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EXHIBIT 4.4
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FLEETWOOD CREDIT CORP.,
as Servicer
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Seller
Fleetwood Credit RV Receivables Grantor Trust
Standard Terms and Conditions of Agreement
(Pre-Funded Senior/Subordinated)
Effective _______ 1, 199__
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TABLE OF CONTENTS
Page
ARTICLES ONE - TEN
[Reserved]
ARTICLE ELEVEN
DEFINITIONS
Section 11.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 11.02. Initial Cutoff Date and Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 11.03. Usage of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 11.04. Section References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 11.05. Separate Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE TWELVE
THE RECEIVABLES
Section 12.01. Representations and Warranties of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 12.02. Repurchase Upon Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 12.03. Conveyance of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 12.04. Custody of Receivable Files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 12.05. Duties of Servicer as Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 12.06. Instructions; Authority to Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 12.07. Indemnification by Servicer as Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 12.08. Effective Period and Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE THIRTEEN
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 13.01. Duties of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 13.02. Collection of Receivable Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 13.03. Realization Upon Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 13.04. Physical Damage Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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Section 13.05. Maintenance of Security Interests in Financed Vehicles . . . . . . . . . . . . . . . . . . . . . . . 27
Section 13.06. Covenants of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 13.07. Purchase of Receivables Upon Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 13.08. Servicing Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 13.09. Servicer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 13.10. Annual Statement as to Compliance; Notice of Default;
Opinion as to Interest of the Trustee in the Receivables . . . . . . . . . . . . . . . . . . 28
Section 13.11. Annual Independent Certified Public Accountant's Report . . . . . . . . . . . . . . . . . . . . . . . 29
Section 13.12. Access to Certain Documentation and Information
Regarding Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 13.13. Reports to Certificateholders and Rating Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE FOURTEEN
DISTRIBUTIONS; RESERVE FUND;
PRE-FUNDING ACCOUNT; STATEMENTS TO CERTIFICATEHOLDERS
Section 14.01. Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 14.02. Collections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 14.03. Application of Collections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 14.04. Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 14.05. Non-Reimbursable Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 14.06. Additional Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 14.07. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 14.08. Subordination; Reserve Fund; Priority of Distributions . . . . . . . . . . . . . . . . . . . . . . . 37
Section 14.09. Pre-Funding Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 14.10. Net Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 14.11. Statements to Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE FIFTEEN
THE SERVICER LETTER OF CREDIT
Section 15.01. Servicer Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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ARTICLE SIXTEEN
THE CERTIFICATES
Section 16.01. The Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 16.02. Execution, Authentication and Delivery of Certificates . . . . . . . . . . . . . . . . . . . . . . . 45
Section 16.03. Registration of Transfer and Exchange of Certificates . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 16.04. Mutilated, Destroyed, Lost or Stolen Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 16.05. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 16.06. Access to List of Certificateholder Names and Addresses . . . . . . . . . . . . . . . . . . . . . . . 47
Section 16.07. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 16.08. Temporary Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 16.09. Book-Entry Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 16.10. Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 16.11. Definitive Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE SEVENTEEN
THE SELLER
Section 17.01. Representations of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 17.02. Liability of Seller; Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 17.03. Merger or Consolidation of, or Assumption of the Obligations of,
Seller; Certain Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 17.04. Limitation on Liability of Seller and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 17.05. Seller May Own Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 17.06. No Transfer of Excess Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE EIGHTEEN
THE SERVICER
Section 18.01. Representations of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 18.02. Liability of Servicer; Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 18.03. Merger, Consolidation or Assumption of Obligations of Servicer . . . . . . . . . . . . . . . . . . . 57
Section 18.04. Limitation on Liability of Servicer and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 18.05. Servicer Not to Resign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
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ARTICLE NINETEEN
EVENTS OF DEFAULT
Section 19.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 19.02. Trustee to Act; Appointment of Successor Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 19.03. Reimbursement for Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 19.04. Notification of Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 19.05. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE TWENTY
THE TRUSTEE
Section 20.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 20.02. Trustee's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 20.03. Trustee's Assignment of Repurchased and Removed Receivables . . . . . . . . . . . . . . . . . . . . . 63
Section 20.04. Certain Matters Affecting Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 20.05. Trustee Not Liable for Certificates or Receivables . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 20.06. Trustee May Own Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 20.07. Trustee's Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 20.08. Indemnity of Trustee and Successor Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 20.09. Eligibility Requirements for Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 20.10. Resignation or Removal of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 20.11. Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 20.12. Merger or Consolidation of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 20.13. Appointment of Co-Trustee or Separate Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 20.14. Representations and Warranties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE TWENTY ONE
TERMINATION
Section 21.01. Termination of the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 21.02. Optional Purchase of All Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 21.03. Sale of All Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
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ARTICLE TWENTY TWO
MISCELLANEOUS PROVISIONS
Section 22.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 22.02. Protection of Title to Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 22.03. Limitation on Certificateholder Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 22.04. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 22.05. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 22.06. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 22.07. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 22.08. Certificates Nonassessable and Fully Paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 22.09. No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
EXHIBITS
Exhibit A - Servicer Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B - Transfer Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Exhibit C-1 - Trustee's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1-1
Exhibit C-2 - Trustee's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-2-1
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FLEETWOOD CREDIT RV RECEIVABLES GRANTOR TRUST
STANDARD TERMS AND CONDITIONS OF AGREEMENT
(PRE-FUNDED SENIOR/SUBORDINATED)
EFFECTIVE ________ 1, 199__
for Fleetwood Credit RV Receivables Grantor Trusts formed
subsequent to the date specified above
INTRODUCTION
These Standard Terms and Conditions of Agreement (Pre-Funded
Senior/Subordinated) Effective _________ 1, 199__ (the "Standard Terms and
Conditions") shall be applicable to Fleetwood Credit RV Receivables Grantor
Trusts formed on or after the date hereof, with respect to which a Pooling and
Servicing Agreement incorporating by reference these Standard Terms and
Conditions shall have been executed.
ARTICLE ELEVEN
DEFINITIONS
Section 11.01. Definitions. Whenever used in the Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Accounts" means the Certificate Account and the Pre-Funding Account.
"Accrued Interest" on a Receivable, as of any Distribution Date, means
the amount of interest, if any, accrued on the Principal Balance of such
Receivable at the related APR since the most recent date upon which a payment
was made by or on behalf of the related Obligor in respect of such Receivable
through the end of the Collection Period immediately preceding the Collection
Period in which such Distribution Date occurs.
"Addition Notice" means with respect to the transfer of Subsequent
Receivables to the Trust pursuant to the Agreement and a Transfer Agreement,
notice, substantially in the form attached as an Exhibit to the Agreement,
which shall be given to the Trustee and each Rating Agency not later than six
Business Days prior to the related Subsequent Transfer Date, of the Seller's
designation of Subsequent Receivables to be sold to the Trust and the aggregate
Principal Balances of such Subsequent Receivables as of the related Subsequent
Cutoff Date.
"Advance" shall have the meaning specified in Section 14.04.
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"Advisor" shall have the meaning specified in Section 21.03.
"Agreement" means the Pooling and Servicing Agreement executed by the
Seller, the Servicer and the Trustee as of the Initial Cutoff Date, into which
these Standard Terms and Conditions shall be incorporated by reference, and all
amendments and supplements thereto.
"Amount Financed" in respect of a Receivable means the amount advanced
under such Receivable toward the purchase price of the related Financed Vehicle
and any related costs.
"Annual Percentage Rate" or "APR" of a Receivable means the annual
rate of interest stated in such Receivable.
"Auction" shall have the meaning specified in Section 21.03.
"Auction Procedures" shall have the meaning specified in Section
21.03.
"Auction Property" shall have the meaning specified in Section 21.03.
"Authorized Officer" means an officer of the Trustee assigned to the
Corporate Trust Office, including any Vice President, any trust officer or any
other officer performing functions similar to those performed by the
individuals who at the time shall be such officers, and any other officer of
the Trustee to whom a matter is referred because of his knowledge of and
familiarity with the particular subject.
"Available Funds" means, with respect to any Distribution Date, the
sum of (i) the earnings received by the Trustee during the related Collection
Period from investment of the Pre-Funded Amount on deposit in the Pre-Funding
Account (which earnings are withdrawn from the Pre-Funding Account and
deposited into the Certificate Account pursuant to Section 14.07(a)(i)); (ii)
the Negative Carry Amount, if any, for such Collection Period (which amount is
withdrawn from the Reserve Fund and deposited into the Certificate Account
pursuant to Section 14.07(a)(iii)); (iii) all cash received by the Servicer in
respect of the Receivables under the Agreement during the related Collection
Period (including Non-Reimbursable Payments and Advances but other than (a)
late payment and extension fees and administrative charges, if any, and (b)
recoveries by the Servicer of amounts on the Receivables that were repurchased
by the Seller or purchased by the Servicer prior to the related Collection
Period); and (iv) the Repurchase Amounts of all Receivables purchased or to be
purchased under the Agreement in respect of the related Collection Period.
"Book-Entry Certificates" means a beneficial interest in the Class A
Certificates or Class B Certificates, as the case may be, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 16.09.
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"Business Day" means any day that is not a Saturday, Sunday or other
day on which banking institutions in the States of California, Delaware or New
York are authorized or obligated by law, executive order or government decree
to remain closed.
"Certificate Account" means the account designated as such and
established and maintained pursuant to Section 14.01.
"Certificate Owner" means, 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
accordance with the rules of such Clearing Agency) and shall mean, 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 16.03.
"Certificateholder" or "Holder" means the Person in whose name a
Certificate shall be registered in the Certificate Register, except that,
solely for the purposes of giving any consent, waiver, request or demand
pursuant to the Agreement, the interest evidenced by any Certificate registered
in the name of the Seller or the Servicer, or any Person controlling,
controlled by or under common control with the Seller or the Servicer, or
evidenced by a Book-Entry Certificate of which the Seller, the Servicer or any
such Person is the Certificate Owner, shall not be taken into account in
determining whether the requisite percentage necessary to effect any such
consent, waiver, request or demand shall have been obtained.
"Certificates" means the Class A Certificates and the Class B
Certificates.
"Class" means all Certificates whose form is identical except for
variation in denomination, principal amount, owner or designation of class.
"Class A Certificate" means any one of the Class A Certificates
executed and authenticated by the Trustee in substantially the form set forth
as an Exhibit to the Agreement.
"Class A Certificate Balance" shall equal, initially, the Original
Class A Certificate Balance and, thereafter, shall equal the Original Class A
Certificate Balance, reduced by all amounts previously distributed on the Class
A Certificates and allocable to principal.
"Class A Distributable Amount" means, with respect to any Distribution
Date, the sum of the Class A Principal Distributable Amount and the Class A
Interest Distributable Amount.
"Class A Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (a) the Class A Interest
Distributable Amount for such Distribution Date and
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any outstanding Class A Interest Carryover Shortfall from the immediately
preceding Distribution Date plus interest on such outstanding Class A Interest
Carryover Shortfall, to the extent permitted by law, at the Class A
Pass-Through Rate from such immediately preceding Distribution Date through the
current Distribution Date, over (b) the amount of interest distributed to the
Class A Certificateholders on such current Distribution Date.
"Class A Interest Distributable Amount" means, with respect to any
Distribution Date, the product of one-twelfth of the Class A Pass-Through Rate
and the Class A Certificate Balance (or, in the case of the first Distribution
Date, the Original Pool Balance) as of the immediately preceding Distribution
Date (after giving effect to distributions of principal to be made on such
immediately preceding Distribution Date).
"Class A Pass-Through Rate" shall have the meaning specified in the
Agreement.
"Class A Percentage" shall have the meaning specified in the
Agreement.
"Class A Pool Factor" means, with respect to any Record Date, a
seven-digit decimal figure equal to the Class A Certificate Balance as of such
Record Date divided by the Original Class A Certificate Balance.
"Class A Principal Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of the Class A Principal Distributable
Amount plus any outstanding Class A Principal Carryover Shortfall with respect
to one or more prior Distribution Dates over the amount of principal that the
Holders of the Class A Certificates actually received on such current
Distribution Date.
"Class A Principal Distributable Amount" means, with respect to any
Distribution Date, the Class A Percentage of the Monthly Principal Payment (but
not exceeding the Class A Certificate Balance as of such Distribution Date).
In addition, with respect to the Distribution Date relating to the Collection
Period in which the last Receivable in the Trust is scheduled to mature or the
Distribution Date relating to the Record Date as of which all remaining
Receivables are to be purchased pursuant to Section 21.02 or 21.03, the Class A
Principal Distributable Amount will include the portion of such amount
necessary (after giving effect to the other amounts to be distributed to the
Class A Certificateholders on such Distribution Date and allocable to
principal) to reduce the Class A Certificate Balance to zero.
"Class B Certificate" means any one of the Class B Certificates
executed and authenticated by the Trustee in substantially the form set forth
as an Exhibit to the Agreement.
"Class B Certificate Balance" shall equal, initially, the Original
Class B Certificate Balance and, thereafter, shall equal the Original Class B
Certificate Balance, reduced by (a) all
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amounts previously distributed on the Class B Certificates and allocable to
principal and (b) Realized Losses allocable to the Class B Certificates.
"Class B Distributable Amount" means, with respect to any Distribution
Date, the sum of (a) the Class B Principal Distributable Amount, (b) the Class
B Interest Distributable Amount and (c) recoveries to the extent allocable to
principal on Receivables which became Defaulted Receivables in one or more
prior Collection Periods.
"Class B Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (a) the Class B Interest
Distributable Amount for such Distribution Date and any outstanding Class B
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class B Interest Carryover Shortfall, to the
extent permitted by law, at the Class B Pass-Through Rate from such immediately
preceding Distribution Date through the current Distribution Date, over (b) the
amount of interest distributed to the Class B Certificateholders on such
current Distribution Date.
"Class B Interest Distributable Amount" means, with respect to any
Distribution Date, the product of one-twelfth of the Class B Pass-Through Rate
and the Class B Certificate Balance (or, in the case of the first Distribution
Date, the Original Pool Balance) as of the immediately preceding Distribution
Date (after giving effect to distributions of principal made on such
immediately preceding Distribution Date).
"Class B Pass-Through Rate" shall have the meaning specified in the
Agreement.
"Class B Percentage" shall have the meaning specified in the
Agreement.
"Class B Pool Factor" means, with respect to any Record Date, a
seven-digit decimal equal to the Class B Certificate Balance as of such Record
Date divided by the Original Class B Certificate Balance.
"Class B Principal Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of the Class B Principal Distributable
Amount plus any outstanding Class B Principal Carryover Shortfall with respect
to one or more prior Distribution Dates over the amount of principal that the
Holders of the Class B Certificates actually received on such current
Distribution Date.
"Class B Principal Distributable Amount" means, with respect to any
Distribution Date, the Class B Percentage of the Monthly Principal Payment (but
not exceeding the Class B Certificate Balance as of such Distribution Date).
"Class Percentage" means the Class A Percentage or the Class B
Percentage, as the case may be.
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"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" shall have the meaning specified in the Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collected Interest" means, with respect to each Collection Period,
the sum of (i) the earnings received by the Trustee during the related
Collection Period from investment of the Pre-Funded Amount on deposit in the
Pre-Funding Account (which earnings are withdrawn from the Pre-Funding Account
and deposited into the Certificate Account pursuant to Section 14.07(a)(i));
(ii) the Negative Carry Amount, if any, for such Collection Period (which
amount is withdrawn from the Reserve Fund and deposited into the Certificate
Account pursuant to Section 14.07(a)(iii)); and (iii) the portion of all
payments received by the Servicer on or in respect of the Receivables during
such Collection Period allocable to interest.
"Collected Principal" means, with respect to each Collection Period,
the portion of all Available Funds received by the Servicer on or in respect of
the Receivables during such Collection Period allocable to principal.
"Collection Period" means, as to any Distribution Date and the related
Record Date, the calendar month ending immediately prior to such Distribution
Date.
"Commission" means the Securities and Exchange Commission, and any
successor thereto.
"Corporate Trust Office" means the office of the Trustee at which its
corporate trust business shall be administered, which office shall be specified
in the Agreement, or such office at some other address as the Trustee may
designate from time to time by notice to the Certificateholders, the Seller,
the Servicer and the Letter of Credit Bank, if any.
"Cutoff Date" shall have the meaning specified in the Agreement.
"Dealer" means the dealer who sold a Financed Vehicle and who
originated and assigned the Receivable relating to such Financed Vehicle to
Fleetwood Credit under an agreement with Fleetwood Credit.
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"Defaulted Receivable" means a Receivable (other than a Repurchased
Receivable) as to which (i) all or any part of a scheduled payment is 180 days
delinquent or (ii) the Servicer has determined, in accordance with its
customary servicing procedures, that eventual payment in full is unlikely and
has repossessed and liquidated the related Financed Vehicle within such 180 day
period.
"Definitive Certificates" shall have the meaning specified in Section
16.08.
"Delinquency Percentage" for any Fiscal Quarter means a percentage
equal to the average of the month end percentages, the numerator of which is
the aggregate principal balance of the Receivables (excluding Defaulted
Receivables) that are 90 days or more past due (which amount shall include
Receivables in respect of Financed Vehicles that have been repossessed but not
yet sold or otherwise liquidated) and the denominator of which is the Pool
Balance, in each case calculated on the last day of the three related
Collection Periods in such Fiscal Quarter.
"Delivery" when used with respect to Reserve Fund Property means:
(a) with respect to certificated securities, bankers'
acceptances, commercial paper, negotiable certificates of deposit and
any other obligations which evidence a right to the payment of money
and is not itself a security agreement or lease and is of a type which
is in ordinary course of business transferred by delivery with
necessary endorsement or assignment (collectively, "Physical
Property"): (A) the Trustee or its Financial Intermediary acquires
possession of the Physical Property, and evidence that any such
Physical Property that is in registrable form has been registered in
the name of the Trustee, its Financial Intermediary, its custodian or
its nominee; (B) the Financial Intermediary, not a clearing
corporation, sends the Trustee confirmation of the transfer and also
by book entry or otherwise identifies as belonging to the Trustee the
Physical Property in the Financial Intermediaries possession; or (C)
with respect to a clearing corporation, appropriate entries to the
account of the Trustee or a Person designated by him or her and, if
certificated, it is both, in the custody of the clearing corporation
or another clearing corporation, a custodian bank or a nominee of any
of them and, in bearer form or endorsed in blank by the appropriate
person or registered in the name of the clearing corporation,
custodian bank, or a nominee of any of them.
