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EXHIBIT 10.3
TRANSFER AGREEMENT
TRANSFER NO. ___ OF SUBSEQUENT RECEIVABLES, dated ____________, 199__,
among FLEETWOOD CREDIT CORP., a California corporation ("Fleetwood
Credit"), FLEETWOOD CREDIT RECEIVABLES CORP., a California corporation
(the "Seller"), and _________, as trustee (the "Trustee") pursuant to
the Pooling and Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Fleetwood Credit, the Seller and the Trustee are parties to
the Pooling and Servicing Agreement, dated as of _________ 1, 199__ (the
"Pooling and Servicing Agreement");
WHEREAS, Fleetwood Credit and the Seller are parties to the
Receivables Purchase Agreement, dated as of __________ 1, 199__ (the
"Receivables Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, Fleetwood
Credit desires to convey certain Subsequent Receivables (as hereinafter
defined) to the Seller and pursuant to the Pooling and Servicing Agreement and
this Agreement the Seller desires to convey such Subsequent Receivables to the
Trust; and
WHEREAS, the Trustee is willing to accept such conveyance subject to
the terms and conditions hereof.
NOW, THEREFORE, the Trustee, the Seller and Fleetwood Credit hereby
agree as follows:
Section 1. Defined Terms. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement.
"Agreement" means this Transfer Agreement and all amendments hereof
and supplements hereto.
"Subsequent Cutoff Date" means, with respect to the Subsequent
Receivables conveyed hereby, _________, 199__.
"Subsequent Receivables" means the Receivables identified on the
supplement to Schedule A to the Pooling and Servicing Agreement attached
hereto.
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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 Pooling and Servicing Agreement listing the Subsequent
Receivables to be conveyed by the Seller to the Trust pursuant to this
Agreement on the Subsequent Transfer Date.
Section 3. Conveyance of Subsequent Receivables. Subject to the
conditions set forth in Section 5 hereof, in consideration of the Trustee's
delivery on behalf of the Trust to or upon the order of the Seller of an amount
equal to $___________ (i.e., the aggregate Principal Balance of the Subsequent
Receivables as of the Subsequent Cutoff Date), the Seller does hereby sell,
transfer, assign and otherwise convey to the Trust, without recourse (subject
to the Seller's obligations hereunder):
(a) all right, title and interest of the Seller in and to
the Subsequent Receivables listed on Schedule A hereto and all monies
due thereon and paid thereon or in respect thereof (including proceeds
of the repurchase of such Subsequent Receivables by the Seller
pursuant to Section 12.02 or 21.02 of the Pooling and Servicing
Agreement or the purchase of such Subsequent Receivables by Fleetwood
Credit pursuant to Section 13.07 or 21.02 of the Pooling and Servicing
Agreement) on or after the Subsequent Cutoff Date;
(b) the interest of the Seller in the security interests
in the related Financed Vehicles granted by the related Obligors
pursuant to such Subsequent Receivables;
(c) the interest of the Seller in any Liquidation
Proceeds, in any proceeds of any physical damage insurance policies
covering the related Financed Vehicles and in any proceeds of any
credit life or credit disability insurance policies relating to such
Subsequent Receivables or the related Obligors;
(d) the interest of the Seller in any proceeds from
Dealer repurchase obligations relating to such Subsequent Receivables;
and
(e) all proceeds of the foregoing.
Section 4. Representations and Warranties of the Seller.
(a) The Seller does hereby make the following representations on
which the Trustee shall rely in accepting the Subsequent Receivables in trust
pursuant to the Pooling and Servicing Agreement. The representations shall
speak as of the execution and delivery of this Agreement and as of the
Subsequent Transfer Date, and in each case shall survive the sale, transfer and
assignment of the Subsequent Receivables to the Trustee.
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(i) Organization and Good Standing. The Seller shall
have been duly organized and shall be validly existing as a
corporation in good standing under the laws of the State of
California, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is presently conducted, and had at all relevant times, and
shall now have, power, authority and legal right to acquire, own and
sell the Subsequent Receivables.
