if on any Distribution Date cumulative losses in
respect of the Receivables exceed _____% of the sum of the Original Pool
Balance and the Aggregate Principal Balance of all Subsequent Receivables
conveyed to the Trust as of the related Subsequent Cutoff Dates, the Specified
Reserve Fund Balance shall remain at the level in effect as of such date and
shall not be reduced further in accordance with the first sentence of this
definition.
"Standard & Poor's" means Standard & Poor's, a division of The
McGraw-Hill Companies, Inc., and its successors.
"State" means any of the 50 states of the United States, or the
District of Columbia.
"Subsequent Cutoff Date" means the date in the related month of
transfer, designated by Fleetwood Credit and the Seller in a related Transfer
Agreement, upon which Fleetwood Credit will be obligated to sell, and the
Seller will be obligated to purchase, Subsequent Receivables.
"Subsequent Receivables" means the Receivables transferred by the
Seller to the Trust pursuant to the Receivables Purchase Agreement and a
related Transfer Agreement on the related Subsequent Transfer Date, which
Receivables are listed on Schedule A to such Transfer Agreement.
"Subsequent Transfer Date" means the Business Day specified by
Fleetwood Credit and the Seller during the month in which the related
Subsequent Cutoff Date occurs.
"Taxes" means any taxes, including any sales, gross receipts, general
corporation, personal property, privilege or license taxes.
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"Title Document" means, with respect to any Financed Vehicle, the
certificate of title for, or other evidence of ownership of, such Financed
Vehicle issued by the Registrar of Titles in the jurisdiction in which such
Financed Vehicle is registered.
"Transfer Agreement" means each Transfer Agreement, dated as of the
related Subsequent Cutoff Date, among the Seller, Fleetwood Credit and the
Owner Trustee, pursuant to which Subsequent Receivables are conveyed to the
Trust, substantially in the form attached as Exhibit B hereto.
"Trust" has the meaning set forth in the preamble.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), including the Yield Supplement Account Initial
Deposit, and all proceeds of the foregoing.
"Trust Accounts" has the meaning set forth in Section 6.01(a).
"Trust Agreement" means the Trust Agreement, dated as of __________,
199 , between the Seller and the Owner Trustee.
"Trust Estate" has the meaning set forth in the Trust Agreement.
"Trustee" means the Owner Trustee or the Indenture Trustee, as the
context may require.
"UCC" means the Uniform Commercial Code as in effect in the applicable
jurisdiction.
"United States" means the United States of America.
"Vehicle Receivables" has the meaning set forth in Section 7.03(c)(i).
"Voting Interests" means the aggregate voting strength evidenced by
the Certificates or the Notes, as the case may be; provided, however, that
where the Voting Interests are relevant in determining whether the vote of the
requisite percentage of Certificateholders or Noteholders, as the case may be,
necessary to effect any consent, waiver, request or demand shall have been
obtained, the Voting Interests shall be deemed to be reduced by the amount
equal to the Voting Interests (without giving effect to this provision)
represented by the interests evidenced by any such Security registered in the
name of the Seller, the Servicer or any Person controlling, controlled by or
under common control with the Seller or the Servicer.
"Yield Supplement Account" has the meaning set forth in Section
6.01(a).
"Yield Supplement Account Initial Deposit" means the amount equal to
the Yield Supplement Amount.
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"Yield Supplement Amount" means an amount equal to the aggregate
amount by which (i) interest on the Principal Balance of each Initial
Receivable for the period commencing on the Initial Cutoff Date and ending with
the scheduled maturity of each such Receivable (assuming that payments on such
Receivables are made as scheduled and no prepayments are made) at a rate equal
to the Required Rate, exceeds (ii) interest on such Principal Balance at the
APR of such Receivable.
"Yield Supplement Deposit Amount" means the aggregate Yield Supplement
Amount in respect of the Receivables for the related Collection Period, if any.
Section 1.02. Interpretive Provisions. For all purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, (i) terms used herein include, as appropriate, all genders
and the plural as well as the singular, (ii) references to this Agreement
include all Exhibits hereto, (iii) references to words such as "herein",
"hereof" and the like shall refer to this Agreement as a whole and not to any
particular part, Article or Section herein, (iv) references to an Article or
Section such as "Article One" or "Section 1.01" shall refer to the applicable
Article or Section of this Agreement, (v) the term "include" and all variations
thereof shall mean "include without limitation", (vi) the term "or" shall
include "and/or", (vii) the term "proceeds" shall have the meaning ascribed to
such term in the UCC, (viii) references to "writing" include printing, typing,
lithography and other means of reproducing words in a visible form, (ix)
references to agreements and other contractual instruments include all
amendments, modifications and supplements thereto or any changes therein
entered into in accordance with their respective terms and not prohibited by
this Agreement, (x) references to Persons include their permitted successors
and assigns, (xi) all accounting terms used but not specifically defined herein
shall be construed in accordance with generally accepted accounting principles
in the United States, and (xii) all references to the Record Date prior to the
first Record Date in the life of the Trust shall be to the Initial Cutoff Date.
Section 1.03. Calculations. Except as otherwise provided herein, all
interest rate calculations hereunder will be made on the basis of a 360-day
year and twelve 30-day months, and will be carried out to at least six decimal
places. Collections of interest on Receivables will be calculated in
accordance with the terms thereof.
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ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Initial Receivables. In consideration of
the Issuer's delivery to or upon the order of the Seller of executed and
authenticated Notes and Certificates, in authorized denominations and in
aggregate amounts equal to the sum of the Original Certificate Balance and the
Original Note Balance, the Seller does hereby sell, transfer, assign and
otherwise convey to the Issuer, in trust for the benefit of the
Securityholders, without recourse (subject to the Seller's obligations herein):
(a) all right, title and interest of the Seller in and to
the Initial Receivables listed in Schedule A hereto and all monies due
thereon and paid thereon or in respect thereof (including proceeds of
the repurchase of Initial Receivables by the Seller pursuant to
Section 3.02 or 10.01 or the repurchase of Initial Receivables by the
Servicer, or any successor to the Servicer, pursuant to Section 5.06
or 10.01) on or after the Initial Cutoff Date, exclusive of Accrued
Interest as of the opening of business on the Initial Cutoff Date;
(b) the interest of the Seller in the security interests
in the Financed Vehicles granted by the related Obligors pursuant to
the Initial Receivables;
(c) the interest of the Seller in any Liquidation
Proceeds, in any proceeds of any physical damage Insurance Policies
covering the Financed Vehicles and in any proceeds of any credit life
or credit disability Insurance Policies relating to the Initial
Receivables or the related Obligors;
(d) the interest of the Seller in any proceeds from
Dealer repurchase obligations relating to the Initial Receivables;
(e) the interest of the Seller under the Receivables
Purchase Agreement;
(f) all other assets comprising the estate of the Trust;
and
(g) all proceeds of the foregoing.
Section 2.02. Conveyance of Subsequent Receivables.
(a) Subject to the conditions set forth in Section 2.02(b), in
consideration of the Issuer's delivery to or upon the order of the Seller of
the purchase price for the Subsequent Receivables, in each case as described
below and set forth in the related Transfer Agreement, the Seller shall on each
Subsequent Transfer Date sell, transfer, assign and otherwise convey to the
Issuer, in trust for the benefit of the Securityholders, without recourse
(subject to the Seller's obligations herein):
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(i) all right, title and interest of the Seller in and to
the Subsequent Receivables listed on Schedule A to the related
Transfer Agreement, and all monies due thereon and paid thereon or in
respect thereof (including proceeds of the repurchase of such
Subsequent Receivables by the Seller pursuant to Section 3.02 or
Section 10.01 or the purchase of such Subsequent Receivables by the
Servicer pursuant to Section 5.06 or Section 10.01) on or after the
related Subsequent Cutoff Date;
(ii) the interest of the Seller in the security interests
in the Financed Vehicles granted by the related Obligors pursuant to
the Subsequent Receivables;
(iii) the interest of the Seller in any Liquidation
Proceeds and Insurance Proceeds relating to the Subsequent Receivables
or the related Obligors;
(iv) the interest of the Seller in any proceeds from
Dealer repurchase obligations relating to the Subsequent Receivables;
and
(v) all proceeds of the foregoing.
The purchase price to be paid by the Trust on each Subsequent Transfer
Date for the Subsequent Receivables so sold shall be set forth in the related
Transfer Agreement and shall be paid from monies released from the Pre-Funding
Account pursuant to Section 6.10. Such purchase price shall equal the
Aggregate Principal Balance of such Subsequent Receivables as of the related
Subsequent Cutoff Date.
(b) The Seller shall transfer to the Issuer the Subsequent
Receivables and the other property and rights related thereto described in
Section 2.02(a) only upon the satisfaction of each of the following conditions
on or prior to the related Subsequent Transfer Date:
(i) the Seller shall have timely provided the Owner
Trustee and each Rating Agency with a written addition notice, in
substantially the form of Exhibit C hereto, and shall have provided
any information reasonably requested by any of the foregoing with
respect to the Subsequent Receivables;
(ii) the Seller shall have delivered to the Owner Trustee
an executed Transfer Agreement in substantially the form of Exhibit B
hereto, which shall include a list of the Subsequent Receivables so
transferred;
(iii) the Seller shall have caused the Servicer to deposit
in the Collection Account all collections on or in respect of the
Subsequent Receivables received on or after the related Subsequent
Cutoff Date but prior to the related Subsequent Transfer Date;
provided, however, that for so long as (A) Fleetwood Credit shall be
the Servicer and (B) the Servicer shall be entitled pursuant to
Section 6.02 to remit collections on a monthly rather than daily
basis, the Seller shall cause the Servicer to deposit such collections
in the Collection Account on the Business Day immediately preceding
the Distribution Date immediately succeeding the related Subsequent
Transfer Date;
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(iv) as of each Subsequent Transfer Date, neither the
Servicer nor the Seller was insolvent nor will either of them have
been made insolvent by such transfer nor is any of them aware of any
pending insolvency;
(v) such addition will not result in a material adverse
federal or California tax consequence to the Trust or the
Securityholders;
(vi) the Funding Period shall not have terminated;
(vii) the Seller shall have delivered to the Owner Trustee
and each Rating Agency an Officer's Certificate confirming the
satisfaction of each condition precedent specified in this paragraph
and in Section 5 of the related Transfer Agreement;
(viii) the Seller shall have delivered to each Rating Agency
and the Owner Trustee an Opinion of Counsel with respect to the
transfer of the Subsequent Receivables;
(ix) the Seller shall have taken all actions required to
maintain the first perfected ownership interest of the Trust in the
assets of the Trust (including the Subsequent Receivables);
(x) no selection procedures believed by the Seller or the
Servicer to be adverse to the interests of the Securityholders shall
have been utilized in selecting the Subsequent Receivables;
(xi) the Seller and the Owner Trustee shall have been
advised in writing by each Rating Agency on or before the Business Day
immediately preceding the related Subsequent Transfer Date that the
conveyance of the Subsequent Receivables will not result in a Rating
Event; and
(xii) the Seller shall have provided the Owner Trustee with
a supplement to the Schedule of Receivables setting forth the
Subsequent Receivables to be transferred on such Subsequent Transfer
Date.
The Owner Trustee shall not be required to investigate or otherwise
verify compliance with the conditions specified above (except in respect of its
own receipt of documents specified above) and shall be entitled to rely upon
the Officer's Certificates and Opinions of Counsel to be delivered pursuant to
paragraphs (vii) and (viii) above for such purposes.
Section 2.03. Actions as to Receivables.
(a) Fleetwood Credit has filed or caused to be filed (or, in the
case of the Subsequent Receivables, will file or will cause to be filed) UCC-1
financing statements naming Fleetwood Credit as secured party and describing
the Receivables as collateral with the Office of the Secretary of State of the
State of California. The Seller has filed or caused to be filed (or, in the
case of the Subsequent Receivables, will file or will cause to be filed) UCC-1
financing
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statements, executed by the Seller as debtor, naming the Owner Trustee as
secured party and describing the Receivables being sold by it to the Owner
Trustee on behalf of the Trust as collateral, with the Office of the Secretary
of State of the State of California. The Trust has filed or caused to be filed
(or, in the case of the Subsequent Receivables, will file or will cause to be
filed) UCC-1 financing statements, executed by the Trust as debtor, naming the
Indenture Trustee, on behalf of the Noteholders, as secured party and
describing the Receivables as collateral, with the office of the Secretary of
State of the States of Delaware and California. The grant of a security
interest to the Indenture Trustee and the rights of the Indenture Trustee in
the Receivables shall be governed by the Indenture.
(b) If any change in the name, identity or corporate structure of
the Seller or Fleetwood Credit or the relocation of the chief executive office
of any of them would make any financing or continuation statement or notice of
Lien filed under this Agreement or the other Basic Documents seriously
misleading within the meaning of applicable provisions of the UCC or any title
statute, the Servicer, within the time period required by applicable law, shall
file such financing statements or amendments as may be required to preserve and
protect the interests of the Trustees and the Securityholders in the
Receivables, Financed Vehicles and the proceeds thereof. Promptly thereafter,
the Servicer shall deliver to the Trustees an Opinion of Counsel stating that,
in the opinion of such counsel, all financing statements or amendments
necessary fully to preserve and protect the interests of the Trustees and the
Securityholders in the Receivables, Financed Vehicles and the proceeds thereof
have been filed, and reciting the details of such filings.
(c) From time to time, the Servicer shall cause to be taken such
actions as are necessary to continue the perfection of the respective interests
of the Indenture Trustee and the Owner Trustee in the Receivables and to
continue the first priority security interest of the Indenture Trustee in the
Financed Vehicles and their proceeds (other than, as to such priority, any
statutory Lien arising by operation of law after the related Cutoff Date, in
each case that is prior to such interest), including the filing of financing
statements, amendments thereto or continuation statements and the making of
notations on records or documents of title. The Servicer shall pay all
reasonable costs and disbursements in connection with the perfection and the
maintenance of perfection, as against all third parties, of the Indenture
Trustee's right, title and interest in and to the Receivables and in connection
with maintaining the first priority security interest in the Financed Vehicles
and the proceeds thereof.
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ARTICLE THREE
THE RECEIVABLES
Section 3.01. Representations and Warranties of the Seller. The
Seller hereby makes the following representations and warranties as to the
Receivables on which the Issuer is deemed to have relied in acquiring the
Receivables. Such representations and warranties speak as of the execution and
delivery of this Agreement in the case of the Initial Receivables, and as of
the related Subsequent Transfer Date in the case of the Subsequent Receivables,
but shall in each case survive the sale, transfer and assignment of the related
Receivables to the Issuer, any subsequent assignment or transfer and the pledge
thereof to the Indenture Trustee pursuant to the Indenture:
(a) Characteristics of Receivables. Each Receivable (i)
shall have been (A) originated in the United States by a Dealer for
the retail sale of the related Financed Vehicle in the ordinary course
of such Dealer's business, (B) fully and properly executed by the
parties thereto, (C) purchased by Fleetwood Credit from such Dealer
under an agreement with Fleetwood Credit and (D) validly assigned by
such Dealer to Fleetwood Credit in accordance with its terms and shall
have been subsequently sold by Fleetwood Credit to the Seller, (ii)
shall have created or shall create a valid, subsisting and enforceable
first priority perfected security interest in favor of Fleetwood
Credit in the related Financed Vehicle, which security interest has
been assigned by Fleetwood Credit to the Seller and shall be
assignable, and shall be so assigned, by the Seller to the Indenture
Trustee, (iii) shall contain customary and enforceable provisions such
that the rights and remedies of the holder thereof shall be adequate
for realization against the collateral of the benefits of the
security, (iv) shall provide for level monthly payments (provided that
the payment in the first or last month in the life of the Receivable
may be minimally different from the level payment) that fully amortize
the Amount Financed by maturity and provide for a finance charge or
yield interest at its APR and (v) shall provide for, in the event that
such Receivable is prepaid in full, a payment that fully pays the
Principal Balance thereof and includes accrued but unpaid interest at
least through the date of prepayment in an amount at least equal to
its APR.
(b) Schedule of Receivables. The information set forth
in the Schedule of Receivables shall be true and correct in all
material respects as of the opening of business on the Initial Cutoff
Date or the related Subsequent Cutoff Date, as the case may be, and no
selection procedures adverse to the Securityholders shall have been
utilized in selecting the Receivables from those Receivables of
Fleetwood Credit that met the selection criteria set forth in this
Section.
(c) Compliance with Law. Each Receivable shall have
complied at the time it was originated or made, and shall comply at
the time of execution of this Agreement in all material respects with
all requirements of applicable federal, state and local laws, and
regulations thereunder, including usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, the
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Fair Debt Collection Practices Act, the Federal Trade Commission Act,
the Magnuson-Moss Warranty Act, Federal Reserve Board Regulations B and
Z, state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit, equal credit
opportunity and disclosure laws.
(d) Binding Obligation. Each Receivable shall constitute
the genuine, legal, valid and binding payment obligation in writing of
the related Obligor, enforceable by the holder thereof in accordance
with its terms, except as enforceability may be subject to or limited
by bankruptcy, insolvency, reorganization, liquidation and other
similar laws affecting the enforcement of creditors' rights in general
and by general principles of equity, regardless of whether such
enforceability shall be considered in a Proceeding in equity or at
law.
(e) No Government Obligor. None of the Receivables shall
be due from the United States or any state or local government thereof
or from any agency, department or instrumentality of the United States
or any state or local government.
(f) Security Interest in Financed Vehicle. Immediately
prior to the sale, assignment and transfer thereof, each Receivable
shall be secured by a validly perfected first security interest in the
related Financed Vehicle in favor of Fleetwood Credit as secured party
or all necessary and appropriate action with respect to such
Receivable shall have been taken to perfect a first priority security
interest in such Financed Vehicle in favor of Fleetwood Credit as
secured party.
(g) Receivables in Force. No Receivable shall have been
satisfied, subordinated or rescinded, nor shall any Financed Vehicle
have been released from the Lien granted by the related Receivable in
whole or in part.
(h) No Waiver. No provision of a Receivable shall have
been waived in such a manner that such Receivable fails to meet all of
the other representations and warranties made by the Seller herein
with respect thereto.