(b) with respect to any Reserve Fund Property that is a
book-entry security held through the Federal Reserve System pursuant
to federal book-entry regulations, the following procedures, all in
accordance with applicable law, including applicable federal
regulations and Articles 8 and 9 of the UCC: (i) book-entry
registration of such Reserve Fund Property to an appropriate
book-entry account maintained with a Federal Reserve Bank by the
Trustee or by a custodian, as collateral agent, and issuance to the
Trustee or to such custodian, as the case may be, as collateral agent,
of a deposit advice or other written confirmation of such book-entry
registration; (ii) the making by any such
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custodian of entries in its books and records identifying such
book-entry security held through the Federal Reserve System pursuant
to federal book-entry regulations as belonging to the Trustee, and
indicating that such custodian holds such Reserve Fund Property solely
as agent for the Trustee, and the making by the Trustee of entries in
its books and records establishing that it holds such Reserve Fund
Property solely as collateral agent, and the making by the Trustee of
entries in its books and records establishing that it holds such
Reserve Fund Property solely as Trustee pursuant to Section 14.08 and
(iii) such additional or alternative procedures as may hereafter
become appropriate to effect complete transfer of ownership of any
such Reserve Fund Property to the Trustee, acting solely as collateral
agent, consistent with changes in applicable law or regulations or the
interpretation thereof; and
(c) with respect to any Reserve Fund Property that is an
uncertificated security under Article 8 of the UCC and that is not
governed by clause (b) above, registration of the transfer to and
ownership of such Reserve Fund Property by the Trustee, its Financial
Intermediary, its custodian or its nominee, acting solely as
collateral agent, by the issuer of such Reserve Fund Property.
"Determination Date" means, as to any Distribution Date, the eighth
calendar day of the month in which such Distribution Date occurs or, if such
day is not a Business Day, the immediately succeeding Business Day.
"Distribution Date" means, for each Collection Period, the fifteenth
day of the following month, or if such day is not a Business Day, the
immediately succeeding Business Day, commencing with the date specified in the
Agreement.
"DTC" means The Depository Trust Company, and any successor thereto.
"Duff & Phelps" means Duff & Phelps Credit Rating Co., and any
successor thereto.
"Event of Default" shall have the meaning specified in Section 19.01.
"Excess Amounts" shall have the meaning set forth in Section 14.07(c).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"FDIC" means the Federal Deposit Insurance Corporation, and any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, and any
successor thereto.
"FNMA" means the Federal National Mortgage Association, and any
successor thereto.
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"Final Funding Period Distribution Date" shall have the meaning
specified in the Agreement.
"Final Scheduled Distribution Date" shall have the meaning specified
in the Agreement.
"Financed Vehicle" with respect to a Receivable means the recreational
vehicle, together with all accessions thereto, securing the related Obligor's
indebtedness under such Receivable.
"Financial Intermediary" shall have the meaning specified in Section
8-313(4) of the UCC.
"Fiscal Quarters" means each of the following three-month periods:
(i) January, February and March; (ii) April, May and June; (iii) July, August
and September; and (iv) October, November and December.
"Fleetwood Credit" means Fleetwood Credit Corp., and any successor
thereto.
"Funding Period" shall have the meaning specified in the Agreement.
"Independent Director" means a director of the Seller who is not (a) a
director, officer or employee of any affiliate of the Seller; (b) a person
related to any officer or director of any affiliate of the Seller; (c) a holder
(directly or indirectly) of more than 10% of any voting securities of any
affiliate of the Seller; or (d) a person related to a holder (directly or
indirectly) of more than 10% of any voting securities of any affiliate of the
Seller.
"Initial Cutoff Date" shall have the meaning specified in the
Agreement.
"Initial Receivables" means the Receivables initially transferred by
the Seller to the Trust pursuant to the Agreement on the Closing Date, which
Receivables are listed on the Schedule of Receivables.
"Initial Servicer Letter of Credit Amount" shall have the meaning
specified in the Servicer Letter of Credit, if any.
"Letter of Credit Bank" means any Person which has provided a Servicer
Letter of Credit in accordance with Section 15.01.
"Letter of Representations" means the agreement among the Seller, the
Trustee and the initial Clearing Agency, dated as of the Closing Date,
substantially in the form attached as an Exhibit to the Agreement.
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"Lien" means a security interest, lien, charge, claim, pledge, equity
or encumbrance of any kind other than tax liens, mechanics' liens and any liens
which attach to a Receivable or any property, as the context may require, by
operation of law.
"Liquidation Proceeds" means monies collected (from whatever source)
during a Collection Period on or in respect of a Defaulted Receivable, net of
all amounts (i) expended by the Servicer in effecting such collections and (ii)
required by law to be remitted to the related Obligor.
"Monthly Principal Payment" means, as of any Distribution Date, an
amount equal to (i) the sum of the Pool Balance (or, with respect to the first
Distribution Date, the Original Pool Balance) plus the amount on deposit in the
Pre-Funding Account (other than investment earnings), in each case as of the
first day of the related Collection Period, less (ii) the sum of the Pool
Balance plus the amount on deposit in the Pre-Funding Account (other than
investment earnings), in each case as of the last day of the related Collection
Period.
"Moody's" means Moody's Investors Service, Inc., and any successor
thereto.
"Negative Carry Amount" means, with respect to any Distribution Date
relating to the Funding Period, an amount equal to the negative difference, if
any, between (i) one month's interest on the Pre-Funded Amount on deposit in
the Pre-Funding Account as of the first day of the related Collection Period at
a rate equal to the weighted average of the Class A Pass-Through Rate and the
Class B Pass-Through Rate (weighted by Original Class Certificate Balance) and
(ii) the earnings received by the Trustee during such Collection Period from
investment of such Pre-Funded Amount.
"Non-Reimbursable Payment" means, as of any Record Date, the payment
required to be made by the Servicer pursuant to Section 14.05.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
related Financed Vehicle purchased in part or in whole by the execution and
delivery of such Receivable or any other Person who owes or may be liable for
payments under such Receivable.
"Offered Securities" shall have the meaning specified in Section
17.03.
"Officer's Certificate" means a certificate signed by the President,
any Vice President, the Treasurer, the Secretary or any Assistant Secretary of
the Seller or the Servicer, as the case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel (who may be an
employee of or outside counsel to the Seller or the Servicer), which counsel
shall be acceptable to the Trustee.
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"Original Class A Certificate Balance" shall have the meaning
specified in the Agreement.
"Original Class B Certificate Balance" shall have the meaning
specified in the Agreement.
"Original Pool Balance" shall have the meaning specified in the
Agreement.
"Original Pre-Funded Amount" shall have the meaning specified in the
Agreement.
"Paid-Ahead Receivables" means Receivables the Principal Balance of
which have been reduced by one or more scheduled monthly payments made in
advance by the related Obligor.
"Permitted Investments" means, at any time, any one or more of the
following obligations and securities:
(i) obligations of the United States or any agency
thereof, provided such obligations are backed by the full faith and
credit of the United States;
(ii) general obligations of or obligations guaranteed by
any State then rated the highest rating of each Rating Agency for such
obligations, or such lower rating (as approved in writing by each
Rating Agency) as will not result in the qualification, downgrading or
withdrawal of the rating then assigned to the Rated Certificates by
such Rating Agency;
(iii) commercial paper then rated the highest rating of
each Rating Agency for commercial paper, or such lower rating (as
approved in writing by each Rating Agency) as will not result in the
qualification, downgrading or withdrawal of the rating then assigned
to the Rated Certificates by such Rating Agency;
(iv) certificates of deposit, demand or time deposits,
federal funds or banker's acceptances issued by any depository
institution or trust company incorporated under the laws of the United
States or of any State and subject to supervision and examination by
federal or state banking authorities, provided that the commercial
paper of such depository institution or trust company is then rated
the highest rating of each Rating Agency for such obligations, or such
lower rating (as approved in writing by each Rating Agency) as will
not result in the qualification, downgrading or withdrawal of the
rating then assigned to the Rated Certificates by such Rating Agency;
(v) demand or time deposits or certificates of deposit
issued by any bank, trust company, savings bank or other savings
institution, which deposits are fully insured by the FDIC;
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(vi) guaranteed reinvestment agreements issued by any
bank, insurance company or other corporation (as approved in writing
by each Rating Agency) as will not result in the qualification,
downgrading or withdrawal of the rating then assigned to the Rated
Certificates by each Rating Agency;
(vii) repurchase obligations with respect to any security
described in clauses (i), (ii) or (viii) hereof or any other security
issued or guaranteed by the FHLMC, FNMA or any other agency or
instrumentality of the United States which is backed by the full faith
and credit of the United States, in either case entered into with a
federal agency or a depository institution or trust company (acting as
principal) described in clause (iv) above; and
(viii) such other investments acceptable to each Rating
Agency (as approved in writing by each Rating Agency) as will not
result in the qualification, downgrading or withdrawal of the rating
then assigned to the Rated Certificates by such Rating Agency;
provided that each of the foregoing investments shall mature no later than the
Business Day prior to the Distribution Date immediately following the date of
purchase (other than instruments of which the Trustee is the obligor, which may
mature on the related Distribution Date), and shall be required to be held to
such maturity.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Physical Property" shall have the meaning specified in the definition
of the term "Delivery."
"Pool Balance" as of any Record Date, means the aggregate Principal
Balance of the Receivables (excluding all Repurchased Receivables and Defaulted
Receivables) as of the close of business on the last day of the Collection
Period immediately preceding the Collection Period in which such Record Date
occurs.
"Pre-Funded Amount" means, with respect to (i) the first Distribution
Date, the Original Pre-Funded Amount, and (ii) any Distribution Date
thereafter, the amount on deposit in the Pre-Funding Account, after giving
effect to the deposit of investment earnings for the related Collection Period
into the Certificate Account on such Distribution Date pursuant to Section
14.07(a)(i).
"Pre-Funding Account" means the account designated as such and
established and maintained pursuant to Section 14.09.
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"Principal Balance" of a Receivable as of any date, means the Amount
Financed, without regard to any offsets or judicial reductions thereof, minus
the sum of (i) that portion of all payments received on or prior to such date
by the Servicer and allocable as a payment of principal pursuant to Section
14.03, (ii) any refunded portion of extended warranty protection plan costs, or
of physical damage, credit life or disability insurance premiums included in
the Amount Financed unless such refund must be paid to the related Obligor and
(iii) any payment of the Repurchase Amount allocable to principal with respect
to each Receivable which became a Defaulted Receivable or Repurchased
Receivable during or prior to the related Collection Period.
"Rated Certificates" means each Class of Certificates that has been
rated by a Rating Agency at the request of the Seller.
"Rating Agency" means each nationally recognized rating agency
specified in the Agreement as from time to time shall be rating the Rated
Certificates.
"Realized Loss Percentage" for any Fiscal Quarter means a percentage
with respect to the three Collection Periods that fell in such Fiscal Quarter
equal to (a) the aggregate Repurchase Amount for all Receivables that become
Defaulted Receivables during such Fiscal Quarter, minus (b) the sum of (i) the
aggregate Liquidation Proceeds received by the Servicer during such Fiscal
Quarter with respect to all Receivables that became Defaulted Receivables
during such Fiscal Quarter and (ii) all recoveries in respect of Defaulted
Receivables received during such Fiscal Quarter, to the extent not otherwise
covered in clause (i) above, which amount is then divided by the mean of the
three Pool Balances calculated as of the Record Date immediately preceding the
first day of each Collection Period that fell in such Fiscal Quarter; such
quotient is then multiplied by four to arrive at an annualized percentage.
"Realized Losses" with respect to each Collection Period will equal
the amount by which (a) the aggregate Principal Balance of all Receivables
which became Defaulted Receivables during such Collection Period exceeds (b)
the sum of (i) the aggregate Liquidation Proceeds recovered in respect of
principal of such Defaulted Receivables during such Collection Period and (ii)
recoveries in respect of all Defaulted Receivables received in such Collection
Period, to the extent not otherwise covered in clause (i) above.
"Receivable" means any Initial Receivable or Subsequent Receivable.
"Receivable Files" means the documents specified in Section 12.04.
"Receivables Pool" means the pool of Receivables included in the
Trust.
"Receivables Purchase Agreement" means the Receivables Purchase
Agreement dated as of the Initial Cutoff Date, between Fleetwood Credit and the
Seller.
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"Record Date" means, in respect of a Distribution Date, the close of
business on the day immediately preceding such Distribution Date or, if
Definitive Certificates are issued, the last day of the calendar month
immediately preceding such Distribution Date.
"Recreational Vehicle Receivables" shall have the meaning specified in
Section 17.03.
"Repurchase Amount" as of any date, means the amount required to
prepay in full the Principal Balance of a Receivable plus interest thereon at a
rate equal to the sum of (i) the weighted average of the Class A Pass-Through
Rate and the Class B Pass-Through Rate and (ii) the Servicing Fee Rate to the
last day of the month in which such date occurs.
"Repurchased Receivable" means a Receivable purchased as of a Record
Date by the Servicer (or a successor to the Servicer) pursuant to Section 13.07
or 21.02 or by the Seller pursuant to Section 12.02 or 21.02.
"Required Deposit Rating" means the rating or ratings specified in the
Agreement.
"Required Long Term Debt Rating" means the rating or ratings, if
applicable, specified in the Agreement.
"Required Rating" means the rating or ratings specified in the
Agreement.
"Required Servicer Rating" means the rating or ratings specified in
the Agreement.
"Reserve Fund" means the account established and maintained pursuant
to Section 14.08.
"Reserve Fund Initial Deposit" shall have the meaning specified in the
Agreement.
"Reserve Fund Property" shall have the meaning specified in Section
14.08(a)(ii).
"Reset Percentage" shall have the meaning specified in the Servicer
Letter of Credit, if any.
"Residual Certificate" shall have the meaning specified in Section
16.01.
"Schedule of Receivables" means the schedule of receivables attached
as Schedule A to the Agreement, as it may be amended or supplemented (including
pursuant to any Transfer Agreement) from time to time.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securitization Agreement" shall have the meaning specified in Section
17.03.
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"Seller" means Fleetwood Credit Receivables Corp., in its capacity as
seller of the Receivables under the Agreement, and each successor to Fleetwood
Credit Receivables Corp. (in the same capacity) pursuant to Section 17.03.
"Servicer" means Fleetwood Credit, in its capacity as servicer of the
Receivables, and each successor to Fleetwood Credit (in the same capacity)
pursuant to Section 18.03 or 19.02.
"Servicer Letter of Credit" means, if the Servicer desires to remit
collections on or in respect of the Receivables to the Certificate Account on a
monthly basis but the conditions of clause (a) of Section 14.02 are not
otherwise satisfied, an irrevocable letter of credit, issued by the Letter of
Credit Bank and naming the Trustee as beneficiary, substantially in, except as
otherwise provided in the Agreement, the form attached hereto as Exhibit A.
"Servicer Letter of Credit Amount" means the amount determined
pursuant to Section 15.01(a).
"Servicer Letter of Credit Percentage" shall have the meaning
specified in the Servicer Letter of Credit, if any.
"Servicer's Certificate" means an Officer's Certificate of the
Servicer completed and executed pursuant to Section 13.09, substantially in the
form attached as an Exhibit to the Agreement.
"Servicing Fee" means the fee payable to the Servicer for services
rendered during each Collection Period, determined pursuant to Section 13.08.
"Servicing Fee Rate" shall have the meaning specified in the
Agreement.
"Specified Reserve Fund Balance" shall have the meaning specified in
the Agreement.
"Standard & Poor's" means Standard & Poor's, a division of The
McGraw-Hill Companies, Inc., and any successor thereto.
"State" means any state of the United States or the District of
Columbia.
"Subsequent Cutoff Date" shall have the meaning specified in the
related Transfer Agreement.
"Subsequent Receivables" means the Receivables transferred by the
Seller to the Trust pursuant to a Transfer Agreement on the related Subsequent
Transfer Date, which Receivables are listed on Schedule A to the related
Transfer Agreement.
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"Subsequent Transfer Date" shall have the meaning specified in the
related Transfer Agreement.
"Successor Servicer" shall have the meaning specified in Section
19.02.
"Transfer Agreement" means each Transfer Agreement, dated as of the
related Subsequent Cutoff Date, among the Seller, Fleetwood Credit and the
Trustee, pursuant to which Subsequent Receivables are conveyed to the Trust,
substantially in the form attached as an Exhibit to the Agreement.
"Trust" means the trust created by the Agreement, the estate of which
shall consist of (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) funds deposited in the Certificate Account and proceeds thereof; (iv)
such monies as are from time to time on deposit in the Pre-Funding Account
(including investment earnings thereon); (v) the Servicer Letter of Credit, if
any; (vi) 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 Trustee; (vii) proceeds from
claims on any physical damage, credit life or disability insurance policies
covering the Financed Vehicles or Obligors; (viii) the Seller's rights under
the Receivables Purchase Agreement; (ix) the right of the Seller to receive
payments pursuant to repurchase obligations of Dealers relating to the
Receivables; and (x) all proceeds of the foregoing. The Reserve Fund shall not
be a part of or otherwise includable in the Trust.
"Trustee" means the Person acting as Trustee under the Agreement, its
successor in interest and any successor trustee pursuant to Section 20.11.
"Trustee's Certificate" means a certificate completed and executed by
the Trustee by an Authorized Officer pursuant to Section 20.02 or 20.03,
substantially in the form attached hereto as, in the case of assignment to the
Seller, Exhibit C-1, and in the case of an assignment to the Servicer, Exhibit
C-2.
"UCC" means the Uniform Commercial Code as in effect in the respective
jurisdiction or, with respect to Louisiana, the equivalent body of statutory
and commercial law.
"United States" means the United States of America.
"Vice President" of any Person means any vice president of such
Person, whether or not designated by a number or words before or after the
title "Vice President."
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"Voting Interests" means the aggregate voting strength evidenced by
the Class A Certificates or the Class B Certificates, as the case may be;
provided, however, that where the Voting Interests are relevant in determining
whether the vote of the requisite percentage of Class A Certificateholders or
Class B Certificateholders, as the case may be, necessary to effect any
consent, waiver, request or demand shall have been obtained, the Voting
Interests shall be deemed to be reduced by the amount equal to the Voting
Interests (without giving effect to this provision) represented by the
interests evidenced by any such Certificate registered in the name of the
Seller, the Servicer or any Person controlling, controlled by or under common
control with the Seller or the Servicer.