(ii) Due Qualification. The Seller shall be duly
qualified to do business as a foreign corporation in good standing,
and shall have obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(iii) Power and Authority. The Seller shall have the power
and authority to execute and deliver this Agreement and to carry out
its terms; the Seller shall have full power and authority to sell and
assign the property to be sold and assigned to and deposited with the
Trustee as part of the Trust and shall have duly authorized such sale
and assignment to the Trustee by all necessary corporate action; and
the execution, delivery and performance of this Agreement shall have
been duly authorized by the Seller by all necessary corporate action.
(iv) Valid Sale; Binding Obligations. This Agreement
shall evidence a valid sale, transfer and assignment of the Subsequent
Receivables, enforceable against creditors of and purchasers from the
Seller; and shall constitute a legal, valid and binding obligation of
the Seller enforceable against the Seller in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or at law.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of
this Agreement shall not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or
bylaws of the Seller, or conflict with or breach any of the material
terms or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement or other instrument
to which the Seller is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument (other than this Agreement, the Receivables Purchase
Agreement and the Pooling and Servicing Agreement); nor violate any
law or, to the best of the Seller's knowledge, any order, rule or
regulation applicable to Seller of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties.
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(vi) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Seller,
threatened against the Seller, before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties:
(a) asserting the invalidity of this Agreement, (b) seeking to prevent
the consummation of any of the transactions contemplated by this
Agreement, or (c) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this
Agreement.
(b) The Seller does hereby make the following representations and
warranties as to the Subsequent Receivables on which the Trustee shall rely in
accepting the Subsequent Receivables in trust. The representations shall speak
as of the execution and delivery of this Agreement and as of the Subsequent
Transfer Date, and in each case shall survive the sale, transfer and assignment
of the Subsequent Receivables to the Trustee.
(i) Characteristics of Subsequent Receivables. Each
Subsequent Receivable (a) shall have been originated in the United
States by a Dealer for the retail sale of the related Financed Vehicle
in the ordinary course of such Dealer's business, shall have been
fully and properly executed by the parties thereto, shall have been
purchased by Fleetwood Credit from such Dealer under an agreement with
Fleetwood Credit and shall have been validly assigned by such Dealer
to Fleetwood Credit in accordance with its terms and shall have been
subsequently sold by Fleetwood Credit to the Seller; (b) shall have
created or shall create a valid, subsisting and enforceable first
priority security interest in favor of Fleetwood Credit in the related
Financed Vehicle, which security interest has been assigned by
Fleetwood Credit to the Seller, and shall be assignable, and shall be
so assigned, by the Seller to the Trustee; (c) shall contain customary
and enforceable provisions such that the rights and remedies of the
holder thereof shall be adequate for the realization against the
collateral of the benefits of the security; (d) shall provide for
level monthly payments (provided that the payment in the first or last
month in the life of the Subsequent Receivable may be minimally
different from the level payment) that fully amortize the Amount
Financed by maturity and yield interest at its APR; and (e) shall
provide for, in the event that such Subsequent Receivable is prepaid,
a prepayment that fully pays the Principal Balance and includes
accrued but unpaid interest at least through the date of prepayment in
an amount calculated by using an interest rate at least equal to its
APR.
(ii) Schedule of Receivables. The information set forth
in the supplement to the Schedule of Receivables annexed hereto shall
be true and correct in all material respects as of the opening of
business on the Subsequent Cutoff Date, and no selection procedure
adverse to the Certificateholders shall have been utilized in
selecting the Subsequent Receivables from those Receivables of
Fleetwood Credit which met the selection criteria set forth in this
Section.
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(iii) Compliance with Law. Each Subsequent Receivable and
each sale of the related Financed Vehicle shall have complied at the
time it was originated or made, and shall comply at the time of
execution of this Agreement in all material respects with all
requirements of applicable federal, state and local laws, and
regulations thereunder, including usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, Federal Reserve Board Regulations B and Z,
state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit, equal credit
opportunity and disclosure laws.
(iv) Binding Obligation. Each Subsequent Receivable shall
constitute the genuine, legal, valid and binding payment obligation in
writing of the related Obligor, enforceable by the holder thereof in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation and other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity regardless of whether such enforceability
shall be considered in a proceeding in equity or at law.