(i) No Amendments. No Receivable shall have been amended
in such a manner that such Receivable fails to meet all of the other
representations and warranties made by the Seller herein with respect
thereto.
(j) No Defenses. No facts shall be known to the Seller
that would give rise to any right of rescission, setoff, counterclaim
or defense, nor shall the same have been asserted or threatened, with
respect to any Receivable.
(k) No Liens. To the knowledge of the Seller, no Liens
shall have been filed, including Liens for work, labor or materials
relating to a Financed Vehicle, that shall be prior to, or equal or
coordinate with, the security interest in such Financed Vehicle
granted by the related Receivable.
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(l) No Default. Except for payment defaults continuing
for a period of not more than 30 days as of the Initial Cutoff Date or
the related Subsequent Cutoff Date, as the case may be, no default,
breach, violation or event permitting acceleration under the terms of
any Receivable shall have occurred; no continuing condition that with
notice or the lapse of time would constitute a default, breach,
violation or event permitting acceleration under the terms of any
Receivable shall have arisen; and the Seller shall not have waived any
of the foregoing.
(m) Insurance. Fleetwood Credit, in accordance with its
customary servicing procedures, shall have determined that each
Obligor has obtained physical damage insurance covering the related
Financed Vehicle.
(n) Good Title. It is the intention of the Seller that
the transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Receivables from the Seller to the Trust and
that the beneficial interest in and title to the Receivables not be
part of the debtor's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law. No
Receivable has been sold, transferred, assigned or pledged by the
Seller to any Person other than the Trust, and no provision of a
Receivable shall have been waived, except as provided in paragraph (h)
above; immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to each
Receivable free and clear of all Liens and rights of others;
immediately upon the transfer and assignment thereof, the Trust shall
have good and marketable title to each Receivable, free and clear of
all Liens and rights of others; and the transfer and assignment herein
contemplated has been perfected under the UCC.
(o) Lawful Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable under
this Agreement or any Transfer Agreement or pursuant to transfers of
the Securities shall be unlawful, void or voidable.
(p) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Indenture Trustee a
first perfected ownership interest in the Receivables shall have been
made.
(q) One Original. There shall be only one original
executed copy of each Receivable.
(r) Agreement/Transfer Agreement. The additional
representations and warranties as to the Receivables in this Agreement
or in the related Transfer Agreement, as the case may be, shall be
true and correct.
Section 3.02. Repurchase Upon Breach. The Seller, the Servicer or
the Owner Trustee, as the case may be, shall inform the other parties promptly,
in writing, upon the discovery of any breach of the Seller's representations
and warranties set forth herein or in any Transfer Agreement that materially
and adversely affects any Receivable. Unless such breach shall have
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been cured by the second Record Date following the discovery thereof (or, at
the Seller's option, the first Record Date following such discovery), the
Seller shall repurchase any Receivable materially and adversely affected by
such breach, as of such Record Date. If necessary, the Seller shall enforce
the obligation of Fleetwood Credit under the Receivables Purchase Agreement to
repurchase such Receivable from the Seller. In consideration of the purchase
of any such Receivable, the Seller shall remit the Repurchase Amount of such
Receivable (less the amount of any Liquidation Proceeds with respect to such
Receivable deposited, or to be deposited, by the Servicer into the Collection
Account pursuant to Section 5.03) to the Collection Account in the manner
specified in Section 6.06(a)(i). In the event that, as of the date of
execution and delivery of this Agreement, any Liens shall have been filed,
including Liens for work, labor or materials relating to a Financed Vehicle,
that shall be prior to, or equal or coordinate with, the Lien granted by the
related Receivable (whether or not the Seller has knowledge thereof), and such
breach materially and adversely affects the interests of the Trust in such
Receivable, the Seller shall repurchase such Receivable on the terms and in the
manner specified above. The sole remedy of the Owner Trustee, the Trust or the
Securityholders with respect to a breach of the Seller's representations and
warranties set forth herein or in any Transfer Agreement or with respect to the
existence of any such Liens shall be to require the Seller to repurchase
Receivables pursuant to this Section and to enforce Fleetwood Credit's
obligation to the Seller to repurchase such Receivables from the Seller
pursuant to the Receivables Purchase Agreement.
Section 3.03. Custody of Receivable Files. To assure uniform quality
in servicing the Receivables and to reduce administrative costs, the Owner
Trustee, upon the execution and delivery of this Agreement, revocably appoints
the Servicer, and the Servicer accepts such appointment, to act as the agent of
the Owner Trustee as custodian of the following documents or instruments which
are hereby constructively delivered to the Owner Trustee with respect to each
Receivable on or prior to the Closing Date and each Subsequent Receivable on or
prior to the related Subsequent Transfer Date:
(a) the original of the Receivable;
(b) all documents evidencing the existence of physical
damage insurance covering the related Financed Vehicle;
(c) the original credit application, executed by the
Obligor;
(d) the original Title Document or such documents that
the Servicer or the Seller shall keep on file, in accordance with its
customary procedures, evidencing the security interest in the related
Financed Vehicle; and
(e) any and all other documents that the Seller or the
Servicer, as the case may be, shall keep on file, in accordance with
its customary procedures, relating to such Receivable or the related
Obligor or Financed Vehicle.
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Section 3.04. Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer, in its capacity as custodian,
shall hold the Receivable Files on behalf of the Owner Trustee for the use and
benefit of all present and future Securityholders, and maintain such accurate
and complete accounts, records and computer systems pertaining to each
Receivable File as shall enable the Owner Trustee to comply with this
Agreement. In performing its duties as custodian, the Servicer shall act with
reasonable care, using that degree of skill and attention that it exercises
with respect to the receivable files of comparable recreational vehicle
receivables that the Servicer services for itself or others. The Servicer
shall conduct, or cause to be conducted, periodic reviews of the files of all
receivables owned or serviced by it which shall include the Receivable Files
held by it under this Agreement, and of the related accounts, records and
computer systems, in such a manner as shall enable the Owner Trustee to verify
the accuracy of the Servicer's record keeping. The Servicer shall promptly
report to the Owner Trustee any failure on its part to hold the Receivable
Files and maintain its accounts, records and computer systems as herein
provided and promptly take appropriate action to remedy any such failure.
(b) Maintenance of and Access to Records. The Servicer shall
maintain each Receivable File at one of its offices specified in Schedule B to
this Agreement, or at such other office as shall be specified to the Owner
Trustee by 30 days' prior written notice. The Servicer shall make available to
the Owner Trustee or its duly authorized representatives, attorneys or auditors
the Receivable Files and the related accounts, records and computer systems
maintained by the Servicer at such times as the Owner Trustee may reasonably
request.
(c) Release of Documents. Upon instruction from the Owner
Trustee, the Servicer shall release any document in the Receivable Files to the
Owner Trustee or its agent or designee, as the case may be, at such place or
places as the Owner Trustee may designate, as soon as practicable. The
Servicer shall not be responsible for any loss occasioned by the failure of the
Owner Trustee to return any document or any delay in doing so.
Section 3.05. Instructions; Authority to Act. The Servicer shall be
deemed to have received proper instructions (a copy of which shall be furnished
to the Owner Trustee) with respect to the Receivable Files upon its receipt of
written instructions signed by an Authorized Officer of the Owner Trustee. A
certified copy of a bylaw or of a resolution of the board of directors of the
Owner Trustee shall constitute conclusive evidence of the authority of any such
Authorized Officer to act and shall be considered in full force and effect
until receipt by the Servicer of written notice to the contrary given by the
Owner Trustee.
Section 3.06. Indemnification. Subject to Section 9.02, the Servicer
shall indemnify the Trust, the Trustees and the Securityholders for any Losses
that may be imposed on, incurred by or asserted against the Trust, the Trustees
or the Securityholders as the result of any improper act or omission in any way
relating to the maintenance and custody by the Servicer of the Receivable
Files, or the failure of the Servicer to perform its duties and service the
Receivables in compliance with the terms of this Agreement; provided, however,
that the Servicer shall not be liable to any Trustee for any portion of any
such amount resulting from the willful misfeasance,
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bad faith or negligence of such Trustee. The Servicer shall also indemnify and
hold harmless the Trust, the Trust Estate and the Securityholders against any
Taxes that may be asserted at any time against any of them with respect to the
Receivables and the costs and expenses in defending against such Taxes. The
Servicer shall immediately notify the Trustees if a Claim is made by a third
party with respect to the Receivables, shall assume, with the consent of the
Trustees, the defense of any such Claim, pay all costs and expenses in
connection therewith, including counsel fees, and shall promptly pay, discharge
and satisfy any judgment or decree that may be entered against it or the Trust.
The Servicer, as custodian, shall indemnify the Owner Trustee for any
Loss that may be imposed on, incurred or asserted against the Owner Trustee as
the result of any improper act or omission in any way relating to the
maintenance and custody by the Servicer, as custodian, of the Receivable Files;
provided, however, that the Servicer shall not be liable for any portion of any
such amount resulting from the willful misfeasance, bad faith or negligence of
the Owner Trustee.
Section 3.07. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Initial Cutoff Date
and shall continue in full force and effect until terminated pursuant to this
Section. If the Servicer shall resign in accordance with the provisions of
this Agreement or if all of the rights and obligations of the Servicer shall
have been terminated pursuant to Section 9.01, the appointment of the Servicer
as custodian shall be terminated by (i) the Owner Trustee, (ii) the Indenture
Trustee, (iii) Noteholders evidencing not less than 51% of the Voting Interest
thereof or (iv) Certificateholders evidencing not less than 51% of the Voting
Interest thereof, in each case in the same manner as the Trustees or the
Securityholders may terminate the rights and obligations of the Servicer
pursuant to Section 9.01. The Owner Trustee may terminate the Servicer's
appointment as custodian, with cause at any time upon written notification to
the Servicer, and without cause upon 30 days' prior written notification to the
Servicer. As soon as practicable after any termination of such appointment,
the Servicer shall, at its own expense, deliver the Receivable Files to the
Owner Trustee or its agent at such place or places as the Owner Trustee may
reasonably designate, and shall cooperate in good faith to effect such
delivery. Notwithstanding the termination of the Servicer as custodian, the
Owner Trustee agrees that upon any such termination, the Owner Trustee shall
provide, or cause its agent to provide, access to the Receivable Files to the
Servicer for the purpose of carrying out its duties and responsibilities with
respect to the servicing of the Receivables hereunder.
Section 3.08. No Petition. The Servicer, the Owner Trustee and the
Indenture Trustee each covenants and agrees that prior to the date which is one
year and one day after the date upon which the Securities have been paid in
full, it will not institute against, or join any other Person in instituting
against the Seller any bankruptcy, reorganization, arrangement, insolvency or
liquidation Proceeding or other Proceedings under any federal or state
bankruptcy or similar law. This Section shall survive the termination of this
Agreement or the termination of the Servicer, the Owner Trustee or the
Indenture Trustee, as the case may be.
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ARTICLE FOUR
SERVICER LETTER OF CREDIT
Section 4.01. Servicer Letter of Credit.
(a) If the Servicer has obtained a Servicer Letter of Credit, on
any Distribution Date which immediately follows a Collection Period during
which the Servicer is permitted to remit collections on a monthly rather than a
daily basis pursuant to Section 6.02 and the Servicer shall have failed to make
in full the remittances to the Collection Account pursuant to Section 6.02
required for distribution to Certificateholders on such Distribution Date by
12:00 P.M., New York City time, on the Business Day immediately preceding such
Distribution Date, the Owner Trustee shall immediately deliver a demand for
payment under the Servicer Letter of Credit to the Letter of Credit Bank
requesting payment in the amount of the shortfall between the amount of funds
that are required to be remitted by the Servicer to the Collection Account as
set forth in the related Servicer's Certificate and the amount of funds
actually so remitted. Upon receipt of a completed demand for payment by the
Owner Trustee under the Servicer Letter of Credit, the Letter of Credit Bank
shall pay or cause to be paid, at the time and in the manner provided in the
Servicer Letter of Credit, an amount equal to the lesser of (i) the amount
demanded by the Owner Trustee and (ii) the amount available under the Servicer
Letter of Credit (the "Servicer Letter of Credit Amount") to the Owner Trustee
for deposit to the Collection Account. Except as otherwise provided in the
Servicer Letter of Credit, the Servicer Letter of Credit Amount shall equal the
lesser of (A) the product of the Initial Servicer Letter of Credit Amount and
the Reset Percentage or (B) the Pool Balance as of the related Record Date.
For the purposes of Section 6.05 or 9.01(a), amounts deposited by the Owner
Trustee pursuant to this Section shall be deemed to constitute Servicer
remittances with respect to which the demand on the Servicer Letter of Credit
was made.
(b) Any Servicer Letter of Credit may be terminated by the Owner
Trustee at any time when the Servicer has the Required Servicer Rating with
respect to each Rating Agency; provided, however, that prior to any such
termination of the Servicer Letter of Credit, the Servicer shall furnish to the
Owner Trustee, from each Rating Agency as to which the Servicer does not have
the Required Servicer Rating, a letter to the effect that a Rating Event will
not occur and, if applicable, an Officer's Certificate of the Servicer to the
effect that the Servicer has the Required Servicer Rating with respect to each
other Rating Agency, if any. Notwithstanding the foregoing, if the short term
debt obligations of the Servicer are subsequently downgraded below the Required
Servicer Rating by any Rating Agency, the Servicer shall be required to obtain
an insurance policy, letter of credit or surety bond acceptable to each Rating
Agency (as evidenced by a letter from each Rating Agency to the effect that a
Rating Event will not occur) which insurance policy or surety bond, if it shall
not replace the Servicer Letter of Credit, shall be drawn upon prior to any
draws made upon the Servicer Letter of Credit pursuant to this Section, or the
Servicer shall remit collections to the Collection Account on a daily basis
pursuant to Section 6.02. In addition, the Servicer may cancel the Servicer
Letter of Credit for so long as the Servicer is required to remit collections
to the Collection Account on a daily basis pursuant to Section 6.02. The
Servicer shall provide notice of such cancellation of the Servicer
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Letter of Credit pursuant to the immediately preceding sentence to each Rating
Agency. The Servicer shall also provide notice of the renewal, if any, of the
Servicer Letter of Credit to each Rating Agency and the Owner Trustee.
(c) Notwithstanding the other provisions of this Section, in the
event that on any day during a Collection Period during which the Servicer is
permitted to remit collections on a monthly rather than a daily basis as a
result of having obtained a Servicer Letter of Credit pursuant to Section 6.02
and the aggregate amount of collections described in the first sentence of
Section 6.02 exceeds the product of the Servicer Letter of Credit Percentage
and the Servicer Letter of Credit Amount, then the Servicer shall cause the
amount of such excess to be deposited into the Collection Account on the next
succeeding Business Day.
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ARTICLE FIVE
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 5.01. Duties of Servicer.
(a) The Servicer, as agent for the Owner Trustee, shall
administer the Receivables with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to all comparable
recreational vehicle receivables that it services for itself or others. The
Servicer's duties shall include collecting and posting of all payments,
responding to inquiries of Obligors or by federal, state or local government
authorities with respect to the Receivables, investigating delinquencies,
reporting tax information to Obligors in accordance with its customary
practices and accounting for collections and furnishing monthly and annual
statements to the Trustees with respect to distributions and making Advances
and Non-Reimbursable Payments as herein provided. The Servicer shall follow
its customary standards, policies and procedures in performing its duties as
Servicer. Without limiting the generality of the foregoing, the Servicer shall
be authorized and empowered by the Owner Trustee to execute and deliver, on
behalf of itself, the Trust or the Securityholders or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Receivables
or the related Financed Vehicles. If the Servicer shall commence a Proceeding
to enforce a Receivable, including a Defaulted Receivable, the Owner Trustee,
on behalf of the Trust, shall thereupon be deemed to have automatically
assigned, solely for the purpose of collection on behalf of the party retaining
an interest in such Receivable, such Receivable and the other property conveyed
to the Trust with respect to such Receivable to the Servicer for the purposes
of participating in such Proceeding. If in any enforcement Proceeding it shall
be held that the Servicer may not enforce a Receivable on the grounds that it
shall not be a real party in interest or a holder entitled to enforce such
Receivable, the Owner Trustee shall, at the Servicer's expense and direction,
take steps to enforce such Receivable, including bringing Proceedings in its
name or the name of the Securityholders. The Owner Trustee shall furnish the
Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
Section 5.02. Collection of Receivable Payments. The Servicer shall
make reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due, and shall
follow such collection procedures as it follows with respect to all comparable
recreational vehicle receivables that it services for itself or others. If, as
a result of extending of payments (including any increase in the number of
payments) in the ordinary course of the Servicer's collection procedures, any
Receivable shall be outstanding on the Certificate Final Scheduled Distribution
Date, then the Servicer shall repurchase such Receivable pursuant to Section
5.06 or Section 10.01. In addition, in the event that any such rescheduling or
extension of a Receivable (i) modifies the terms of such Receivable in such a
manner as to constitute a cancellation of such Receivable and the creation of a
new receivable, (ii) extends the stated maturity of such Receivable beyond the
scheduled maturity of the Receivable having the latest scheduled maturity as of
the related Subsequent Cutoff Date; then in
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each case the Servicer shall purchase such Receivable pursuant to Section 5.06,
and the related Receivable shall not be included in the Trust. For the purpose
of such repurchases pursuant to Section 5.06, notice shall be deemed to have
been received by the Servicer at such time as shall make repurchase mandatory
as of the related Record Date. Notwithstanding the foregoing, extensions or
modifications of the payment schedule of a Receivable shall not be made unless
the related Receivable is in default or a default thereunder is imminent or if
such extension or modification is required by law. The Servicer may, in
accordance with its customary standards, policies and procedures, in its
discretion (i) waive any late payment charge or any other fees that may be
collected in the ordinary course of servicing a Receivable and (ii) waive the
payment by the related Obligor of Accrued Interest on any Receivable; provided
that, in connection with any such waiver of Accrued Interest, the Servicer
shall make an Advance in respect of the Accrued Interest so waived in
accordance with Section 6.04, it being understood and agreed that,
notwithstanding anything to the contrary contained in this Agreement, the
obligation of the Servicer hereunder shall be absolute and shall be performed
regardless of whether the Servicer determines that such Advance shall be
recoverable and that the Servicer shall have no right of reimbursement
therefor.