Section 11.02. Initial Cutoff Date and Record Date. All references
to the Record Date prior to the first Record Date in the life of the Trust
shall be to the Initial Cutoff Date.
Section 11.03. Usage of Terms. With respect to all terms in the
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance
with their respective terms and not prohibited by the Agreement; references to
Persons include their permitted successors and assigns; and the term
"including" means "including without limitation."
Section 11.04. Section References. All section references shall be
to Sections in these Standard Terms and Conditions.
Section 11.05. Separate Agreements. Each Agreement which shall
incorporate by reference these Standard Terms and Conditions shall be separate
and distinct from each other such Agreement, no provision of any such Agreement
shall be applicable to any other such Agreement, and all references to "the
Agreement" and to provisions thereof shall be references to a particular
Agreement which incorporates these Standards Terms and Conditions.
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ARTICLE TWELVE
THE RECEIVABLES
Section 12.01. Representations and Warranties of Seller. The Seller
shall make the following representations and warranties as to the Receivables
on which the Trustee shall rely in accepting the Receivables in trust and
executing and authenticating the Certificates. Such representations and
warranties shall speak as of the execution and delivery of the Agreement in
the case of the Initial Receivables, and as of the related Subsequent Transfer
Date in the case of the Subsequent Receivables, but in each case shall survive
the sale, transfer and assignment of the related Receivables to the Trustee and
any subsequent assignment or transfer pursuant to Article Fifteen.
(i) Characteristics of Receivables. Each Receivable (a)
shall have been (1) originated in the United States by a Dealer for
the retail sale of the related Financed Vehicle in the ordinary course
of such Dealer's business, (2) fully and properly executed by the
parties thereto, (3) purchased by Fleetwood Credit from such Dealer
under an agreement with Fleetwood Credit and (4) validly assigned by
such Dealer to Fleetwood Credit in accordance with its terms and shall
have been subsequently sold by Fleetwood Credit to the Seller, (b)
shall have created or shall create a valid, subsisting and enforceable
first priority perfected security interest in favor of Fleetwood
Credit in the related Financed Vehicle, which security interest has
been assigned by Fleetwood Credit to the Seller and shall be
assignable, and shall be so assigned, by the Seller to the Trustee,
(c) shall contain customary and enforceable provisions such that the
rights and remedies of the holder thereof shall be adequate for
realization against the collateral of the benefits of the security,
(d) shall provide for level monthly payments (provided that the
payment in the first or last month in the life of the Receivable may
be minimally different from the level payment) that fully amortize the
Amount Financed by maturity and provide for a finance charge or yield
interest at its APR and (e) shall provide for, in the event that such
Receivable is prepaid in full, a payment that fully pays the Principal
Balance and includes accrued but unpaid interest at least through the
date of prepayment in an amount at least equal to its APR.
(ii) Schedule of Receivables. The information set forth
in the Schedule of Receivables shall be true and correct in all
material respects as of the opening of business on the Initial Cutoff
Date or the related Subsequent Cutoff Date, as the case may be, and no
selection procedures adverse to the Certificateholders shall have been
utilized in selecting the Receivables from those Receivables of
Fleetwood Credit which met the selection criteria set forth in this
Section.
(iii) Compliance with Law. Each Receivable shall have
complied at the time it was originated or made, and shall comply at
the time of execution of the Agreement in all
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material respects with all requirements of applicable federal, state
and local laws, and regulations thereunder, including usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, Federal Reserve Board Regulations B and Z,
state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit, equal credit
opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable shall constitute
the genuine, legal, valid and binding payment obligation in writing of
the related Obligor, enforceable by the holder thereof in accordance
with its terms, except as enforceability may be subject to or limited
by bankruptcy, insolvency, reorganization, liquidation and other
similar laws affecting the enforcement of creditors' rights in general
and by general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at
law.
(v) No Government Obligor. None of the Receivables shall
be due from the United States or any state or local government thereof
or from any agency, department or instrumentality of the United States
or any state or local government.
(vi) Security Interest in Financed Vehicle. Immediately
prior to the sale, assignment and transfer thereof, each Receivable
shall be secured by a validly perfected first security interest in the
related Financed Vehicle in favor of Fleetwood Credit as secured party
or all necessary and appropriate action with respect to such
Receivable shall have been taken to perfect a first priority security
interest in such Financed Vehicle in favor of Fleetwood Credit as
secured party.
(vii) Receivables in Force. No Receivable shall have been
satisfied, subordinated or rescinded, nor shall any Financed Vehicle
have been released from the lien granted by the related Receivable in
whole or in part.
(viii) No Waiver. No provision of a Receivable shall have
been waived in such a manner that such Receivable fails to meet all of
the other representations and warranties made by the Seller herein
with respect thereto.
(ix) No Amendments. No Receivable shall have been amended
in such a manner that such Receivable fails to meet all of the other
representations and warranties made by the Seller herein with respect
thereto.
(x) No Defenses. No facts shall be known to the Seller
which would give rise to any right of rescission, setoff, counterclaim
or defense, nor shall the same have been asserted or threatened, with
respect to any Receivable.
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(xi) No Liens. To the knowledge of the Seller, no Liens
shall have been filed, including Liens for work, labor or materials
relating to a Financed Vehicle, that shall be prior to, or equal or
coordinate with, the security interest in such Financed Vehicle
granted by the related Receivable.
(xii) No Default. Except for payment defaults continuing
for a period of not more than 30 days as of the Initial Cutoff Date or
the related Subsequent Cutoff Date, as the case may be, no default,
breach, violation or event permitting acceleration under the terms of
any Receivable shall have occurred; no continuing condition that with
notice or the lapse of time would constitute a default, breach,
violation or event permitting acceleration under the terms of any
Receivable shall have arisen; and the Seller shall not have waived any
of the foregoing.
(xiii) Insurance. Fleetwood Credit, in accordance with its
customary servicing procedures, shall have determined that each
Obligor has obtained physical damage insurance covering the related
Financed Vehicle.
(xiv) Good Title. It is the intention of the Seller that
the transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Receivables from the Seller to the Trust and
that the beneficial interest in and title to the Receivables not be
part of the debtor's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law. No
Receivable has been sold, transferred, assigned or pledged by the
Seller to any Person other than the Trustee, and no provision of a
Receivable shall have been waived, except as provided in clause (viii)
above; immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to each
Receivable free and clear of all Liens and rights of others;
immediately upon the transfer and assignment thereof, the Trustee, for
the benefit of the Certificateholders, shall have good and marketable
title to each Receivable, free and clear of all Liens and rights of
others; and the transfer and assignment herein contemplated has been
perfected under the UCC.
(xv) Lawful Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable under
the Agreement or any Transfer Agreement or pursuant to transfers of
the Certificates shall be unlawful, void or voidable.
(xvi) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Trustee a first
perfected ownership interest in the Receivables shall have been made.
(xvii) One Original. There shall be only one original
executed copy of each Receivable.
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(xviii) Agreement/Transfer Agreement. The additional
representations and warranties as to the Receivables in the Agreement
or in the related Transfer Agreement, as the case may be, shall be
true and correct.
Section 12.02. Repurchase Upon Breach. The Seller, the Servicer or
the Trustee, as the case may be, shall inform the other parties promptly, in
writing, upon the discovery of any breach of the Seller's representations and
warranties set forth in Article Seven of the Agreement or Section 12.01 hereof
or in any Transfer Agreement which materially and adversely affects any
Receivable. Unless the breach shall have been cured by the second Record Date
following the discovery (or, at the Seller's option, the first Record Date
following the discovery), the Seller shall repurchase any Receivable materially
and adversely affected by the breach, as of such Record Date. If necessary,
the Seller shall enforce the obligation of Fleetwood Credit under the
Receivables Purchase Agreement to repurchase such Receivable from the Seller.
In consideration of the purchase of any such Receivable, the Seller shall remit
the Repurchase Amount of such Receivable (less the amount of any Liquidation
Proceeds with respect to such Receivable deposited, or to be deposited, by the
Servicer in the Certificate Account pursuant to Section 13.03) to the
Certificate Account in the manner specified in Section 14.06(a)(i). In the
event that, as of the date of execution and delivery of the Agreement, any
Liens shall have been filed, including Liens for work, labor or materials
relating to a Financed Vehicle, that shall be prior to, or equal or coordinate
with, the lien granted by the related Receivable (whether or not the Seller has
knowledge thereof), and such breach materially and adversely affects the
interests of the Trust in such Receivable, the Seller shall repurchase such
Receivable on the terms and in the manner specified above. The sole remedy of
the Trustee, the Trust or the Certificateholders with respect to a breach of
the Seller's representations and warranties set forth in Article Seven of the
Agreement or Section 12.01 hereof or in any Transfer Agreement or with respect
to the existence of any such Liens shall be to require the Seller to repurchase
Receivables pursuant to this Section and to enforce Fleetwood Credit's
obligation to the Seller to repurchase such Receivables from the Seller
pursuant to the Receivables Purchase Agreement.
Section 12.03. Conveyance of Receivables. The Seller, pursuant to
the mutually agreed upon terms contained in the Agreement, shall sell,
transfer, assign and otherwise convey to the Trustee, without recourse (but
subject to the Seller's obligations in the Agreement), all of its right, title
and interest in and to the Receivables and any proceeds related thereto,
including any other items as shall be specified in the Agreement. It is the
intention of the Seller and the Certificateholders (as evidenced by the
acceptance of their Certificates) that the transfer and assignment contemplated
by the Agreement shall constitute a sale of the Receivables from the Seller to
the Trust and the beneficial interest in and title to the Receivables shall not
be part of the Seller's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law. The Seller agrees
to execute and file all filings (including filings under the UCC) necessary in
any jurisdiction to provide third parties with notice of the sale of the
Receivables and to perfect such sale under the UCC.
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In the event that, notwithstanding the intention of the Seller and the
Certificateholders specified in the immediately preceding paragraph, the
transfer and assignment contemplated by the Agreement is deemed to be other
than a sale, the parties intend that all filings described in the foregoing
paragraph shall give the Trustee on behalf of the Trust a first priority
perfected security interest in, to and under the related Receivables, and other
property conveyed hereunder and all proceeds of any of the foregoing. The
Agreement shall be deemed to be the grant of a security interest from the
Seller to the Trustee on behalf of the Trust, and the Trustee on behalf of the
Trust shall have all the rights, powers and privileges of a secured party under
the UCC. In such event, the Seller agrees to take such action and execute such
documents as the Trustee shall request in order fully to realize the benefits
of such secured party status, including, without limitation, powers of
attorneys, financing statements, notices of lien or other instruments or
documents.
Section 12.04. Custody of Receivable Files. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Trustee, upon the execution and delivery of the Agreement, revocably appoints
the Servicer, and the Servicer accepts such appointment, to act as the agent of
the Trustee as custodian of the following documents or instruments which are
hereby constructively delivered to the Trustee with respect to each Receivable
on or prior to the Closing Date and each Subsequent Receivable on or prior to
the related Subsequent Transfer Date:
(i) the original of the Receivable;
(ii) all documents evidencing the existence of physical
damage insurance covering the related Financed Vehicle;
(iii) the original credit application, executed by the
Obligor;
(iv) the original certificate of title or such documents
that the Servicer or the Seller shall keep on file, in accordance with
its customary procedures, evidencing the security interest in the
related Financed Vehicle; and
(v) any and all other documents that the Seller or the
Servicer, as the case may be, shall keep on file, in accordance with
its customary procedures, relating to such Receivable or the related
Obligor or Financed Vehicle.
Section 12.05. Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer, in its capacity as custodian,
shall hold the Receivable Files on behalf of the Trustee for the use and
benefit of all present and future Certificateholders, and maintain such
accurate and complete accounts, records and computer systems pertaining to each
Receivable File as shall enable the Trustee to comply with the Agreement. In
performing
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its duties as custodian, the Servicer shall act with reasonable care, using
that degree of skill and attention that it exercises with respect to the
receivable files of comparable recreational vehicle receivables that the
Servicer services for itself or others. The Servicer shall conduct, or cause
to be conducted, periodic reviews of the files of all receivables owned or
serviced by it which shall include the Receivable Files held by it under the
Agreement, and of the related accounts, records and computer systems, in such a
manner as shall enable the Trustee to verify the accuracy of the Servicer's
record keeping. The Servicer shall promptly report to the Trustee any failure
on its part to hold the Receivable Files and maintain its accounts, records and
computer systems as herein provided and promptly take appropriate action to
remedy any such failure.
(b) Maintenance of and Access to Records. The Servicer shall
maintain each Receivable File at one of its offices specified in Schedule B to
the Agreement, or at such other office as shall be specified to the Trustee by
30 days' prior written notice. The Servicer shall make available to the
Trustee or its duly authorized representatives, attorneys or auditors the
Receivable Files and the related accounts, records and computer systems
maintained by the Servicer at such times as the Trustee may reasonably request.
(c) Release of Documents. Upon instruction from the Trustee, the
Servicer shall release any document in the Receivable Files to the Trustee or
its agent or designee, as the case may be, at such place or places as the
Trustee may designate, as soon as practicable. The Servicer shall not be
responsible for any loss occasioned by the failure of the Trustee to return any
document or any delay in doing so.
Section 12.06. Instructions; Authority to Act. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable
Files upon its receipt of written instructions signed by an Authorized Officer.
A certified copy of a bylaw or of a resolution of the Board of Directors of the
Trustee shall constitute conclusive evidence of the authority of any such
Authorized Officer to act and shall be considered in full force and effect
until receipt by the Servicer of written notice to the contrary given by the
Trustee.
Section 12.07. Indemnification by Servicer as Custodian. The
Servicer, as custodian, shall indemnify the Trustee for any and all
liabilities, obligations, losses, compensatory damages, payments, costs or
expenses of any kind whatsoever that may be imposed on, incurred or asserted
against the Trustee as the result of any improper act or omission in any way
relating to the maintenance and custody by the Servicer, as custodian, of the
Receivable Files; provided, however, that the Servicer shall not be liable for
any portion of any such amount resulting from the willful misfeasance, bad
faith or negligence of the Trustee.
Section 12.08. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Initial Cutoff Date
and shall continue in full force and effect until terminated pursuant to this
Section. If the Servicer shall resign as Servicer pursuant to Section 18.05 or
if all of the rights and obligations of the Servicer may have been terminated
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pursuant to Section 19.01, the appointment of the Servicer as custodian shall
be terminated by the Trustee, or by the Holders of Certificates evidencing not
less than 51% of the Voting Interests of the Class A Certificates and Class B
Certificates, voting together as a single class, in the same manner as the
Trustee or such Holders may terminate the rights and obligations of the
Servicer under Section 19.01. The Trustee may terminate the Servicer's
appointment as custodian, with cause at any time upon written notification to
the Servicer, and without cause upon 30 days' prior written notification to the
Servicer. As soon as practicable after any termination of such appointment,
the Servicer shall deliver the Receivable Files to the Trustee or its agent at
such place or places as the Trustee may reasonably designate. Notwithstanding
the termination of the Servicer as custodian, the Trustee agrees that upon any
such termination, the Trustee shall provide, or cause its agent to provide,
access to the Receivable Files to the Servicer for the purpose of carrying out
its duties and responsibilities with respect to the servicing of the
Receivables hereunder.
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ARTICLE THIRTEEN
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 13.01. Duties of Servicer. The Servicer, as agent for the
Trustee, shall administer the Receivables with reasonable care, using that
degree of skill and attention that the Servicer exercises with respect to all
comparable recreational vehicle receivables that it services for itself or
others. The Servicer's duties shall include collecting and posting of all
payments, responding to inquiries of Obligors or by federal, state or local
government authorities with respect to the Receivables, investigating
delinquencies, reporting tax information to Obligors in accordance with its
customary practices and accounting for collections and furnishing monthly and
annual statements to the Trustee with respect to distributions, making Advances
pursuant to Section 14.04 and making Non-Reimbursable Payments pursuant to
Section 14.05. The Servicer shall follow its customary standards, policies and
procedures in performing its duties as Servicer. Without limiting the
generality of the foregoing, the Servicer shall be authorized and empowered by
the Trustee to execute and deliver, on behalf of itself, the Trust, the Trustee
or the Certificateholders or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and
all other comparable instruments, with respect to the Receivables or the
related Financed Vehicles. If the Servicer shall commence a legal proceeding
to enforce a Receivable, including a Defaulted Receivable, the Trustee shall
thereupon be deemed to have automatically assigned, solely for the purpose of
collection on behalf of the party retaining an interest in such Receivable,
such Receivable and the other property conveyed to the Trust pursuant to
Section 2.01 of the Agreement with respect to such Receivable to the Servicer
for the purposes of participating in such proceeding. If in any enforcement
suit or legal proceeding it shall be held that the Servicer may not enforce a
Receivable on the grounds that it shall not be a real party in interest or a
holder entitled to enforce the Receivable, the Trustee shall, at the Servicer's
expense and direction, take steps to enforce the Receivable, including bringing
suit in its name or the name of the Certificateholders. The Trustee shall
furnish the Servicer with any powers of attorney and other documents necessary
or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
Section 13.02. Collection of Receivable Payments. The Servicer shall
make reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due and shall
follow such collection procedures as it follows with respect to all comparable
recreational vehicle receivables that it services for itself or others. If, as
a result of extending of payments (including any increase in the number of
payments) in the ordinary course of the Servicer's collection procedures, any
Receivable will be outstanding on the Final Scheduled Distribution Date, then
the Servicer shall repurchase such Receivable pursuant to Section 13.07 or
Section 21.02. In addition, in the event that any such rescheduling or
extension of a Receivable modifies the terms of such Receivable in such a
manner as to constitute a cancellation of such Receivable and the creation of a
new receivable, the Servicer shall purchase such Receivable pursuant to Section
13.07, and the receivable created shall not be
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included in the Trust. For the purpose of such repurchases pursuant to Section
13.07, notice shall be deemed to have been received by the Servicer at such
time as shall make repurchase mandatory as of the related Record Date.
Notwithstanding the foregoing, extensions or modifications of the payment
schedule of a Receivable cannot be made unless the related Receivable is in
default or a default thereunder is imminent or if such extension or
modification is required by law. The Servicer may, in accordance with its
customary standards, policies and procedures, in its discretion (i) waive any
late payment charge or any other fees that may be collected in the ordinary
course of servicing a Receivable and (ii) waive the payment by the related
Obligor of Accrued Interest on any Receivable; provided that, in connection
with any such waiver of Accrued Interest, the Servicer shall make an Advance in
respect of the Accrued Interest so waived in accordance with Section 14.04, it
being understood and agreed that, notwithstanding anything to the contrary
contained in the Agreement, the obligation of the Servicer hereunder shall be
absolute and shall be performed regardless of whether the Servicer determines
that such Advance shall be recoverable and that the Servicer shall have no
right of reimbursement therefor.