(v) No Government Obligor. None of the Subsequent
Receivables shall be due from the United States or any state or local
government thereof or from any agency, department or instrumentality
of the United States or any state or local government.
(vi) Security Interest in Financed Vehicles. Immediately
prior to the sale, assignment and transfer thereof, each Subsequent
Receivable shall be secured by a validly perfected first security
interest in the related Financed Vehicle in favor of Fleetwood Credit
as secured party or all necessary and appropriate action with respect
to such Subsequent Receivable shall have been taken to perfect a first
priority security interest in such Financed Vehicle in favor of
Fleetwood Credit as secured party.
(vii) Receivables in Force. No Subsequent Receivable shall
have been satisfied, subordinated or rescinded, nor shall any related
Financed Vehicle have been released from the lien granted by the
related Subsequent Receivable in whole or in part.
(viii) No Waiver. No provision of a Subsequent Receivable
shall have been waived in such a manner that such Subsequent
Receivable fails to meet all of the other representations and
warranties made by the Seller herein with respect thereto.
(ix) No Amendments. No Subsequent Receivable shall have
been amended in such a manner that such Subsequent Receivable fails to
meet all of the other representations and warranties made by the
Seller herein with respect thereto.
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(x) No Defenses. No facts shall be known to the Seller
which would give rise to any right of rescission, setoff, counterclaim
or defense, nor shall the same have been asserted or threatened, with
respect to any Subsequent Receivable.
(xi) No Liens. To the knowledge of the Seller, no liens
or claims shall have been filed, including liens for work, labor or
materials relating to a Financed Vehicle related to a Subsequent
Receivable, that shall be liens prior to, or equal or coordinate with,
the security interest in such Financed Vehicle granted by the related
Subsequent Receivable.
(xii) No Default. Except for payment defaults continuing
for a period of not more than 30 days as of the Subsequent Cutoff
Date, no default, breach, violation or event permitting acceleration
under the terms of any Subsequent Receivable shall have occurred; and
no continuing condition that with notice or the lapse of time would
constitute a default, breach, violation or event permitting
acceleration under the terms of any Subsequent Receivable shall have
arisen; and the Seller shall not have waived any of the foregoing.
(xiii) Insurance. Fleetwood Credit, in accordance with its
customary servicing procedures, shall have determined that each
Obligor had obtained physical damage insurance covering the related
Financed Vehicle.
(xiv) Good Title. It is the intention of the Seller that
the transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Subsequent Receivables from the Seller to the
Trust and that the beneficial interest in and title to the Subsequent
Receivables not be a part of the debtor's estate in the event of a
filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Subsequent Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the
Trustee, and no provision of a Subsequent Receivable shall have been
waived, except as provided in clause (viii) above; immediately prior
to the transfer and assignment herein contemplated, the Seller had
good and marketable title to each Subsequent Receivable free and clear
of all Liens and rights of others; immediately upon the transfer and
assignment thereof, the Trustee, for the benefit of the
Certificateholders, shall have good and marketable title to each
Subsequent Receivable, free and clear of all Liens and rights of
others; and the transfer and assignment herein contemplated has been
perfected under the UCC.
(xv) Lawful Assignment. No Subsequent Receivable shall
have been originated in, or shall be subject to the laws of, any
jurisdiction under which the sale, transfer and assignment of such
Subsequent Receivable under the Agreement or pursuant to transfers of
the Certificates shall be unlawful, void or voidable.
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(xvi) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Trustee a first
perfected ownership interest in the Subsequent Receivables shall have
been made.
(xvii) One Original. There shall be only one original
executed copy of each Subsequent Receivable.
