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EXHIBIT 4.1
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FLEETWOOD CREDIT RECEIVABLES CORP.,
as Seller,
and
______________________,
as Owner Trustee
_________________________________________________
TRUST AGREEMENT
Dated as of ____________, 199
_________________________________________________
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Interpretive Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE TWO
ORGANIZATION
Section 2.01. Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.02. Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.03. Purposes and Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.04. Appointment of Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.05. Initial Capital Contribution of Owner Trust Estate . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.06. Declaration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.07. Title to Trust Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.08. Situs of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.09. Representations and Warranties of the Seller . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.10. Federal Income Tax Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE THREE
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.02. The Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.03. Authentication and Delivery of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.04. Registration of Transfer and Exchange of Certificates . . . . . . . . . . . . . . . . . . . . . 9
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.06. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.07. Access to List of Certificateholders' Names and Addresses . . . . . . . . . . . . . . . . . . . . 11
Section 3.08. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.09. Temporary Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.10. Appointment of Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.11. Ownership by the Seller of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.12. Book-Entry Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.13. Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.14. Definitive Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(i)
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Section 3.15. Repayment of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Owners with Respect to Certain Matters . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.02. Action by Owners with Respect to Certain Matters . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.03. Action by Owners with Respect to Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.04. Restrictions on Owners' Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.05. Majority Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Certificate Distribution Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.02. Application of Trust Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.03. Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.04. No Segregation of Monies; No Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.05. Accounting and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.06. Signature on Returns; Tax Matters Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.02. General Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.03. Action Upon Instruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.04. No Duties Except as Specified in this Agreement or in Instructions . . . . . . . . . . . . . . . . 21
Section 6.05. No Action Except Under Specified Documents or Instructions . . . . . . . . . . . . . . . . . . . . 22
Section 6.06. Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.02. Furnishing of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(ii)
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Section 7.03. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.04. Reliance; Advice of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.05. Not Acting in Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.06. Owner Trustee Not Liable for Securities or Receivables . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.07. Owner Trustee May Own Certificates and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.02. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.03. Payments to the Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 9.02. Insolvency Event with Respect to Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE TEN
SUCCESSOR AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 10.02. Resignation or Removal of Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 10.03. Successor Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 10.04. Merger or Consolidation of Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 10.05. Appointment of Co-Trustee or Separate Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 11.02. No Legal Title to Trust Estate in Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 11.03. Limitations on Rights of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 11.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(iii)
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Section 11.05. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 11.06. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.07. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.08. No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.09. No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.10. Certificates Nonassessable and Fully Paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.11. Table of Contents and Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 11.12. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 11.13. Seller Payment Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
EXHIBITS
Exhibit A - Form of Certificate Depository Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B - Form of Certificate of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Exhibit C - Form of Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
(iv)
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This Trust Agreement, dated as of ___________, 199 , is among
Fleetwood Credit Receivables Corp., a California corporation ("FCRC"), as
Seller, and __________, a ___________, as trustee of the Fleetwood Credit RV
Receivables 199 - Owner Trust, a Delaware business trust.
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. Capitalized terms used herein that are
not otherwise defined shall have the meanings ascribed thereto in the Sale and
Servicing Agreement or, if not defined therein, in the Indenture. Whenever
used herein, unless the context otherwise requires, the following words and
phrases shall have the following meanings:
"Agreement" means this Trust Agreement, as the same may be amended or
supplemented from time to time.
"Applicants" has the meaning set forth in Section 3.07.
"Benefit Plan" means (i) an employee benefit plan (as such term is
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity.
"Book-Entry Certificate" means a beneficial interest in the
Certificates, the ownership of which shall be evidenced, and transfers of which
shall be made, through book entries by a Clearing Agency as described in
Section 3.12.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801 et seq., as the same may be amended from time to
time.
"Certificate Depository Agreement" means the agreement dated
Clearing Agency, substantially in the form attached as Exhibit A hereto,
relating to all Certificates other than the Seller Certificate, as the same may
be amended and supplemented from time to time.
"Certificate of Trust" means the Certificate of Trust filed for the
Trust pursuant to Section 3810(a) of the Business Trust Statute, substantially
in the form of Exhibit B hereto.
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"Certificate Owner" means (i) with respect to a Book-Entry
Certificate, the Person who is the owner of such Book-Entry Certificate, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in either case in accordance with the rules of such Clearing
Agency) and (ii) with respect to a Definitive Certificate, the related
Certificateholder.
"Certificate Register" and "Certificate Registrar" mean the register
maintained and the registrar (or any successor thereto) appointed pursuant to
Section 3.04.
"Certificateholder" means the Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purposes of
giving any consent, waiver, request or demand pursuant to this Agreement or the
other Basic Documents, the interest evidenced by any Certificate registered in
the name of the Seller, Fleetwood Credit or any of their respective Affiliates
shall not be taken into account in determining whether the requisite percentage
necessary to effect such consent, waiver, request or demand in respect of the
Certificates shall have been obtained.
"Certificates" means the trust certificates evidencing the beneficial
interest of an Owner in the Trust, substantially in the form of Exhibit C
hereto.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" means __________, 199 .
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
"Definitive Certificates" has the meaning set forth in Section 3.12.
"DTC" means The Depository Trust Company, and its successors.
"ERISA" means the Employment Retirement Income Security Act of 1974,
as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Indemnified Parties" has the meaning set forth in Section 8.02.
"Indenture" means the indenture dated as of __________ 1, 199 ,
between the Trust and the Indenture Trustee.
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"Mandatory Prepayment" has the meaning set forth in Section 3.15(b).
"Original Certificate Balance" means $____________.
"Owner" means each Holder of a Certificate.
"Owner Trustee" means ______________, a ____________, as trustee under
this Agreement, and any successor Owner Trustee hereunder.
"Owner Trustee Corporate Trust Office" means the office of the Owner
Trustee at which its corporate trust business shall be administered, which
initially shall be ______________, Attention: _______________, or such other
office at such other address as the Owner Trustee may designate from time to
time by notice to the Certificateholders, the Servicer and the Seller. The
foregoing address of ___________ shall be its address for purposes of its
acting as Certificate Registrar and as agent of the Owner Trustee pursuant to
Sections 3.04 and 3.08, or such other office at such other address as the Owner
Trustee may designate from time to time by notice to the Certificateholders,
the Servicer and the Seller.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 3.10.
"Pre-Funded Percentage" means, with respect to the Certificates, the
percentage derived from the fraction, the numerator of which is the Original
Certificate Balance, and the denominator of which is the sum of the Original
Note Balance and the Original Certificate Balance.
"Sale and Servicing Agreement" means the sale and servicing agreement,
dated as of ____________ 1, 199 , among the Issuer, the Seller and the
Servicer, as the same may be amended or supplemented from time to time.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Seller Certificate" means the Certificate purchased by the Seller on
the Closing Date pursuant to Section 3.11, having an initial principal balance
equal to $_________.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust Estate" means (i) the Receivables (other than Repurchased
Receivables) and all payments due thereunder on and after the Initial Cutoff
Date or any Subsequent Cutoff Date, as the case may be, other than Accrued
Interest as of the opening of business on the Initial Cutoff Date or any
Subsequent Cutoff Date, as the case may be; (ii) security interests in the
Financed Vehicles; (iii) such monies as are from time to time on deposit in the
Collection Account, the
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Distribution Accounts, the Pre-Funding Account, the Yield Supplement Account
and the Reserve Fund (including Investment Earnings thereon) and all proceeds
thereof; (iv) the Servicer Letter of Credit, if any; (v) the right to realize
upon any property (including the right to receive future Liquidation Proceeds)
that shall have secured a Receivable and have been repossessed by or on behalf
of the Owner Trustee; (vi) proceeds from claims on any physical damage, credit
life or disability Insurance Policies covering the Financed Vehicles or the
Obligors; (vii) the Seller's rights under the Receivables Purchase Agreement;
(viii) the right of the Seller to receive payments pursuant to repurchase
obligations of Dealers relating to the Receivables; and (ix) all proceeds of
the foregoing.
"Underwriters" means ___________________.
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 and (xi) all accounting terms used but not defined herein shall be
construed in accordance with generally accepted accounting principles in the
United States.