Section 13.03. Realization Upon Receivables. On behalf of the Trust,
the Servicer shall use its best efforts, consistent with its customary
servicing procedures, to repossess or otherwise take possession of the Financed
Vehicle securing any Receivable which the Servicer shall have determined to be
or that the Servicer believes will become a Defaulted Receivable (and shall
specify such Receivables to the Trustee no later than the Determination Date
following the end of the Collection Period in which the Servicer shall have
made such determination). The Servicer shall follow such customary and usual
practices and procedures as it shall deem necessary or advisable in its
servicing of recreational vehicle receivables, which may include reasonable
efforts to realize upon any recourse to Dealers, consigning a Financed Vehicle
to a dealer for resale and selling a Financed Vehicle at public or private
sale. The Servicer shall be entitled to recover all reasonable out-of-pocket
expenses incurred by it in the course of converting a Financed Vehicle into
cash proceeds. The Liquidation Proceeds realized in connection with any such
action with respect to a Receivable shall be deposited by the Servicer in the
Certificate Account in the manner specified in Section 14.06(a)(ii) and shall
be applied to reduce (or to satisfy, as the case may be) the Repurchase Amount
of the Receivable, if such Receivable is to be repurchased by the Seller
pursuant to Section 12.02 or by the Servicer pursuant to Section 13.07;
provided, however, that if such Liquidation Proceeds are recovered subsequent
to the purchase of a Receivable by the Seller such Liquidation Proceeds shall
be paid to the Seller within two Business Days of receipt or, if received with
respect to a Receivable purchased by the Servicer, may be retained by the
Servicer or deposited in the Certificate Account in satisfaction of other
obligations of the Servicer hereunder. The foregoing shall be subject to the
proviso that, in any case in which a Financed Vehicle shall have suffered
damage, the Servicer shall not expend funds in connection with the repair or
the repossession of such Financed Vehicle unless it shall determine in its
discretion that such repair and/or repossession will increase the Liquidation
Proceeds of the related Receivable by an amount equal to or greater than the
amount of such expenses.
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Section 13.04. Physical Damage Insurance. The Servicer, in
accordance with its customary servicing procedures and underwriting standards,
shall require that each Obligor shall have obtained and maintained physical
damage insurance covering each Financed Vehicle as of the date of execution of
the related Receivable.
Section 13.05. Maintenance of Security Interests in Financed
Vehicles. The Servicer, in accordance with its customary servicing procedures,
shall take such steps as are necessary to maintain perfection of the security
interest created by each Receivable in the related Financed Vehicle including
the filing of financing statements and continuation statements with respect to
the transfer of the security interest in such Financed Vehicle to the Trust.
The Trustee hereby authorizes the Servicer, and the Servicer hereby agrees, to
take such steps as are necessary to reperfect such security interest on behalf
of the Trust in the event of the relocation of a Financed Vehicle or for any
other reason. In the event that the assignment of a Receivable to the Trust is
insufficient, without a notation on the related Financed Vehicle's certificate
of title, to grant to the Trust a first perfected security interest in the
related Financed Vehicle, the Servicer hereby agrees to serve as the agent of
the Trust for the purpose of perfecting the security interest in such Financed
Vehicle and that the Servicer's listing as the secured party on the certificate
of title is in its capacity as agent of the Trust.
Section 13.06. Covenants of Servicer. The Servicer shall make the
following covenants on which the Trustee will rely in accepting the Receivables
in trust and authenticating the Certificates:
(i) Security Interest to Remain in Force. Except as
contemplated by the Agreement, the Financed Vehicle securing each
Receivable shall not be released by the Servicer from the security
interest granted by the Receivable in whole or in part.
(ii) No Impairment. The Servicer shall not impair the
rights of the Certificateholders in the Receivables.
(iii) Amendments. The Servicer shall not increase the
number of payments under a Receivable except as permitted pursuant to
Section 13.02, nor increase the Amount Financed under a Receivable.
Section 13.07. Purchase of Receivables Upon Breach. The Servicer or
the Trustee, as the case may be, shall inform the other party promptly, in
writing, upon the discovery of any breach by the Servicer of its obligations
pursuant to Section 13.06 which materially and adversely affects the interest
of the Trust in any Receivable or pursuant to Section 13.02 in the case of a
Receivable for which the related payment schedule has been extended or
modified. Unless the breach shall have been cured by the second Record Date
following the date of such discovery (or, at the Servicer's election, the first
following Record Date), the Servicer shall purchase any Receivable materially
and adversely affected by such breach as of such second Record Date. In
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consideration of the purchase of such Receivable, the Servicer shall remit the
Repurchase Amount (less any Liquidation Proceeds deposited, or concurrently
being deposited, in the Certificate Account with respect to such Receivable
pursuant to Section 13.03) to the Certificate Account in the manner specified
in Section 14.06(a)(i). The sole remedy of the Trustee, the Trust or the
Certificateholders against the Servicer with respect to a breach pursuant to
Section 13.02 or 13.06 shall be to require the Servicer to repurchase
Receivables pursuant to this Section.
Section 13.08. Servicing Fee. The Servicing Fee for a Collection
Period shall equal the product of one twelfth times the Servicing Fee Rate
times the Pool Balance as of the Record Date immediately preceding the first
day of such Collection Period, except that in the case of the first Collection
Period, the Servicing Fee shall equal the product of one twelfth times the
Servicing Fee Rate times the Original Pool Balance. The Servicing Fee for any
Collection Period shall be calculated based on a 360 day year comprised of
twelve 30-day months. In addition, the Servicer shall also be entitled to
receive as additional servicing compensation all late payment and extension
fees, and other administrative fees with respect to the Receivables, collected
(from whatever source) on the Receivables; provided, however, such late payment
and other fees shall not form a part of the Servicing Fee and the Servicer
shall be entitled to such fees as and when collected.
Section 13.09. Servicer's Certificate. On or before each
Determination Date, the Servicer shall deliver to the Trustee and the Letter of
Credit Bank, if any, a Servicer's Certificate containing all information
necessary to make the distributions pursuant to Section 14.07 in respect of the
Collection Period preceding the date of such Servicer's Certificate and all
information necessary for the Trustee to send statements to Certificateholders
pursuant to Section 14.10. The Servicer shall also specify to the Trustee no
later than the Determination Date following the Record Date as of which the
Seller shall be required to repurchase or the Servicer shall be required to
purchase a Receivable, the identity of any such Receivable and the identity of
any Receivable which the Servicer shall have determined to be a Defaulted
Receivable during the preceding Collection Period. Receivables purchased or to
be purchased by the Servicer or the Seller and Receivables as to which the
Servicer has determined during the Collection Period that eventual payment in
full is unlikely and with respect to which payment of the Repurchase Amount has
been provided from whatever source as of any Record Date shall be identified by
the Seller's account number with respect to such Receivable (as specified in
the Schedule of Receivables). The Rating Agencies may request such additional
information as the Servicer may be able to reasonably provide.
Section 13.10. Annual Statement as to Compliance; Notice of Default;
Opinion as to Interest of the Trustee in the Receivables.
(a) The Servicer shall deliver to the Trustee and the Letter of
Credit Bank, if any, on or before April 30 of each year, beginning with the
first April 30 that occurs at least six months after the Initial Cutoff Date,
an Officer's Certificate, stating that (i) a review of the activities of
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the Servicer during the preceding 12-month period ending the preceding December
31 (or shorter period in the case of the first such certificate) and of its
performance under the Agreement has been made under such officer's supervision
and (ii) to the best of such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under the Agreement throughout such
year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
(b) The Servicer shall deliver to the Trustee and the Letter of
Credit Bank, if any, promptly after having obtained knowledge thereof, but in
no event later than five Business Days thereafter, an Officer's Certificate of
any event which with the giving of notice or lapse of time, or both, would
become an Event of Default under clause (i) or (ii) of Section 19.01. The
Seller shall deliver to the Trustee and Letter of Credit Bank, if any, promptly
after having obtained knowledge thereof, but in no event later than five
Business Days thereafter, an Officer's Certificate of any event which with the
giving of notice or lapse of time, or both, would become an Event of Default
under clause (ii) of Section 19.01.
(c) The Servicer shall deliver to the Trustee on or prior to April
30 of each year, commencing with the first April 30 that occurs at least six
months after the Initial Cutoff Date, an Opinion of Counsel, dated as of such
date, either (A) stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed and filed that are
necessary fully to preserve and protect the interest of the Trustee in the
Receivables, and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given or (B) stating that, in the
opinion of such counsel, no such action shall be necessary to preserve and
protect such interest.
Section 13.11. Annual Independent Certified Public Accountant's
Report. The Servicer shall cause a firm of independent certified public
accountants (who may also render other services to the Servicer or to the
Seller) to deliver to the Trustee and the Letter of Credit Bank, if any, on or
before April 30 of each year beginning with the first April 30 that occurs at
least six months after the Initial Cutoff Date, a report addressed to the Board
of Directors of the Servicer, the Trustee and the Letter of Credit Bank, if
any, to the effect that such firm has examined the financial statements of the
Servicer for the fiscal year ending the preceding December 31 and issued its
report thereon and that such examination (i) was made in accordance with
generally accepted auditing standards, and accordingly included such tests of
the accounting records and such other auditing procedures as such firm
considered necessary in the circumstances, and (ii) except as described in such
report, disclosed no exceptions or errors in the records relating to
receivables serviced for others that, in such firm's opinion, requires such
firm to report.
The report shall also indicate that such firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
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Section 13.12. Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to the Certificateholders
access to the Receivable Files in such cases where the Certificateholders shall
be required by applicable statutes or regulations to review such documentation.
Access shall be afforded without charge, but only upon reasonable request and
during the normal business hours at the respective offices of the Servicer.
Nothing in this Section shall affect the obligation of the Servicer to observe
any applicable law prohibiting disclosure of information regarding the
Obligors, and the failure of the Servicer to provide access to information as a
result of such obligation shall not constitute a breach of this Section.
Section 13.13. Reports to Certificateholders and Rating Agencies.
(a) The Trustee shall provide to any Certificateholder or
Certificate Owner who so requests in writing a copy of (i) any Servicer's
Certificate, (ii) any annual statement as to compliance described in Section
13.10(a), (iii) any annual report described in Section 13.11, (iv) any
statement to Certificateholders described in Section 14.11 or (v) the Agreement
(without Exhibits). The Trustee may require such Certificateholder or
Certificate Owner to pay a reasonable sum to cover the cost of the Trustee's
complying with such request.
(b) The Trustee shall forward to each Rating Agency a copy of each
(i) Servicer's Certificate described in Section 13.09, (ii) annual statement as
to compliance described in Section 13.10(a), (iii) Officer's Certificate
described in Section 13.10(b), (iv) Opinion of Counsel described in 13.10(c),
(v) annual independent certified public accountants' report described in
Section 13.11, (vi) statement to Certificateholders described in Section 14.11
and (vii) other report it may receive pursuant to the Agreement at its address
specified in Section 22.05 or in the Agreement.
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ARTICLE FOURTEEN
DISTRIBUTIONS; RESERVE FUND;
PRE-FUNDING ACCOUNT; STATEMENTS TO CERTIFICATEHOLDERS
Section 14.01. Accounts.
(a) The Servicer shall establish the Accounts in the name of the
Trustee for the benefit of the Certificateholders. Each Account shall be a
segregated trust account initially established with the Trustee and maintained
(i) with the Trustee so long as the deposits of the Trustee have the Required
Deposit Rating, or (ii) in a non-interest bearing segregated trust account
bearing a designation clearly indicating that the funds deposited therein are
held in trust for the benefit of the Certificateholders, located in the
corporate trust department of a depository institution or trust company having
corporate trust powers under applicable federal and state laws (which may
include the Trustee) organized under the laws of the United States or any State
and, if required by any Rating Agency, having the Required Long Term Debt
Rating.
(b) For so long as the bank or trust company then maintaining the
Accounts has the Required Deposit Rating, all amounts held in the Accounts
shall, to the extent permitted by applicable laws, rules and regulations, be
invested, as directed by the Servicer, in Permitted Investments. In the event
that the short-term unsecured debt obligations of the Trustee no longer have
the Required Deposit Rating, then the Servicer shall, with the Trustee's
assistance as necessary, cause the Certificate Account and, so long as the
Funding Period has not ended, the Pre-Funding Account, to be moved within 15
days of such occurrence (i) to a bank or trust company, the short-term
unsecured debt obligations of which shall have the Required Deposit Rating, or
(ii) to a non-interest bearing segregated trust account bearing a designation
clearly indicating that the funds deposited therein are held in trust for the
benefit of the Certificateholders, located in the corporate trust department of
a depository institution or trust company having corporate trust powers under
applicable federal and state laws (which may include the Trustee) organized
under the laws of the United States or any State and, if required by any Rating
Agency, having the Required Long Term Debt Rating. Earnings on investment of
funds in the Pre-Funding Account shall be deposited into the Certificate
Account pursuant to Section 14.07(a)(i) and losses and investment expenses
shall be charged against the funds on deposit in the Pre-Funding Account.
Earnings on investment of funds in the Certificate Account shall be paid to the
Servicer.
Section 14.02. Collections. The Servicer shall remit to the
Certificate Account on a daily basis within two Business Days of receipt
thereof, all payments by or on behalf of the Obligors (other than the amounts
listed in subclauses (i)(a) and (b) of the definition of Available Funds as not
constituting Available Funds) on or in respect of the Receivables (other than
Repurchased Receivables) and all Liquidation Proceeds both as collected during
each Collection Period.
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Fleetwood Credit has requested that the Servicer be permitted to make
remittances of collections on a less frequent basis than that specified in the
immediately preceding sentence upon the Servicer's compliance with the specific
terms and conditions set forth below in this Section and for so long as such
terms and conditions are fulfilled. Accordingly, notwithstanding the
provisions of the first sentence of this Section, the Servicer will be
permitted to remit such collections to the Certificate Account in Automated
Clearinghouse Corporation next-day funds or immediately available funds no
later than 12:00 P.M., New York City time, on the Business Day immediately
preceding each Distribution Date but only for so long as (a)(i) except as
provided in clause (b) below, the short-term credit rating of the Servicer is
at least equal to the Required Servicer Rating by each Rating Agency, and (ii)
no Event of Default shall have occurred and be continuing; provided, however,
that immediately following the non-compliance with clause (i) above or in the
event that an event of the nature specified in clause (iii) of Section 19.01
has occurred (notwithstanding any period of grace contained in such clause),
the Servicer shall remit such collections to the Certificate Account on a daily
basis within two Business Days of receipt thereof, or (b)(i) if the condition
specified in clause (a)(ii) above is satisfied, and (ii) the Servicer shall
have obtained a Servicer Letter of Credit issued in favor of the Trustee by a
depository institution or insurance company, as the case may be, having a
short-term credit rating at least equal to the Required Deposit Rating and
providing that the Trustee may draw thereon in the event that the Servicer
fails to deposit collections into the Certificate Account on a monthly basis;
provided that in connection with clause (b) above, the Servicer provides, to
the Trustee, from each Rating Agency for which the Servicer's then-current
short-term credit rating is not at least equal to the Required Servicer Rating
for such Rating Agency, a letter to the effect that the satisfaction of the
conditions in clause (b) above and allowing the Servicer to make monthly
deposits will not result in a qualification, reduction or withdrawal of the
then-current rating of the Rated Certificates and, if applicable, an Officer's
Certificate from the Servicer to the effect that the Servicer's then-current
short-term credit rating is at least equal to the Required Servicer Rating from
each other Rating Agency, if any; and, provided further, that if the Servicer
shall have obtained a Servicer Letter of Credit in accordance with clause (b)
above, the Servicer shall be required to remit such collections in the manner
provided for in Section 15.01(c) under the conditions specified in such
Section. The Trustee shall not be deemed to have knowledge of any event or
circumstance under clause (a)(ii) above that would require daily remittance by
the Servicer to the Certificate Account unless it has received notice of such
event or circumstance from the Seller or the Servicer in an Officer's
Certificate or from Certificateholders as provided in Section 19.01. For
purposes of this Article the phrase "payments made on behalf of Obligors" shall
mean payments made by Persons other than the Seller, the Servicer or the Letter
of Credit Bank, if any.
Any funds held by the Servicer which it determines are to be remitted
(or any of its own funds which the Seller or the Servicer determines to pay to
the Letter of Credit Bank) in respect of a failure previously to remit
collections which failure resulted in a payment under any Servicer Letter of
Credit pursuant to Section 15.01 shall not be remitted to the Certificate
Account, but shall instead be paid immediately and directly to the Letter of
Credit Bank. Any such payment to
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the Letter of Credit Bank shall be accompanied by a copy of the Servicer's
Certificate related to the previous failure to remit funds and an Officer's
Certificate which includes a statement identifying, by reference to the items
in such Servicer's Certificate, each shortfall in Servicer remittances to which
such payment relates. The Servicer will also provide the Trustee with copies
of each such Servicer's Certificate and Officer's Certificate delivered with
any such payment to the Letter of Credit Bank.
Section 14.03. Application of Collections. As of each Record Date,
all collections for the related Collection Period shall be applied by the
Servicer as follows: with respect to each Receivable (including a Defaulted
Receivable), payments by or on behalf of an Obligor shall be applied first to
late payment and extension fees, second to interest accrued on the Receivable,
third to principal of the Receivable and fourth to administrative charges, if
any. Any excess shall be applied to pay the principal balance of the
Receivable.