(xviii) Additional Representations and Warranties. (a) Each
Subsequent Receivable shall have an original maturity of not less than
___ months nor greater than ____ months and, as of the Subsequent
Cutoff Date, a scheduled remaining maturity of not less than ___
months nor greater than ____ months; (b) the weighted average
remaining term of the Receivables (including the Subsequent
Receivables) as of the Subsequent Transfer Date is not greater than
____ months; (c) each Subsequent Receivable shall have an Annual
Percentage Rate equal to or greater than _____% and equal to or less
than ______%; (d) the weighted average APR of the Receivables
(including the Subsequent Receivables) is not less than _____%; (e)
each Subsequent Receivable shall have no payment that is more than 30
days past due as of the related Subsequent Cutoff Date; (f) such
Subsequent Receivables were originated on or prior to __________,
199__; and (g) the related Receivable Files shall be kept at one or
more of the locations listed in Schedule B to the Pooling and
Servicing Agreement.
Section 5. Conditions Precedent. The obligation of the Trust to
acquire the Subsequent Receivables hereunder is subject to the satisfaction, on
or prior to the Subsequent Transfer Date, of the following conditions
precedent:
(a) Representations and Warranties. (i) Each of the
representations and warranties made by Fleetwood Credit in Section
2.03 of the Receivables Purchase Agreement and (ii) each of the
representations and warranties made by the Seller in Section 4 of this
Agreement and Sections 7.01 and 17.01 of the Pooling and Servicing
Agreement, shall be true and correct as of the date of this Agreement
and as of the Subsequent Transfer Date.
(b) Pooling and Servicing Agreement Conditions. Each of
the conditions set forth in Section 2.02(b) to the Pooling and
Servicing Agreement shall have been satisfied.
(c) Receivables Purchase Agreement Conditions. Fleetwood
Credit shall have complied with the requirements of Section 2.03 of
the Receivables Purchase Agreement and shall have delivered all
documents required to be delivered pursuant to Section 2.01 of the
Receivables Purchase Agreement.
(d) Security Interest Perfection. In connection with the
conveyance contemplated by this Agreement, the Seller agrees to record
and file, at its own expense, a financing statement with respect to
the related Subsequent Receivables now existing and hereafter created
for the sale of chattel paper (as defined in Section 9105 of the UCC
as in
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effect in the State of California) meeting the requirements of
applicable state law in such manner as is sufficient to perfect the
sale and assignment of such Subsequent Receivables to the Trust, and
the proceeds thereof (and any continuation statements as are required
by applicable state law), and to deliver a file-stamped copy of each
such financing statement (or continuation statement) or other evidence
of such filings (which may, for purposes of this Section, consist of
telephone confirmation of such filing with the file stamped copy of
each such filing to be provided to the Trustee in due course), as soon
as is practicable after the Seller's receipt thereof.
In connection with such conveyance, the Seller
further agrees, at its own expense, on or prior to the Subsequent
Transfer Date (i) to annotate and indicate in its computer files that
the Subsequent Receivables have been transferred to the Trust pursuant
to the Agreement and (ii) to deliver to the Trustee a computer file
printed or microfiche list containing a true and complete list of all
such Subsequent Receivables, identified by account number and by the
Principal Balance of each Subsequent Receivable as of the related
Subsequent Cutoff Date.
(e) Additional Information. The Seller shall have
delivered to the Trustee on behalf of the Trust such information as
was reasonably requested by the Trustee on behalf of the Trust to
satisfy itself as to (i) the accuracy of the representations and
warranties set forth in Section 4 of this Agreement and Sections 7.01
and 17.01 of the Pooling and Servicing Agreement and (ii) the
satisfaction of the conditions set forth in this Section.
The Trustee shall not be required to investigate or otherwise verify
satisfaction of the conditions listed above, but shall be entitled to
conclusively rely upon Opinions of Counsel and Officer's Certificates of the
Servicer confirming such fulfillment.
Section 6. Ratification of Agreement. As supplemented by this
Agreement, the Pooling and Servicing Agreement is in all respects ratified and
confirmed and the Pooling and Servicing Agreement as so supplemented by this
Agreement shall be read, taken and construed as one and the same instrument.
Section 7. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of California and the obligations, rights
and remedies of the parties under this Agreement shall be determined in
accordance with such laws; provided, however, the immunities, authority and
standard of care of the Trustee shall be governed by the jurisdiction in which
its principal office is located.
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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:
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Name:
Title:
FLEETWOOD CREDIT RECEIVABLES CORP.
By:
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Name:
Title:
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as Trustee
By:
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Name:
Title:
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