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ARTICLE TWO
ORGANIZATION
Section 2.01. Name. The Trust created hereby shall be known as the
"Fleetwood Credit RV Receivables 199 - Owner Trust", in which name the Owner
Trustee may conduct the activities of the Trust, make and execute contracts and
other instruments on behalf of the Trust and sue and be sued.
Section 2.02. Office. The principal office of the Trust shall be
in care of the Owner Trustee at the Owner Trustee Corporate Trust Office or at
such other address in the State of Delaware as the Owner Trustee may designate
from time to time by written notice to the Owners and the Seller. Copies of
this Agreement (without exhibits) may be obtained by Certificateholders upon
request in writing to the Owner Trustee at the Owner Trustee Corporate Trust
Office.
Section 2.03. Purposes and Powers.
(a) The sole purpose of the Trust is to conserve the Trust Estate
and collect and disburse the periodic income therefrom for the use and benefit
of the Owners, and in furtherance of such purpose to engage in the following
ministerial activities:
(i) to acquire, hold and manage the Receivables and the
other assets of the Trust and proceeds therefrom;
(ii) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement and to sell the Notes and the
Certificates;
(iii) to make payments on the Notes and the Certificates; and
(iv) to engage in those activities, including entering
into agreements, that are necessary to accomplish the foregoing or are
incidental thereto or connected therewith.
The Trust shall not engage in any activities other than in connection with the
foregoing. Nothing contained herein shall be deemed to authorize the Owner
Trustee, on behalf of the Trust, to engage in any business operations or any
activities other than those set forth in the introductory sentence of this
Section. Specifically, the Owner Trustee, on behalf of the Trust, shall have
no authority to engage in any business operations, acquire any assets other
than those specifically included in the Trust Estate or otherwise vary the
assets held by the Trust. Similarly, the Owner Trustee shall have no
discretionary duties other than performing those ministerial acts set forth
above necessary to accomplish the purpose of the Trust as set forth in the
introductory sentence of this Section.
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Section 2.04. Appointment of Owner Trustee. The Seller hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein, and the
Owner Trustee hereby accepts such appointment.
Section 2.05. Initial Capital Contribution of Owner Trust Estate.
The Seller hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, on behalf of the Trust, as of the date hereof, the sum of $1.00. The
Owner Trustee hereby acknowledges receipt in trust from the Seller, as of the
date hereof, of the foregoing contribution, which shall constitute the initial
Trust Estate and shall be deposited in the Certificate Distribution Account.
The Seller shall pay organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust. The Owner Trustee hereby
declares that it will hold the Trust Estate in trust upon and subject to the
conditions set forth herein for the sole purpose of conserving the Trust Estate
and collecting and disbursing the periodic income therefrom for the use and
benefit of the Owners, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute
a business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. It is the
intention of the parties hereto that, solely for income and franchise tax
purposes, the Trust shall be treated as a partnership, with the assets of the
partnership being the Receivables and other assets held by the Trust and with
the partners of the partnership being the Certificateholders (including the
Seller) and the Notes being debt of the partnership. The parties agree that,
unless otherwise required by appropriate tax authorities, the Trust will file
or cause to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as a partnership for such tax
purposes. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and in the Business Trust Statute
for the sole purpose and to the extent necessary to accomplish the purpose of
the Trust as set forth in the introductory sentence of Section 2.03.
Section 2.07. Title to Trust Property. Legal title to the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Owner Trustee, a co-trustee or a separate
trustee, as the case may be.
Section 2.08. Situs of Trust. The Trust shall be located and
administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of
California, the State of Delaware or the State of New York. The Trust shall
not have any employees in any State other than Delaware; provided, however,
that nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware. Payments shall be received
by the Trust only in Delaware or New York and payments shall be made by the
Trust only from Delaware or New York. The only office of the Trust will be at
the Owner Trustee Corporate Trust Office.
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Section 2.09. Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to the Owner Trustee
that:
(i) The Seller is duly organized and validly existing as
a corporation organized and existing and in good standing under the
laws of the State of California, with power and authority to own its
properties and to conduct its business and had at all relevant times,
and has, power, authority and legal right to acquire and own the
Receivables.
(ii) The Seller is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such
qualifications.
(iii) The Seller has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Seller has full
power and authority to sell and assign the property to be sold and
assigned to and deposited with the Owner Trustee on behalf of the
Trust as part of the Trust Estate and has duly authorized such sale
and assignment and deposit with the Owner Trustee on behalf of the
Trust by all necessary corporate action; and the execution, delivery
and performance of this Agreement have been duly authorized by the
Seller by all necessary corporate action.
(iv) The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict
with, result in the 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 any
indenture, agreement or other instrument to which the Seller is a
party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of the properties of the Seller
pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents); nor violate
any law or any order, rule or regulation applicable to the 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.
(v) There are no Proceedings or investigations pending,
or to the Seller's best knowledge threatened, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties:
(A) asserting the invalidity of this Agreement, any of the other Basic
Documents or the Certificates, (B) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by this Agreement or any other Basic Document, (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, any other
Basic Document or the Certificates or (D) involving the Seller and
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that might adversely affect the federal income tax or other federal,
state or local tax attributes of the Certificates.
Section 2.10. Federal Income Tax Allocations. The
Certificateholders shall be allocated taxable income of the Trust for each
month equal to the sum of (i) the interest that accrues on the Certificates for
such month, including interest accruing at the Pass-Through Rate for such month
and interest at the Pass-Through Rate on amounts previously due on the
Certificates but not yet distributed; (ii) any Trust income attributable to
discount on the related Receivables that corresponds to any excess of the
principal amount of the Certificates over their initial issue price; (iii)
prepayment premium payable to the Certificateholders for such month; and (iv)
any other amounts of income payable to the Certificateholders for such month.
Such allocation shall be reduced by any amortization by the Trust of premium on
the Receivables that corresponds to any excess of the issue price of
Certificates over their principal amount. All remaining taxable income of the
Trust will be allocated to the Seller. The Seller is authorized to modify the
allocations in this paragraph if necessary or appropriate, in its sole
discretion, for the allocations to fairly reflect the income, gain, loss and
deduction to the Seller or to the Certificate Owners, or as otherwise required
by the Code.
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ARTICLE THREE
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership. Upon the formation of the Trust
by the contribution by the Seller pursuant to Section 2.05 and until the
issuance of the Certificates, the Seller shall be the sole beneficiary of the
Trust.
Section 3.02. The Certificates. The Certificates shall be
substantially in the form of Exhibit C hereto. The Certificates shall be
issuable in minimum denominations of $20,000 and integral multiples of $1,000
in excess thereof. The Certificates shall be executed by the Owner Trustee on
behalf of the Trust by manual or facsimile signature of an authorized officer
of the Owner Trustee and attested on behalf of the Owner Trustee by the manual
or facsimile signature of an authorized officer of the Owner Trustee and shall
be deemed to have been validly issued when so executed. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures were affixed, authorized to sign on behalf of the Owner Trustee
shall be valid and binding obligations of the Trust, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of such Certificates. All Certificates shall be dated the date of
their authentication.
Section 3.03. Authentication and Delivery of Certificates. The
Owner Trustee shall cause to be authenticated and delivered upon the order of
the Seller, in exchange for the Initial Receivables and the other assets of the
Trust, simultaneously with the sale, assignment and transfer to the Trust of
the Initial Receivables, and the constructive delivery to the Owner Trustee of
the Receivable Files and the other assets of the Trust, Certificates duly
authenticated by the Owner Trustee, in authorized denominations equaling in the
aggregate the Original Certificate Balance evidencing the entire ownership of
the Trust. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form set forth
in the form of Certificate attached hereto as Exhibit C, executed by the Owner
Trustee or its authenticating agent, by manual signature, and such certificate
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. Upon
issuance, authentication and delivery pursuant to the terms hereof, the
Certificates will be entitled to the benefits of this Agreement.
Section 3.04. Registration of Transfer and Exchange of
Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, a
Certificate Register, subject to such reasonable regulations as it may
prescribe. The Certificate Register shall provide for the registration of
Certificates and transfers and exchanges of Certificates as provided herein.
_____________, Attention: ________________, as agent for the Owner Trustee, is
hereby initially appointed Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided.