Section 5.03. Realization upon Receivables. On behalf of the Trust,
the Servicer shall use its best efforts, consistent with its customary
servicing procedures, to repossess or otherwise take possession of the Financed
Vehicle securing any Receivable that the Servicer shall have determined to be
or that the Servicer believes will become a Defaulted Receivable (and shall
specify such Receivables to the Owner Trustee no later than the Determination
Date following the end of the Collection Period in which the Servicer shall
have made such determination). The Servicer shall follow such customary and
usual practices and procedures as it shall deem necessary or advisable in its
servicing of recreational vehicle receivables, which may include reasonable
efforts to realize upon any recourse to Dealers, consigning a Financed Vehicle
to a dealer for resale and selling a Financed Vehicle at public or private
sale. The Servicer shall be entitled to recover all reasonable out-of-pocket
expenses incurred by it in the course of converting a Financed Vehicle into
cash proceeds. The Liquidation Proceeds realized in connection with any such
action with respect to a Receivable shall be deposited by the Servicer in the
Collection Account in the manner specified in Section 6.06(a)(ii) and shall be
applied to reduce (or to satisfy, as the case may be) the Repurchase Amount of
the Receivable, if such Receivable is to be repurchased by the Seller pursuant
to Section 3.02 or by the Servicer pursuant to Section 5.06; provided, however,
that if such Liquidation Proceeds are recovered subsequent to the purchase of a
Receivable by the Seller, such Liquidation Proceeds shall be paid to the Seller
within two Business Days of receipt or, if received with respect to a
Receivable purchased by the Servicer, may be retained by the Servicer or
deposited in the Collection Account in satisfaction of other obligations of the
Servicer hereunder. The foregoing shall be subject to the proviso that, in any
case in which a Financed Vehicle shall have suffered damage, the Servicer shall
not expend funds in connection with the repair or the repossession of such
Financed Vehicle unless it shall determine in its discretion that such repair
or repossession will increase the Liquidation Proceeds of the related
Receivable by an amount equal to or greater than the amount of such expenses.
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Section 5.04. Maintenance of Security Interests in Financed Vehicles.
The Servicer, in accordance with its customary servicing procedures, shall take
such steps as are necessary to maintain perfection of the security interest
created by each Receivable in the related Financed Vehicle including the filing
of financing statements and continuation statements with respect to the transfer
of the security interest in such Financed Vehicle to the Trust. The Owner
Trustee hereby authorizes the Servicer, and the Servicer hereby agrees, to take
such steps as are necessary to reperfect such security interest on behalf of the
Trust in the event of the relocation of a Financed Vehicle or for any other
reason. In the event that the assignment of a Receivable to the Trust is
insufficient, without a notation on the related Financed Vehicle's Title
Document, to grant to the Trust a first perfected security interest in the
related Financed Vehicle, the Servicer hereby agrees to serve as the agent of
the Trust for the purpose of perfecting the security interest in such Financed
Vehicle and that the Servicer's listing as the secured party on the Title
Document is in its capacity as agent of the Trust.
Section 5.05. Covenants, Representations and Warranties of Servicer.
(a) The Servicer shall make the following covenants on which the
Owner Trustee will rely in accepting the Receivables in trust and upon which
the Owner Trustee or the Indenture Trustee, as the case may be, may rely in
authenticating the Securities:
(i) Security Interest to Remain in Force. Except as
contemplated by this Agreement, the Financed Vehicle securing each
Receivable shall not be released by the Servicer from the security
interest granted by the Receivable in whole or in part.
(ii) No Impairment. The Servicer shall not impair the
rights of the Securityholders in the Receivables.
(iii) Amendments. The Servicer shall not increase the
number of payments under a Receivable except as permitted pursuant to
Section 5.02, nor increase the Amount Financed under a Receivable.
(b) The Servicer shall make the following representations upon
which the Owner Trustee shall rely in accepting the Initial Receivables in
trust, upon which the Owner Trustee and the Indenture Trustee, as the case may
be, may rely in executing and authenticating the Securities and on which the
Owner Trustee shall rely in accepting any Subsequent Receivables in trust. The
representations shall speak as of the execution and delivery of this Agreement
in the case of the Initial Receivables, and as of the related Subsequent
Transfer Date in the case of the Subsequent Receivables, and in each case shall
survive the sale of the Receivables to the Trust:
(i) Organization and Good Standing. The Servicer shall
have been duly organized and shall be validly existing as a
corporation in good standing under the laws of the State of
California, with power and authority to own its properties and to
conduct its business as such properties shall be currently owned and
such business is presently conducted, and had at all relevant times,
and shall have, power, authority and legal right
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to acquire, own, sell and service the Receivables and to hold the
Receivable Files as custodian on behalf of the Owner Trustee.
(ii) Due Qualification. The Servicer shall be duly
qualified to do business as a foreign corporation in good standing,
and shall have obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business (including the servicing of the Receivables as
required hereby) shall require such qualifications.
(iii) Power and Authority. The Servicer shall have the
power and authority to execute and deliver this Agreement and to carry
out its terms; and the execution, delivery and performance of this
Agreement shall have been duly authorized by the Servicer by all
necessary corporate action.
(iv) Binding Obligations. This Agreement shall constitute
a legal, valid and binding obligation of the Servicer enforceable in
accordance with its terms, except as enforceability may be subject to
or limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such
enforceability shall be considered in a Proceeding in equity or at
law.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of
this Agreement shall not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or
bylaws of the Servicer, or conflict with or breach any of the material
terms or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement or other instrument
to which the Servicer is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument (other than this Agreement); nor violate any law or,
to the best of the Servicer's knowledge, any order, rule or regulation
applicable to the Servicer of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its
properties.
(vi) No Proceedings. There are no Proceedings or
investigations pending, or to the Servicer's best knowledge,
threatened, before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the
Servicer or its properties: (A) asserting the invalidity of this
Agreement or the Securities, (B) seeking to prevent the issuance of
the Securities or the consummation of any of the transactions hereby,
(C) seeking any determination or ruling that might materially and
adversely affect the performance by the Servicer of its obligations
under, or the validity or enforceability of, this Agreement or the
Securities or (D) relating to the Servicer and which might adversely
affect the federal income tax attributes of the Securities.
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Section 5.06. Purchase of Receivables upon Breach. The Servicer or
the Owner Trustee, as the case may be, shall inform the other party and the
Indenture Trustee promptly, in writing, upon the discovery of any breach by the
Servicer of its obligations pursuant to Section 5.05(a) that materially and
adversely affects the interest of the Trust in any Receivable or pursuant to
Section 5.02 in the case of a Receivable for which the related payment schedule
has been extended or modified. Unless the breach shall have been cured by the
second Record Date following the date of such discovery (or, at the Servicer's
election, the first following Record Date), the Servicer shall purchase any
Receivable materially and adversely affected by such breach as of such second
Record Date. In consideration of the purchase of such Receivable, the Servicer
shall remit the Repurchase Amount (less any Liquidation Proceeds deposited, or
concurrently being deposited, in the Collection Account with respect to such
Receivable pursuant to Section 5.03) to the Collection Account in the manner
specified in Section 6.06(a). The sole remedy of the Trustees, the Trust or
the Securityholders against the Servicer with respect to a breach pursuant to
Sections 5.01, 5.04 or 5.05 shall be to require the Servicer to purchase
Receivables pursuant to this Section.
Section 5.07. Servicing Compensation. As compensation for the
performance of its obligations under this Agreement and subject to the terms of
this Section, the Servicer shall be entitled to receive on each Distribution
Date the Servicing Fee. The Servicer shall also be entitled to receive as
additional servicing compensation all late payment and extension fees, and
other administrative fees with respect to the Receivables, collected (from
whatever source) on the Receivables; provided, however, such late payment and
other fees shall not form a part of the Servicing Fee and the Servicer shall be
entitled to such fees as and when collected.
Section 5.08. Servicer's Certificate. On or before each
Determination Date, the Servicer shall deliver to the Owner Trustee and the
Letter of Credit Bank, if any, a certificate (the "Servicer's Certificate")
containing all information necessary to make the distributions pursuant to
Section 6.07 in respect of the Collection Period preceding the date of such
Servicer's Certificate and all information necessary for the Trustees to send
statements to Securityholders pursuant to the Indenture or the Trust Agreement,
as the case may be. The Servicer shall also specify to the Owner Trustee no
later than the Determination Date following the Record Date as of which the
Seller shall be required to repurchase or the Servicer shall be required to
purchase a Receivable, the identity of any such Receivable and the identity of
any Receivable that the Servicer shall have determined to be a Defaulted
Receivable during the preceding Collection Period. Receivables purchased or to
be purchased by the Servicer or the Seller and Receivables as to which the
Servicer has determined during the Collection Period that eventual payment in
full is unlikely and with respect to which payment of the Repurchase Amount has
been provided from whatever source as of any Record Date shall be identified by
the Seller's account number with respect to such Receivable (as specified in
the Schedule of Receivables). Each Rating Agency may request such additional
information as the Servicer may be able to reasonably provide.
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Section 5.09. Annual Statement as to Compliance.
(a) The Servicer shall deliver to the Owner Trustee and the
Letter of Credit Bank, if any, on or before April 30 of each year, beginning
with the first April 30 that occurs at least six months after the Initial
Cutoff Date, an Officer's Certificate, stating that (i) a review of the
activities of the Servicer during the preceding 12-month period ending the
preceding December 31 (or shorter period in the case of the first such
certificate) and of its performance hereunder has been made under such
officer's supervision and (ii) to the best of such officer's knowledge, based
on such review, the Servicer has fulfilled all its obligations hereunder
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof.
(b) The Servicer shall deliver to the Owner Trustee and the
Letter of Credit Bank, if any, promptly after having obtained knowledge
thereof, but in no event later than five Business Days thereafter, an Officer's
Certificate of any event which with the giving of notice or lapse of time, or
both, would become a Servicer Default under clause (a) or (b) of Section 9.01.
The Seller shall deliver to the Owner Trustee and Letter of Credit Bank, if
any, promptly after having obtained knowledge thereof, but in no event later
than five Business Days thereafter, an Officer's Certificate of any event which
with the giving of notice or lapse of time, or both, would become a Servicer
Default under clause (b) of Section 9.01.
Section 5.10. Annual Independent Certified Public Accountants'
Report. The Servicer shall cause a firm of independent certified public
accountants (who may also render other services to the Servicer or to the
Seller) to deliver to the Owner Trustee and the Letter of Credit Bank, if any,
on or before April 30 of each year beginning with the first April 30 that
occurs at least six months after the Initial Cutoff Date, a report addressed to
the board of directors of the Servicer, the Owner Trustee and the Letter of
Credit Bank, if any, to the effect that such firm has examined the financial
statements of the Servicer for the fiscal year ending the preceding December 31
and issued its report thereon and that such examination (i) was made in
accordance with generally accepted auditing standards, and accordingly included
such tests of the accounting records and such other auditing procedures as such
firm considered necessary in the circumstances, and (ii) except as described in
such report, disclosed no exceptions or errors in the records relating to
receivables serviced for others that, in such firm's opinion, requires such
firm to report. Such report shall indicate that such firm is independent of
the Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
Section 5.11. Access to Certain Documentation and Information. The
Servicer shall provide to the Securityholders access to the Receivable Files in
such cases where the Securityholders shall be required by applicable statutes
or regulations to review such documentation. Access shall be afforded without
charge, but only upon reasonable request and during the normal business hours
at the respective offices of the Servicer. Nothing in this Section shall
affect the obligation of the Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors, and the failure of the
Servicer to provide access to information as a result of such obligation shall
not constitute a breach of this Section.
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Section 5.12. Access to Certain Documentation and Information.
(a) The Owner Trustee shall provide to any Securityholder or
Security Owner that so requests in writing a copy of (i) any Servicer's
Certificate, (ii) any annual statement as to compliance described in Section
5.09(a), (iii) any annual report described in Section 5.10, (iv) any statement
to Securityholders described in Section 6.12 or (v) this Agreement (without
Exhibits). The Owner Trustee may require such Securityholder or Security Owner
to pay a reasonable sum to cover the cost of the Owner Trustee's complying with
such request.
(b) The Owner Trustee shall forward to each Rating Agency a copy
of each (i) Servicer's Certificate described in Section 5.08, (ii) annual
statement as to compliance described in Section 5.09(a), (iii) Officer's
Certificate described in Section 5.09(b), (iv) annual independent certified
public accountants' report described in Section 5.10, (v) statement to
Securityholders described in Section 6.12 and (vi) other report it may receive
pursuant hereto at its address specified in Section 11.04.
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ARTICLE SIX
DISTRIBUTIONS; YIELD SUPPLEMENT ACCOUNT;
STATEMENTS TO SECURITYHOLDERS
Section 6.01. Establishment of Trust Accounts.
(a) Prior to the Closing Date, the Servicer shall establish the
following accounts (the "Trust Accounts"):
(i) an account in the name of the Indenture Trustee (the
"Collection Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the
Securityholders;
(ii) an account in the name of the Indenture Trustee (the
"Yield Supplement Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Securityholders;
(iii) an account in the name of the Indenture Trustee (the
"Note Distribution Account") bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Noteholders;
(iv) an account in the name of the Indenture Trustee (the
"Pre-Funding Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the
Securityholders;
(v) an account in the name of the Indenture Trustee (the
"Reserve Fund"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the
Securityholders; and
(vi) an account in the name of the Owner Trustee (the
"Certificate Distribution Account") bearing a designation clearly
indicating that the funds deposited therein are held for the benefit
of the Certificateholders.
Each Trust Account shall be a segregated trust account initially
established with the Indenture Trustee and maintained (i) with the Indenture
Trustee so long as the Indenture Trustee has the Required Deposit Rating or
(ii) in a non-interest bearing segregated trust account bearing a designation
clearly indicating that the funds deposited therein are held in trust for the
benefit of the Securityholders, located in the corporate trust department of a
depository institution or trust company having corporate trust powers under
applicable federal and state laws (which may include the Indenture Trustee)
organized under the laws of the United States or any State and, if required by
any Rating Agency, having the Required Deposit Rating.
(b) For so long as the bank or trust company then maintaining the
Trust Accounts has the Required Deposit Rating, all amounts held in the Trust
Accounts shall, to the extent
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permitted by applicable laws, rules and regulations, be invested, as directed
by the Servicer, in Permitted Investments. In the event that the Indenture
Trustee no longer has the Required Deposit Rating, then the Servicer shall,
with the Indenture Trustee's assistance as necessary, cause the Trust Accounts
(including, so long as the Funding Period has not ended, the Pre-Funding
Account) to be moved within 15 days of such occurrence (i) to a bank or trust
company that has the Required Deposit Rating or (ii) to a non-interest bearing
segregated trust account bearing a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the
Securityholders, located in the corporate trust department of a depository
institution or trust company having corporate trust powers under applicable
federal and state laws (which may include the Indenture Trustee) organized
under the laws of the United States or any State and, if required by any Rating
Agency, having the Required Deposit Rating. Investment Earnings with respect
to the Pre-Funding Account shall be deposited into the Collection Account.
Investment Earnings on investment with respect to the Collection Account shall
be credited to the Collection Account.
Section 6.02. Collections. The Servicer shall remit to the
Collection Account on a daily basis within two Business Days of receipt
thereof, all payments by or on behalf of the Obligors (other than the amounts
listed in subclauses (i)(a) and (b) of the definition of Available Funds as not
constituting Available Funds) on or in respect of the Receivables (other than
Repurchased Receivables) and all Liquidation Proceeds both as collected during
each Collection Period.
Fleetwood Credit has requested that the Servicer be permitted to make
remittances of collections on a less frequent basis than that specified in the
immediately preceding sentence upon the Servicer's compliance with the specific
terms and conditions set forth below in this Section and for so long as such
terms and conditions are fulfilled. Accordingly, notwithstanding the
provisions of the first sentence of this Section, the Servicer shall be
permitted to remit such collections to the Collection Account in Automated
Clearinghouse Corporation next-day funds or immediately available funds no
later than 12:00 P.M., New York City time, on the Business Day immediately
preceding each Distribution Date, but only for so long as (a)(i) except as
provided in clause (b) below, the short-term credit rating of the Servicer is
at least equal to the Required Servicer Rating with respect to each Rating
Agency, and (ii) no Servicer Default shall have occurred and be continuing;
provided, however, that immediately following the non-compliance with clause
(i) above or in the event an Insolvency Event has occurred (notwithstanding any
applicable grace period), the Servicer shall remit such collections to the
Collection Account on a daily basis within two Business Days of receipt
thereof, or (b)(i) if the condition specified in clause (a)(ii) above is
satisfied, and (ii) the Servicer shall have obtained a Servicer Letter of
Credit issued in favor of the Owner Trustee by a depository institution or
insurance company, as the case may be, having the Required Deposit Rating and
providing that the Owner Trustee may draw thereon in the event that the
Servicer fails to deposit collections into the Collection Account on a monthly
basis; provided, that in connection with clause (b) above, the Servicer
provides to the Owner Trustee, from each Rating Agency with respect to which
the Servicer does not have the Required Servicer Rating, a letter to the effect
that the satisfaction of the conditions in clause (b) above and allowing the
Servicer to make monthly deposits will not result in a Rating Event and, if
applicable, an Officer's Certificate from the Servicer to the effect that the
Servicer has the Required Servicer Rating with respect to each other Rating
Agency, if any; and provided further,
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that if the Servicer shall have obtained a Servicer Letter of Credit in
accordance with clause (b) above, the Servicer shall be required to remit such
collections in the manner provided for in Section 4.01(c) under the conditions
specified in such Section. The Owner Trustee shall not be deemed to have
knowledge of any event or circumstance under clause (a)(ii) above that would
require daily remittance by the Servicer to the Collection Account unless it
has received notice of such event or circumstance from the Seller or the
Servicer in an Officer's Certificate or from Securityholders as provided in
Section 9.01. For purposes of this Article the phrase "payments made on behalf
of Obligors" shall mean payments made by Persons other than the Seller, the
Servicer or the Letter of Credit Bank, if any.