Section 14.04. Advances. As of each Record Date, the Servicer shall
purchase from the Trust the aggregate Accrued Interest on the Receivables
(including Accrued Interest waived by the Servicer pursuant to Section 13.02)
at a price equal to the face value thereof. On the Business Day immediately
preceding the related Distribution Date, the Servicer shall deposit an amount
equal to the Accrued Interest in respect of each Receivable (an "Advance") in
the Certificate Account in Automated Clearinghouse Corporation next-day funds
or immediately available funds. The Servicer shall be entitled to
reimbursement for unreimbursed Advances, without interest, with respect to a
Receivable from subsequent Collected Interest or Collected Principal, as the
case may be, allocable with respect to such Receivable, Liquidation Proceeds of
or the Repurchase Amount of such Receivable or as otherwise provided in Section
14.07, except as otherwise provided in Sections 13.02 and 13.07. Except as
otherwise provided in Section 13.02, the Servicer shall not be required to make
an Advance to the extent that the Servicer, in its sole discretion, shall
determine that such Advance will not be recoverable from subsequent payments by
or on behalf of the related Obligor, Liquidation Proceeds or the Repurchase
Amount with respect to such Receivable (whether such Receivable is purchased by
the Seller or the Servicer, to the extent such right of reimbursement is not
waived in connection with any such repurchase) or otherwise.
Section 14.05. Non-Reimbursable Payments. As of each Record Date,
the Servicer shall be required to make a payment (the "Non-Reimbursable
Payment") equal to the amount of interest that accrued on the aggregate
Collected Principal for the related Collection Period, at a rate equal to the
sum of (i) the weighted average of the Class A Pass- Through Rate and the Class
B Pass-Through Rate as of the Closing Date and (ii) the Servicing Fee Rate,
from the date of collection of each payment of principal on or in respect of
the Receivables comprising part of such aggregate Collected Principal through
such Record Date, based on a year with the actual number of days in such year
and consisting of twelve months with the actual number of days in such month.
The Servicer shall not be entitled to reimbursement for any Non-Reimbursable
Payment from the Trust, the Trustee, the Seller or the Letter of Credit Bank,
if any. On the
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Business Day immediately preceding each Distribution Date, the Servicer shall
deposit into the Certificate Account in Automated Clearinghouse Corporation
next-day funds or immediately available funds an amount equal to the aggregate
Non-Reimbursable Payments to be made in respect of the related Collection
Period.
Section 14.06. Additional Deposits.
(a) The following additional deposits shall be made to the
Certificate Account: (i) the Servicer or the Seller, as the case may be, shall
remit the aggregate Repurchase Amount with respect to Repurchased Receivables
pursuant to Sections 12.02, 13.07 and 21.02, (ii) the Servicer shall remit the
aggregate Liquidation Proceeds received during each Collection Period (less any
Liquidation Proceeds paid to the Seller or retained by the Servicer) pursuant
to Section 13.03, (iii) the Trustee shall deposit (A) the aggregate of any
amounts received from any Letter of Credit Bank pursuant to Article Fifteen or
(B) from the sale of Receivables pursuant to Section 21.03, in each case on the
date of receipt thereof, and (iv) on the Distribution Date immediately
succeeding the date in which the Funding Period ends (or on the Distribution
Date on which the Funding Period ends, if the Funding Period ends on a
Distribution Date), the Trustee shall remit the remaining Pre-Funded Amount on
deposit in the Pre-Funding Account to the Certificate Account pursuant to
Section 14.09(c).
(b) Except as otherwise provided in Section 14.02, all deposits
required to be made in respect of a Collection Period pursuant to this Section
by the Seller or the Servicer may be made in the form of a single deposit by
the Seller or the Servicer, as the case may be, and shall be made in Automated
Clearinghouse Corporation next-day funds or immediately available funds, no
later than 12:00 P.M., New York City time, on the Business Day preceding each
Distribution Date.
Section 14.07. Distributions.
(a) On each Distribution Date, the Trustee shall cause to be made
the following transfers and distributions in immediately available funds in the
amounts set forth in the Servicer's Certificate for such Distribution Date:
(i) from monies on deposit in the Pre-Funding Account to
the Certificate Account, earnings received from investment of the
Pre-Funded Amount during the related Collection Period; and
(ii) from monies on deposit in the Reserve Fund to the
Certificate Account, an amount equal to the Negative Carry Amount for
the related Collection Period, if any.
(b) The rights of the Class B Certificateholders to receive
distributions in respect of the Class B Certificates shall be and hereby are
subordinated to the rights of the Class A
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Certificateholders to receive distributions in respect of the Class A
Certificates to the extent provided in this Section. On each Distribution
Date, the Trustee shall cause to be made the following transfers and
distributions from the Certificate Account in respect of the related Collection
Period in the following order of priority and in the amounts set forth in the
Servicer's Certificate for such Distribution Date:
(i) to the Servicer in reimbursement of an Advance
previously made in respect of a Receivable, by wire transfer of
immediately available funds, from monies on deposit in the Certificate
Account in respect of (A) the amount of Collected Interest collected
during the related Collection Period in respect of the related
Receivable, (B) the interest portion of the Repurchase Amount (to the
extent that the Repurchase Amount does not consist in part of a waiver
of the right to reimbursement for an Advance made in respect of such
Receivable, as provided in Section 13.02) and (C) the interest portion
of Liquidation Proceeds of such Receivable; provided that no repayment
of an Advance made by the Servicer in respect of a Receivable pursuant
to this subclause, when taken together with all previous repayments
made in respect of such Advance, may exceed the actual amount of the
Advance;
(ii) to the Servicer, by wire transfer of immediately
available funds, the aggregate payment of the Servicing Fee (including
any unpaid Servicing Fees with respect to one or more prior Collection
Periods); provided, however, that such fees shall be provided from
Available Funds only to the extent, as determined by the Servicer
pursuant to Section 14.03, such funds represent payment in respect of
the Receivables allocable to interest;
(iii) to the Class A Certificateholders as of the previous
Record Date from Collected Interest (after giving effect to the
reduction in Collected Interest described in clauses (i) and (ii)
above), an amount equal to the sum of the Class A Interest
Distributable Amount and any outstanding Class A Interest Carryover
Shortfall; and, if such Collected Interest is insufficient, the Class
A Certificateholders will receive such shortfall first, from the Class
B Percentage of Collected Principal and second, if such amounts are
still insufficient, from monies on deposit in the Reserve Fund;
(iv) to the Class B Certificateholders as of the previous
Record Date, from Collected Interest (after giving effect to the
reduction in Collected Interest described in clauses (i), (ii) and
(iii) above), an amount equal to the sum of the Class B Interest
Distributable Amount and any outstanding Class B Interest Carryover
Shortfall; and, if such Collected Interest is insufficient, the Class
B Certificateholders will receive such shortfall from monies on
deposit in the Reserve Fund;
(v) to the Class A Certificateholders as of the previous
Record Date, from Collected Principal (after giving effect to
reduction in Collected Principal described in
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clause (iii) above) an amount equal to the sum of the Class A
Principal Distributable Amount and any outstanding Class A Principal
Carryover Shortfall; and, if such Collected Principal is insufficient,
the Class A Certificateholders will receive such shortfall first, from
Collected Interest (after giving effect to the reduction in Collected
Interest described in clauses (i) through (iv) above) and second, if
such amounts are still insufficient, from monies on deposit in the
Reserve Fund; and
(vi) to the Class B Certificateholders as of the previous
Record Date, from Collected Principal (after giving effect to the
reduction in Collected Principal described in clauses (iii) and (v)
above), an amount equal to the sum of the Class B Principal
Distributable Amount and any outstanding Class B Principal Carryover
Shortfall; and, if such Collected Principal is insufficient, the Class
B Certificateholders will receive such shortfall first, from Collected
Interest (after giving effect to the reduction in Collected Interest
described in clauses (i) through (v) above) and second, if such
amounts are still insufficient, from monies on deposit in the Reserve
Fund.
(c) On each Distribution Date, the Trustee shall distribute any
excess amounts remaining in the Certificate Account in respect of the related
Collection Period after making the distributions described in clauses (b)(i)
through (vi) above ("Excess Amounts") in the following amounts and in the
following order of priority: (i) into the Reserve Fund until the amount on
deposit therein equals the Specified Reserve Fund Balance, and (ii) to the
Seller. Notwithstanding the foregoing, all Excess Amounts will be deposited
into the Reserve Fund and will not be paid to the Seller until the Distribution
Date immediately succeeding the date on which the Funding Period ends (or on
the Distribution Date on which the Funding Period ends if the Funding Period
ends on a Distribution Date).
(d) Subject to Section 21.01 with respect to the final payment
upon retirement of each Certificate, on each Distribution Date the Trustee
shall distribute to the respective Certificateholders of record as of the
previous Record Date by check mailed by the Trustee to each Certificateholder's
respective address (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 Holder's Certificate.
(e) In the event that the Servicer determines that the amount of
an Advance previously made in respect of a Receivable which became a Defaulted
Receivable is not recoverable as a result of the fact that Liquidation Proceeds
of such Defaulted Receivable are insufficient to fully reimburse the Servicer
for such Advance, the Servicer shall be entitled to withdraw from the
Certificate Account an amount equal to the amount that would be necessary to
fully reimburse the Servicer for such Advance, and the amount available for the
other distributions pursuant to this Section will be reduced accordingly.
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Section 14.08. Subordination; Reserve Fund; Priority of
Distributions.
(a) (i) In order to effectuate the subordination provided for
herein and to assure that sufficient amounts to make required
distributions to Certificateholders will be available, the Servicer
shall establish and maintain with the Trustee a separate trust account
(the "Reserve Fund") which will include the money and other property
deposited and held therein pursuant to Section 14.07(c)(i) and this
Section. Except as otherwise provided in the Agreement, the Reserve
Fund shall (A) be a segregated trust account initially established
with the Trustee and maintained with the Trustee so long as the
commercial paper, other short-term unsecured debt obligations or
uninsured deposits of the Trustee have the Required Rating and (B) in
the event that the commercial paper, other short-term unsecured debt
obligations or uninsured deposits of the Trustee no longer have the
Required Rating, within ten Business Days the Servicer shall, with the
assistance of the Trustee as necessary, cause the Reserve Fund to be
moved to (1) a segregated deposit account in a bank or trust company
the commercial paper, other short-term unsecured debt obligations or
uninsured deposits of which shall have the Required Rating, or (2)
segregated trust accounts bearing designations clearly indicating the
funds deposited therein are held in trust for the benefit of the
Certificateholders, located in the corporate trust department of a
depository institution or trust company (which may include the
Trustee) having a long-term deposit rating from Moody's (so long as
Moody's is a Rating Agency) of at least Baa3 (or such lower rating as
Moody's shall approve in writing) and corporate trust powers under
applicable federal and state laws and organized under the laws of the
United States, any State or the Commonwealth of Puerto Rico.
On or prior to the Closing Date, the Seller shall deposit an
amount equal to the Reserve Fund Initial Deposit into the Reserve
Fund. The Reserve Fund shall not be part of the Trust but instead
will be held for the benefit of the Holders of the Certificates. The
Seller hereby acknowledges that any money and other property held in
the Reserve Fund, including the Reserve Fund Initial Deposit (and any
investment earnings thereon), is owned directly by it, and the Seller
hereby agrees to treat the same as its assets (and earnings) for
federal income, state and local franchise tax purposes.
(ii) In order to give effect to the subordination provided
for herein and to assure availability of the amounts maintained in the
Reserve Fund, the Seller hereby sells, conveys and transfers to the
Trustee, as collateral agent, and its successors and assigns, the
Reserve Fund Initial Deposit and all proceeds thereof and hereby
pledges to the Trustee as collateral agent, and its successors and
assigns, all other amounts deposited in or credited to the Reserve
Fund from time to time under the Agreement, all Permitted Investments
made with amounts on deposit therein, all earnings and distributions
thereon and proceeds thereof (other than proceeds constituting net
investment earnings attributable to the Reserve Fund Property)
subject, however, to the limitations set forth below, and solely for
the purpose of securing and providing for payment of the Class A
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and Class B Distributable Amounts, together with any Class A and Class
B Interest Carryover Shortfalls and Class A and Class B Principal
Carryover Shortfalls, in accordance with Section 14.07 and this
Section (all the foregoing, subject to the limitations set forth
below, being the "Reserve Fund Property"), to have and to hold all the
aforesaid property, rights and privileges unto the Trustee, its
successors and assigns, in trust for the uses and purposes, and
subject to the terms and provisions, set forth in this Section. The
Trustee hereby acknowledges such transfer and accepts the trusts
hereunder and shall hold and distribute the Reserve Fund Property in
accordance with the terms and provisions of this Section.
(iii) Consistent with the limited purposes for which such
trust is granted on each Distribution Date, the amounts on deposit in
the Reserve Fund shall be available for distribution as provided in
Section 14.07, in accordance with and subject to the following: if
the amount on deposit in the Reserve Fund (after giving effect to all
deposits thereto and withdrawals therefrom on such Distribution Date)
is greater than the Specified Reserve Fund Balance, the Trustee shall
release and distribute all such amounts to the Seller unless
prohibited from making such distribution by the last sentence of
Section 14.07(c). Upon any such distribution to the Seller, the
Certificateholders will have no further rights in, or claims to, such
amounts.
(b) (i) Amounts held in the Reserve Fund shall be invested in
Permitted Investments in accordance with written instructions from the
Seller and such investments shall not be sold or disposed of prior to
their maturity. Investment earnings attributable to the Reserve Fund
Property shall not be available to satisfy the subordination
provisions of the Agreement and shall not otherwise be subject to any
claims or rights of the Certificateholders or the Servicer. All such
investments shall be made in the name of the Trustee or its nominee,
as collateral agent, and all income and gain realized thereon shall be
solely for the benefit of the Seller and shall be payable by the
Trustee to the Seller on each Distribution Date. Realized losses, if
any, on investment of the Reserve Fund Property shall be charged first
against undistributed investment earnings attributable to the Reserve
Fund Property and then against the Reserve Fund Property.
(ii) With respect to the Reserve Fund Property, the Seller
on behalf of itself, its successors and assigns and the Trustee agree
that:
(A) Any Reserve Fund Property that is held in
deposit accounts shall be held solely in the name of the
Trustee, as collateral agent, at the Trustee (in a segregated
trust account if the deposits of the Trustee do not have the
Required Deposit Rating) or at one or more depository
institutions which have the Required Deposit Rating. Each
such deposit account shall be subject to the exclusive custody
and control of the Trustee, and the Trustee shall have sole
signature authority with respect thereto.
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(B) Any Reserve Fund Property that constitutes
Physical Property shall be delivered to the Trustee, as
collateral agent, in accordance with paragraph (a) of the
definition of "Delivery" and shall be held, pending maturity
or disposition, solely by the Trustee, as collateral agent, or
a Financial Intermediary acting solely for the Trustee, as
collateral agent.
(C) Any Reserve Fund Property that is a
book-entry security held through the Federal Reserve System
pursuant to federal book-entry regulations shall be delivered
in accordance with paragraph (b) of the definition of
"Delivery" and shall be maintained by the Trustee, as
collateral agent, pending maturity or disposition, through
continued book-entry registration of such Reserve Fund
Property as described in such paragraph.
(D) Any Reserve Fund Property that is an
"uncertificated security" under Article 8 of the UCC and that
is not governed by clause (C) above shall be delivered to the
Trustee, as collateral agent, in accordance with paragraph (c)
of the definition of "Delivery" and shall be maintained by the
Trustee, as collateral agent, pending maturity or disposition,
through continued registration of the Trustee's or its
Financial Intermediary's (or its custodian's or its nominee's)
ownership of such security, in its capacity as collateral
agent.
Effective upon Delivery of any Reserve Fund Property in the
form of Physical Property, book-entry securities or uncertificated
securities, the Trustee shall be deemed to have purchased such Reserve
Fund Property for value, in good faith and without notice of any
adverse claim thereto.
(iii) Each of the Seller and the Servicer agrees to take or
cause to be taken such further actions, to execute, deliver and file
or cause to be executed, delivered and filed such further documents
and instruments (including, without limitation, any UCC financing
statements or the Agreement) as may be determined to be necessary in
an Opinion of Counsel to the Seller delivered to the Trustee in order
to perfect the interests created by this Section and otherwise fully
to effectuate the purposes, terms and conditions of this Section. The
Seller and/or the Servicer, as the case may be, shall:
(A) promptly execute, deliver and file any
financing statements, amendments, continuation statements,
assignments, certificates and other documents with respect to
such interests and perform all such other acts as may be
necessary in order to perfect or to maintain the perfection of
the Trustee's security interest; and
(B) make the necessary filings of financing
statements or amendments thereto within five days after the
occurrence of any of the following: (1) any
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change in its corporate name or any trade name; (2) any change
in the location of its chief executive office or principal
place of business; and (3) any merger or consolidation or
other change in its identity or corporate structure and
promptly notify the Trustee of any such filings.
(iv) The Trustee shall not enter into any subordination or
intercreditor agreement with respect to the Reserve Fund Property.
(c) Upon termination of this Agreement in accordance with Section
21.01, any amounts on deposit in the Reserve Fund, after payment of amounts due
to the Class A and Class B Certificateholders, shall be paid to the Seller.
Section 14.09. Pre-Funding Account.
(a) Pursuant to Section 14.01, the Servicer shall establish the
Pre-Funding Account in the name of the Trustee for the benefit of the
Certificateholders.
(b) On the Closing Date, the Seller will deposit in the
Pre-Funding Account an amount equal to the Original Pre-Funded Amount from the
proceeds of the sale of the Certificates. On each Subsequent Transfer Date,
the Servicer shall instruct the Trustee in writing to withdraw from the
Pre-Funding Account an amount equal to the Principal Balance of the Subsequent
Receivables (as of the related Subsequent Cutoff Date) sold to the Trust on
such Subsequent Transfer Date, which instruction shall specify the amount
thereof, and pay such amount to or upon the order of the Seller upon
satisfaction of the conditions set forth in the Agreement and in the related
Transfer Agreement with respect to such transfer.
(c) If (i) the Pre-Funded Amount has not been reduced to zero by
the close of business on the Final Funding Period Distribution Date or (ii) the
Pre-Funded Amount has been reduced to $100,000 or less on any Distribution Date
during the Funding Period, in either case after giving effect to any reductions
in the Pre-Funded Amount on such Distribution Date pursuant to Section
14.09(b), the Servicer shall instruct the Trustee to withdraw such remaining
portion of the Pre-Funded Amount from the Pre-Funding Account and deposit it in
the Certificate Account on such Distribution Date to be applied to a partial
prepayment of the Certificates, in addition to the payment of principal and
interest that otherwise would be payable with respect to such Certificates on
such Distribution Date.