In the event that, subsequent to the Closing Date, the Owner Trustee notifies
the Servicer that ___________ is unable to act as Certificate
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Registrar, the Servicer shall appoint another bank or trust company, having an
office or agency located in The City of New York, agreeing to act in accordance
with the provisions of this Agreement applicable to it, and otherwise
acceptable to the Owner Trustee, to act as successor Certificate Registrar
hereunder.
(b) Upon surrender for registration of transfer of any Certificate
at the office of the Certificate Registrar, the Owner Trustee shall execute,
authenticate and deliver (or shall cause its authenticating agent to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a like
aggregate principal amount.
(c) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates in authorized denominations of a like
aggregate principal amount, upon surrender of the Certificates to be exchanged
at the office of the Certificate Registrar. Whenever any Certificates are so
surrendered for exchange, the Owner Trustee on behalf of the Trust shall
execute, authenticate and deliver (or shall cause its authenticating agent to
authenticate and deliver) the Certificates that the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Owner Trustee and
the Certificate Registrar duly executed by the Holder thereof or his attorney
duly authorized in writing.
(d) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Owner Trustee may require payment
of a sum sufficient to cover any Tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(e) The Certificates may not be acquired by or for the account of
a Benefit Plan. By accepting and holding a Certificate, the Holder thereof
shall be deemed to have represented and warranted that it is not a Benefit Plan
nor will it hold such Certificate for the account of a Benefit Plan.
(f) All Certificates surrendered for registration of transfer or
exchange shall be promptly cancelled by the Owner Trustee, and no Certificates
shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Agreement. The Owner Trustee shall dispose of cancelled
Certificates in accordance with the normal industry practice.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate Registrar,
or the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (ii) there is delivered to
the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to hold each of them harmless, then, in the absence of
notice that such Certificate has been acquired by a bona fide purchaser, the
Owner Trustee on behalf of the Trust shall execute and the Owner Trustee or its
authenticating agent shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and fractional undivided interest. In connection with the
issuance of any new Certificate under this Section, the Owner Trustee may
require the payment by the related
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Holder of a sum sufficient to cover any Tax or other governmental charge that
may be imposed in relation thereto. Any duplicate Certificate issued pursuant
to this Section shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Prior to due presentation of
a Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar, any Paying Agent and any of their respective agents may treat the
Person in whose name such Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 5.02
and for all other purposes whatsoever, and none of the Owner Trustee, the
Certificate Registrar, any Paying Agent or any of their respective agents shall
be affected by any notice to the contrary.
Section 3.07. Access to List of Certificateholders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer, within 15 days after receipt by the Certificate Registrar of a
written request therefor from the Servicer, a list, in such form as the
Servicer may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders, or one or more Certificateholders evidencing not less than
25% of the Voting Interest thereof (hereinafter referred to as "Applicants"),
apply in writing to the Owner Trustee, and such application states that the
Applicants desire to communicate with other Certificateholders with respect to
their rights hereunder or under the Certificates and such application is
accompanied by a copy of the communication that such Applicants propose to
transmit, then the Owner Trustee shall, within five Business Days after the
receipt of such application, afford such Applicants access, during normal
business hours, to the current list of Certificateholders. Every
Certificateholder, by receiving and holding a Certificate, agrees with the
Servicer, the Seller and the Owner Trustee that none of the Servicer, the
Seller or the Owner Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 3.08. Maintenance of Office or Agency. ________________,
as agent for the Owner Trustee, shall maintain in the Borough of Manhattan, The
City of New York, an office or offices or agency or agencies where Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Owner Trustee in respect of the Certificates and the
Basic Documents may be served. The Owner Trustee hereby designates the office
of ______________ at the address provided under the definition of the term
"Owner Trustee Corporate Trust Office" as its office for such purposes. The
Owner Trustee shall give prompt written notice to the Seller, the Servicer and
to Certificateholders of any change in the location of the Certificate Register
or any such office or agency.
Section 3.09. Temporary Certificates. Pending the preparation of
Definitive Certificates, the Owner Trustee, on behalf of the Trust, may
execute, authenticate and deliver, temporary Certificates that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the Definitive
Certificates in lieu of which they are issued. If temporary Certificates are
issued, the Seller shall cause Definitive Certificates to be prepared without
unreasonable delay. After the preparation of Definitive Certificates, the
temporary Certificates shall be exchangeable for Definitive Certificates upon
surrender of the temporary Certificates at the office or agency to be
maintained
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as provided in Section 3.08, without charge to the Holder thereof. Upon
surrender for cancellation of any one or more temporary Certificates, the Owner
Trustee shall execute and authenticate and deliver in exchange therefor a like
principal amount of Definitive Certificates in authorized denominations. Until
so exchanged, the temporary Certificates shall in all respects be entitled to
the same benefits hereunder as Definitive Certificates.
Section 3.10. Appointment of Paying Agent. The Paying Agent shall
make distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.02(a) and shall report the amounts of such
distributions to the Owner Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. The Owner Trustee may
revoke such power and remove the Paying Agent if the Owner Trustee determines
in its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent
initially shall be ______________ and any co-paying agent chosen by the Paying
Agent that is acceptable to the Owner Trustee. Each Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Owner
Trustee. In the event that ______________ shall no longer be the Paying Agent,
the Owner Trustee shall appoint a successor to act as Paying Agent (which shall
be a bank or trust company). The Owner Trustee shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Owner Trustee to
execute and deliver to the Owner Trustee an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the Owner Trustee
that, as Paying Agent, such successor Paying Agent or additional Paying Agent
will hold all sums, if any, held by it for payment to the Certificateholders in
trust for the benefit of the Certificateholders entitled thereto until such
sums shall be paid to such Certificateholders. The Paying Agent shall return
all unclaimed funds to the Owner Trustee and upon removal of a Paying Agent
such Paying Agent shall also return all funds in its possession to the Owner
Trustee. The provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall apply to
the Owner Trustee also in its role as Paying Agent, for so long as the Owner
Trustee shall act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise. If the long term debt rating of the Paying Agent shall not be at
least Baa3 from Moody's and BBB- from Standard & Poor's, the Rating Agencies
shall be given notice of such lower long term debt rating.
Section 3.11. Ownership by the Seller of Certificates.
(a) The Seller shall on the Closing Date purchase from the
Underwriters Certificates representing at least 1% of the Original Certificate
Balance and shall thereafter retain beneficial and record ownership of
Certificates representing at least 1% of the Certificate Balance. Any
attempted transfer of any Certificate that would reduce such interest of the
Seller below 1% of the Certificate Balance shall be void. The Owner Trustee
shall cause any Certificate issued to the Seller on the Closing Date (and any
Certificate issued in exchange therefor) to contain a legend stating "THIS
CERTIFICATE IS NON-TRANSFERABLE".
(b) The Seller hereby agrees to be liable directly to any injured
Person for the entire amount of any Losses (other than those incurred by a
Securityholder in the capacity of an investor with respect to the Trust)
arising out of or based on the arrangement created by this
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Agreement as though such arrangement created a partnership under the Delaware
Revised Uniform Limited Partnership Act in which the Seller was a general
partner.
Section 3.12. Book-Entry Certificates. The Certificates upon
original issuance will be issued in the form of one or more typewritten
certificates representing the Book-Entry Certificates, to be delivered to DTC,
the initial Clearing Agency, by, or on behalf of, the Trust; provided, however,
that one Definitive Certificate (as defined below) may be issued to the Seller
pursuant to Section 3.11. The certificate or certificates delivered to DTC
evidencing such Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Certificate Owner (other than the Seller) shall receive a Definitive
Certificate representing such Certificate Owner's interest in the Certificates,
except as provided in Section 3.14. Unless and until definitive, fully
registered Certificates ("Definitive Certificates") have been issued to
Certificate Owners pursuant to Section 3.14:
(a) the provisions of this Section shall be in full force
and effect;
(b) the Seller, the Servicer, the Certificate Registrar
and the Owner Trustee, subject to the provisions and limitations of
Sections 2.03 and 2.06, may deal with the Clearing Agency for all
purposes (including the making of distributions on the Certificates)
as the authorized representative of the Certificate Owners;
(c) to the extent that the provisions of this Section
conflict with any other provisions of this Agreement, the provisions
of this Section shall control;
(d) the rights of Certificate Owners shall be exercised
only through the Clearing Agency (or through procedures established by
the Clearing Agency) and shall be limited to those established by law
and agreements between such Certificate Owners and the Clearing Agency
or the Clearing Agency Participants; pursuant to the Certificate
Depository Agreement, unless and until Definitive Certificates are
issued pursuant to Section 3.14, the Clearing Agency shall make
book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on the
Certificates to such Clearing Agency Participants; and
(e) whenever this Agreement requires or permits actions
to be taken based upon instructions or directions of
Certificateholders evidencing a specified percentage of the
Certificate Balance, the Clearing Agency shall be deemed to represent
such percentage only to the extent that it has received instructions
to such effect from Certificate Owners or Clearing Agency Participants
owning or representing, respectively, such required percentage and has
delivered such instructions to the Owner Trustee.