Any funds held by the Servicer that it determines are to be remitted
(or any of its own funds which the Seller or the Servicer determines to pay to
the Letter of Credit Bank) in respect of a failure previously to remit
collections which failure resulted in a payment under any Servicer Letter of
Credit pursuant to Section 4.01 shall not be remitted to the Collection
Account, but shall instead be paid immediately and directly to the Letter of
Credit Bank. Any such payment to the Letter of Credit Bank shall be
accompanied by a copy of the Servicer's Certificate related to the previous
failure to remit funds and an Officer's Certificate which includes a statement
identifying, by reference to the items in such Servicer's Certificate, each
shortfall in Servicer remittances to which such payment relates. The Servicer
shall also provide the Owner Trustee with copies of each such Servicer's
Certificate and Officer's Certificate delivered with any such payment to the
Letter of Credit Bank.
Section 6.03. Application of Collections. As of each Record Date,
all collections for the related Collection Period, with respect to payments
made by or on behalf of an Obligor on each Receivable (including a Defaulted
Receivable), shall be applied by the Servicer as follows: (i) to late payment
and extension fees; (ii) to interest accrued on the Receivable; (iii) to
principal due on the Receivable; and (iv) to administrative charges, if any.
Any excess after the application of clauses (i) through (iv) shall be applied
to prepay the Principal Balance of such Receivable.
Section 6.04. Advances. On the Business Day immediately preceding
each Distribution Date, the Servicer shall deposit into the Collection Account,
in Automated Clearinghouse Corporation next-day funds or immediately available
funds, an amount equal to Accrued Interest in respect of each Receivable (each,
an "Advance"). The Servicer shall be entitled to reimbursement for
unreimbursed Advances, without interest, with respect to a Receivable from
subsequent Collected Interest or Collected Principal, as the case may be,
allocable with respect to such Receivable, Liquidation Proceeds of or the
Repurchase Amount of such Receivable or as otherwise provided in Section 6.06,
except as otherwise provided in Sections 5.03 and 5.06. Except as otherwise
provided in Section 5.03, the Servicer shall not be required to make an Advance
to the extent that the Servicer, in its sole discretion, shall determine that
such Advance will not be recoverable from subsequent payments by or on behalf
of the related Obligor, Liquidation Proceeds or the Repurchase Amount with
respect to such Receivable (whether such Receivable is purchased by the Seller
or the Servicer, to the extent such right of reimbursement is not waived in
connection with any such repurchase) or otherwise.
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Section 6.05. Non-Reimbursable Payments. On or before each Deposit
Date, the Servicer shall deposit into the Collection Account, in Automated
Clearinghouse Corporation next-day funds or immediately available funds, an
amount (the "Non-Reimbursable Payment") equal to the amount of interest that
accrued on the aggregate Collected Principal for the related Collection Period,
at a rate equal to the Required Rate, from the date of collection of each
payment of principal on or in respect of the Receivables comprising part of
such aggregate Collected Principal through the last day of the such Collection
Period, based on a year with the actual number of days in such year and
consisting of twelve months with the actual number of days in such month. The
Servicer shall not be entitled to reimbursement for any Non-Reimbursable
Payment from the Trust, the Trustees, the Seller or the Letter of Credit Bank,
if any.
Section 6.06. Additional Deposits.
(a) The following additional deposits shall be made to the
Collection Account: (i) the Servicer or the Seller, as the case may be, shall
remit the aggregate Repurchase Amount with respect to Repurchased Receivables
pursuant to Sections 3.02, 5.06 and 10.01, (ii) the Servicer shall remit the
aggregate Liquidation Proceeds received during each Collection Period (less any
Liquidation Proceeds paid to the Seller or retained by the Servicer) pursuant
to Section 5.03, (iii) the Owner Trustee shall deposit (A) the aggregate of any
amounts received from any Letter of Credit Bank pursuant to Article Four or (B)
from the sale of Receivables pursuant to Section 10.01, in each case on the
date of receipt thereof, and (iv) on the Distribution Date immediately
succeeding the date in which the Funding Period ends (or on the Distribution
Date on which the Funding Period ends, if the Funding Period ends on a
Distribution Date), the Indenture Trustee shall remit the remaining Pre-Funded
Amount on deposit in the Pre-Funding Account to the Collection Account pursuant
to Section 6.10.
(b) Except as otherwise provided in Section 6.02, all deposits
required to be made in respect of a Collection Period pursuant to this Section
by the Seller or the Servicer may be made in the form of a single deposit by
the Seller or the Servicer, as the case may be, and shall be made in Automated
Clearinghouse Corporation next-day funds or immediately available funds, no
later than 12:00 P.M., New York City time, on the Business Day preceding each
Distribution Date.
Section 6.07. Distributions.
(a) On each Distribution Date, the Indenture Trustee shall cause
to be made the following transfers and distributions in immediately available
funds in the amounts set forth in the Servicer's Certificate for such
Distribution Date:
(i) from monies on deposit in the Pre-Funding Account to
the Collection Account, Investment Earnings with respect to the
Pre-Funded Amount during the related Collection Period; and
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(ii) from monies on deposit in the Reserve Fund to the
Collection Account, an amount equal to the Negative Carry Amount for
the related Collection Period, if any.
(b) On each Distribution Date, the Servicer shall instruct the
Indenture Trustee (based on the information contained in the Servicer's
Certificate delivered on the related Servicer Report Date pursuant to Section
5.08) to make the following deposits and distributions for receipt by the
Servicer or deposit in the applicable account by ___:00 __.m. (______ time), to
the extent of the Available Amount for such Distribution Date, in the following
order of priority:
(i) to the Servicer, from Collected Interest, the
Servicer Payment (including any unpaid Servicing Fees with respect to
one or more prior Collection Periods), by wire transfer of immediately
available funds; provided, however, that the Servicer Payment shall be
provided from Available Funds only to the extent, as determined by the
Servicer pursuant to Section 6.03, such funds represent payment in
respect of the Receivables allocable to interest;
(ii) to the Note Distribution Account, from the Available
Amount (after giving effect to the reduction in the Available Amount
described in clause (i) above), the Note Interest Distributable
Amount;
(iii) to the Note Distribution Account, from the Available
Amount (after giving effect to the reduction in the Available Amount
described in clauses (i) and (ii) above), the Note Principal
Distributable Amount;
(iv) to the Certificate Distribution Account, from the
Available Amount (after giving effect to the reduction in the
Available Amount described in clauses (i) through (iii) above), the
Certificate Interest Distributable Amount;
(v) to the Certificate Distribution Account, from the
Available Amount (after giving effect to the reduction in the
Available Amount described in clauses (i) through (iv) above), the
Certificate Principal Distributable Amount; and
(vi) in the event that the distributions described in
clauses (i) through (v) above have been funded exclusively from
Available Funds, any Excess Amounts shall be deposited into the
Reserve Fund until the amount on deposit therein equals the Specified
Reserve Fund Balance, and any excess thereof shall be deposited (A)
into the Note Distribution Account for payment to the Noteholders as
an Accelerated Principal Distribution Amount or (B) on and after any
Distribution Date on which the Notes have been paid in full, if such
excess is equal to or greater than the Certificate Balance, into the
Certificate Distribution Account for payment of principal to the
Certificateholders. If the amount on deposit in the Reserve Fund on
such Distribution Date (after giving effect to all deposits thereto
and withdrawals therefrom on such Distribution Date) is greater than
the Specified Reserve Fund Balance, the Indenture Trustee shall
release and distribute such excess, together with any Excess Amounts
not required to be deposited into the Reserve Fund, to the Seller.
Notwithstanding the foregoing, during the Funding Period,
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(A) all Excess Amounts shall be deposited into the Reserve Fund and
shall not be deposited into the Note Distribution Account and (B) any
amount on deposit in the Reserve Fund in excess of the Specified
Reserve Fund Balance shall be retained in the Reserve Fund and shall
not be distributed to the Seller; in each case until the Distribution
Date immediately succeeding the date on which the Funding Period ends
(or on the Distribution Date on which the Funding Period ends if the
Funding Period ends on a Distribution Date).
Section 6.08. Yield Supplement Account. On or prior to the Closing
Date, the Owner Trustee, on behalf of the Seller, shall deposit the Yield
Supplement Account Initial Deposit into the Yield Supplement Account from the
net proceeds of the sale of the Securities. Amounts held in the Yield
Supplement Account shall be invested by the Indenture Trustee in Permitted
Investments. Upon termination of this Agreement pursuant to Section 10.01, any
amounts on deposit in the Yield Supplement Account, after payments of amounts
due to the Securityholders, shall be paid to the Seller.
Section 6.09. Reserve Fund.
(a) On or prior to the Closing Date, the Seller shall deposit an
amount equal to the Reserve Fund Initial Deposit into the Reserve Fund.
(b) Amounts on deposit in the Reserve Fund shall be available for
distribution as provided in Section 6.07, in accordance with and subject to the
following: if the amount on deposit in the Reserve Fund (after giving effect
to all deposits thereto and withdrawals therefrom on such Distribution Date) is
greater than the Specified Reserve Fund Balance, the Indenture Trustee shall
release and distribute all such amounts to the Seller. Upon any such
distribution to the Seller, the Securityholders shall have no further rights
in, or claims to, such amounts.
(c) Amounts held in the Reserve Fund shall be invested in
Permitted Investments in accordance with written instructions from the Seller
and such investments shall not be sold or disposed of prior to their maturity.
Investment Earnings attributable to the Reserve Fund Property shall not be
subject to any Claims or rights of the Securityholders or the Servicer. All
such investments shall be made in the name of the Indenture Trustee or its
nominee, as collateral agent, and all net income and gain realized thereon
shall be solely for the benefit of the Seller and shall be payable by the
Indenture Trustee to the Seller on each Distribution Date. Any realized losses
on investment of the Reserve Fund Property shall be charged first against
undistributed Investment Earnings attributable to the Reserve Fund Property and
then against the Reserve Fund Property.
(d) With respect to the Reserve Fund Property, the Indenture
Trustee agrees that:
(i) Any Reserve Fund Property that is held in deposit
accounts shall be held solely in the name of the Indenture Trustee, as
collateral agent, at the Indenture Trustee (in a segregated trust
account if the Indenture Trustee does not have the Required Deposit
Rating) or at one or more depository institutions that have the
Required Deposit Rating.
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Each such deposit account shall be subject to the exclusive custody
and control of the Indenture Trustee, and the Indenture Trustee shall
have sole signature authority with respect thereto.
(ii) Any Reserve Fund Property that constitutes Physical
Property shall be delivered to the Indenture Trustee, as collateral
agent, in accordance with clause (i) of the definition of "Delivery"
and shall be held, pending maturity or disposition, solely by the
Indenture Trustee, as collateral agent, or a Financial Intermediary
acting solely for the Indenture Trustee, as collateral agent.
(iii) Any Reserve Fund Property that is a book-entry
security held through the Federal Reserve System pursuant to federal
book-entry regulations shall be delivered in accordance with clause
(ii) of the definition of "Delivery" and shall be maintained by the
Indenture Trustee, as collateral agent, pending maturity or
disposition, through continued book-entry registration of such Reserve
Fund Property as described in such paragraph.
(iv) Any Reserve Fund Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (iii) above shall be delivered to the Indenture Trustee, as
collateral agent, in accordance with clause (iii) of the definition of
"Delivery" and shall be maintained by the Indenture Trustee, as
collateral agent, pending maturity or disposition, through continued
registration of the Indenture Trustee's or its Financial
Intermediary's (or its custodian's or its nominee's) ownership of such
security, in its capacity as collateral agent.
Effective upon Delivery of any Reserve Fund Property in the form of
Physical Property, book-entry securities or uncertificated securities, the
Indenture Trustee shall be deemed to have purchased such Reserve Fund Property
for value, in good faith and without notice of any adverse Claim thereto.
(e) The Indenture Trustee shall not enter into any subordination
or intercreditor agreement with respect to the Reserve Fund Property.
(f) Upon termination of this Agreement in accordance with Section
10.01, any amounts on deposit in the Reserve Fund, after payment of amounts due
to the Securityholders, shall be paid to the Seller.
Section 6.10. Pre-Funding Account.
(a) On the Closing Date, the Seller shall deposit in the
Pre-Funding Account an amount equal to the Pre- Funded Amount from the proceeds
of the sale of the Securities. On each Subsequent Transfer Date, the Servicer
shall instruct the Indenture Trustee in writing to withdraw from the
Pre-Funding Account an amount equal to the Principal Balance of the Subsequent
Receivables (as of the related Subsequent Cutoff Date) sold to the Trust on
such Subsequent Transfer Date, which instruction shall specify the amount
thereof, and pay such
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amount to or upon the order of the Seller upon satisfaction of the conditions
set forth in this Agreement and in the related Transfer Agreement with respect
to such transfer.
(b) If (i) the Pre-Funded Amount has not been reduced to zero by
the close of business on the Final Funding Period Distribution Date or (ii) the
Pre-Funded Amount has been reduced to $100,000 or less on any Distribution Date
during the Funding Period, in either case after giving effect to any reductions
in the Pre-Funded Amount on such Distribution Date pursuant to Section 6.10(b),
the Servicer shall instruct the Indenture Trustee to withdraw such remaining
portion of the Pre-Funded Amount from the Pre-Funding Account and deposit it in
the related Distribution Account on such Distribution Date to be applied to a
Mandatory Redemption in accordance with Section 10.01(b) of the Indenture or a
Mandatory Prepayment in accordance with Section 3.15(b) of the Trust Agreement,
in addition to the payment of principal and interest that otherwise would be
payable with respect to such Securities on such Distribution Date.
Section 6.11. Net Deposits. For so long as (i) Fleetwood Credit
shall be the Servicer and (ii) the Servicer shall be entitled pursuant to
Section 6.02 to remit collections on a monthly rather than daily basis, the
Servicer may make the remittances pursuant to Sections 6.02, 6.04, 6.05 and
6.06 net of amounts to be distributed to the Servicer pursuant to Section 6.07.
Notwithstanding the foregoing, the Servicer shall account for all of the above
described remittances and distributions in the Servicer's Certificate as if the
amounts were deposited or distributed separately.
Section 6.12. Statements to Securityholders.
(a) On each Distribution Date, (i) the Indenture Trustee shall
include with each distribution to each Noteholder of record as of the related
Record Date and (ii) the Owner Trustee shall include with each distribution to
each Certificateholder of record as of the related Record Date, a statement,
prepared by the Servicer, based upon the information in the Servicer's
Certificate furnished pursuant to Section 5.08, setting forth for such
Distribution Date the following information as of the related Record Date or
such Distribution Date, as the case may be:
(i) the amount of such distribution allocable to
principal (stated separately for each Class of Notes and the
Certificates);
(ii) the amount of such distribution allocable to interest
(stated separately for each Class of Notes and the Certificates);
(iii) the Note Percentage and the Certificate Percentage as
of the close of business on the last day of such Collection Period;
(iv) the Aggregate Principal Balance as of the close of
business on the last day of such Collection Period;
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(v) the amount of the Servicing Fee paid to the Servicer
with respect to the related Collection Period;
(vi) the amount of any Certificate Interest Carryover
Shortfall, Certificate Principal Carryover Shortfall, Note Interest
Carryover Shortfall and Note Principal Carryover Shortfall on such
Distribution Date and the change in such amounts from those with
respect to the immediately preceding Distribution Date;
(vii) the Note Pool Factor for each Class of Notes and the
Certificate Pool Factor as of such Distribution Date, after giving
effect to payments allocated to principal reported under clause (i)
above; and
(viii) the amount on deposit in the Yield Supplement Account
on such Distribution Date, after giving effect to distributions made
on such Distribution Date, and the change in such balance from the
immediately preceding Distribution Date.
Each amount set forth pursuant to subclauses (i), (ii), (iv) or (v) above shall
be expressed as a dollar amount per $1,000.00 of Original Note Balance or
Original Certificate Balance, as the case may be.
(b) Within the prescribed period of time for tax reporting
purposes after the end of each calendar year during the term of the Trust, but
not later than the latest date permitted by law, the related Trustee shall mail
to each Person who at any time during such calendar year shall have been a
Securityholder, a statement, prepared by the Servicer, containing the sum of
the amounts set forth in clauses (i), (ii), (iv) and (v) above for such
calendar year or, in the event such Person shall have been a Securityholder
during a portion of such calendar year, for the applicable portion of such
year, for the purposes of such Securityholder's preparation of federal income
tax returns. In addition, the Servicer shall furnish to the Trustees for
distribution to such Person at such time any other information necessary under
applicable law for the preparation of such income tax returns.
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ARTICLE SEVEN
THE SELLER
Section 7.01. Corporate Existence. During the term of this
Agreement, the Seller will keep in full force and effect its existence, rights
and franchises as a corporation under the laws of the jurisdiction of its
incorporation and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the other Basic
Documents and each other instrument or agreement necessary or appropriate to
the proper administration of this Agreement and the transactions contemplated
hereby. In addition, all transactions and dealings between the Seller and its
Affiliates will be conducted on an arm's-length basis.
Section 7.02. Liability of Seller; Indemnities. The Seller shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Seller under this Agreement.
The Seller shall indemnify, defend and hold harmless the Issuer, the
Trustees and the Servicer from and against any Taxes that may at any time be
asserted against any such Person with respect to the transactions contemplated
herein and in the other Basic Documents (but, in the case of the Issuer, not
including any Taxes asserted with respect to, and as of the date of, the sale
of the Receivables to the Issuer or the issuance and original sale of the
Securities, or asserted with respect to ownership of the Receivables, or
federal or other income Taxes arising out of distributions on the Securities)
and costs and expenses in defending against the same.
The Seller shall indemnify, defend and hold harmless the Issuer, the
Trustees and the Securityholders from and against any Liability incurred by
reason of the Seller's willful misfeasance, bad faith or negligence (other than
errors in judgment) in the performance of its duties under this Agreement, or
by reason of reckless disregard of its obligations and duties under this
Agreement.