Section 14.10. Net Deposits. For so long as (i) Fleetwood Credit
shall be the Servicer and (ii) the Servicer shall be entitled pursuant to
Section 14.02 to remit collections on a monthly rather than daily basis, the
Servicer may make the remittances pursuant to Sections 14.02, 14.04, 14.05 and
14.06 net of amounts to be distributed to the Servicer pursuant to Section
14.07. Nonetheless, the Servicer shall account for all of the above described
remittances and
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distributions in the Servicer's Certificate as if the amounts were deposited
and/or distributed separately.
Section 14.11. Statements to Certificateholders. On each
Distribution Date, the Trustee shall include with each distribution to each
Class A Certificateholder and Class B Certificateholder of record, a statement
based on information in the related Servicer's Certificate furnished pursuant
to Section 13.09, setting forth for the related Collection Period the following
information (stated in the case of items (i), (ii) and (iii) below, on the
basis of a Certificate with a denomination of $1,000) as of the related Record
Date or such Distribution Date, as the case may be:
(i) the amount of the distribution allocable to principal
on the Class A Certificates and the Class B Certificates;
(ii) the amount of the distribution allocable to interest
on the Class A Certificates and the Class B Certificates;
(iii) the Certificateholder's pro rata portion of the
Servicing Fee and any additional servicing compensation paid to the
Servicer and the fee paid to the Letter of Credit Bank, if any;
(iv) the Pool Balance, the Class A Pool Factor and the
Class B Pool Factor as of the related Record Date;
(v) the amount, if any, of proceeds received during the
related Collection Period in connection with any physical damage
insurance policies covering Financed Vehicles;
(vi) the amount on deposit in the Reserve Fund, after
giving effect to distributions made on such Distribution Date, such
amount as a percentage of the Pool Balance and, if the amount on
deposit in the Reserve Fund has been reduced to zero, the number and
aggregate dollar amount of Defaulted Receivables;
(vii) the Servicer Letter of Credit Amount, if any, and
such amount as a percentage of the Pool Balance;
(viii) the amount if any, of proceeds received during the
related Collection Period from Dealer repurchase obligations relating
to Defaulted Receivables;
(ix) the number and aggregate amount of Paid-Ahead
Receivables, the aggregate amount of unreimbursed Advances made with
respect to such Paid-Ahead Receivables and the change in such amounts
from the previous Collection Period;
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(x) the aggregate amount of unreimbursed Advances and the
change in such amount from the previous Collection Period;
(xi) the Class A Certificate Balance and the Class B
Certificate Balance as of such Record Date, after giving effect to
payments allocated to principal reported under (i) above;
(xii) the amount of Class A Principal and Interest
Carryover Shortfalls and Class B Principal and Interest Carryover
Shortfalls, if any, on such Distribution Date and the change in such
Class A and Class B Principal and Interest Carryover Shortfalls from
the immediately preceding Distribution Date;
(xiii) the amount of Realized Losses, if any, on such
Distribution Date and the change in such amount from the immediately
preceding Distribution Date; and
(xiv) the amount otherwise distributable to the Class B
Certificateholders that is being distributed to the Class A
Certificateholders on such Distribution Date.
(xv) for Distribution Dates during the Funding Period, the
remaining Pre-Funded Amount on deposit in the Pre-Funding Account and
the Negative Carry Amount, if any, for the related Collection Period;
and
(xvi) for the first Distribution Date that is on or
immediately following the end of the Funding Period (if any), the
amount of the Pre-Funded Amount that has not been used to purchase
Subsequent Receivables and is being distributed as a payment of
principal to Certificateholders.
Within a reasonable period of time after the end of each calendar
year, but not later than the latest date permitted by law, the Trustee shall
furnish, to each Person who at any time during such calendar year shall have
been a Certificateholder, a statement containing the sum of the amounts
determined in each of clauses (i) through (iii) and (xiii) above for such
calendar year or, in the event such Person shall have been a Certificateholder
during a portion of such calendar year, for the applicable portion of such
year, for the purposes of such Certificateholder's preparation of federal
income tax returns. In addition, the Servicer shall furnish to the Trustee for
distribution to such Person at such time any other information necessary under
applicable law for the preparation of such income tax returns.
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ARTICLE FIFTEEN
THE SERVICER LETTER OF CREDIT
Section 15.01. Servicer Letter of Credit.
(a) If the Servicer has obtained a Servicer Letter of Credit, on
any Distribution Date which immediately follows a Collection Period during
which the Servicer is permitted to remit collections on a monthly rather than a
daily basis pursuant to Section 14.02 and the Servicer shall have failed to
make in full the remittances to the Certificate Account pursuant to Section
14.02 required for distribution to Certificateholders on such Distribution Date
by 12:00 P.M., New York City time, on the Business Day immediately preceding
such Distribution Date, the Trustee shall immediately deliver a demand for
payment under the Servicer Letter of Credit to the Letter of Credit Bank
requesting payment in the amount of the shortfall between the amount of funds
that are required to be remitted by the Servicer to the Certificate Account as
set forth in the related Servicer's Certificate and the amount of funds
actually so remitted. Upon receipt of a completed demand for payment by the
Trustee under the Servicer Letter of Credit, the Letter of Credit Bank shall
pay or cause to be paid, at the time and in the manner provided in the Servicer
Letter of Credit, an amount equal to the lesser of (i) the amount demanded by
the Trustee and (ii) the amount available under the Servicer Letter of Credit
(the "Servicer Letter of Credit Amount") to the Trustee for deposit to the
Certificate Account. Except as otherwise provided in the Servicer Letter of
Credit, the Servicer Letter of Credit Amount shall equal the lesser of (x) the
product of the Initial Servicer Letter of Credit Amount and the Reset
Percentage, or (y) the Pool Balance as of the related Record Date. For the
purpose of Section 14.07 or 19.01(i), amounts deposited by the Trustee pursuant
to this Section shall be deemed to constitute Servicer remittances with respect
to which the demand on the Servicer Letter of Credit was made.
(b) Any Servicer Letter of Credit may be terminated by the Trustee
at any time when the Servicer's short term debt obligations are rated at least
equal to the Required Servicer Rating by each Rating Agency; provided, however,
that prior to any such termination of the Servicer Letter of Credit, the
Servicer shall furnish to the Trustee, from each Rating Agency for which the
Servicer's then-current short-term credit rating is not at least as specified
above, a letter to the effect that the rating then assigned to the Rated
Certificates will not be qualified, reduced or withdrawn and, if applicable, an
Officer's Certificate of the Servicer to the effect that the Servicer's
then-current short-term credit rating is at least as specified above from each
other Rating Agency, if any. Notwithstanding the foregoing, if the short term
debt obligations of the Servicer are subsequently downgraded below the Required
Servicer Rating by any Rating Agency, the Servicer shall be required to obtain
an insurance policy, letter of credit or surety bond acceptable to each Rating
Agency (as evidenced by a letter from each Rating Agency to the effect that the
rating then assigned to the Rated Certificates will not be qualified, reduced
or withdrawn) which insurance policy or surety bond, if it shall not replace
the Servicer Letter of Credit, shall be drawn upon prior to any draws made upon
the Servicer Letter of Credit pursuant
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to this Section, or the Servicer shall remit collections to the Certificate
Account on a daily basis pursuant to Section 14.02. In addition, the Servicer
may cancel the Servicer Letter of Credit for so long as the Servicer is
required to remit collections to the Certificate Account on a daily basis
pursuant to Section 14.02. The Servicer shall provide notice of such
cancellation of the Servicer Letter of Credit pursuant to the immediately
preceding sentence to each Rating Agency. The Servicer shall also provide
notice of the renewal, if any, of the Servicer Letter of Credit to each Rating
Agency and the Trustee.
(c) Notwithstanding the other provisions of this Section, in the
event that on any day during a Collection Period during which the Servicer is
permitted to remit collections on a monthly rather than a daily basis as a
result of having obtained a Servicer Letter of Credit pursuant to Section 14.02
and the aggregate amount of collections described in the first sentence of
Section 14.02 exceeds the product of the Servicer Letter of Credit Percentage
and the Servicer Letter of Credit Amount, then the Servicer shall cause the
amount of such excess to be deposited into the Certificate Account on the next
succeeding Business Day.
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ARTICLE SIXTEEN
THE CERTIFICATES
Section 16.01. The Certificates. Unless otherwise specified in the
Agreement, the Certificates shall be issued in denominations of $1,000 and
integral multiples thereof in registered form; provided, however, that one
Class A Certificate and one Class B Certificate may be issued in a denomination
that includes any remaining portion of the Original Class A Certificate Balance
or the Original Class B Certificate Balance, as the case may be (each, a
"Residual Certificate"). The Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of an Authorized Officer under the
Trustee's seal imprinted thereon and attested on behalf of the Trust by the
manual or facsimile signature of the Trustee. Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be valid and binding obligations of the Trust, notwithstanding that such
individuals or any of them shall 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.
Section 16.02. Execution, Authentication and Delivery of
Certificates. The Trustee shall deliver to, or 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 Trustee of the
Initial Receivables, the constructive delivery to the Trustee of the Receivable
Files relating thereto and the delivery to the Trustee of the other components
of the Trust, Certificates duly executed by the Trustee, on behalf of the
Trust, and authenticated by the Trustee in authorized denominations equaling in
the aggregate the sum of the Original Class A Certificate Balance and the
Original Class B Certificate Balance, and evidencing the entire ownership of
the Trust. No Certificate shall entitle its holder to any benefit under the
Agreement, or shall be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form appearing
as an Exhibit to the Agreement executed by the Trustee by manual signature;
such authentication shall constitute conclusive evidence that such Certificate
shall have been duly authenticated and delivered hereunder. All Certificates
shall be dated the date of their authentication.
Section 16.03. Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall maintain a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Certificate Registrar shall provide for the registration of Certificates
and of transfers and exchanges of Certificates as herein provided. The Trustee
is hereby initially appointed Certificate Registrar. In the event that,
subsequent to the Closing Date, the Trustee notifies the Servicer that it is
unable to act as Certificate Registrar, the Servicer shall appoint another bank
or trust company, having an office or agency located in the Borough of
Manhattan, The City of New York, agreeing to act in accordance with the
provisions
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of the Agreement applicable to it, and otherwise acceptable to the Trustee, to
act as successor Certificate Registrar under the Agreement.
(b) Upon surrender for registration of transfer of any Certificate
at the office or agency maintained pursuant to Section 16.07, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class, in authorized
denominations of a like aggregate amount dated the date of authentication by
the Trustee. At the option of a Holder, Certificates may be exchanged for
other Certificates of authorized denominations and of a like aggregate amount
upon surrender of the Certificates to be exchanged at such office or agency.
(c) 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 Trustee and the Certificate Registrar duly executed
by the Holder or his attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer and exchange shall be cancelled and
subsequently disposed of by the Trustee.
(d) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the 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.
Section 16.04. Mutilated, Destroyed, Lost or Stolen Certificates. If
(i) any mutilated Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar and the Trustee shall receive
evidence to their satisfaction of the destruction, loss or theft of any
Certificate and (ii) there shall be delivered to the Certificate Registrar and
the Trustee such security or indemnity as may be required to save each of them
harmless, then in the absence of notice that such Certificate shall have been
acquired by a bona fide purchaser, the Trustee on behalf of the Trust shall
execute and the Trustee 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 denomination. In connection with the issuance of
any new Certificate under this Section, the Trustee may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Certificate issued pursuant to
this Section shall constitute conclusive 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 16.05. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Trustee and the Certificate
Registrar may treat the Person in whose name any Certificate shall be
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 14.07 and for all other purposes whatsoever,
and neither the Trustee nor the Certificate Registrar shall be bound by any
notice to the contrary.
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Section 16.06. Access to List of Certificateholder Names and
Addresses. The Certificate Registrar shall furnish or cause to be furnished to
the Servicer, within 15 days after receipt by the Certificate Registrar of a
request therefor from the Servicer in writing, 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 Holders of Certificates of any Class
aggregating not less than 25% of the Voting Interests evidenced by such Class,
apply in writing to the Trustee, and such application states that the
applicants desire to communicate with other Certificateholders with respect to
their rights under the Agreement or under the Certificates and such application
shall be accompanied by a copy of the communication that such applicants
propose to transmit, then the Trustee shall, within five Business Days after
the receipt for such application, afford such applicants access during normal
business hours to the current list of Certificateholders. Each Holder, by
receiving and holding a Certificate, shall be deemed to have agreed to hold
neither the Servicer nor the Trustee accountable by reason of the disclosure of
its name and address, regardless of the source from which such information was
derived.
Section 16.07. Maintenance of Office or Agency. The Certificate
Registrar 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 Certificate Registrar in respect of the Certificates and the Agreement
may be served. Unless otherwise provided in the Agreement, the Trustee shall
designate its Corporate Trust Office as its office for such purposes. The
Certificate Registrar shall give prompt written notice to the Servicer and to
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
Section 16.08. Temporary Certificates. In the event that the
Agreement provides that either Class of Certificates are not to be issued in
book-entry form pursuant to Section 16.09, pending the preparation of
definitive, fully registered Certificates of such Class pursuant to Section
16.11 (the "Definitive Certificates"), the Trustee, on behalf of the Trust, may
execute, authenticate and deliver temporary Certificates of such Class 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 will 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 as provided in Section 16.07, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Certificates, the
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 under the Agreement as Definitive Certificates.
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Section 16.09. Book-Entry Certificates. Unless otherwise specified
in the Agreement, the Class A Certificates and the Class B Certificates, upon
original issuance (except for the Residual Certificates) each 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 Seller. The certificates delivered to DTC evidencing such
Certificates shall initially be registered on the Certificate Register in the
name of CEDE & CO., the nominee of DTC, and no Certificate Owner will receive a
Definitive Certificate representing such Certificate Owner's interest in the
Certificates, except as provided in Section 16.11. Unless otherwise specified
in the Agreement, subject to Section 16.11, unless and until Definitive
Certificates have been issued to Certificate Owners pursuant to Section 16.11:
(i) the provisions of this Section shall be in full force
and effect;
(ii) the Seller, the Servicer, the Certificate Registrar
and the Trustee 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;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of the Agreement, the provisions of
this Section shall control;
(iv) the rights of Certificate Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements between such Certificate Owners and
the Clearing Agency and/or the Clearing Agency Participants and,
pursuant to the related depository agreement, unless and until
Definitive Certificates are issued pursuant to Section 16.11, the
initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit distributions of
principal and interest on the Certificates to such Clearing Agency
Participants; and
(v) whenever the Agreement requires or permits actions to
be taken based upon instructions or directions of Holders of
Certificates evidencing a specified percentage of the Voting Interests
thereof, 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 and/or Clearing Agency
Participants owning or representing, respectively, such required
percentage of the beneficial interest in Certificates and has
delivered such instructions to the Trustee.
Section 16.10. Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders is required under the Agreement, other
than to the Holder of the Residual Certificates, unless and until Definitive
Certificates shall have been issued to Certificate Owners pursuant to Section
16.11, the Trustee and the Servicer shall give all such notices and
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communications specified herein to be given to Holders of the Certificates to
the Clearing Agency.
Section 16.11. Definitive Certificates. If (i)(A) the Seller advises
the Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities as described in the Letter of
Representations and (B) the Trustee or the Seller is unable to locate a
qualified successor, (ii) the Seller at its option, advises the 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, Certificate Owners
representing beneficial interests in Class A Certificates or Class B
Certificates aggregating not less than 51% of the Voting Interests of the
related Class, advise the Trustee and the Clearing Agency through the Clearing
Agency Participants in writing that the continuation of a book-entry system
through the Clearing Agency with respect to such Class is no longer in the best
interests of the related Certificate Owners, then the Trustee shall notify all
such Certificate Owners, through the Clearing Agency, of the occurrence of any
such event and of the availability of Definitive Certificates to such
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Certificates by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency for registration, the 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 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 Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder. The Trustee shall not be liable
if the Trustee or the Seller is unable to locate a qualified successor Clearing
Agency.
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ARTICLE SEVENTEEN
THE SELLER
Section 17.01. Representations of Seller. The Seller shall make the
following representations on which the Trustee shall rely in accepting the
Initial Receivables in trust and executing and authenticating the Certificates
and on which the Trustee shall rely in accepting any Subsequent Receivables in
trust. The representations shall speak as of the execution and delivery of the
Agreement in the case of the Initial Receivables, and as of the related
Subsequent Transfer Date in the case of the Subsequent Receivables, and in each
case shall survive the sale of the related Receivables to the Trustee.
(i) Organization and Good Standing. The Seller shall
have been duly organized and shall be validly existing as a
corporation in good standing under the laws of the State of
California, with power and authority to own its properties and to
conduct its business as such properties shall be currently owned and
such business is presently conducted, and had at all relevant times,
and shall now have, power, authority and legal right to acquire and
own the Receivables.
(ii) Due Qualification. The Seller shall be duly
qualified to do business as a foreign corporation in good standing,
and shall have obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(iii) Power and Authority. The Seller shall have the power
and authority to execute and deliver the Agreement and to carry out
its terms, the Seller shall have full power and authority to sell and
assign the property to be sold and assigned to and deposited with the
Trustee as part of the Trust and shall have duly authorized such sale
and assignment to the Trustee by all necessary corporate action; and
the execution, delivery and performance of the Agreement shall have
been duly authorized by the Seller by all necessary corporate action.
(iv) Valid Sale; Binding Obligations. The Agreement shall
evidence a valid sale, transfer and assignment of the Receivables,
enforceable against creditors of and purchasers from the Seller; and
shall constitute a legal, valid and binding obligation of the Seller
enforceable in accordance with its terms, except as enforceability may
be subject to or limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity, regardless of whether
such enforceability shall be considered in a proceeding in equity or
at law.
(v) No Violation. The consummation of the transactions
contemplated by the Agreement and the fulfillment of the terms of the
Agreement shall not conflict with,
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result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of the Seller, or conflict
with or breach any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a default under,
any indenture, agreement or other instrument to which the Seller is a
party or by which it shall be bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than
the Agreement); nor violate any law or, to the best of the Seller's
knowledge, 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.
(vi) No Proceedings. 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 the Agreement or the
Certificates, (b) seeking to prevent the issuance of the Certificates
or the consummation of any of the transactions contemplated by the
Agreement, (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, the Agreement
or the Certificates or (d) relating to the Seller and which might
adversely affect the federal income tax attributes of the
Certificates.
Section 17.02. Liability of Seller; Indemnities. The Seller shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Seller in such capacity under the Agreement and
shall have no other obligations or liabilities hereunder.
Section 17.03. Merger or Consolidation of, or Assumption of the
Obligations of, Seller; Certain Limitations.