Section 3.13. Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders is required hereunder, unless and until
Definitive Certificates shall have been issued to Certificate Owners pursuant
to Section 3.14, the Owner Trustee and the Servicer shall give all such notices
and communications specified herein to be given to Certificateholders to the
Clearing Agency.
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Section 3.14. Definitive Certificates. If (i)(A) the Administrator
advises the Owner Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities as described in the
Certificate Depository Agreement and (B) the Trustee or the Administrator is
unable to locate a qualified successor, (ii) the Administrator, at its option,
advises the Owner Trustee in writing that it elects to terminate the book-entry
system through the Clearing Agency or (iii) after the occurrence of an Event of
Default or a Servicer Default, Certificate Owners representing beneficial
interests aggregating not less than 51% of the Voting Interest thereof advise
the Owner Trustee and the Clearing Agency through the Clearing Agency
Participants in writing that the continuation of a book-entry system through
the Clearing Agency is no longer in the best interests of the Certificate
Owners, then the Clearing Agency shall notify all Certificate Owners and the
Owner Trustee of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Owner Trustee by the Clearing Agency of the Certificates
evidencing the Book-Entry Certificates, accompanied by registration
instructions from the Clearing Agency for registration, the Owner Trustee shall
issue the Definitive Certificates and deliver such Definitive Certificates in
accordance with the instructions of the Clearing Agency. Neither the Seller,
the Certificate Registrar nor the Owner Trustee shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, the Owner Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder. The Owner Trustee shall not be
liable if the Owner Trustee or the Administrator is unable to locate a
qualified successor Clearing Agency. The Definitive Certificates shall be
printed, lithographed or engraved or may be produced in any manner as is
reasonably acceptable to the Owner Trustee, as evidenced by its execution
thereof.
Section 3.15. Repayment of Certificates.
(a) In the event of an Optional Purchase or an Auction, the
Certificates will be prepaid in whole, but not in part, at a prepayment price
equal to the Certificate Balance plus accrued interest thereon at the
Pass-Through Rate.
(b) The Certificates will be subject to prepayment in part on the
Distribution Date on or immediately following the last day of the Funding
Period in the event that more than $100,000 of the Pre-Funded Amount remains on
deposit in the Pre-Funding Account, after giving effect to the purchase of any
Subsequent Receivables on such date (a "Mandatory Prepayment"). The aggregate
principal amount of Certificates to be prepaid will be an amount equal to the
Pre-Funded Percentage of the Certificates multiplied by the Pre-Funded Amount
then on deposit in the Pre-Funding Account.
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Owners with Respect to Certain
Matters. Subject to the provisions and limitations of Section 4.04, with
respect to the following matters, the Owner Trustee shall not take action
unless at least 30 days before the taking of such action, the Owner Trustee
shall have notified the Certificateholders in writing of the proposed action
and the Owners shall not have notified the Owner Trustee in writing prior to
the 30th day after such notice is given that such Owners have withheld consent
or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the collection
of the Receivables) and the compromise of any action, claim or lawsuit
brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of the Receivables);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Business Trust Statute);
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is
required;
(d) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is not
required and such amendment materially adversely affects the interest
of the Owners;
(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner or add any provision that would
not materially adversely affect the interests of the Owners; or
(f) the appointment pursuant to the Indenture of a
successor Note Registrar, Paying Agent for the Notes or Indenture
Trustee or pursuant to this Agreement of a successor Certificate
Registrar, or the consent to the assignment by the Note Registrar,
Paying Agent, Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
Section 4.02. Action by Owners with Respect to Certain Matters.
Subject to the provisions and limitations of Section 4.04, the Owner Trustee
shall not have the power, except upon the direction of the Owners, to (i)
remove the Administrator pursuant to Section 8 of the Administration Agreement,
(ii) appoint a successor Administrator pursuant to Section 8 of the
Administration Agreement, (iii) remove the Servicer pursuant to Section 9.01 of
the Sale and Servicing Agreement, (iv) except as expressly provided in the
Basic Documents, sell the Receivables after the termination of the Indenture,
(v) initiate any claim, suit or proceeding by the Trust or compromise any
claim, suit or proceeding brought by or against the Trust, (vi) authorize the
merger or consolidation of the Trust with or into any other business trust or
other Person or entity (other than in accordance with Section 3.10 of the
Indenture) or
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(vii) amend the Certificate of Trust. The Owner Trustee shall take the actions
referred to in the preceding sentence only upon written instructions signed by
the Owners.
Section 4.03. Action by Owners with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary Proceeding in
bankruptcy with respect to the Trust without the unanimous prior approval of
all Certificateholders (including the Seller) and the delivery to the Owner
Trustee by each Certificateholder certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
Section 4.04. Restrictions on Owners' Power. The Owners shall not
direct the Owner Trustee to take or to refrain from taking any action if such
action or inaction would be contrary to any obligation of the Trust or the
Owner Trustee under this Agreement or any of the other Basic Documents or would
be contrary to the purpose of this Trust as set forth in Section 2.03, nor
shall the Owner Trustee be obligated to follow any such direction, if given.
Section 4.05. Majority Control. Except as expressly provided
herein, any action that may be taken by the Owners under this Agreement may be
taken by Certificateholders evidencing not less than a majority of the
Certificate Balance. Except as expressly provided herein, any written notice
of the Owners delivered pursuant to this Agreement shall be effective if signed
by Certificateholders evidencing not less than a majority of the Certificate
Balance at the time of the delivery of such notice.
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ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Certificate Distribution Account. The Owner Trustee
shall possess all right, title and interest in funds on deposit from time to
time in the Certificate Distribution Account and in the proceeds thereof.
Except as otherwise expressly provided herein, the Certificate Distribution
Account shall be under the sole dominion and control of the Owner Trustee for
the benefit of the Certificateholders. If, at any time, the Certificate
Distribution Account ceases to be an Eligible Account, the Owner Trustee (or
the Seller on behalf of the Owner Trustee, if the Certificate Distribution
Account is not then held by the Owner Trustee or an Affiliate thereof) shall
within ten Business Days (or such longer period, not to exceed 30 calendar
days, as to which each Rating Agency must consent) establish a new Certificate
Distribution Account as an Eligible Account and shall transfer any cash or any
investments to such new Certificate Distribution Account.
Section 5.02. Application of Trust Funds.
(a) On each Distribution Date, the Owner Trustee shall distribute
to the Certificateholders, pro rata, amounts deposited in the Certificate
Distribution Account pursuant to Section 6.07 of the Sale and Servicing
Agreement with respect to such Distribution Date.
(b) On each Distribution Date, the Owner Trustee shall send to
each Certificateholder the statement or statements provided to the Owner
Trustee by the Servicer pursuant to Section 6.12 of the Sale and Servicing
Agreement with respect to such Distribution Date.
(c) In the event that any withholding Tax is imposed on the
Trust's payment (or allocations of income) to an Owner, such Tax shall reduce
the amount otherwise distributable to such Owner in accordance with this
Section. The Owner Trustee is hereby authorized and directed to retain, from
amounts otherwise distributable to the Owners, sufficient funds for the payment
of any Tax that is legally owed by the Trust (but such authorization shall not
prevent the Owner Trustee from contesting any such Tax in appropriate
Proceedings, and withholding payment of such Tax, if permitted by law, pending
the outcome of such Proceedings). The amount of any withholding Tax imposed
with respect to an Owner shall be treated as cash distributed to such Owner at
the time it is withheld by the Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding Tax is payable with
respect to a distribution, the Owner Trustee may in its sole discretion
withhold such amounts in accordance with this paragraph.