The Seller shall indemnify, defend and hold harmless the Issuer and
the Trustees from and against any Losses arising out of or incurred in
connection with the acceptance or performance of the trusts and duties herein
and, in the case of the Owner Trustee, in the Trust Agreement and, in the case
of the Indenture Trustee, in the Indenture, except to the extent that such
Loss, in the case of (i) the Owner Trustee, shall be due to the willful
misfeasance, bad faith or negligence of the Owner Trustee or shall arise from
the breach by the Owner Trustee of any of its representations or warranties set
forth in Section 7.03 of the Trust Agreement, or (ii) the Indenture Trustee,
shall be due to the willful misfeasance, bad faith or negligence of the
Indenture Trustee.
If the Seller shall have made any indemnity payments pursuant to this
Section and the Person to or on behalf of whom such payments are made
thereafter shall collect any of such amounts from others, such Person shall
promptly repay such amounts to the Seller, without interest.
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Section 7.03. Merger or Consolidation of Seller.
(a) The Seller shall not consolidate with or merge into any other
corporation or convey, transfer or lease substantially all of its assets as an
entirety to any Person unless the corporation formed by such consolidation or
into which the Seller has merged or the Person that acquires by conveyance,
transfer or lease substantially all the assets of the Seller as an entirety,
can lawfully perform the obligations of the Seller hereunder and executes and
delivers to the Trustees an agreement in form and substance reasonably
satisfactory to the Trustees, which agreement contains an assumption by such
successor entity of the due and punctual performance and observance of each
covenant and condition to be performed or observed by the Seller under this
Agreement. The Seller shall provide notice of any merger, consolidation or
succession pursuant to this Section to each Rating Agency and will deliver to
the Trustees a letter from each Rating Agency to the effect that such merger,
consolidation or succession will not result in a Rating Event. The Seller and
Fleetwood Credit shall maintain separate corporate offices.
(b) Subject to paragraph (c) below, the purpose of the Seller
shall be to engage in any lawful activity for which a corporation may be
organized under the General Corporation Law of California other than the
banking business, the trust company business or the practice of a profession
permitted to be incorporated by the California Corporations Code.
(c) Notwithstanding paragraph (b) above, the actual business
activities of the Seller shall be limited to the following purposes, and
activities incident to and necessary or convenient to accomplish such purposes:
(i) to acquire, own, hold, sell, transfer, assign, pledge, finance, refinance
and otherwise deal with, retail installment sales contracts secured by new and
used recreational vehicles ("Vehicle Receivables"); (ii) to authorize, issue,
sell and deliver one or more series of obligations, consisting of one or more
classes of notes, certificates or other securities (the "Offered Securities")
that are collateralized by or evidence an interest in Vehicle Receivables and
are rated in the highest available category by at least one nationally
recognized statistical rating agency; and (iii) to negotiate, authorize,
execute, deliver and assume the obligations of any agreement relating to the
activities set forth in clauses (i) and (ii) above, including but not limited
to any sale and servicing agreement, indenture, reimbursement agreement, credit
support agreement, receivables purchase agreement or underwriting agreement or
to engage in any lawful activity that is incidental to the activities
contemplated by any such agreement. So long as any outstanding debt of the
Seller or any Offered Securities are rated by any nationally recognized
statistical rating organization, the Seller shall not issue notes or otherwise
incur debt unless (A) the Seller has made a written request to the related
nationally recognized statistical rating organization to issue notes or incur
borrowings, which notes or borrowings are rated by the related nationally
recognized statistical rating organization the same as or higher than the
rating afforded such debt or securities, or (B) such notes or borrowings (I)
are fully subordinated (and shall provide for payment only after payment in
respect of all outstanding rated debt or Offered Securities) or are nonrecourse
against any assets of the Seller other than the assets pledged to secure such
notes or borrowings, (II) do not constitute a Claim against the Seller in the
event such assets are insufficient to pay such notes or borrowings and (III)
where such notes or borrowings are secured by the rated debt or Offered
Securities, are fully
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subordinated (and that shall provide for payment only after payment in respect
of all outstanding rated debt or Offered Securities) to such rated debt or
Offered Securities.
(d) Notwithstanding any other provision of this Section and any
provision of law, the Seller shall not do any of the following:
(i) engage in any business or activity other than as set
forth in clause (b) above;
(ii) without the affirmative vote of a majority of the
members of the board of directors of the Seller (which must include
the affirmative vote of at least two duly appointed Independent
Directors): (A) dissolve or liquidate, in whole or in part, or
institute Proceedings to be adjudicated bankrupt or insolvent; (B)
consent to the institution of bankruptcy or insolvency Proceedings
against it; (C) file a petition seeking or consent to reorganization
or relief under any applicable federal or state law relating to
bankruptcy; (D) consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) with
respect to the corporation or a substantial part of its property; (E)
make a general assignment for the benefit of creditors; (F) admit in
writing its inability to pay its debts generally as they become due;
or (G) take any corporate action in furtherance of the actions set
forth in clauses (A) through (F) above; provided, however, that no
director may be required by any shareholder of the Seller to consent
to the institution of bankruptcy or insolvency Proceedings against the
Seller so long as it is solvent; or
(iii) merge or consolidate with any other corporation,
company or entity or sell all or substantially all of its assets or
acquire all or substantially all of the assets or capital stock or
other ownership interest of any other corporation, company or entity
(except for the acquisition of Vehicle Receivables and the sale of
Vehicle Receivables to one or more trusts in accordance with the terms
of paragraph (c) above, that shall not be otherwise restricted by this
paragraph).
Section 7.04. Limitation on Liability of Seller and Others. The
Seller and any director, officer, employee or agent of the Seller may rely in
good faith on any document of any kind, prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Seller
and any director, officer, employee or agent of the Seller shall be reimbursed
by the Owner Trustee or the Indenture Trustee, as the case may be, for any
Liability incurred by reason of such Trustee's willful misfeasance, bad faith
or negligence (except for errors in judgment) in the performance of their
respective duties hereunder, or by reason of reckless disregard of their
respective obligations and duties hereunder. The Seller shall not be under any
obligation to appear in, prosecute or defend any Proceeding that shall not be
incidental to its obligations under this Agreement, and that in its opinion may
involve it in any Liability. The indemnities contained in this Section shall
survive the resignation or termination of the Owner Trustee or the termination
of this Agreement.
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Section 7.05. Seller Not to Resign. Subject to the provisions of
Section 7.03, the Seller shall not resign from the obligations and duties
hereby imposed on it as Seller hereunder.
Section 7.06. Seller May Own Securities. The Seller and any
Affiliate thereof may in its individual or any other capacity become the owner
or pledgee of Securities with the same rights as it would have if it were not
the Seller or an Affiliate thereof, except as expressly provided herein or in
any other Basic Document. Securities so owned by or pledged to the Seller or
such Affiliate shall have an equal and proportionate benefit under the
provisions of this Agreement, without preference, priority or distinction as
among all of the Notes or Certificates, as the case may be.
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ARTICLE EIGHT
THE SERVICER
Section 8.01. Liability of Servicer; Indemnities. Subject to Section
9.02, the Servicer shall be liable in accordance herewith only to the extent of
the obligations specifically undertaken by the Servicer under this Agreement.
Such obligations shall include the obligation to indemnify, defend and hold
harmless:
(a) the Issuer, the Trustees and the Securityholders from
and against any Losses (i) arising out of or resulting from the use,
ownership or operation by the Servicer or any of its Affiliates of a
Financed Vehicle and (ii) arising out of or imposed upon the Issuer,
the Owner Trustee, the Indenture Trustee or any Securityholder, as the
case may be, through the negligence, willful misfeasance or bad faith
of the Servicer in the performance of its duties under this Agreement
or by reason of reckless disregard of its obligations and duties under
this Agreement;
(b) the Issuer and the Trustees from and against any
Taxes that may at any time be asserted against the Owner Trustee, the
Indenture Trustee or the Issuer, as the case may be, with respect to
the transactions contemplated herein (but not including any Taxes
asserted with respect to, and as of the date of, the sale of the
Receivables to the Issuer or the issuance and original sale of the
Securities, or asserted with respect to ownership of the Receivables,
or federal or other income Taxes arising out of distributions on the
Securities) and costs and expenses in defending against the same; and
(c) the Trustees from and against any Losses arising out
of or incurred in connection with the acceptance or performance of the
trusts and duties herein contained, except to the extent that such
Loss (i) shall be due to the willful misfeasance, bad faith or
negligence (except for errors in judgment) of the Owner Trustee or the
Indenture Trustee, as the case may be; (ii) relates to any Tax other
than the Taxes with respect to which either the Seller or Servicer
shall be required to indemnify the Owner Trustee or the Indenture
Trustee, as the case may be; (iii) shall arise from the Owner
Trustee's or the Indenture Trustee's breach of any of their respective
representations or warranties set forth herein, in the Trust Agreement
or in the Indenture; or (iv) shall be one as to which the Seller is
required to indemnify the Owner Trustee or the Indenture Trustee, as
the case may be.
Indemnification under this Section shall survive the resignation or
removal of the Owner Trustee or the Indenture Trustee or the termination of
this Agreement and shall include reasonable fees and expenses of counsel and
expenses of litigation. If the Servicer shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such payments
are made thereafter collects any of such amounts from others, such Person shall
promptly repay such amounts to the Servicer, without interest.
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Section 8.02. Corporate Existence; Status as Servicer; Merger. The
Servicer shall not consolidate with or merge into any other corporation or
convey, transfer or lease all or substantially all of its assets as an entirety
to any Person unless the corporation formed by such consolidation or into which
the Servicer has merged or the Person that acquires by conveyance, transfer or
lease substantially all the assets of the Servicer as an entirety can lawfully
perform the obligations of the Servicer hereunder and executes and delivers to
the Trustees an agreement in form and substance reasonably satisfactory to the
Trustees, that contains an assumption by such successor entity of the due and
punctual performance or observance of each covenant and condition to be
performed or observed by the Servicer under this Agreement. Notice of any
consolidation, merger or succession pursuant to this Section shall be sent by
the Servicer to each Rating Agency.
Section 8.03. Performance of Obligations.
(a) The Servicer shall punctually perform and observe all of its
obligations and agreements contained in this Agreement.
(b) The Servicer shall not take any action, or permit any action
to be taken by others, that would excuse any Person from any of its covenants
or obligations under any of the Receivable Documents or under any other
instrument included in the Trust Estate, or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any of the Receivable Documents or any such
instrument, except as expressly provided herein and therein.
Section 8.04. Servicer Not to Resign; Assignment.
(a) The Servicer shall not resign from the duties and obligations
hereby imposed on it except upon determination by its board of directors that
by reason of change in applicable legal requirements the continued performance
by the Servicer of its duties hereunder would cause it to be in violation of
such legal requirements in a manner that would result in a material adverse
effect on the Servicer or its financial condition, said determination to be
evidenced by a resolution of its board of directors to such effect accompanied
by an Opinion of Counsel, satisfactory to the Trustees, to such effect. No
such resignation shall become effective unless and until (i) a new servicer
acceptable to the Trustees is willing to service the Receivables and enters
into a servicing agreement with the Trust in form and substance substantially
similar to this Agreement and satisfactory to the Trustees and (ii) the Rating
Agency Condition is satisfied with respect to the selection of such new
servicer. No such resignation shall affect the obligation of the Servicer to
purchase Receivables pursuant to Section 5.06.
(b) Except as specifically permitted in this Agreement, the
Servicer may not assign this Agreement or any of its rights, powers, duties or
obligations hereunder; provided, that the Servicer may assign this Agreement in
connection with a consolidation, merger, conveyance, transfer or lease made in
compliance with Section 8.02.
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(c) Except as provided in Sections 8.04(a) and 8.04(b), the duties
and obligations of the Servicer under this Agreement shall continue until this
Agreement shall have been terminated as provided in Section 10.01 or the Trust
shall have been dissolved as provided by the terms of the Trust Agreement, and
shall survive the exercise by the Owner Trustee or the Indenture Trustee of any
right or remedy under this Agreement, or the enforcement by the Owner Trustee,
the Indenture Trustee or any Securityholder of any provision of the Securities
or this Agreement.
(d) The resignation of the Servicer in accordance with this
Section shall not affect the rights of the Seller hereunder. If the Servicer
resigns pursuant to this Section, its appointment as custodian can be
terminated pursuant to Section 3.07.
Section 8.05. Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of its directors, officers,
employees or agents shall be under any Liability to the Issuer or the
Securityholders, except as provided under this Agreement, for any action taken
or for refraining from the taking of any action pursuant to this Agreement or
for errors in judgment; provided, however, that this provision shall not
protect the Servicer or any such Person against any Liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
(except errors in judgment) in the performance of duties or by reason of
reckless disregard of obligations and duties under this Agreement. The
Servicer and any director, officer, employee or agent of the Servicer may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising under this Agreement.
(b) The Servicer and any director, officer, employee or agent of
the Servicer shall be reimbursed by the Owner Trustee or the Indenture Trustee,
as the case may be, for any Liability incurred by reason of such Trustee's
willful misfeasance, bad faith or negligence (except errors in judgment) in the
performance of such Trustee's duties under this Agreement or by reason of
reckless disregard of its obligations and duties under this Agreement.
Except as provided in this Agreement, the Servicer shall be under no
obligation to appear in, prosecute or defend any Proceeding that shall not be
incidental to its duties to service the Receivables in accordance with this
Agreement, and that in its opinion may involve it in any Liability; provided,
however, that the Servicer may undertake such reasonable action as it may deem
necessary or desirable in respect of (i) this Agreement and the other Basic
Documents, (ii) the rights and duties of the parties to this Agreement and the
other Basic Documents and (iii) the interests of the Securityholders under the
Basic Documents.
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ARTICLE NINE
DEFAULT
Section 9.01. Servicer Default. If any one of the following events
(a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (or the Seller, so long
as Fleetwood Credit is the Servicer) to deliver (i) to the related
Trustee for distribution to the Securityholders any required payment
or (ii) a Servicer's Certificate with respect to any Payment Date or
Distribution Date, which failure continues unremedied for three
Business Days after discovery by an officer of the Servicer (or the
Seller, so long as Fleetwood Credit is the Servicer), or written
notice of such failure is given (A) to the Servicer or the Seller, as
the case may be, by the related Trustee or (B) to the Seller or the
Servicer, as the case may be, and to the related Trustee by
Noteholders evidencing not less than 25% of the Voting Interest
thereof, voting together as a single Class, or, if the Notes have been
paid in full, by Certificateholders evidencing not less than 25% of
the Voting Interest thereof;
(b) any failure by the Servicer (or the Seller, so long
as Fleetwood Credit is the Servicer) duly to observe or perform in any
material respect any covenant or agreement in this Agreement, which
failure materially and adversely affects the rights of the
Securityholders and that continues unremedied for 60 days after the
giving of written notice of such failure is given as described in
clause (i) above; or
(c) the occurrence of an Insolvency Event;
then, and in each case, so long as such Servicer Default shall not have been
remedied, the Indenture Trustee or Noteholders evidencing not less than 51% of
the Voting Interest thereof (or, if the Notes have been paid in full and the
Indenture has been discharged in accordance with its terms, by the Owner
Trustee or Certificateholders evidencing not less than 51% of the Voting
Interest thereof), voting together as a single class, by notice given in
writing to the Servicer (and to the Indenture Trustee if given by Noteholders),
may terminate all of the rights and obligations of the Servicer hereunder. On
or after the receipt by the Servicer of such written notice, all authority and
power of the Servicer hereunder, whether with respect to the Securities, the
Receivables or otherwise, shall, without further action, pass to and be vested
in the Indenture Trustee or such successor Servicer as may be appointed under
Section 9.02; and, without limitation, the Indenture Trustee shall be hereby
authorized and empowered to execute and deliver, on behalf of the predecessor
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the Receivables and related documents,
or otherwise. The predecessor Servicer shall cooperate with the successor
Servicer and the Indenture Trustee in effecting the termination of the
responsibilities and rights of the predecessor Servicer hereunder, including
the transfer to the successor Servicer for administration by it of all cash
amounts that shall at the time be held by the predecessor Servicer for deposit,
shall have been deposited by the predecessor Servicer in the
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Collection Account or shall thereafter be received with respect to a
Receivable. All reasonable costs and expenses (including attorneys' fees)
incurred in connection with transferring the Receivable Files to the successor
Servicer and amending this Agreement to reflect such succession as Servicer
pursuant to this Section shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs and expenses.
Section 9.02. Indenture Trustee to Act; Appointment of Successor.
Upon the Servicer's receipt of notice of termination pursuant to Section 9.01
or resignation pursuant to Section 8.04, the Indenture Trustee shall be the
successor to the Servicer in its capacity as servicer under this Agreement, and
shall be subject to all the responsibilities, duties and liabilities relating
thereto placed on the Servicer by the terms and provisions of this Agreement,
except that the Indenture Trustee shall not be obligated to purchase
Receivables pursuant to Section 5.06, unless the obligation to repurchase arose
after the date of the notice of termination given to the Servicer pursuant to
Section 9.01 or be subject to any obligation of the Servicer to indemnify or
hold harmless any Person as set forth in this Agreement arising from the acts
or omissions of the previous Servicer. As compensation therefor, the Indenture
Trustee shall be entitled to such compensation (whether payable out of the
Collection Account or otherwise) as the Servicer would have been entitled to
under this Agreement if no such notice of termination shall have been given.
In the event that the Indenture Trustee is unwilling or unable so to act, it
may appoint or petition a court of competent jurisdiction to appoint a
successor with a net worth of at least $100,000,000 and the regular business of
which includes the servicing of recreational vehicle or motor vehicle
receivables. The Indenture Trustee may make such arrangements for compensation
to be paid, which in no event may be greater than the servicing compensation
paid to the Servicer hereunder. Notwithstanding such termination, the Servicer
shall be entitled to payment of certain amounts payable to it prior to such
termination, for services rendered prior to such termination. Pending
appointment of any such successor Servicer, the Indenture Trustee shall act in
such capacity as provided above. The Indenture Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary
to effectuate any such succession.
Section 9.03. Repayment of Advances. If the identity of the Servicer
shall change, the predecessor Servicer shall be entitled to receive
reimbursement for outstanding Advances pursuant to Section 6.04 with respect to
all Advances made by the predecessor Servicer.