(a) Any corporation (i) into which the Seller may be merged or
consolidated, (ii) which may result from any merger or consolidation to which
the Seller shall be a party or (iii) which may succeed to all or substantially
all of the business of the Seller, which corporation in any of the foregoing
cases executes an agreement of assumption to perform every obligation of the
Seller under the Agreement, shall be the successor to the Seller hereunder
without the execution or filing of any document or any further act by any of
the parties to the Agreement, except that if the Seller in any of the foregoing
cases is not the surviving entity, then the surviving entity shall execute an
agreement of assumption to perform every obligation of the Seller hereunder.
The Seller shall provide notice of any merger, consolidation or succession
pursuant to this Section to each Rating Agency and shall deliver to the Trustee
a letter from each Rating Agency to the effect that such merger, consolidation
or succession will not result in a qualification, reduction or withdrawal of
the then-current rating of the Rated Certificates.
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(b) (i) Subject to paragraph (ii) below, the purpose of the
Seller shall be to engage in any lawful activity for which a
corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business
or the practice of a profession permitted to be incorporated by the
California Corporations Code.
(ii) Notwithstanding paragraph (b)(i) above, the purpose
of the Seller shall be limited to the following purposes, and
activities incident to and necessary or convenient to accomplish the
following purposes: (A) to acquire, own, hold, sell, transfer,
assign, pledge, finance, refinance and otherwise deal with, retail
installment sale contracts or wholesale loans secured by new and used
recreational vehicles (the "Recreational Vehicle Receivables"); (B) to
authorize, issue, sell and deliver one or more series of obligations,
consisting of one or more classes of certificates or notes or other
evidences of indebtedness (the "Offered Securities") that are
collateralized by or evidence an interest in Recreational Vehicle
Receivables; and (C) to negotiate, authorize, execute, deliver and
assume the obligations or any agreement relating to the activities set
forth in clauses (A) and (B) above, including but not limited to any
pooling and servicing agreement, indenture, reimbursement agreement,
credit support agreement, receivables purchase agreement or
underwriting agreement (each, a "Securitization Agreement") or to
engage in any lawful activity which is incidental to the activities
contemplated by any such Securitization Agreement. So long as any
outstanding debt of the Seller or Offered Securities are rated by any
nationally recognized statistical rating organization, the Seller
shall not borrow money other than in connection with the issuance of
Offered Securities by the Corporation pursuant to a Securitization
Agreement unless (I) the Seller has made a written request to the
related nationally recognized statistical rating organization to issue
notes or incur borrowing which notes or borrowing are rated by the
related nationally recognized statistical rating organization the same
as or higher than the rating afforded such rated debt or Offered
Securities, or (II) such notes or borrowings (X) are fully
subordinated (and which shall provide for payment only after payment
in respect of all outstanding rated debt and/or Offered Securities) or
are nonrecourse against any assets of the Seller other than the assets
pledged to secure such notes or borrowing, (Y) do not constitute a
claim against the Seller in the event such assets are insufficient to
pay such notes or borrowing and (Z) where such notes or borrowing are
secured by the rated debt or Offered Securities, are fully
subordinated (and which shall provide for payment only after payment
in respect of all outstanding rated debt and/or Offered Securities) to
such rated debt or Offered Securities.
(c) Notwithstanding any other provision of this Section and any
provision of law, the Seller shall not do any of the following:
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(i) engage in any business or activity other than as set
forth in clause (b) above;
(ii) without the affirmative vote of a majority of the
members of the Board of Directors of the Seller (which must include
the affirmative vote of all duly appointed Independent Directors, as
required by the articles of incorporation of the Seller), (A) dissolve
or liquidate, in whole or in part, or institute proceedings to be
adjudicated bankrupt or insolvent, (B) consent to the institution of
bankruptcy or insolvency proceedings against it, (C) file a petition
seeking or consent to reorganization or relief under any applicable
federal or state law relating to bankruptcy, (D) consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Seller or a substantial part of its
property, (E) make a general assignment for the benefit of creditors,
(F) admit in writing its inability to pay its debts generally as they
become due or (G) take any corporate action in furtherance of the
actions set forth in clauses (A) through (F) above; provided, however,
that no director may be required by any shareholder of the Seller to
consent to the institution of bankruptcy or insolvency proceedings
against the Seller so long as it is solvent; or
(iii) merge or consolidate with any other corporation,
company or entity or sell all or substantially all of its assets or
acquire all or substantially all of the assets or capital stock or
other ownership interest of any other corporation, company or entity,
except for the acquisition of Recreational Vehicle Receivables of
Fleetwood Credit and the sale of Recreational Vehicle Receivables to
one or more trusts in accordance with the terms of clause (b)(ii)
above, on which there shall be no such restriction.
Section 17.04. Limitation on Liability of Seller and Others. The
Seller and any director, officer, employee or agent of the Seller may rely in
good faith on the advice of counsel or on any document of any kind, prima facie
properly executed and submitted by any Person respecting any matters arising
under the Agreement. The Seller shall not be under any obligation to appear
in, prosecute or defend any legal action that shall be unrelated to its
obligations under the Agreement and that in its opinion may involve it in any
expense or liability.
Section 17.05. Seller May Own Certificates. The Seller and any
Person controlling, controlled by or under common control with the Seller may
in its individual or any other capacity become the owner or pledgee of
Certificates with the same rights as it would have if it were not the Seller or
an affiliate thereof, except as otherwise provided in the definition of the
terms "Certificateholder" and "Voting Interests." Certificates so owned by or
pledged to the Seller or such controlling or commonly controlled Person shall
have an equal and proportionate benefit under the provisions of the Agreement,
without preference, priority or distinction as among all of the Certificates.
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Section 17.06. No Transfer of Excess Amounts. The Seller hereby
covenants that, except as otherwise provided in the Agreement, it will not
transfer, pledge or assign to any Person any part of its right to receive any
Excess Amounts pursuant to Section 14.07(c)(ii) unless it has first delivered
to the Trustee and each Rating Agency an Opinion of Counsel in form and
substance satisfactory to the Trustee stating that such transfer will not (i)
adversely affect the status of the Trust as a grantor trust pursuant to subpart
E, part I of subchapter J of the Code and (ii) cause the Reserve Fund to be
taxable as a corporation under the Code. The Seller shall give written notice
to each Rating Agency of any proposed transfer, pledge or assignment to any
Person of all or any part of its right to receive Excess Amounts pursuant to
Section 14.07(c)(ii).
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ARTICLE EIGHTEEN
THE SERVICER
Section 18.01. Representations of Servicer. The Servicer shall make
the following representations on which the Trustee shall rely in accepting the
Initial Receivables in trust and executing and authenticating the Certificates
and on which the Trustee shall rely in accepting any Subsequent Receivables in
trust. The representations shall speak as of the execution and delivery of the
Agreement in the case of the Initial Receivables, and as of the related
Subsequent Transfer Date in the case of the Subsequent Receivables, and in each
case shall survive the sale of the Receivables to the Trustee.
(i) Organization and Good Standing. The Servicer shall
have been duly organized and shall be validly existing as a
corporation in good standing under the laws of the State of
California, with power and authority to own its properties and to
conduct its business as such properties shall be currently owned and
such business is presently conducted, and had at all relevant times,
and shall have, power, authority and legal right to acquire, own, sell
and service the Receivables and to hold the Receivable Files as
custodian on behalf of the Trustee.
(ii) Due Qualification. The Servicer shall be duly
qualified to do business as a foreign corporation in good standing,
and shall have obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business (including the servicing of the Receivables as
required by the Agreement) shall require such qualifications.
(iii) Power and Authority. The Servicer shall have the
power and authority to execute and deliver the Agreement and to carry
out its terms; and the execution, delivery and performance of the
Agreement shall have been duly authorized by the Servicer by all
necessary corporate action.
(iv) Binding Obligations. The Agreement shall constitute
a legal, valid and binding obligation of the Servicer enforceable in
accordance with its terms, except as enforceability may be subject to
or limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at
law.
(v) No Violation. The consummation of the transactions
contemplated by the Agreement and the fulfillment of the terms of the
Agreement shall not conflict with, result in any breach of any of the
terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or
bylaws of the
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Servicer, or conflict with or breach any of the material terms or
provisions of, or constitute (with or without notice or lapse of time)
a default under, any indenture, agreement or other instrument to which
the Servicer is a party or by which it shall be bound; nor result in
the creation or imposition of any lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other
instrument (other than this Agreement); nor violate any law or, to the
best of the Servicer's knowledge, any order, rule or regulation
applicable to the Servicer of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its
properties.
(vi) No Proceedings. There are no Proceedings or
investigations pending, or to the Servicer's best knowledge,
threatened, before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the
Servicer or its properties: (A) asserting the invalidity of this
Agreement or the Securities, (B) seeking to prevent the issuance of
the Securities or the consummation of any of the transactions
contemplated by the Agreement, (C) seeking any determination or ruling
that might materially and adversely affect the performance by the
Servicer of its obligations under, or the validity or enforceability
of, this Agreement or the Securities or (D) relating to the Servicer
and which might adversely affect the federal income tax attributes of
the Securities.
Section 18.02. Liability of Servicer; Indemnities.
(a) The Servicer shall be liable in accordance herewith only to
the extent of the obligations specifically undertaken by the Servicer under the
Agreement and shall have no other obligations or liabilities under the
Agreement. Such obligations shall include the following:
(i) The Servicer shall defend, indemnify and hold
harmless the Trustee, the Trust, the Certificateholders and the Letter
of Credit Bank, if any, from and against any and all costs, expenses,
losses, damages, claims and liabilities, arising out of or resulting
from the use, ownership or operation by the Servicer or any affiliate
thereof of a Financed Vehicle.
(ii) The Servicer shall indemnify, defend and hold
harmless the Trustee, the Trust and the Letter of Credit Bank, if any,
from and against any taxes that may at any time be asserted against
the Trustee, the Trust or the Letter of Credit Bank, if any, with
respect to the transactions contemplated in the Agreement, including
any sales, gross receipts, general corporation, tangible or intangible
personal property, privilege or license taxes (but, in the case of the
Trustee or the Trust, not including any taxes asserted with respect
to, and as of the date of, the sale of the Receivables to the Trustee
or the issuance and original sale of the Certificates, or asserted
with respect to ownership of the
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Receivables, or federal or other income taxes arising out of
distributions on the Certificates) and costs and expenses in defending
against the same.
(iii) The Servicer shall indemnify, defend and hold
harmless the Trustee, the Trust and the Certificateholders from and
against any and all costs, expenses, losses, claims, damages and
liabilities to the extent that such costs, expenses, losses, claims,
damages or liabilities arose out of, or was imposed upon the Trustee,
the Trust or the Certificateholders through the willful misfeasance,
negligence or bad faith of the Servicer in the performance of its
duties under the Agreement.
(iv) The Servicer shall indemnify, defend and hold
harmless the Trustee from and against all costs, expenses, losses,
claims, damages and liabilities arising out of or incurred in
connection with the acceptance or performance of the trusts and duties
herein contained, except to the extent that such costs, expenses,
losses, claims, damages or liabilities shall: (A) be due to the
willful misfeasance, negligence or bad faith of the Trustee; (B)
relate to any tax other than the taxes with respect to which either
the Seller or the Servicer shall be required to indemnify the Trustee;
(C) arise from the breach by the Trustee of any of its representations
or warranties set forth in Section 20.14; (D) be one as to which the
Seller is required to indemnify the Trustee; or (E) arise out of or be
incurred in connection with the performance by the Trustee of the
duties of successor Servicer hereunder.
(b) Indemnification under this Section shall include reasonable
fees and expenses of counsel and expenses of litigation. If the Servicer shall
have made any indemnity payments pursuant to this Section and the recipient
thereafter collects any of such amounts from others, the recipient shall
promptly repay such amounts to the Servicer, without interest.
Section 18.03. Merger, Consolidation or Assumption of Obligations of
Servicer. Any corporation (i) into which the Servicer may be merged or
consolidated, (ii) which may result from any merger or consolidation to which
the Servicer shall be a party or (iii) which may succeed to all or
substantially all of the business of the Servicer, which corporation shall
execute an agreement of assumption to perform every obligation of the Servicer
under the Agreement, shall be the successor to the Servicer under the Agreement
without further act on the part of any of the parties to the Agreement. The
Servicer shall promptly provide notice and inform the Trustee and each Rating
Agency of any merger, consolidation or succession pursuant to this Section.
Section 18.04. Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of its directors, officers,
employees or agents shall be under any liability to the Trust, the Trustee or
the Certificateholders, except as provided in the Agreement, for any action
taken or for refraining from the taking of any action pursuant to the
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Agreement; provided, however, that this provision shall not protect the
Servicer or any such individual against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties under the Agreement. The Servicer and any director, officer, employee
or agent of the Servicer may rely in good faith on any document of any kind,
prima facie properly executed and submitted by any Person respecting any
matters arising under the Agreement.
(b) Except as provided in the Agreement, the Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action that
shall not be incidental to its duties to service the Receivables in accordance
with the Agreement, and that in its opinion may involve it in any expense or
liability; provided, however, that the Servicer may undertake any reasonable
action that it may deem necessary or desirable in respect of the Agreement and
the rights and duties of the parties to the Agreement and the interests of the
Certificateholders under the Agreement.
(c) The Servicer and any director, officer, employee or agent of
the Servicer may rely in good faith on the advice of counsel or on any document
of any kind, prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that shall not be
incidental to its obligations under the Agreement and that in its opinion may
involve it in any expense or liability.
Section 18.05. Servicer Not to Resign. The Servicer shall not resign
from its obligations and duties under the Agreement except upon determination
that the performance of its duties shall no longer be permissible under
applicable law. Any such determination permitting the resignation of the
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered
to the Trustee. No such resignation shall become effective until the Trustee
or a Successor Servicer shall have assumed the responsibilities and obligations
of the Servicer in accordance with Section 19.02.
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ARTICLE NINETEEN
EVENTS OF DEFAULT
Section 19.01. Events of Default. If any one of the following events
("Events of Default") shall occur and be continuing:
(i) failure by the Servicer to deliver to the Trustee the
Servicer's Certificate for the related Collection Period, or any
failure by the Servicer (or, so long as the Servicer is Fleetwood
Credit, the Seller) to deliver to the Trustee, for distribution to
Certificateholders, any proceeds or payment required to be so
delivered under the terms of the Certificates or the Agreement, in
each case, that continues unremedied for a period of three Business
Days after discovery by an officer of the Servicer (or, so long as the
Servicer is Fleetwood Credit, the Seller) or written notice of such
failure is given (1) to the Servicer or the Seller, as the case may
be, by the Trustee or (2) to the Trustee and the Servicer or the
Seller, as the case may be, by the Holders of Certificates evidencing
not less than 25% of the Voting Interests of the Class A Certificates
and the Class B Certificates, voting together as a single class;
(ii) failure by the Servicer (or so long as the Servicer
is Fleetwood Credit, the Seller) to duly observe or perform in any
material respect any other covenants or agreements of the Servicer (or
so long as the Servicer is Fleetwood Credit, the Seller) set forth in
the Certificates or in the Agreement, which failure shall (a)
materially and adversely affect the rights of the Certificateholders
and (b) continue unremedied for a period of 60 days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given (1) to the Servicer or the Seller, as
the case may be, by the Trustee or (2) to the Trustee and the Servicer
or the Seller, as the case may be, by the Holders of Certificates
evidencing not less than 25% of the Voting Interests of the Class A
Certificates and the Class B Certificates, voting together as a single
class;
(iii) the entry of a decree or order by a court, agency or
supervisory authority having jurisdiction in the premises for the
appointment of a trustee in bankruptcy, conservator, receiver or
liquidator for the Servicer (or, so long as the Servicer is Fleetwood
Credit, the Seller) in any bankruptcy, insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings, or
for the winding up or liquidation of their respective affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days;
(iv) the consent by the Servicer (or, so long as the
Servicer is Fleetwood Credit, the Seller) to the appointment of a
trustee in bankruptcy, conservator or receiver or liquidator in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings of or relating to the Servicer
(or, so long as the
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Servicer is Fleetwood Credit, the Seller) of or relating to
substantially all of its property; or admission by the Servicer (or,
so long as the Servicer is Fleetwood Credit, the Seller) in writing of
its inability to pay its debts generally as they become due, filing of
a petition to take advantage of any applicable insolvency or
reorganization statute, assignment for the benefit of its creditors or
voluntary suspension of payment of its obligations;
then, and in each and every case, so long as such Event of Default shall not
have been remedied, either the Trustee or the Holders of Certificates
evidencing not less than 51% of the Voting Interests of the Class A
Certificates and the Class B Certificates, voting together as a single class,
by notice given in writing to the Servicer (and to the Trustee if given by
Class A and Class B Certificateholders), may terminate all of the rights and
obligations of the Servicer under the Agreement. On or after the receipt by
the Servicer of such written notice, all authority and power of the Servicer
under the Agreement, whether with respect to the Certificates, the Receivables
or otherwise, shall, without further action, pass to and be vested in the
Trustee or such Successor Servicer as may be appointed under Section 19.02;
and, without limitation, the Trustee shall be hereby authorized and empowered
to execute and deliver, on behalf of the predecessor Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer
and endorsement of the Receivables and related documents, or otherwise. The
predecessor Servicer shall cooperate with the Successor Servicer and the
Trustee in effecting the termination of the responsibilities and rights of the
predecessor Servicer under the Agreement, including the transfer to the
Successor Servicer for administration by it of all cash amounts that shall at
the time be held by the predecessor Servicer for deposit, shall have been
deposited by the predecessor Servicer in the Certificate Account or shall
thereafter be received with respect to a Receivable. All reasonable costs and
expenses (including attorneys' fees) incurred in connection with transferring
the Receivable Files to the Successor Servicer and amending the Agreement to
reflect such succession as Servicer pursuant to this Section shall be paid by
the predecessor Servicer upon presentation of reasonable documentation of such
costs and expenses.
Section 19.02. Trustee to Act; Appointment of Successor Servicer.
Upon the Servicer's receipt of notice of termination pursuant to Section 19.01
or resignation pursuant to Section 18.05, the Trustee shall be the successor in
all respects to the Servicer in its capacity as Servicer under the Agreement (a
"Successor Servicer"), and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions of the Agreement. As compensation therefor, the Trustee shall be
entitled to such compensation (whether payable out of the Certificate Account
or otherwise) as the Servicer would have been entitled to under the Agreement
if no such notice of termination or resignation had been given.