Section 5.03. Method of Payment. Subject to Section 9.01(c)
respecting the final payment upon retirement of each Certificate, distributions
required to be made to each Certificateholder on the related Record Date shall
be made by check mailed to such Certificateholder at the address of such
Certificateholder appearing in the Certificate Register (or, if DTC, its
nominee or a Clearing Agency is the relevant Certificateholder, by wire
transfer of immediately available funds or pursuant to other arrangements), the
amount to be distributed to such Certificateholder pursuant to such
Certificateholder's Certificates.
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Section 5.04. No Segregation of Monies; No Interest. Subject to
Sections 5.01 and 5.02, monies received by the Owner Trustee hereunder need not
be segregated in any manner except to the extent required by law or the Sale
and Servicing Agreement, and may be deposited under such general conditions as
may be prescribed by law, and the Owner Trustee shall not be liable for any
interest thereon.
Section 5.05. Accounting and Reports. The Owner Trustee shall (i)
maintain (or cause to be maintained) the books of the Trust on a calendar year
basis and the accrual method of accounting, (ii) deliver to each Owner, as may
be required by the Code and applicable Treasury Regulations, such information
as may be required (including Schedule K-1) to enable each Owner to prepare its
federal and state income tax returns, (iii) file such tax returns relating to
the Trust (including a partnership information return, IRS Form 1065) and make
such elections as from time to time may be required or appropriate under any
applicable state or federal statute or any rule or regulation thereunder so as
to maintain the Trust's characterization as a partnership for federal income
tax purposes, (iv) cause such tax returns to be signed in the manner required
by law and (v) collect or cause to be collected any withholding Tax as
described in and in accordance with Section 5.02(c) with respect to income or
distributions to Owners. The Owner Trustee shall elect under Section 1278 of
the Code to include in income currently any market discount that accrues with
respect to the Receivables. The Owner Trustee shall not make the election
provided under Section 754 of the Code.
Section 5.06. Signature on Returns; Tax Matters Partner.
(a) The Seller shall sign on behalf of the Trust the tax returns
of the Trust.
(b) The Seller shall be the "tax matters partner" of the Trust
pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
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ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party, each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and any
amendment or other agreement, as evidenced conclusively by the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Owner Trustee is further authorized
from time to time to take such action as the Administrator recommends with
respect to the Basic Documents.
Section 6.02. General Duties. Subject to the provisions and
limitations of Sections 2.03 and 2.06, it shall be the duty of the Owner
Trustee to discharge (or cause to be discharged through the Administrator or
such agents as shall be appointed) all of its responsibilities pursuant to the
terms of this Agreement and the other Basic Documents to which the Trust is a
party and to administer the Trust in the interest of the Owners, subject to the
other Basic Documents and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the other Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any other Basic Document, and the Owner Trustee shall not be
held liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
Section 6.03. Action Upon Instruction.
(a) Subject to Article Four, in accordance with the terms of the
Basic Documents, the Owners may by written instruction direct the Owner Trustee
in the management of the Trust. Such direction may be exercised at any time by
written instruction of the Owners pursuant to Article Four.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any other Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in Liability on the part of the Owner Trustee, is contrary
to the terms hereof or of any other Basic Document or is otherwise contrary to
law.
(c) If the Owner Trustee shall be unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any other Basic Document, the Owner Trustee shall promptly
give notice (in such form as shall be appropriate under the circumstances) to
the Owners requesting instruction as to the course of action to be adopted, and
to the extent the Owner Trustee acts in good faith in accordance with any
written instruction of the Owners received, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall not
have received appropriate instruction within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such notice
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or may be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action not inconsistent with this
Agreement and the other Basic Documents, as it shall deem to be in the best
interests of the Owners, and shall have no Liability to any Person for such
action or inaction.
(d) In the event the Owner Trustee is unsure as to the application
of any provision of this Agreement or any other Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or
incomplete as to the course of action the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice
(in such form as shall be appropriate under the circumstances) to the Owners
requesting instruction and, to the extent the Owner Trustee acts or refrains
from acting in good faith in accordance with any such instruction received, the
Owner Trustee shall have no Liability, on account of such action or inaction,
to any Person. If the Owner Trustee shall not have received appropriate
instruction within ten days of such notice (or within such shorter period of
time as reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Agreement or the other Basic
Documents, as it shall deem to be in the best interests of the Owners, and
shall have no Liability to any Person for such action or inaction.
Section 6.04. No Duties Except as Specified in this Agreement or in
Instructions.
(a) The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee is a party, except as expressly provided by
the terms of this Agreement or in any document or written instruction received
by the Owner Trustee pursuant to Section 6.03; and no implied duties or
obligations shall be read into this Agreement or any other Basic Document
against the Owner Trustee. With respect to receipt of certificates and reports
or other instruments required to be furnished to the Owner Trustee under this
Agreement, the Owner Trustee shall only be required to examine them to
determine whether they conform to the requirements of this Agreement. The
Owner Trustee shall not be charged with knowledge of a failure by the Servicer
to perform its duties under the relevant agreements which failure constitutes
an Event of Default or a Servicer Default unless the Owner Trustee obtains
actual knowledge of such failure as specified in this Agreement.
(b) The Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or Lien
granted to it hereunder or to prepare or file any Commission filing for the
Trust or to record this Agreement or any other Basic Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any Liens (other than the Lien
of the Indenture) on any part of the Trust Estate that result from actions by,
or claims against, the Owner Trustee that are not related to the ownership or
the administration of the Trust Estate.
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Section 6.05. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Trust Estate except in accordance
with (i) the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) the other Basic Documents and (iii)
any document or instruction delivered to the Owner Trustee pursuant to Section
6.03.
Section 6.06. Restrictions. The Owner Trustee shall not take any
action that (i) is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (ii) to the actual knowledge of the Owner Trustee, would result
in the Trust's becoming taxable as a corporation for federal or state income
tax purposes. The Owners shall not direct the Owner Trustee to take action
that would violate the provisions of this Section.
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ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Trust Estate upon the terms of this Agreement and the
other Basic Documents. The Owner Trustee shall not be answerable or
accountable hereunder or under any other Basic Document under any
circumstances, except (i) for its own willful misconduct or negligence or (ii)
in the case of the inaccuracy of any representation or warranty contained in
Section 7.03 expressly made by the Owner Trustee. In particular, but not by
way of limitation, and subject to the exceptions set forth in the preceding
sentence:
(a) the Owner Trustee shall not be liable for any error
in judgment made by a Responsible Officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in accordance with the
instructions of the Administrator or any Owner;
(c) no provision of this Agreement or any other Basic
Document shall require the Owner Trustee to expend or risk funds or
otherwise incur any financial Liability in the performance of any of
its rights or powers hereunder or under any other Basic Document if
the Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
Liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes or the
Certificates;
(e) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement, for the due
execution hereof by the Seller or for the form, character,
genuineness, sufficiency, value or validity of any of the Trust
Estate, or for or in respect of the validity or sufficiency of the
Basic Documents, other than the certificate of authentication on the
Certificates, and the Owner Trustee shall in no event assume or incur
any Liability, duty or obligation to any Noteholder or any Owner,
other than as expressly provided for herein or expressly agreed to in
the other Basic Documents;
(f) the Owner Trustee shall have no obligation or
Liability (i) for the default or misconduct of the Administrator, the
Seller, the Indenture Trustee or the Servicer under any of the Basic
Documents or otherwise, (ii) to perform the obligations of the Trust
under this Agreement or the other Basic Documents that are required to
be performed by the Administrator under the Administration Agreement,
the Indenture Trustee under the Indenture or the Servicer or the
Seller under the Sale and Servicing
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Agreement, (iii) for the use or application by the Seller or the
Servicer of any funds paid to the Seller or the Servicer in respect of
the Securities or the Receivables or the investment of any monies by
the Servicer before such monies are deposited into the Collection
Account or (iv) to independently verify the existence or
characteristics of the Receivables; and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement,
or to institute, conduct or defend any litigation under this Agreement
or otherwise or in relation to this Agreement or any other Basic
Document, at the request, order or direction of the Owners, unless
such Owners have offered the Owner Trustee security or indemnity
satisfactory to it against the Liabilities that may be incurred by the
Owner Trustee therein or thereby; the right of the Owner Trustee to
perform any discretionary act enumerated in this Agreement or in any
other Basic Document shall not be construed as a duty, and the Owner
Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act.