Section 9.04. Notices to Securityholders. Upon any termination of,
or appointment of a successor to, the Servicer pursuant to this Article, the
Owner Trustee shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register, and the Indenture Trustee shall give prompt written notice thereof to
the Noteholders at their respective addresses appearing in the Note Register
and to each Rating Agency.
Section 9.05. Waiver of Past Defaults. Noteholders evidencing not
less than 51% of the Voting Interest thereof, or, if all Notes have been paid
in full and the Indenture has been discharged in accordance with its terms,
Certificateholders evidencing not less than 51% of the Voting Interest thereof
(in the case of any default that does not adversely affect the Indenture
Trustee or the Noteholders) may, on behalf of all Securityholders, waive in
writing any Servicer
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Default and its consequences, except a default in making any required deposits
to or payments from any of the Trust Accounts in accordance with this Agreement
or in respect of a covenant or provision hereof that cannot be modified without
the consent of each Securityholder. Upon any such waiver of a past Servicer
Default, such Servicer Default shall cease to exist, and any Servicer Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereto.
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ARTICLE TEN
TERMINATION
Section 10.01. Optional Purchase of All Receivables. On each
Distribution Date following a Record Date as of which the Pool Balance is 10%
or less of the sum of the Original Pool Balance and the Aggregate Principal
Balance of all Subsequent Receivables conveyed to the Trust as of the related
Subsequent Cutoff Dates, the Seller or the Servicer, or any successor to the
Servicer, shall have the option to purchase the corpus of the Trust. To
exercise such option, the Seller or the Servicer, or any successor to the
Servicer, as the case may be, shall notify the Owner Trustee in writing, no
later than the tenth day of the month in which the Record Date as of which such
purchase is to be effected and, if there are any book-entry Securities, the
Clearing Agency in accordance with the related Letter of Representations, and
shall deposit pursuant to Section 6.06 in the Collection Account an amount
equal to the aggregate Repurchase Amount for the Receivables (including
Defaulted Receivables), plus the appraised value of any other property held by
the Trust (less Liquidation Expenses), such value to be determined by an
appraiser mutually agreed upon by the Servicer and the Owner Trustee, and shall
succeed to all interests in and to the Trust; provided, however, the Seller or
the Servicer, or any successor to the Servicer, as the case may be, may not
effect any such purchase if the long-term unsecured debt obligations of the
related entity are rated less than Baa3, unless the Owner Trustee shall have
received an Opinion of Counsel that such purchase will not constitute a
fraudulent conveyance. The payment shall be made in the manner specified in
Section 6.06(a)(i), and shall be distributed pursuant to Section 6.07. In the
event that both the Seller and the Servicer, or any successor to the Servicer,
elect to purchase the Receivables pursuant to this Section, the party first
notifying the Owner Trustee (based on the Owner Trustee's receipt of such
notice) shall be permitted to purchase the Receivables.
Section 10.02. Sale of All Receivables. If none of the Seller, the
Servicer or any successor to the Servicer exercises its optional termination
right pursuant to Section 10.01 within 90 days after the last day of the
Collection Period as of which such right can first be exercised, in accordance
with the procedures and schedule set forth as Exhibit D hereto (the "Auction
Procedures"), the Indenture Trustee shall conduct an auction (the "Auction") of
the Receivables remaining in the Trust (such Receivables hereinafter referred
to as the "Auction Property") in order to effect a termination of the Trust
pursuant to Section 9.01(a)(iv) of the Trust Agreement on the second
Distribution Date succeeding the last day of the Collection Period as of which
the Pool Balance is 10% or less of the sum of the Original Pool Balance and the
Aggregate Principal Balance of all Subsequent Receivables conveyed to the Trust
as of the related Subsequent Cutoff Dates. Fleetwood Credit may, but shall not
be required to, bid at the Auction. The Indenture Trustee shall sell and
transfer the Auction Property to the highest bidder therefor at the Auction
provided that:
(a) the Auction has been conducted in accordance with the
Auction Procedures;
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(b) the Indenture Trustee has received good faith bids
for the Auction Property from at least two bidders;
(c) one or more financial advisors, as advisor to the
Indenture Trustee (each, an "Advisor"), shall have advised the
Indenture Trustee in writing that at least two of such bidders
(including the winning bidder) are participants in the market for
motor vehicle retail installment sale contracts willing and able to
purchase the Auction Property;
(d) the highest bid in respect of the Auction Property is
not less than the aggregate fair market value of the Auction Property
(as set forth in a written opinion of the Advisor to the Indenture
Trustee);
(e) any bid submitted by Fleetwood Credit or any
Affiliate of Fleetwood Credit shall reasonably represent the fair
market value of the Auction Property, as independently verified and
represented in writing by a qualified independent third party
evaluator (which may include an investment banking firm), selected by
the Indenture Trustee; and
(f) the highest bid would result in proceeds from the
sale of the Auction Property which will be at least equal to the sum
of (i) the greater of (A) the aggregate Repurchase Amount for the
Receivables (including Defaulted Receivables), plus the appraised
value of any other property held by the Trust (less liquidation
expenses) or (B) an amount that when added to amounts on deposit in
the Collection Account that would constitute Available Funds for such
second succeeding Distribution Date would result in proceeds
sufficient to distribute the sum of (I) the Note Distributable Amount
plus any unpaid Note Interest Carryover Shortfall and any unpaid Note
Principal Carryover Shortfall with respect to one or more prior
Distribution Dates and (II) the Certificate Distributable Amount plus
any unpaid Certificate Interest Carryover Shortfall and any unpaid
Certificate Principal Carryover Shortfall, and (ii) the sum of (A) an
amount sufficient to reimburse the Servicer for any unreimbursed
Advances and (B) the Servicing Fee payable on such final Distribution
Date, including any unpaid Servicing Fees with respect to one or more
prior Collection Periods.
Provided that all of the conditions set forth in clauses (a) through
(f) above have been met, the Indenture Trustee shall sell and transfer the
Auction Property, without recourse, to such highest bidder in accordance with
and upon completion of the Auction Procedures. The Indenture Trustee shall
deposit the purchase price for the Auction Property in the Collection Account
at least one Business Day prior to such second succeeding Distribution Date.
In addition, the Auction must stipulate that the Servicer be retained to
service the Receivables on terms substantially similar to those herein. In the
event that any of such conditions are not met or such highest bidder fails or
refuses to comply with any of the Auction Procedures, the Indenture Trustee
shall decline to consummate such sale and transfer. In the event such sale and
transfer is not consummated in accordance with the foregoing, however, the
Indenture Trustee may from time to time in the future, but shall not under any
further obligation to, solicit bids for sale of the assets of the Trust upon
the same terms and conditions as set forth above.
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ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Amendment.
(a) This Agreement may be amended by the parties hereto without
the consent of any Securityholder, (i) to cure any ambiguity, to correct or
supplement any provisions in this Agreement that are inconsistent with the
provisions herein, or to add any other provisions with respect to matters or
questions arising under this Agreement that shall not be inconsistent with the
provisions of this Agreement, (ii) to add or provide for any credit enhancement
for any Class of Notes or the Certificates, (iii) to the extent necessary to
reflect a change in the timing of remittances by the Servicer pursuant to
Section 6.02 or (iv) to change any provision applicable for determining the
Specified Reserve Fund Balance or amount of any Servicer Letter of Credit;
provided, however, that any such action shall not, as evidenced by an Opinion
of Counsel, materially and adversely affect the interests of any
Securityholder; and provided further, that in connection with any amendment
pursuant to clause (iii) above, the Servicer shall deliver to the Owner Trustee
a letter from each Rating Agency to the effect that such amendment will not
cause a Rating Event.
(b) This Agreement may also be amended from time to time by the
parties hereto, with the consent of the Noteholders evidencing not less than
51% of the Voting Interest thereof and Certificateholders evidencing not less
than 51% of the Voting Interest thereof, voting together as a single class, for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; provided,
however, that no such amendment shall (i) except as otherwise provided in
Section 11.01(a), increase or reduce in any manner the amount of or accelerate
or delay the timing of collections of payments on or in respect of the
Receivables or distributions on the Notes or the Certificates or (ii) reduce
the aforesaid percentage of Voting Interests with respect to which the
Noteholders or the Certificateholders are required to consent to any such
amendment, without the consent of the Securityholders affected thereby.
(c) It shall not be necessary for the consent of Securityholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Securityholders shall be subject
to such reasonable requirements as the related Trustee may prescribe.
(d) Prior to the execution of any amendment to this Agreement,
each Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement. The Indenture Trustee or the Owner Trustee may, but shall not be
obligated to, enter into any such amendment that affects such Trustee's own
rights, duties or immunities under this Agreement or otherwise.
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Section 11.02. Protection of Title to Trust.
(a) Each of the Seller and the Servicer shall execute and file
such financing statements and cause to be executed and filed such continuation
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interest of the Certificateholders,
the Letter of Credit Bank, if any, and the Trustees in the Receivables and in
the proceeds thereof. Each of the Seller and the Servicer shall deliver (or
cause to be delivered) to the Trustees file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed by the Servicer in
accordance with paragraph (a) above seriously misleading within the meaning of
Section 9-402(7) of the UCC, unless it shall have given the Trustees at least
60 days' prior written notice thereof and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Seller and the Servicer shall give the Trustees at least
60 days' prior written notice of any relocation of their respective principal
executive offices if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement and shall
promptly file any such amendment. The Servicer shall at all times maintain
each office from which it shall service the Receivables, and its principal
executive office, within the United States.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection
Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement of the Receivables to the
Trust, the Servicer's master computer records (including any back-up archives)
that refer to a Receivable shall indicate clearly the interest of the Indenture
Trustee in such Receivable and that such Receivable is owned by the Trust.
Indication of the Trust's ownership of a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only when, such
Receivable shall have been paid in full, repurchased or assigned pursuant to
this Agreement.
(f) If at any time the Seller or the Servicer shall propose to
sell, grant a security interest in or otherwise transfer any interest in any
recreational vehicle receivables to any prospective purchaser, lender or other
transferee, the Servicer shall give to such prospective purchaser, creditor or
other transferee computer tapes, records or print-outs (including any
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restored from back-up archives) that, if they shall refer in any manner
whatsoever to any Receivable, shall indicate clearly that such Receivable has
been sold and is owned by the Trust.
(g) The Servicer shall permit the Trustees and their respective
agents at any time during normal business hours and upon reasonable notice to
inspect, audit and make copies of and abstracts from the Servicer's records
regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Trustees,
within five Business Days of such request, a list of all Receivables (by
contract number and name of Obligor) then held as part of the Trust, together
with a reconciliation of such list to the Schedule of Receivables and to each
of the Servicer's Certificates furnished before such request indicating removal
of Receivables from the Trust.
(i) The Servicer shall deliver to the Indenture Trustee promptly
after the execution and delivery of this Agreement and of each amendment
thereto, an Opinion of Counsel stating that, in the opinion of such Counsel,
(i) all financing statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the interest of the
Indenture Trustee in the Receivables, and reciting the details of such filings
or referring to prior Opinions of Counsel in which such details are given or
(ii) no such action shall be necessary to preserve and protect such interest.
(j) The Seller shall, to the extent required by applicable law,
cause the Securities to be registered with the Commission pursuant to Section
12(b) or 12(g) of the Exchange Act within the time periods specified in such
sections.
Section 11.03. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of California and the obligations,
rights, and remedies of the parties hereunder shall be determined in accordance
with such laws, except that the duties of the Trustees shall be governed by the
laws of the State of New York.
Section 11.04. Notices. All demands, notices and communications
under this Agreement shall be in writing and shall be delivered or mailed by
registered or certified first class United States mail (postage prepaid, return
receipt requested), hand delivery, prepaid courier service or telecopier, and
addressed in each case as follows: (i) if the Seller or the Servicer, at 22840
Savi Ranch Parkway, Yorba Linda, California 92687, Attention: ___________,
(ii) if to the Issuer or the Owner Trustee, at the Corporate Trust Office
(with, in the case of the Issuer, a copy to the Seller), (iii) if the Indenture
Trustee, at ________________, Attention: _____________, (iv) if to Moody's, at
99 Church Street, New York, New York 10007, Attention: ABS Monitoring
Department, (v) if to Standard & Poor's, at 26 Broadway, 15th Floor, New York,
New York 10004, Attention: Asset Backed Surveillance Department, or (vi) with
respect to any of the foregoing Persons, at such other address as shall be
designated by such Person in a written notice to the other foregoing Persons.
Delivery shall occur only upon actual receipt or rejected tender of such
communication by an officer of the recipient entitled to receive such notices
located at the address of such recipient for notices hereunder. Any notice
required or permitted to be to be mailed to a Securityholder shall be given by
first class mail, postage prepaid, at the address of
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such Holder as shown in the Note Register or the Certificate Register, as the
case may be. Any notice so mailed within the time prescribed herein shall be
conclusively presumed to have been duly given, whether or not such
Securityholder shall receive such notice.
Section 11.05. Severability of Provisions. If one or more of the
covenants, agreements, provisions or terms of this Agreement (including any
amendment or supplement hereto) shall be for any reason whatsoever held invalid
or unenforceable, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement, as the same may be amended or supplemented, and shall in no
way affect the validity or enforceability of the other covenants, agreements,
provisions or terms of this Agreement or any amendment or supplement hereto or
of the Notes or Certificates or the rights of the related Securityholders.
Section 11.06. Assignment. Notwithstanding anything to the contrary
contained herein, as provided in Sections 7.03 and 8.02, this Agreement may not
be assigned by the Seller or the Servicer without the prior written consent of
Noteholders of each Class evidencing not less than 66 2/3% of the Voting
Interest of such Class and Certificateholders evidencing not less than 66 2/3%
of the Voting Interest thereof.
Section 11.07. Third Party Beneficiaries. Except as otherwise
specifically provided herein, the parties hereto hereby manifest their intent
that no third party shall be deemed a third party beneficiary of this
Agreement, and specifically that the Obligors are not third party beneficiaries
of this Agreement.
Section 11.08. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original, but all of which counterparts shall together constitute but
one and the same instrument.
Section 11.09. Table of Contents and Headings. The Table of Contents
and Article and Section headings herein are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Section 11.10. Assignment by Issuer. The Seller hereby acknowledges
and consents to any mortgage, pledge, assignment and grant of a security
interest by the Issuer to the Indenture Trustee pursuant to the Indenture for
the benefit of the Noteholders of all right, title and interest of the Issuer
in, to and under the Receivables or the assignment of any or all of the
Issuer's rights and obligations hereunder to the Indenture Trustee.
Section 11.11. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this instrument has
been countersigned by ______________ not in its individual capacity but solely
in its capacity as Owner Trustee of the Issuer and in no event shall
______________ in its individual capacity or any beneficial owner of the Issuer
have any Liability for the representations, warranties, covenants, agreements
or other obligations of the Issuer hereunder, as to all of which recourse shall
be had solely to the assets of the Issuer. For all purposes of this Agreement,
in the performance of any duties or obligations of the Issuer
65
71
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles Six, Seven and Eight of the Trust
Agreement.
66
72
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first
above written.
THE FLEETWOOD CREDIT RV
RECEIVABLES 199 - OWNER TRUST,
as Issuer
By:
----------------------------------,
as Owner Trustee
By:
----------------------------------
Name:
Title:
FLEETWOOD CREDIT RECEIVABLES
CORP.,
as Seller
By:
----------------------------------
Name:
Title:
FLEETWOOD CREDIT CORP.,
as Servicer
By:
----------------------------------
Name:
Title:
Acknowledged and accepted as of the day
and year first above written:
- --------------------------------,
as Indenture Trustee
By:
----------------------------
Name:
Title:
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73
SCHEDULE A
SCHEDULE OF RECEIVABLES
[Omitted--Schedule of Receivables on file at the
offices of the Seller, the Servicer, the Owner
Trustee and the Indenture Trustee.]
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SCHEDULE B
LOCATION OF RECEIVABLE FILES
SB-1
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EXHIBIT A
[FORM OF SERVICER LETTER OF CREDIT]
____________, _____
Credit No. ___________
__________________________________
__________________________________
__________________________________
__________________________________
Attention: Corporate Trust Office
Ladies and Gentlemen:
At the request and for the account of our customer, Fleetwood Credit
Corp., a California corporation ("Fleetwood Credit"), we (the "Letter of Credit
Bank") hereby establish in your favor this Servicer Letter of Credit, wherein
you, as trustee (the "Trustee") under that certain Trust Agreement (the "Trust
Agreement") dated as of ________, 199 , between Fleetwood Credit Receivables
Corp, a California corporation. ("FCRC"), as seller (the "Seller"), and you,
pursuant to which $______________ in aggregate principal amount of ____% Money
Market Asset Backed Notes, Class A-1, ____% Floating Rate Asset Backed Notes,
Class A-2, ____% Asset Backed Notes, Class A-3 (collectively, the "Notes"), and
____% Asset Backed Certificates (the "Certificates" and, together with the
Notes, the "Securities") of the Fleetwood Credit RV Receivables 199 - Owner
Trust (the "Trust") have been issued, are hereby irrevocably authorized to draw
upon the terms and conditions hereinafter set forth, in an aggregate amount not
exceeding $_______ (hereinafter, as reduced from time to time in accordance
with the provisions hereof, the "Stated Amount"). This Servicer Letter of
Credit is effective immediately and expires at the close of business on
__________, ____ (the "Expiration Date") at the counters of the Letter of
Credit Bank's _____________ Branch. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in that certain sale
and servicing agreement, dated as of ___________, 199 (the "Sale and Servicing
Agreement"), among the Trust, the Seller and Fleetwood Credit, as servicer.
Funds under this Servicer Letter of Credit are available to you
against your written certificate signed by one who states therein that he is
your duly authorized officer, appropriately completed, in the form of Annex 1
hereto for payment of certain amounts due from, but unpaid by, Fleetwood Credit
under the Basic Documents.
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We hereby agree that each demand made under and in compliance with the
terms of this Servicer Letter of Credit will be duly honored by us upon due
delivery of the certificate(s), as specified above, appropriately completed
(together with such enclosures, if any, required thereby), if presented as
specified on or before the expiration date hereof. If a presentation in
respect of payment is made by you hereunder at or prior to 12:00 Noon, [LOS
ANGELES] time, on a Business Day, and provided that the documents so presented
conform to the terms and conditions hereof, payment shall be made to you of the
amount specified, in immediately available funds, not later than 9:00 a.m.,
[LOS ANGELES] time, on the following Business Day. If a presentation in
respect of payment is made by you hereunder after 12:00 Noon, [LOS ANGELES]
time, on a Business Day, such presentation shall be deemed to have been made
prior to 12:00 Noon, [LOS ANGELES] time, on the next succeeding Business Day.