Section 7.02. Furnishing of Documents. The Owner Trustee shall
furnish to the Owners promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
Section 7.03. Representations and Warranties. The Owner Trustee
hereby represents and warrants to the Seller and the Owners that:
(a) It is a ____________ duly organized and validly
existing in good standing under the laws of the State of Delaware. It
has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement, and this
Agreement will be executed and delivered by one of its officers who is
duly authorized to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee
or any judgment or order binding on it, or constitute any default
under its charter documents or bylaws or any indenture, mortgage,
contract, agreement or instrument to which it is a party or by which
any of its properties may be bound or result in the creation or
imposition of any Lien on the Trust Estate resulting from Proceedings
by or Claims against the Owner Trustee individually that are unrelated
to this Agreement or the other Basic Documents.
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Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no Liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of determination of
which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and
in the performance of its duties and obligations under this Agreement or the
other Basic Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by the
Owner Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled persons to be selected with reasonable care and
employed by it. The Owner Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the written opinion
or advice of any such counsel, accountants or other such persons and not
contrary to this Agreement or any other Basic Document.
Section 7.05. Not Acting in Individual Capacity. Except as
otherwise provided in this Article, in accepting the trusts hereby created,
______________ acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Agreement or any other Basic Document
shall look only to the Trust Estate for payment or satisfaction thereof.
Section 7.06. Owner Trustee Not Liable for Securities or
Receivables. The recitals contained herein and in the Certificates (other than
the signature of the Owner Trustee and the certificate of authentication on the
Certificates) shall be taken as the statements of the Seller, and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner
Trustee makes no representations as to the validity or sufficiency of this
Agreement, any other Basic Document, the Certificates (other than the signature
of the Owner Trustee and the certificate of authentication on the Certificates
and the representations and warranties in Section 7.03), the Notes or any
Receivable or related document. The Owner Trustee shall at no time have any
responsibility or Liability for or with respect to the legality, validity and
enforceability of any Receivable, or the perfection and priority of any
security interest created by any Receivable in any Financed Vehicle or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Trust Estate or its ability to generate the payments to be
distributed to Certificateholders under this Agreement or the Noteholders under
the Indenture, including the existence, condition and ownership of any Financed
Vehicle; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or other record
thereof; the validity of the assignment of any Receivable to the Trust or
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of any intervening assignment; the completeness of any Receivable; the
performance or enforcement of any Receivable; the compliance by the Seller or
the Servicer with any representation or warranty made under any Basic Document
or in any related document or the accuracy of any such warranty or
representation; or any action of the Administrator, the Indenture Trustee or
the Servicer taken in the name of the Owner Trustee.
Section 7.07. Owner Trustee May Own Certificates and Notes. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates or Notes and may deal with the Seller, the
Administrator, the Indenture Trustee and the Servicer in banking transactions
with the same rights as it would have if it were not Owner Trustee.
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ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Servicer and the
Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed by the
Servicer for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder.
Section 8.02. Indemnification. The Servicer shall be liable as
primary obligor for, and shall indemnify the Owner Trustee and its successors,
assigns, agents and servants (collectively, the "Indemnified Parties") from and
against, any Loss that may at any time be imposed on, incurred by or asserted
against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of this Agreement, the other Basic Documents, the Trust Estate, the
administration of the Trust Estate or the action or inaction of the Owner
Trustee hereunder, except only that the Servicer shall not be liable for or
required to indemnify an Indemnified Party from and against any Loss arising or
resulting from such Indemnified Party's own willful misfeasance, bad faith or
negligence (other than by reason of a breach of any of its representations or
warranties set forth in this Agreement). The indemnities contained in this
Section shall survive the resignation or termination of the Owner Trustee or
the termination of this Agreement. In the event of any Claim or Proceeding for
which indemnity is sought pursuant to this Section, the Owner Trustee's choice
of legal counsel shall be subject to the approval of the Servicer, which
approval shall not be unreasonably withheld.
Section 8.03. Payments to the Owner Trustee. Any amounts paid to
the Owner Trustee pursuant to this Article shall be deemed not to be a part of
the Trust Estate immediately after such payment.
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ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
(a) This Agreement (other than Article Eight) shall terminate (and
the Trust shall be deemed dissolved) and be of no further force or effect upon
the earlier of (i) the maturity or liquidation of the last Receivable and the
disposition of any amounts received upon liquidation of any property remaining
in the Trust, (ii) payment to the Certificateholders of all amounts required to
be paid to them pursuant to the terms hereof, (iii) the occurrence of an event
described in Section 9.02, (iv) an Optional Purchase or an Auction or (v) the
expiration of 21 years from the death of the last survivor of the descendants
of Joseph P. Kennedy, the late Ambassador of the United States to the Court of
St. James's, living on the date hereof. The bankruptcy, liquidation,
dissolution, death or incapacity of any Owner shall not (i) operate to
terminate this Agreement or the Trust, (ii) entitle such Owner's legal
representatives or heirs to claim an accounting or to take any Proceeding in
any court for a partition or winding up of all or any part of the Trust or the
Trust Estate or (iii) otherwise affect the rights, obligations and Liabilities
of the parties hereto.
(b) Notice of any termination of the Trust Agreement, specifying
the Distribution Date upon which Certificateholders shall surrender their
Certificates to the Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days after receipt of notice
thereof by the Owner Trustee, stating (i) the Distribution Date upon or with
respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Paying
Agent in the City of New York therein designated, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the Paying Agent therein
specified. The Owner Trustee shall give such notice to the Certificate
Registrar (if other than the Owner Trustee) and the Paying Agent at the time
such notice is given to Certificateholders. Upon presentation and surrender of
the Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Distribution Date pursuant to
Section 5.02. In addition, the Owner Trustee shall notify each Rating Agency
upon the final payment of the Certificates.
(c) In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all Certificates shall not
have been surrendered for cancellation, the Owner Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact the
remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Any funds remaining in the Trust after
exhaustion of such remedies shall be distributed by the Owner Trustee to the
United Way.
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(d) Upon the winding up of the Trust and its dissolution, the
Owner Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810(d) of the Business Trust Statute.
Section 9.02. Insolvency Event with Respect to Seller.
(a) If an Insolvency Event occurs with respect to the Seller, the
Receivables comprising the related Receivables Pool will be liquidated, this
Agreement will terminate and the Trust will be deemed dissolved 90 days after
the date of such Insolvency Event; unless, before the end of such 90 day
period, the Owner Trustee shall have received written instructions from (i)
Certificateholders representing more than 51% of the Voting Interest thereof,
and (ii) Noteholders representing more than 51% of the Voting Interest thereof,
voting together as a single Class; in each case to the effect that each such
Person disapproves of the liquidation of the Receivables and dissolution of the
Trust. Promptly after the occurrence of an Insolvency Event with respect to
the Seller, notice thereof shall be given to the Securityholders by the Owner
Trustee; provided, that any failure to give such notice shall not prevent or
delay dissolution of the Trust. Upon any such dissolution of the Trust, the
Owner Trustee shall direct the Indenture Trustee promptly to sell the assets of
the Trust (other than the Certificate Distribution Account) in a commercially
reasonable manner and on commercially reasonable terms.
(b) The proceeds from any such sale, disposition or liquidation of
the Receivables will be treated as collections on such Receivables and
deposited into the Collection Account. If the proceeds from the liquidation of
the Receivables and any amounts on deposit in the Trust Accounts are not
sufficient to pay the Securities in full, such amounts shall be applied in the
priorities set forth in Section 5.06(a) of the Indenture.
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ARTICLE TEN
SUCCESSOR AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements. The Owner Trustee shall at
all times be a corporation satisfying the provisions of Section 3807(a) of the
Business Trust Statute; authorized to exercise corporate trust powers; having a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal or state authorities; and having (or having a parent
that has) a rating of at least Baa3 by Moody's and A-1 by Standard & Poor's.
If such corporation shall publish reports of condition at least annually
pursuant to law or to the requirements of the foregoing supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Owner Trustee shall resign immediately
in the manner and with the effect specified in Section 10.02.
Section 10.02. Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Servicer. Upon receiving such notice
of resignation, the Servicer shall promptly appoint a successor Owner Trustee
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign after
written request therefor by the Administrator, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Servicer may remove the Owner Trustee.
If the Servicer shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Servicer shall promptly appoint a successor
Owner Trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the outgoing Owner Trustee so removed and one copy to the
successor Owner Trustee, and shall pay all fees owed to the outgoing Owner
Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Servicer shall provide notice of such
resignation or removal of the Owner Trustee to each Rating Agency.
Section 10.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and
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thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective, and such successor Owner Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like
effect as if originally named as Owner Trustee. The predecessor Owner Trustee
shall, upon payment of its fees and expenses, deliver to the successor Owner
Trustee all documents and statements and monies held by it under this
Agreement; and the Administrator and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Administrator shall mail notice thereof to the
Securityholders, the Indenture Trustee and each Rating Agency. If the
Administrator shall fail to mail such notice within ten days after acceptance
of such appointment by the successor Owner Trustee, the successor Owner Trustee
shall cause such notice to be mailed at the expense of the Administrator.
Section 10.04. Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee may be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, without the execution or filing of any instrument or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, that such corporation shall meet the eligibility
requirements of Section 10.01; and provided, further, that the Owner Trustee
shall mail notice of such merger or consolidation to each Rating Agency.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate or any Financed Vehicle may at the time be located, the
Administrator and the Owner Trustee, acting jointly, shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Administrator and Owner Trustee to act as co-trustee, jointly
with the Owner Trustee, or as separate trustee or separate trustees, of all or
any part of the Trust Estate, and to vest in such Person, in such capacity,
such title to the Trust or any part thereof and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Administrator and the Owner Trustee may consider necessary or desirable.
If the Administrator shall not have joined in such appointment within 15 days
after the receipt by it of a request so to do, the Owner Trustee alone shall
have the power to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor Owner Trustee pursuant to Section 10.01, except that such co-trustee
or successor trustee shall have (or have a parent that has) a rating of at
least Baa3 by Moody's and A-1 by Standard & Poor's, and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 10.03.
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Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) all rights, powers, duties and obligations conferred
or imposed upon the Owner Trustee shall be conferred upon and
exercised or performed by the Owner Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Trust Estate or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(b) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(c) the Administrator and the Owner Trustee acting
jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the Liability of or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Owner Trustee, to the extent permitted by law, without the appointment
of a new or successor co-trustee or separate trustee.
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ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Supplements and Amendments.
(a) This Agreement may be amended without the consent of the
Certificateholders to cure any ambiguity, correct or supplement any provision
herein that may be inconsistent with any other provision herein, to add any
other provisions with respect to matters or questions arising under this
Agreement that are not inconsistent with the provisions hereof or to add or
provide for any credit enhancement for the Certificates; provided, that any
such action will not, in an Opinion of Counsel satisfactory to the Owner
Trustee, materially and adversely affect the interests of any Securityholder.
(b) This Agreement may also be amended from time to time with the
consent of Certificateholders evidencing not less than 51% of the Voting
Interest thereof, 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 Certificateholders; provided, that no
such amendment may (i) except as described above, 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
Certificates or (ii) reduce the aforesaid percentage of the Certificate Balance
of which the Certificateholders are required to consent to any such amendment,
without the consent of all Certificateholders.
(c) Prior to the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent, together with a copy thereof, to the Indenture Trustee,
the Administrator and each Rating Agency.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder. It shall not be necessary for
the consent of Certificateholders 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 any other consents of Certificateholders provided
for in this Agreement or in any other Basic Document) and of evidencing the
authorization of the execution thereof by the Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
(e) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such
amendment with the Secretary of State.
(f) In connection with the execution of any amendment to this
Agreement or any other Basic Document to which the Issuer is a party and for
which amendment the Owner Trustee's consent is sought, the Owner Trustee shall
be entitled to receive and conclusively rely upon an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the Basic Documents
and that all conditions precedent in the Basic Documents for the execution and
delivery thereof by the Issuer or the Owner Trustee, as the case may be, have
been satisfied. The
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Owner Trustee may, but shall not be obligated to, enter into any such amendment
that affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
Section 11.02. No Legal Title to Trust Estate in Owners. The Owners
shall not have legal title to any part of the Trust Estate. The Owners shall
be entitled to receive distributions with respect to their undivided ownership
interest therein only in accordance with Articles Five and Nine. No transfer,
by operation of law or otherwise, of any right, title or interest of the Owners
in and to their ownership interest in the Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to
an accounting or to the transfer to it of legal title to any part of the Trust
Estate.
Section 11.03. Limitations on Rights of Others. Except for Section
2.07, the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Seller, the Owners, the Administrator and, to the extent expressly
provided herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement (other than Section 2.07), whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
Claim in the Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
Section 11.04. Notices. All demands, notices and communications
under this Agreement or any Supplement 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 to the
Owner Trustee, at the Owner Trustee Corporate Trust Office; (ii) if to the
Seller, at 22840 Savi Ranch Parkway, Yorba Linda, California 92687, Attention:
Senior Vice President; (iii) if to the Certificate Registrar or the agent for
the Owner Trustee, at the address indicated under the definition of "Owner
Trustee Corporate Trust Office"; or (iv) with respect to any of the foregoing
Persons, at such other address as shall be designated by such Person in a
written notice to the other foregoing Persons. 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 mailed
to a Certificateholder shall be given by first class mail, postage prepaid, at
the address of such Certificateholder as shown in the Certificate Register.
Any notice so mailed within the time prescribed by this Agreement shall be
conclusively presumed to have been duly given, whether or not the related
Certificateholder receives such notice.
Section 11.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement, including any
supplement or amendment hereto, shall be for any reason whatsoever held invalid
or unenforceable, then such covenants, agreements, provisions and terms shall
be deemed severable from the remaining covenants, agreements, provisions or
terms of this Agreement, as the same may be supplemented or amended, and shall
in no way affect the validity or enforceability of the other covenants,
agreements, provisions or terms of this Agreement or any Supplement or
amendment hereto or of the Certificates or the rights of the Holders thereof.
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Section 11.06. 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 11.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
parties hereto and each Owner and their respective permitted successors and
assigns. Any request, notice, direction, consent, waiver or other instrument
or action by an Owner shall bind the permitted successors and assigns of such
Owner.
Section 11.08. No Petition.
(a) The Seller shall not at any time institute against the Trust
any bankruptcy Proceedings under any United States federal or state bankruptcy
or similar law in connection with any obligations relating to the Certificates,
the Notes, this Agreement or any of the other Basic Documents.
(b) The Owner Trustee, by entering into this Agreement, each
Certificateholder, by accepting a Certificate, and the Indenture Trustee and
each Noteholder, by accepting the benefits of this Agreement, hereby covenant
and agree that they will not at any time institute against the Seller, the
Servicer or the Trust, or join in any institution against the Seller, the
Servicer or the Trust of, any bankruptcy Proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Securities, this Agreement or any of the other Basic Documents.
Section 11.09. No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Seller, the Servicer, the Seller, the Administrator, the
Owner Trustee, the Indenture Trustee or any of their respective Affiliates and
no recourse may be had against such Persons or their assets, except as may be
expressly set forth or contemplated in this Agreement, the Certificates or the
other Basic Documents.
Section 11.10. Certificates Nonassessable and Fully Paid. The
Certificateholders shall not be personally liable for the obligations of the
Trust. The interests represented by the Certificates shall be nonassessable
for any Losses of the Trust or for any reason whatsoever and, upon
authentication thereof pursuant to Section 3.03, the Certificates shall be
deemed fully paid.
Section 11.11. 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 11.12. Governing Law. This Agreement shall be created under
and governed by and construed under the internal laws of the State of Delaware,
without regard to any otherwise applicable principles of conflicts of laws.