You agree to use your best efforts to provide us telephonic notice at the time
any presentation in respect of payment is made hereunder; provided, however,
that failure to provide such telephonic notice shall not affect our obligation
to make payment in respect of any such presentation in respect of payment. If
requested by you, payment under this Servicer Letter of Credit will be wire
transferred to an account specified by you in the related certificate. As used
herein, "Business Day" shall mean any day other than a Saturday, a Sunday, or a
day on which you or banking institutions in New York, New York or [LOS
ANGELES], California shall be authorized or obligated by law, executive order
or governmental decree to be closed.
If a drawing made by you hereunder does not, in any instance, conform
to the terms and conditions of this Servicer Letter of Credit, we shall give
you prompt notice that the purported drawing was not effected in accordance
with the terms and conditions of this Servicer Letter of Credit, stating the
reasons therefor and that we are holding any documents presented in connection
therewith at your disposal or are returning the same to you, as we may elect.
Only you, as Owner Trustee, may make a drawing under this Servicer
Letter of Credit. Upon the payment of the amount specified in the related
certificate(s) presented hereunder, we shall be fully discharged of our
obligation under this Servicer Letter of Credit with respect to such
certificate(s) and we shall not thereafter be obligated to make any further
payments under this Servicer Letter of Credit in respect of such certificate(s)
to you or any other person. By paying to you an amount demanded in accordance
herewith, we make no representation as to the correctness of the amount
demanded.
This Servicer Letter of Credit shall automatically terminate at our
close of business in [LOS ANGELES], California on the first to occur of the
following dates (the "Termination Date"): (i) the Expiration Date, or if said
date shall not be a Business Day, on the Business Day next succeeding said
date, (ii) the date of receipt by us of your written certificate signed by your
authorized officer, appropriately completed, in the form of Annex 2 hereto,
(iii) the payment by us of the final drawing available to be made hereunder or
(iv) on the date specified in our letter to you in the form of Annex 5 hereto.
If we are not then in default hereunder by reason of our having wrongfully
failed to honor a demand for payment hereunder, this Servicer Letter of Credit
shall be promptly surrendered to us upon the Termination Date.
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Drawings in respect of payments hereunder honored by us shall not, in
the aggregate, exceed the Stated Amount in effect immediately prior to such
drawing. Each drawing honored by us hereunder shall pro tanto reduce the
Stated Amount in effect immediately prior to such drawing.
The Stated Amount under the Servicer Letter of Credit shall be
automatically further reduced at the close of business on the 15th day of each
month, or if such day is not a Business Day, the next following Business Day,
commencing on __________ 15, ____ (each, a "Reset Date"), so that the Stated
Amount at the close of business on such Reset Date will equal the lesser of (i)
the Stated Amount as theretofore in effect or (ii) the product of $_________
and the Reset Percentage; provided that the Stated Amount as of the close of
business on any Reset Date shall be further reduced if the Stated Amount would
otherwise exceed the Pool Balance. For purposes of this Servicer Letter of
Credit, the Reset Percentage on any Reset Date shall be equal to a fraction the
numerator of which is the number of Receivables in the Trust at the close of
business on the last day of the calendar month preceding the calendar month in
which such Reset Date occurs (as evidenced by the Servicer's Certificate for
such calendar month) and the denominator of which is the original number of
Receivables in the Trust as of _______________. Although the adjustment on
each Reset Date shall occur automatically, by acceptance of this Servicer
Letter of Credit you agree on or as soon as practicable following each Reset
Date on which any reduction has been effected pursuant to the preceding
sentence, and in any event within one Business Day after our written request
(which may be by telex or telecopier) on any subsequent date on which a drawing
certificate is presented hereunder, to deliver to us your certificate in the
form of Annex 3 hereto (each, a "Reduction Certificate"), appropriately
completed, setting forth the calculation of the Stated Amount as so adjusted;
but the failure to deliver such Reduction Certificate shall not otherwise
affect the effectiveness of any such reduction.
This Servicer Letter of Credit shall be governed by the internal laws
of the State of California, including, without limitation, Article 5 of the
Uniform Commercial Code as in effect in the State of California. This Servicer
Letter of Credit shall be supplemented by the provisions (to the extent that
such provisions are not inconsistent with this Servicer Letter of Credit and
said Article 5) of the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce, Publication No. 500, except
Article 45 thereof.
All documents presented to us in connection with any demand for
payment hereunder, as well as all notices and other communications to us in
respect of this Servicer Letter of Credit shall be in writing, or shall be
transmitted by tested telex or telecopier (promptly confirmed in either case in
writing), and shall be addressed to us at ___________________, specifically
referring thereon to this Servicer Letter of Credit by number.
You may transfer your rights under this Servicer Letter of Credit in
their entirety (but not in part) to any transferee who has succeeded you as
trustee pursuant to the Basic Documents and such transferred rights may be
successively transferred. The transfer of your rights under this Servicer
Letter of Credit to any such transferee shall be effected upon the presentation
to us of
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this Servicer Letter of Credit accompanied by a transfer letter in the form
attached hereto as Annex 4.
This Servicer Letter of Credit sets forth in full our undertaking, and
such undertaking shall not in any way be modified, amended, amplified or
limited by reference to any document, instrument or agreement referred to
herein (including, without limitation, the Certificates), except only Annexes 1
through 5 hereto; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement except as set forth
above.
Very truly yours,
-------------------------------
By:
---------------------------
Name:
Title:
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ANNEX 1 TO SERVICER
LETTER OF CREDIT NO. ___
CERTIFICATE FOR "ANNEX 1 DRAWING"
The undersigned, ___________________, as trustee (the "Owner
Trustee"), acting through the undersigned duly authorized officer of the Owner
Trustee, hereby certifies to _____________________ (the "Letter of Credit
Bank"), with reference to the Bank's Servicer Letter of Credit No. __________
(the "Servicer Letter of Credit"; any capitalized terms used herein that are
not otherwise defined shall have the meanings ascribed thereto in the Servicer
Letter of Credit) issued in favor of the Owner Trustee, that:
(1) The Owner Trustee is the Owner Trustee under the
Basic Documents.
(2) Fleetwood Credit, as servicer ("Servicer") under the
Basic Documents, has notified us, as Owner Trustee under the Basic
Documents, pursuant to a Servicer's Certificate (a copy of which is
attached hereto) furnished pursuant to Section 5.08 of the Sale and
Servicing Agreement that the following amount was required to be
remitted by the Servicer to the Collection Account pursuant to the
Sale and Servicing Agreement with respect to the Distribution Date
occurring on [insert applicable Distribution Date]: $[insert amount
required to be remitted].
(3) Fleetwood Credit has failed to deposit the following
portion of amounts owed by it with respect to such Distribution Date
as set forth in paragraph (2) above: $[insert amount of deficiency].
(4) The Owner Trustee is making a drawing under the
Servicer Letter of Credit in the amount of $__________ which amount
equals the lesser of (a) the amount set forth in paragraph (3) and (b)
the amount identified by the Servicer in the Servicer's Certificate
referred to in paragraph (2) above as being available on the date
hereof to be drawn under the Servicer Letter of Credit.
(5) The Owner Trustee has not received notice from
Fleetwood Credit or any other person or entity contesting the accuracy
of such Servicer's Certificate.
(6) The account to which payment under the Servicer
Letter of Credit is to be wire transferred is Account No. __________,
maintained at ________________________.
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IN WITNESS WHEREOF, the Owner Trustee has executed and delivered this
certificate as of the _____ day of ___________.
-------------------------------
as Owner Trustee
By:
---------------------------
Name:
Title:
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ANNEX 2 TO SERVICER
LETTER OF CREDIT NO. ___
CERTIFICATE FOR THE TERMINATION
OF SERVICER LETTER OF CREDIT NO. ___
The undersigned, a duly authorized officer of _______________, as
trustee (the "Owner Trustee"), hereby certifies to __________________ (the
"Letter of Credit Bank") with reference to the Servicer Letter of Credit Bank's
Irrevocable Servicer Letter of Credit No. __________ (the "Servicer Letter of
Credit"; capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Servicer Letter of Credit) issued in
favor of the Owner Trustee, that [the Sale and Servicing Agreement has been
terminated in accordance with its terms and the Collection Account defined
therein contains sufficient funds to pay in full all outstanding Securities
issued thereunder] or [in accordance with Section 4.01 of the Sale and
Servicing Agreement, the Servicer Letter of Credit has been terminated on the
date hereof] or [the Owner Trustee has received the Letter of Credit Bank's
letter in the form of Annex 5 to the Servicer Letter of Credit].* Accordingly,
we herewith return to you for cancellation the Servicer Letter of Credit which
is terminated, as of the date hereof, pursuant to its terms.
Date: __________________
-----------------------------
as Owner Trustee
By:
-------------------------
Authorized Officer
- -------------------------------------
* Select appropriate alternative.
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ANNEX 3 TO SERVICER
LETTER OF CREDIT NO. ___
CERTIFICATE FOR THE REDUCTION OF THE STATED
AMOUNT OF SERVICER LETTER OF CREDIT NO. ___
The undersigned, a duly authorized officer of _____________________,
as trustee (the "Owner Trustee"), hereby certifies to _______________ (the
"Letter of Credit Bank") with reference to the Letter of Credit Bank's Servicer
Letter of Credit No. __________ (the "Servicer Letter of Credit"; capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in the Servicer Letter of Credit) issued in favor of the Owner
Trustee, that:
(1) The Owner Trustee is the Owner Trustee under the
Basic Documents.
(2) On the basis of the Servicer's Certificate attached
hereto, the Owner Trustee hereby confirms that effective [insert Reset
Date] the Stated Amount of the Servicer Letter of Credit has been
reduced from $__________ to $__________, which amount equals the
product of $__________ and the Reset Percentage; provided that if the
Stated Amount would exceed the Pool Balance set forth in such
certificate as of the end of last month, the Stated Amount shall be
reduced to the amount of the Pool Balance.
(3) This Certificate has been prepared and presented in
strict compliance with the terms of the Sale and Servicing Agreement
and the Servicer Letter of Credit.
IN WITNESS WHEREOF, the Owner Trustee has executed and delivered this
certificate as of the _______ day of __________, ____.
,
------------------------------
as Owner Trustee
By:
---------------------------
Name:
Title:
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ANNEX 4 TO SERVICER
LETTER OF CREDIT NO. ___
_____________, _____
__________________________________
__________________________________
__________________________________
__________________________________
Re: Servicer Letter of Credit No. _________
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
----------------------------------
(Name and Address of Transferee)
all rights of the undersigned beneficiary to draw under the above-captioned
Servicer Letter of Credit (the "Servicer Letter of Credit"). The transferee
has succeeded the undersigned as Owner Trustee under the Sale and Servicing
Agreement (as defined in the Servicer Letter of Credit).
By this transfer, all rights of the undersigned beneficiary in the
Servicer Letter of Credit are transferred to the transferee and the transferee
shall hereafter have the sole rights as beneficiary thereof; provided, however,
that no rights shall be deemed to have been transferred to the transferee until
such transfer complies with the requirements of the Servicer Letter of Credit
pertaining to transfers.
The Servicer Letter of Credit is returned herewith and in accordance
therewith we ask that this transfer be effective and that you cause the
transfer of the Servicer Letter of Credit to
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our transferee or that, if so requested by the transferee, you cause the
issuance of a new Servicer Letter of Credit in favor of the transferee with
provisions consistent with the Servicer Letter of Credit.
Very truly yours,
--------------------------------------
as predecessor Owner Trustee
By:
----------------------------------
Name:
Title:
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ANNEX 5 TO SERVICER
LETTER OF CREDIT NO. ___
________,___
[Insert name of Beneficiary]
[Address]
Attention: _______________
Re: Servicer Letter of Credit No. ____
of __________
Ladies and Gentlemen:
On the date hereof we have received notice from Fleetwood Credit Corp.,
a California corporation ("Fleetwood Credit"), that its short-term rating has
been upgraded to [the Required Servicer Rating] by [insert name of applicable
Rating Agency].
[On the date hereof, as a result of such upgrading] or [At the close
of business on the [immediately] [second]* succeeding Distribution Date (as
defined in the Servicer Letter of Credit) following the date hereof, as a
result of such downgrading]**, the Servicer Letter of Credit is hereby
terminated. Please deliver the Servicer Letter of Credit to us for
cancellation as soon as practicable following such date, accompanied by your
certificate in the form of Annex 2 to the Servicer Letter of Credit.
Very truly yours,
------------------------------
By:
----------------------------
Name:
Title:
- -------------------------------
* Insert "immediately" if the date of this letter is after the 15th day of
the month. Insert "second" if the date of this letter is on or prior to
the 15th day of the month.
** Select appropriate alternative.
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EXHIBIT B
FORM OF TRANSFER AGREEMENT
TRANSFER NO. __ OF SUBSEQUENT RECEIVABLES, dated __________, 199__,
among FLEETWOOD CREDIT CORP., a California corporation ("Fleetwood
Credit"), FLEETWOOD CREDIT RECEIVABLES CORP., a California corporation
(the "Seller"), and _______________, as trustee (the "Trustee")
pursuant to the Sale and Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Fleetwood Credit, the Seller and the Trustee are parties to
the Sale and Servicing Agreement, dated as of _________ 1, 199 (the "Sale and
Servicing Agreement");
WHEREAS, Fleetwood Credit and the Seller are parties to the
Receivables Purchase Agreement, dated as of _________ 1, 199 (the "Receivables
Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, Fleetwood
Credit desires to convey certain Subsequent Receivables (as hereinafter
defined) to the Seller and pursuant to the Sale and Servicing Agreement and
this Agreement the Seller desires to convey such Subsequent Receivables to the
Trust; and
WHEREAS, the Trustee is willing to accept such conveyance subject to
the terms and conditions hereof;
NOW, THEREFORE, the Trustee, the Seller and Fleetwood Credit hereby
agree as follows:
Section 1. Defined Terms. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Sale and
Servicing Agreement.
"Agreement" means this Transfer Agreement and all amendments and
supplements hereto.
"Subsequent Cutoff Date" means, with respect to the Subsequent
Receivables conveyed hereby, ________ 1, 199__.
"Subsequent Receivables" means the Receivables identified on the
supplement to Schedule A to the Sale and Servicing Agreement attached hereto.
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"Subsequent Transfer Date" means, with respect to the Subsequent
Receivables conveyed hereby, __________, 199__.
Section 2. Schedule of Receivables. Annexed hereto is a supplement
to Schedule A to the Sale and Servicing Agreement listing the Subsequent
Receivables to be conveyed by the Seller to the Trust pursuant to this
Agreement on the Subsequent Transfer Date.
Section 3. Conveyance of Subsequent Receivables. Subject to the
conditions set forth in Section 5, in consideration of the Trustee's delivery
on behalf of the Trust to or upon the order of the Seller of an amount equal to
$__________ (i.e., the aggregate Principal Balance of the Subsequent
Receivables as of the Subsequent Cutoff Date), the Seller does hereby sell,
transfer, assign and otherwise convey to the Trust, without recourse (subject
to the Seller's obligations hereunder):
(a) all right, title and interest of the Seller in and to
the Subsequent Receivables listed on Schedule A and all monies due
thereon and paid thereon or in respect thereof (including proceeds of
the repurchase of such Subsequent Receivables by the Seller pursuant
to Section 3.02 or 10.01 of the Sale and Servicing Agreement or the
purchase of such Subsequent Receivables by Fleetwood Credit pursuant
to Section 5.06 or 10.01 of the Sale and Servicing Agreement) on or
after the Subsequent Cutoff Date;
(b) the interest of the Seller in the security interests
in the related Financed Vehicles granted by the related Obligors
pursuant to such Subsequent Receivables;
(c) the interest of the Seller in any Liquidation
Proceeds, in any proceeds of any physical damage Insurance Policies
covering the related Financed Vehicles and in any proceeds of any
credit life or credit disability Insurance Policies relating to such
Subsequent Receivables or the related Obligors;
(d) the interest of the Seller in any proceeds from
Dealer repurchase obligations relating to such Subsequent Receivables;
and
(e) all proceeds of the foregoing.
Section 4. Representations and Warranties of the Seller.
(a) The Seller does hereby make the following representations on
which the Trustee may rely in accepting the Subsequent Receivables in trust
pursuant to the Sale and Servicing Agreement. The representations shall speak
as of the execution and delivery of this Agreement and as of the Subsequent
Transfer Date, and in each case shall survive the sale, transfer and assignment
of the Subsequent Receivables to the Trustee.
(i) Organization and Good Standing. The Seller shall
have been duly organized and shall be validly existing as a
corporation in good standing under the laws of the State of
California, with power and authority to own its properties and to
conduct
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its business as such properties are currently owned and such business
is presently conducted, and had at all relevant times, and shall now
have, power, authority and legal right to acquire, own and sell the
Subsequent Receivables.
(ii) Due Qualification. The Seller shall be duly
qualified to do business as a foreign corporation in good standing,
and shall have obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(iii) Power and Authority. The Seller shall have the power
and authority to execute and deliver this Agreement and to carry out
its terms; the Seller shall have full power and authority to sell and
assign the property to be sold and assigned to and deposited with the
Trustee as part of the Trust and shall have duly authorized such sale
and assignment to the Trustee by all necessary corporate action; and
the execution, delivery and performance of this Agreement shall have
been duly authorized by the Seller by all necessary corporate action.
(iv) Valid Sale; Binding Obligations. This Agreement
shall evidence a valid sale, transfer and assignment of the Subsequent
Receivables, enforceable against creditors of and purchasers from the
Seller; and shall constitute a legal, valid and binding obligation of
the Seller enforceable against the Seller in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability shall be
considered in a Proceeding in equity or at law.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of
this Agreement shall not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or
bylaws of the Seller, or conflict with or breach any of the material
terms or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement or other instrument
to which the Seller is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument (other than this Agreement, the Receivables Purchase
Agreement and the Sale and Servicing Agreement); nor violate any law
or, to the best of the Seller's knowledge, any order, rule or
regulation applicable to Seller of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties.