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Section 11.13. Seller Payment Obligation. The Seller shall be
responsible for payment of the Administrator's compensation pursuant to Section
3 of the Administration Agreement and shall reimburse the Administrator for all
Liabilities of the Administrator incurred thereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Seller
By:
-------------------------------
Name:
Title:
---------------------------------.
as Owner Trustee
By:
-------------------------------
Name:
Title:
42
EXHIBIT A
FORM OF CERTIFICATE DEPOSITORY AGREEMENT
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EXHIBIT B
CERTIFICATE OF TRUST OF
FLEETWOOD CREDIT RV RECEIVABLES 199 - OWNER TRUST
This Certificate of Trust of Fleetwood Credit RV Receivables 199 -
Owner Trust (the "Trust"), dated as of ______________, 199 , is being duly
executed and filed by ________________, a ______________, as trustee (the
"Trustee"), to form a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is
Fleetwood Credit RV Receivables 199 - Owner Trust.
2. Delaware Trustee. The name and business address of the
Trustee in the State of Delaware is _________________, Attention:
________________.
IN WITNESS WHEREOF, the undersigned, being the sole Trustee, has
executed this Certificate of Trust as of the date first above written.
----------------------------,
as Trustee
By:
------------------------------
Name:
Title:
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EXHIBIT C
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[TO BE INSERTED ON SELLER CERTIFICATE --
THIS CERTIFICATE IS NON-TRANSFERABLE]
FLEETWOOD CREDIT RV RECEIVABLES 199__ -__ OWNER TRUST
____% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes, among other things, a pool of simple interest
retail installment sale contracts secured by new and used recreational vehicles
sold to the Trust by Fleetwood Credit Receivables Corp. The Certificate Final
Distribution Date is _________ ___, ____.
(This Certificate does not represent an interest in or obligation of Fleetwood
Credit Receivables Corp., Fleetwood Credit Corp., Associates First Capital
Corporation or any of their respective affiliates, and is not a deposit and is
not insured by the Federal Deposit Insurance Corporation.)
NUMBER C-1 $_________________
CUSIP NO. ___________
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a __________
Dollar ($___________) nonassessable, fully-paid, fractional undivided interest
in the Fleetwood Credit RV Receivables 199__-__ Owner Trust (the "Trust") formed
by Fleetwood Credit Receivables Corp., a California corporation (the "Seller").
The Trust was created pursuant to a Trust Agreement, dated as of
____________, 199__, (as amended, restated or supplemented from time to time,
the "Trust Agreement"), among the Seller and ____________, a __________, as
owner trustee (the "Owner Trustee"), a summary of certain of the pertinent
provisions of which is set forth below. Capitalized terms used herein that are
not otherwise defined shall have the meanings ascribed thereto in the Trust
Agreement.
This Certificate is one of the duly authorized Certificates designated
as "____% Asset Backed Certificates" (the "Certificates"). Also issued by the
Trust, under an indenture, dated as of ____________ 1, 199__ (the "Indenture"),
between the Trust and ____________, a
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___________, as Indenture Trustee, are three Classes of Notes designated as
"____% Asset Backed Notes, Class A-1", "____% Floating Rate Asset Backed Notes,
Class A-2" and "____% Asset Backed Notes, Class A-3" (collectively, the
"Notes"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of its acceptance hereof assents and by
which such Holder is bound.
Under the Trust Agreement, there will be distributed on the fifteenth
day of each month or, if any such day is not a Business Day, the next
succeeding Business Day (each, a "Distribution Date"), commencing on _______,
199 and ending no later than ______, ____, to the Person in whose name
this Certificate is registered at the close of business on the last calendar
day immediately preceding the related Distribution Date or, if Definitive
Certificates are issued, the last day of the immediately preceding calendar
month (each, a "Record Date"), such Certificateholder's fractional undivided
interest in the amount to be distributed to Certificateholders on such
Distribution Date.
The Holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders to the extent described in the Sale and Servicing
Agreement and the Indenture.
It is the intent of the Seller, the Servicer and the
Certificateholders that, for federal, state and local income, single business
and any other income tax purposes, the Trust will be treated as a partnership
and the Certificateholders (including the Seller) will be treated as partners
in such partnership. The Seller and the other Certificateholders, by
acceptance of a Certificate, agree to treat, and to take no action inconsistent
with the treatment of, the Certificates for such tax purposes as partnership
interests in the Trust.
Each Certificateholder or Certificate Owner, by its acceptance of a
Certificate or, in the case of a Certificate Owner, a beneficial interest in a
Certificate, covenants and agrees that such Certificateholder or Certificate
Owner, as the case may be, will not at any time institute against the Trust,
the Servicer or the Seller, or join in any institution against the Trust, the
Servicer or the Seller of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation Proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Securities, the Trust Agreement or any of the other
Basic Documents.
Distributions on this Certificate will be made as provided in the
Trust Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon, except that with respect to Certificates registered on the Record Date
in the name of the nominee of the Clearing Agency (initially, such nominee to
be Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Except as otherwise provided
in the Trust Agreement and notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Owner Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office of the Paying Agent or the office or agency
maintained for that purpose by the Owner Trustee in The City of New York.
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46
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Certificate shall not entitle the holder hereof to any benefit under the
Trust Agreement or any other Basic Document or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
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[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, the Owner Trustee or any of their respective
Affiliates and no recourse may be had against such parties or their assets,
except as expressly set forth or contemplated herein or in the Trust Agreement
or the other Basic Documents. In addition, this Certificate is not guaranteed
by any governmental agency or instrumentality and is limited in right of
payment to certain collections and recoveries with respect to the Receivables
(and certain other amounts), in each case as more specifically set forth herein
and in the Sale and Servicing Agreement.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Trust
Agreement at any time by the parties thereto with the consent of
Certificateholders evidencing not less than 51% of the Voting Interest thereof.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and on all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent is made upon this Certificate.
The Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of any Certificateholders.
As provided in the Trust Agreement and subject to certain limitations
set forth therein, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained in
The City of New York, accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed
by the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be issued to the designated
transferee. The initial Certificate Registrar appointed under the Trust
Agreement is ______________.
Except as provided in the Trust Agreement, the Certificates are
issuable only as registered Certificates without coupons in minimum
denominations of $20,000 and integral multiples of $1,000 in excess thereof.
As provided in the Trust Agreement and subject to certain limitations set forth
therein, Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any Tax or
governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar, the Paying Agent and any
of their respective agents may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Owner
Trustee, the Certificate Registrar, the Paying Agent or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the Sale and Servicing Agreement and the
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disposition of all property held as part of the Trust Estate. The Seller may
at its option purchase the Trust Estate at a price specified in the Sale and
Servicing Agreement, and such purchase of the Receivables and other property of
the Trust Estate will effect early retirement of the Certificates; however,
such right of purchase is exercisable only as of any Distribution Date as of
which (i) the Aggregate Scheduled Balance is less than or equal to 10% of the
Cut-Off Date Aggregate Scheduled Balance and (ii) the aggregate outstanding
principal amount of the Securities is less than 5% of the aggregate outstanding
principal amount of the Securities as of the Closing Date.
The Certificates may not be acquired by a Benefit Plan. By accepting
and holding this Certificate, the Holder hereof or, in the case of Book-Entry
Certificate, by accepting a beneficial interest in this Certificate, the
related Certificate Owner, shall be deemed to have represented and warranted
that it is not a Benefit Plan and is not acquiring this Certificate or an
interest therein for the account of a Benefit Plan.
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IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
Dated: 199 FLEETWOOD CREDIT RV RECEIVABLES
----------------, 199 - OWNER TRUST
By:
-----------------------------------
as Owner Trustee
By:
---------------------------------
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
- ----------------------------, --------------------------------,
as Certificate Registrar as Owner Trustee
OR
By: By:
------------------------ ------------------------------
Authorized Signatory Authorized Signatory
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
to transfer such Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
---------------
Signature Guaranteed:
- --------------------------------------------------- ---------------------------------------------------
NOTICE: Signature(s) must be guaranteed by an NOTICE: The signature to this assignment must
eligible guarantor institution. correspond with the name of the registered owner
as it appears on the face of the within
Certificate in every particular, without
alteration or enlargement or any change whatever.
C-7