(vi) No Proceedings. There are no Proceedings or
investigations pending or, to the best knowledge of the Seller,
threatened against the Seller before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties:
(A) asserting the invalidity of this Agreement, (B) seeking to prevent
the consummation of any of the transactions
B-3
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contemplated by this Agreement, or (C) seeking any determination or
ruling that might materially and adversely affect the performance by
the Seller of its obligations under, or the validity or enforceability
of, this Agreement.
(b) The Seller does hereby make the following representations and
warranties as to the Subsequent Receivables on which the Trustee may rely in
accepting the Subsequent Receivables in trust. The representations shall speak
as of the execution and delivery of this Agreement and as of the Subsequent
Transfer Date, and in each case shall survive the sale, transfer and assignment
of the Subsequent Receivables to the Trustee.
(i) Characteristics of Subsequent Receivables. Each Subsequent
Receivable (A) shall have been originated in the United States by a Dealer for
the retail sale of the related Financed Vehicle in the ordinary course of such
Dealer's business, shall have been fully and properly executed by the parties
thereto, shall have been purchased by Fleetwood Credit from such Dealer under
an agreement with Fleetwood Credit and shall have been validly assigned by such
Dealer to Fleetwood Credit in accordance with its terms and shall have been
subsequently sold by Fleetwood Credit to the Seller; (B) shall have created or
shall create a valid, subsisting and enforceable first priority security
interest in favor of Fleetwood Credit in the related Financed Vehicle, which
security interest has been assigned by Fleetwood Credit to the Seller, and
shall be assignable, and shall be so assigned, by the Seller to the Trustee;
(C) shall contain customary and enforceable provisions such that the rights and
remedies of the holder thereof shall be adequate for the realization against
the collateral of the benefits of the security; (D) shall provide for level
monthly payments (provided that the payment in the first or last month in the
life of the Subsequent Receivable may be minimally different from the level
payment) that fully amortize the Amount Financed by maturity and yield interest
at its APR; and (E) shall provide for, in the event that such Subsequent
Receivable is prepaid, a prepayment that fully pays the Principal Balance and
includes accrued but unpaid interest at least through the date of prepayment in
an amount calculated by using an interest rate at least equal to its APR.
(ii) Schedule of Receivables. The information set forth
in the supplement to the Schedule of Receivables annexed hereto shall
be true and correct in all material respects as of the opening of
business on the Subsequent Cutoff Date, and no selection procedure
adverse to the Certificateholders shall have been utilized in
selecting the Subsequent Receivables from those Receivables of
Fleetwood Credit which met the selection criteria set forth in this
Section.
(iii) Compliance with Law. Each Subsequent Receivable and
each sale of the related Financed Vehicle shall have complied at the
time it was originated or made, and shall comply at the time of
execution of this Agreement in all material respects with all
requirements of applicable federal, state and local laws, and
regulations thereunder, including usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, Federal Reserve Board Regulations B and Z,
state adaptations of the National Consumer
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Act and of the Uniform Consumer Credit Code and other consumer credit,
equal credit opportunity and disclosure laws.
(iv) Binding Obligation. Each Subsequent Receivable shall
constitute the genuine, legal, valid and binding payment obligation in
writing of the related Obligor, enforceable by the holder thereof in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation and other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity regardless of whether such enforceability
shall be considered in a Proceeding in equity or at law.
(v) No Government Obligor. None of the Subsequent
Receivables shall be due from the United States or any state or local
government thereof or from any agency, department or instrumentality
of the United States or any state or local government.
(vi) Security Interest in Financed Vehicles. Immediately
prior to the sale, assignment and transfer thereof, each Subsequent
Receivable shall be secured by a validly perfected first security
interest in the related Financed Vehicle in favor of Fleetwood Credit
as secured party or all necessary and appropriate action with respect
to such Subsequent Receivable shall have been taken to perfect a first
priority security interest in such Financed Vehicle in favor of
Fleetwood Credit as secured party.
(vii) Receivables in Force. No Subsequent Receivable shall
have been satisfied, subordinated or rescinded, nor shall any related
Financed Vehicle have been released from the Lien granted by the
related Subsequent Receivable in whole or in part.
(viii) No Waiver. No provision of a Subsequent Receivable
shall have been waived in such a manner that such Subsequent
Receivable fails to meet all of the other representations and
warranties made by the Seller herein with respect thereto.
(ix) No Amendments. No Subsequent Receivable shall have
been amended in such a manner that such Subsequent Receivable fails to
meet all of the other representations and warranties made by the
Seller herein with respect thereto.
(x) No Defenses. No facts shall be known to the Seller
that would give rise to any right of rescission, setoff, counterclaim
or defense, nor shall the same have been asserted or threatened with
respect to any Subsequent Receivable.
(xi) No Liens. To the knowledge of the Seller, no Liens
or Claims shall have been filed, including Liens for work, labor or
materials relating to a Subsequent Financed Vehicle, that shall be
liens prior to, or equal or coordinate with, the security interest in
such Financed Vehicle granted by the related Subsequent Receivable.
(xii) No Default. Except for payment defaults continuing
for a period of not more than 30 days as of the Subsequent Cutoff
Date, no default, breach, violation or
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event permitting acceleration under the terms of any Subsequent
Receivable shall have occurred; and no continuing condition that with
notice or the lapse of time would constitute a default, breach,
violation or event permitting acceleration under the terms of any
Subsequent Receivable shall have arisen; and the Seller shall not have
waived any of the foregoing.
(xiii) Insurance. Fleetwood Credit, in accordance with its
customary servicing procedures, shall have determined that each
Obligor has obtained physical damage insurance covering the related
Financed Vehicle.
(xiv) Good Title. It is the intention of the Seller that
the transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Subsequent Receivables from the Seller to the
Trust and that the beneficial interest in and title to the Subsequent
Receivables not be a part of the debtor's estate in the event of a
filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Subsequent Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the
Trustee, and no provision of a Subsequent Receivable shall have been
waived, except as provided in clause (viii) above; immediately prior
to the transfer and assignment herein contemplated, the Seller had
good and marketable title to each Subsequent Receivable free and clear
of all Liens and rights of others; immediately upon the transfer and
assignment thereof, the Trustee, for the benefit of the
Certificateholders, shall have good and marketable title to each
Subsequent Receivable, free and clear of all Liens and rights of
others; and the transfer and assignment herein contemplated has been
perfected under the UCC.
(xv) Lawful Assignment. No Subsequent Receivable shall
have been originated in, or shall be subject to the laws of, any
jurisdiction under which the sale, transfer and assignment of such
Subsequent Receivable under the Agreement or pursuant to transfers of
the Certificates shall be unlawful, void or voidable.
(xvi) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Trustee a first
perfected ownership interest in the Subsequent Receivables shall have
been made.
(xvii) One Original. There shall be only one original
executed copy of each Subsequent Receivable.
(xviii) Additional Representations and Warranties. (A) Each
Subsequent Receivable shall have an original maturity of not less than
___ months nor greater than ___ months and, as of the Subsequent
Cutoff Date, a scheduled remaining maturity of not less than ___
months nor greater than ___ months; (B) the weighted average remaining
term of the Receivables (including the Subsequent Receivables) as of
the Subsequent Transfer Date shall not be greater than ___ months; (C)
each Subsequent Receivable shall have an Annual Percentage Rate equal
to or greater than ____% and equal to or less than ____%; (D) the
weighted average APR of the Receivables (including the Subsequent
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Receivables) is not less than ____%; (E) each Subsequent Receivable
shall have no payment that is more than 30 days past due as of the
related Subsequent Cutoff Date; (F) such Subsequent Receivables were
originated on or prior to __________, 199__; and (G) the related
Receivable Files shall be kept at one or more of the locations listed
in Schedule B to the Sale and Servicing Agreement.
Section 5. Conditions Precedent. The obligation of the Trust to
acquire the Subsequent Receivables hereunder is subject to the satisfaction, on
or prior to the Subsequent Transfer Date, of the following conditions
precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by (i) Fleetwood Credit in Section 2.03 of the Receivables
Purchase Agreement and (ii) the Seller in Section 4 of this Agreement and
Section 3.01 of the Sale and Servicing Agreement, shall be true and correct as
of the date of this Agreement and as of the Subsequent Transfer Date.
(b) Sale and Servicing Agreement Conditions. Each of the
conditions set forth in Section 2.02(b) to the Sale and Servicing
Agreement shall have been satisfied.
(c) Receivables Purchase Agreement Conditions. Fleetwood
Credit shall have complied with the requirements of Section 2.03 of
the Receivables Purchase Agreement and shall have delivered all
documents required to be delivered pursuant to Section 2.01 of the
Receivables Purchase Agreement.
(d) Security Interest Perfection. In connection with the
conveyance contemplated by this Agreement, the Seller agrees to record
and file, at its own expense, a financing statement with respect to
the related Subsequent Receivables now existing and hereafter created
for the sale of chattel paper (as defined in Section 9105 of the UCC
as in effect in the State of California) meeting the requirements of
applicable state law in such manner as is sufficient to perfect the
sale and assignment of such Subsequent Receivables to the Trust, and
the proceeds thereof (and any continuation statements as are required
by applicable state law), and to deliver a file-stamped copy of each
such financing statement (or continuation statement) or other evidence
of such filings (which may, for purposes of this Section, consist of
telephone confirmation of such filing with the file-stamped copy of
each such filing to be provided to the Trustee in due course), as soon
as is practicable after the Seller's receipt thereof.
In connection with such conveyance, the Seller further agrees,
at its own expense, on or prior to the Subsequent Transfer Date (i) to
annotate and indicate in its computer files that the Subsequent
Receivables have been transferred to the Trust pursuant to the
Agreement and (ii) to deliver to the Trustee a computer file printed
or microfiche list containing a true and complete list of all such
Subsequent Receivables, identified by account number and by the
Principal Balance of each Subsequent Receivable as of the related
Subsequent Cutoff Date.
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(e) Additional Information. The Seller shall have
delivered to the Trustee on behalf of the Trust such information as
was reasonably requested by the Trustee on behalf of the Trust to
satisfy itself as to (i) the accuracy of the representations and
warranties set forth in Section 4 of this Agreement and Section 3.01
of the Sale and Servicing Agreement and (ii) the satisfaction of the
conditions set forth in this Section.
The Trustee shall not be required to investigate or otherwise verify
satisfaction of the conditions listed above, but shall be entitled to
conclusively rely upon Opinions of Counsel and Officer's Certificates of the
Servicer confirming such fulfillment.
Section 6. Ratification of Agreement. As supplemented by this
Agreement, the Sale and Servicing Agreement is in all respects ratified and
confirmed and the Sale and Servicing Agreement as so supplemented by this
Agreement shall be read, taken and construed as one and the same instrument.
Section 7. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of California and the obligations, rights
and remedies of the parties under this Agreement shall be determined in
accordance with such laws; provided, however, the immunities, authority and
standard of care of the Trustee shall be governed by the jurisdiction in which
its principal office is located.
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IN WITNESS WHEREOF, the Trustee, Fleetwood Credit and the Seller have
caused this Agreement to be duly executed and delivered by their respective
duly authorized officers as of the day and the year first above written.
FLEETWOOD CREDIT CORP.
By:
----------------------------------
Name:
Title:
FLEETWOOD CREDIT RECEIVABLES CORP.
By:
----------------------------------
Name:
Title:
--------------------------------,
as Trustee
By:
----------------------------------
Name:
Title:
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EXHIBIT C
AUCTION PROCEDURES
The following sets forth the auction procedures (the "Auction
Procedures") to be followed in connection with a sale effected pursuant to
Section 10.02 of the Sale and Servicing Agreement, dated as of __________ 1,
199 (the "Agreement"), among Fleetwood Credit Receivables Corp., as Seller,
Fleetwood Credit Corp., as Servicer, and the Fleetwood Credit RV Receivables
199 - Owner Trust (the "Trust"). Capitalized terms used herein that are not
otherwise defined shall have the meanings described thereto in the Agreement.
I. Pre-Auction Process
(a) Upon receiving notice of the Auction Date, the
Advisor will initiate its general Auction procedures consisting of the
following: (i) with the assistance of the Servicer, prepare a general
solicitation package along with a confidentiality agreement; (ii)
derive a list of qualified bidders, in a commercially reasonable
manner; (iii) initiate contact with all qualified bidders; (iv) send a
confidentiality agreement to all qualified bidders; (v) upon receipt
of a signed confidentiality agreement, send solicitation packages to
all interested bidders on behalf of the Indenture Trustee; and (vi)
notify the Servicer of all potential bidders and anticipated
timetable.
(b) The general solicitation package will include: (i)
the prospectus from the public offering of the Securities; (ii) a copy
of all monthly servicing reports or a copy of all annual servicing
reports and the prior year's monthly servicing reports; (iii) a form
of a Purchase and Sale Agreement and Servicing Agreement; (iv) a
description of the minimum purchase price required to cause the
Indenture Trustee to sell the Auction Property as set forth in Section
10.02 of the Agreement; (v) a formal bidsheet; (vi) a detailed
timetable; and (vii) a preliminary data tape of the Pool Balance as of
the related Distribution Date reflecting the same data attributes used
to create the Initial Cutoff Date tables for the prospectus dated
____________, 199 relating to the public offering of the Securities.
(c) The Indenture Trustee, with the assistance of the
Servicer and the Advisor, will maintain an auction package beginning
at the time of closing of the transaction, which will contain terms
(i) through (iii) listed in the preceding paragraph. If the Advisor
is unable to perform its role as advisor to the Indenture Trustee, the
Servicer acting in its capacity under the Agreement will select a
successor Advisor and inform the Indenture Trustee of its actions.
(d) The Advisor will send solicitation packages to all
bidders at least 15 Business Days before the Auction Date. Bidders
will be required to submit any due diligence questions in writing to
the Advisor for determination of their relevancy, no later
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than ten Business Days before the Auction Date. The Servicer and the
Advisor will be required to satisfy all relevant questions at least
five Business Days prior to the Auction Date and distribute the
questions and answers to all bidders.
II. Auction Process
(a) ________________ and/or ____________ (the
"Underwriters"), in their roles as Advisor to the Indenture Trustee,
will be allowed to bid in the Auction, but will not be required to do
so.
(b) The Servicer will also be allowed to bid in the
Auction if it deems appropriate, but will not be required to do so.
(c) On the Auction Date, all bids will be due by
facsimile to the offices of the Indenture Trustee by 1:00 p.m., New
York City time, with the winning bidder to be notified by 2:00 p.m.,
New York City time. All acceptable bids (as described in Section
10.02 of the Agreement) will be due on a conforming basis on the bid
sheet contained in the solicitation package.
(d) If the Indenture Trustee receives fewer than two
market value bids from participants in the market for motor vehicle
retail installment sale contracts willing and able to purchase the
Auction Property, the Indenture Trustee shall decline to consummate
the sale.
(e) Upon notification to the winning bidder, a good faith
deposit equal to 1% of the Pool Balance will be required to be wired
to the Indenture Trustee upon acceptance of the bid. This deposit,
along with any interest income attributable to it, will be credited to
the purchase price but will not be refundable. The Indenture Trustee
will establish a separate account for the acceptance of the good faith
deposit, until such time as the account is fully funded and all monies
are transferred into the Collection Account, such time not to exceed
one Business Day before the related Distribution Date (as described
above).
(f) The winning bidder will receive on the Auction Date a
copy of the draft Purchase and Sale Agreement, Servicing Agreement and
Servicer's Representations and Warranties (which shall be
substantially identical to the representations and warranties set
forth in Section 5.05 of the Agreement).
(g) Either Underwriter, in its capacity as Advisor to the
Indenture Trustee, will provide to the Indenture Trustee a letter
concluding whether or not the winning bid is a fair market value bid.
Such Underwriter will also provide this letter if it is the winning
bidder. In the case where such Underwriter or the Servicer is the
winning bidder it will in its letter provide for market comparables
and valuations.
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(h) The Auction will stipulate that the Servicer be
retained to service the Receivables sold pursuant to the terms of the
Purchase and Sale Agreement and Servicing Agreement.
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EXHIBIT D
[FCRC LETTERHEAD]
__________, 199
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10017
Standard & Poor's, a division of
The McGraw-Hill Companies, Inc.
25 Broadway
New York, New York 10017
____________________
____________________
____________________
Re: Fleetwood Credit RV Receivables 199 - Owner Trust
Asset-Backed Securities
Dear Sirs:
Reference is made to that certain Sale and Servicing Agreement, dated
as of ____________ 1, 199 (the "Sale and Servicing Agreement"), among
Fleetwood Credit Corp., as servicer (the "Servicer"), Fleetwood Credit
Receivables Corp., as seller (the "Seller"), and the Fleetwood Credit RV
Receivables 199 - Owner Trust (the "Trust"). Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Sale and Servicing Agreement.
Pursuant to Section 2.02 of the Sale and Servicing Agreement, you are
hereby notified that the Seller intends to sell to the Trust on __________,
199__ (the "Subsequent Transfer Date") the Subsequent Receivables described in
Exhibit A attached hereto. In this regard, please be advised of the following:
(i) The Subsequent Cutoff Date with respect to each
Subsequent Receivable originated prior to __________, 199__ is
__________, 199__;
(ii) The Subsequent Cutoff Date with respect to each
Subsequent Receivable originated on or after __________, 199__ is its
date of origination;
(iii) The Aggregate Principal Balance of Subsequent
Receivables, as of the related Subsequent Cutoff Dates, to be sold to
the Trust on the Subsequent Transfer Date specified above is
$___________; and
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(iv) The Aggregate Principal Balance of Subsequent
Receivables sold to the Trust as of the related Subsequent Cutoff
Dates, after giving effect to the transaction contemplated herein,
equals $__________ [Note: must be less than or equal to
$_____________, after giving effect to all transfers of Subsequent
Receivables].
Very truly yours,
FLEETWOOD CREDIT RECEIVABLES CORP.
By:
-----------------------------------
Name:
Title:
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