Notwithstanding the foregoing, the Trustee may, if it shall be unwilling to so
act, or shall, if it shall be legally unable so to act, appoint, or petition a
court of competent jurisdiction to appoint, any established institution, having
a net worth of not less than $100,000,000 and whose regular business shall
include the servicing of recreational vehicle or motor vehicle receivables, as
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Successor Servicer; provided that the appointment of any such Successor
Servicer (whether the Trustee or another entity) will not result in the
qualification, reduction or withdrawal of the rating then assigned to the Rated
Certificates by each Rating Agency. In connection with such appointment, the
Trustee may make such arrangements for the compensation of such Successor
Servicer out of payments on the Receivables as it and such Successor Servicer
shall agree; provided, however, that such compensation shall not be in excess
of that permitted the Servicer under the Agreement. The Trustee and such
Successor Servicer shall take such action, consistent with the Agreement, as
shall be necessary to effectuate any such succession. The Trustee shall not be
relieved of its duties as Successor Servicer under this Section until the newly
appointed Servicer shall have assumed the responsibilities and obligations of
the Servicer under the Agreement.
Section 19.03. Reimbursement for Advances. If a Successor Servicer
replaces the Servicer, the predecessor Servicer shall be entitled to receive
reimbursement for Advances previously made by such Servicer, in the manner
specified, and to the extent provided, in Section 14.04.
Section 19.04. Notification of Events of Default. Upon (i) the
occurrence of an Event of Default and the expiration of any cure period
applicable thereto or (ii) any termination of, or appointment of a successor
to, the Servicer pursuant to this Article, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register, to the Letter of Credit Bank, if any,
and to each Rating Agency.
Section 19.05. Waiver of Past Defaults. The Holders of Class A
Certificates and Class B Certificates evidencing not less than 51% of the
Voting Interests thereof, voting together as a single class, may, on behalf of
all Holders of Certificates, waive any default by the Servicer in the
performance of its obligations under the Agreement and its consequences, except
a default in making any required deposits to or payments from the Certificate
Account in accordance with the Agreement or in respect of a covenant or
provision hereof that under Section 22.01 cannot be modified or amended without
the consent of the Holder of each Certificate. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of the
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
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ARTICLE TWENTY
THE TRUSTEE
Section 20.01. Duties of Trustee. The Trustee, both prior to and
after the occurrence of an Event of Default, shall undertake to perform such
duties as are specifically set forth in the Agreement. If an Event of Default
shall have occurred and shall not have been cured or waived, the Trustee shall
exercise such of the rights and powers vested in it by the Agreement, and shall
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
provided, however, that if the Trustee shall become a Successor Servicer
pursuant to Section 19.02, the Trustee in performing such duties shall use the
degree of skill and attention customarily exercised by a servicer with respect
to recreational vehicle or motor vehicle receivables that it services for
itself or others.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that shall be specifically required to be furnished pursuant to
any provision of the Agreement, shall examine them to determine whether they
conform to the requirements of the Agreement.
No provision of the Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, its own bad faith or its own willful misfeasance; provided, however,
that:
(i) prior to the occurrence of an Event of Default, and
after the curing or waiving of all such Events of Default that may
have occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of the Agreement, the
Trustee shall not be liable except for the performance of such duties
and obligations as shall be specifically set forth in the Agreement,
no implied covenants or obligations shall be read into the Agreement
against the Trustee, the permissive right of the Trustee to do things
enumerated in the Agreement shall not be construed as a duty and, in
the absence of bad faith on the part of the Trustee or manifest error,
the Trustee may conclusively rely on the truth of the statements and
the correctness of the opinions expressed upon any certificates or
opinions furnished to the Trustee and conforming to the requirements
of the Agreement;
(ii) the Trustee shall not be personally liable for an
error of judgment made in good faith by an Authorized Officer, unless
it shall be proved that the Trustee shall have been negligent in
performing its duties in accordance with the terms of the Agreement;
and
(iii) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken in good
faith in accordance with the direction of the
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Holders of Certificates evidencing not less than 25% of the Voting
Interests of the Class A Certificates and the Class B Certificates,
voting together as a single class, relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under the Agreement.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
under the Agreement, or in the exercise of any of its rights or powers, if
there shall be reasonable grounds for believing that the repayment of such
funds or adequate indemnity against such risk or liability shall not be
reasonably assured to it, and none of the provisions contained in the Agreement
shall in any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer under the
Agreement except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges of,
the Servicer in accordance with the terms of the Agreement.
Except for actions expressly authorized by the Agreement, the Trustee
shall take no action reasonably likely to impair the security interests created
or existing under any Receivable or to impair the value of any Receivable.
All information obtained by the Trustee regarding the Obligors and the
Receivables, whether upon the exercise of its rights under the Agreement or
otherwise, shall be maintained by the Trustee in confidence and shall not be
disclosed to any other Person, unless such disclosure is required by any
applicable law or regulation.
Section 20.02. Trustee's Certificate. On or as soon as practicable
after each Record Date as of which Receivables shall be assigned to the Seller
or the Servicer, as applicable, pursuant to Section 20.03, the Trustee shall
execute a Trustee's Certificate, based on the information contained in the
Servicer's Certificate for the related Collection Period, amounts deposited to
the Certificate Account and notices received pursuant to the Agreement,
identifying the Receivables repurchased by the Seller pursuant to Section 12.02
or 21.02 or purchased by the Servicer pursuant to Section 13.07 or 21.02 during
such Collection Period, and shall deliver such Trustee's Certificate,
accompanied by a copy of the Servicer's Certificate for such Collection Period
to the Seller or the Servicer, as the case may be. The Trustee's Certificate
submitted with respect to such Distribution Date shall operate, as of such
Distribution Date, as an assignment, without recourse, representation or
warranty, to the Seller or the Servicer, as the case may be, of all the
Trustee's right, title and interest in and to such Repurchased Receivable and
to the other property conveyed to the Trust pursuant to Section 12.01 with
respect to such Repurchased Receivable, and all security and documents relating
thereto, such assignment being an assignment outright and not for security.
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Section 20.03. Trustee's Assignment of Repurchased and Removed
Receivables. With respect to Receivables repurchased by the Seller pursuant to
Section 12.02 or 21.02 or purchased by the Servicer pursuant to Section 13.07
or 21.02, the Trustee shall by a Trustee's Certificate assign, without
recourse, representation or warranty, to the Seller or the Servicer, as the
case may be, all the Trustee's right, title and interest in and to such
Receivable and the other property conveyed to the Trust pursuant to Section
2.01 with respect to such Receivable, and all security and documents relating
thereto, such assignment being an assignment outright and not for security.
If, in any enforcement suit or legal proceeding, it shall be held that the
Servicer may not enforce a Receivable on the ground that it shall not be a real
party in interest or a holder entitled to enforce the Receivable, the Trustee
shall, at the Servicer's expense, take such steps as the Trustee deems
necessary to enforce the Receivable, including bringing suit in the name of the
Trustee or the names of the Certificateholders.
Section 20.04. Certain Matters Affecting Trustee.
(a) Except as otherwise provided in Section 20.01:
(i) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate of auditors
or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it under the
Agreement in good faith and in accordance with such Opinion of
Counsel;
(iii) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by the Agreement, or to
institute, conduct or defend any litigation under the Agreement or in
relation to the Agreement, at the request, order or direction of any
of the Certificateholders pursuant to the provisions of the Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby; however, nothing
contained in the Agreement shall relieve the Trustee of its
obligation, upon the occurrence of an Event of Default (that shall not
have been cured or waived), to exercise such of the rights and powers
vested in it by the Agreement, and to use the same degree of care and
skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
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(iv) the Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers
conferred upon it by the Agreement;
(v) prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default that may have
occurred, the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in
writing to do so by Holders of Class A Certificates and Class B
Certificates evidencing not less than 25% of the Voting Interests
thereof, voting together as a single class; provided, however, that if
the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation shall be, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by
the terms of the Agreement, the Trustee may require reasonable
indemnity against such cost, expense or liability as a condition to so
proceeding; the reasonable expense of every such examination shall be
paid by the Seller or the Servicer, as the case may be, or, if paid by
the Trustee, shall be reimbursed by the Servicer upon demand; and
nothing in this clause (v) shall affect the obligation of the Servicer
to observe any applicable law prohibiting disclosure of information
regarding the Obligors; and
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties under the Agreement either directly or
by or through agents or attorneys or a custodian.
(b) No Certificateholder will have any right to institute any
proceeding with respect to the Agreement, unless such Holder shall have given
to the Trustee written notice of default and (i) the Event of Default arises
from the Servicer's failure to remit collections or payments when due or (ii)
the Holders of Class A Certificates and Class B Certificates evidencing not
less than 25% of the Voting Interests thereof, voting together as a single
class, have made written request upon the Trustee to institute such proceeding
in its own name as Trustee thereunder, and have offered to the Trustee
reasonable indemnity, and the Trustee for 30 days has neglected or refused to
institute any such proceedings.
Section 20.05. Trustee Not Liable for Certificates or Receivables.
The Trustee shall make no representations as to the validity or sufficiency of
the Agreement or of the Certificates (other than the execution by the Trustee
on behalf of the Trust of, and the certificate of authentication on, the
Certificates) or of any Receivable or related document. The Trustee shall have
no obligation to perform any of the duties of the Seller or Servicer unless
explicitly set forth in the Agreement. The Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any security interest in any Financed Vehicle or any
Receivable, or the perfection and priority of such a security interest or the
maintenance of
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any such perfection and priority; the efficacy of the Trust or its ability to
generate the payments to be distributed to Certificateholders under the
Agreement; the existence, condition, location and ownership of any Financed
Vehicle; the existence and enforceability of any physical damage or credit life
or credit disability insurance; the existence and contents of any Receivable or
any computer or other record thereof; the validity of the assignment of any
Receivable to the Trust or 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 warranty or representation
made under the Agreement or in any related document and the accuracy of any
such warranty or representation prior to the Trustee's receipt of notice or
other discovery of any noncompliance therewith or any breach thereof; any
investment of monies by the Servicer or any loss resulting therefrom (it being
understood that the Trustee shall remain responsible for any Trust property
that it may hold); the acts or omissions of the Seller, the Servicer or any
Obligor; any action of the Servicer taken in the name of the Trustee; or any
action by the Trustee taken at the instruction of the Servicer; provided,
however, that the foregoing shall not relieve the Trustee of its obligation to
perform its duties under the Agreement. Except with respect to a claim based
on the failure of the Trustee to perform its duties under the Agreement or
based on the Trustee's willful misconduct, bad faith or negligence no recourse
shall be had for any claim based on any provision of the Agreement, the
Certificates or any Receivable or assignment thereof against the Trustee in its
individual capacity. The Trustee shall not have any personal obligation,
liability or duty whatsoever to any Certificateholder or any other Person with
respect to any such claim, and any such claim shall be asserted solely against
the Trust or any indemnitor who shall furnish indemnity as provided in the
Agreement. The Trustee shall not be accountable for the use or application by
the Seller of any of the Certificates or of the proceeds thereof, or for the
use or application of any funds paid to the Servicer in respect of the
Receivables.
Section 20.06. Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Certificates with the same rights as it would have if it were not Trustee.
Section 20.07. Trustee's Fees and Expenses. The Servicer shall
covenant and agree to pay to the Trustee, and the Trustee shall be entitled to,
reasonable compensation (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) for all services
rendered by it in connection with the execution of the trusts created by the
Agreement and in the exercise and performance of any of the powers and duties
under the Agreement of the Trustee, and the Servicer shall pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances (including the reasonable compensation and the expenses and
disbursements of its counsel and of all individuals not regularly in its
employ) incurred or made by the Trustee in defense of any action brought
against it in connection with the Agreement except any such expense,
disbursement or advance as may arise from its negligence, willful misfeasance
or bad faith or that is the responsibility of Certificateholders under the
Agreement. Additionally, the Servicer, pursuant to Section 18.02, shall
indemnify the Trustee with respect to certain matters, and Certificateholders,
pursuant to
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Section 20.04 shall, upon the circumstances therein set forth, indemnify the
Trustee under certain circumstances.
Section 20.08. Indemnity of Trustee and Successor Servicer. Upon the
appointment of a Successor Servicer pursuant to Section 19.02, such Successor
Servicer and the Trustee and their respective agents and employees shall be
indemnified by the Trust and held harmless against any loss, liability, or
expense (including reasonable attorney's fees and expenses) arising out of or
incurred in connection with the acceptance of performance of the trusts and
duties contained in the Agreement to the extent that (i) the Successor Servicer
or the Trustee, as the case may be, shall not be indemnified for such loss,
liability or expense by the Servicer pursuant to Section 18.02; (ii) such loss,
liability or expense shall not have been incurred by reason of the Successor
Servicer's or the Trustee's willful misfeasance, bad faith or negligence; and
(iii) such loss, liability or expense shall not have been incurred by reason of
the Successor Servicer's or the Trustee's breach of its respective
representations and warranties pursuant to Sections 18.01 and 20.14,
respectively.
The Successor Servicer and/or the Trustee shall be entitled to the
indemnification provided by this Section only to the extent all amounts due the
Class A Certificateholders and the Class B Certificateholders with respect to
any Distribution Date pursuant to Section 14.07 have been paid in full and all
amounts required to be deposited in the Reserve Fund with respect to any
Distribution Date pursuant to Section 14.07(b)(i) have been so deposited.
Section 20.09. Eligibility Requirements for Trustee. The Trustee
under the Agreement shall at all times be a corporation having its corporate
trust office in the same State as the location of the Corporate Trust Office as
specified in the Agreement, organized and doing business under the laws of such
State or the United States, authorized under such laws to exercise corporate
trust powers, have a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by federal or state authorities and, if
required by any Rating Agency, having the Required Long Term Debt Rating.
If the Trustee shall publish reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid 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 Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 20.10.
Section 20.10. Resignation or Removal of Trustee. The 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 Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor Trustee. If no successor
Trustee shall
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have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 20.09 and shall fail to resign after written
request therefor by the Servicer, or if at any time the Trustee shall be
legally unable to act, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the Servicer may remove the Trustee. If it shall remove the Trustee under the
authority of the immediately preceding sentence, the Servicer shall promptly
appoint a successor Trustee by written instrument, in duplicate, one copy of
which shall be delivered to the Trustee so removed and one copy to the
successor Trustee and payment of all fees owed to the outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to this Section shall not become effective until
acceptance of appointment by the successor Trustee pursuant to Section 20.11.
Section 20.11. Successor Trustee. Any successor Trustee appointed
pursuant to Section 20.10 shall execute, acknowledge and deliver to the
Servicer and to its predecessor Trustee an instrument accepting such
appointment under the Agreement, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor under the
Agreement, with like effect as if originally named as Trustee. The predecessor
Trustee shall deliver to the successor Trustee all documents and statements and
monies held by it under the Agreement; and the Servicer and the predecessor
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 Trustee all such rights, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall be
eligible pursuant to Section 20.09.
Upon acceptance of appointment by a successor Trustee pursuant to this
Section, the Servicer shall mail notice of the successor of such Trustee under
the Agreement to all Holders of Certificates at their addresses as shown in the
Certificate Register and shall give notice by mail to the Rating Agencies. If
the Servicer shall fail to mail such notice within ten days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Servicer.
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Section 20.12. Merger or Consolidation of Trustee. Any corporation
(i) into which the Trustee may be merged or consolidated, (ii) which may result
from any merger, conversion or consolidation to which the Trustee shall be a
party or (iii) which may succeed to the business of the Trustee, which
corporation executes an agreement of assumption to perform every obligation of
the Trustee under the Agreement, shall be the successor of the Trustee
hereunder, provided such corporation shall be eligible pursuant to Section
20.09, 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. Notice of any such merger shall be given by the Trustee to
the Rating Agencies.
Section 20.13. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of the Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or any Financed Vehicle may at the time be located, the Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
to act as co-trustee, jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in such Person, in such
capacity and for the benefit of the Certificateholders, 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 Servicer
and the Trustee may consider necessary or desirable. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee under the Agreement shall be required to meet
the terms of eligibility as a successor Trustee pursuant to Section 20.09 and
no notice of a successor Trustee pursuant to Section 20.11 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required pursuant to Section 20.11.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred upon and exercised or
performed by the 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 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 (whether as
Trustee under the Agreement or as successor to the Servicer under the
Agreement), the 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 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 Trustee;
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(ii) no trustee under the Agreement shall be personally
liable by reason of any act or omission of any other trustee under the
Agreement; and
(iii) the Servicer and the 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 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 the 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
Trustee or separately, as may be provided therein, subject to all the
provisions of the Agreement, specifically including every provision of the
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Each such instrument shall be filed with the
Trustee and a copy thereof given to the Servicer.
Any separate trustee or co-trustee may at any time appoint the
Trustee, 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 the
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 Trustee, to the extent permitted by law, without the appointment of a
new or successor trustee. Notwithstanding anything to the contrary in the
Agreement, the appointment of any separate trustee or co-trustee shall not
relieve the Trustee of its obligations and duties under the Agreement.
Section 20.14. Representations and Warranties of Trustee. The
Trustee shall make the following representations and warranties on which the
Seller and Certificateholders may rely:
(i) Organization and Good Standing. The Trustee is a
banking corporation duly organized, validly existing and in good
standing under the laws of its place of incorporation.
(ii) Power and Authority. The Trustee has full power,
authority and legal right to execute, deliver and perform its duties
and obligations under the Agreement, and shall have taken all
necessary action to authorize the execution, delivery and performance
by it of the Agreement.
(iii) No Violation. The execution, delivery and
performance by the Trustee of the Agreement (a) shall not violate any
provision of any law governing the banking and trust powers of the
Trustee or, to the best of the Trustee's knowledge, any order, writ,
judgment or decree of any court, arbitrator or governmental authority
applicable to the Trustee or any of its assets, (b) shall not violate
any provision of the corporate charter or
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by-laws of the Trustee and (c) shall not violate any provision of,
constitute, with or without notice or lapse of time, a default under
or result in the creation or imposition of any Lien on any properties
included in the Trust pursuant to the provisions of any mortgage,
indenture, contract, agreement or other undertaking to which it is a
party, which violation, default or Lien could reasonably be expected
to materially and adversely affect the Trustee's performance or
ability to perform its duties under the Agreement or the transactions
contemplated in the Agreement.
(iv) No Authorization Required. The execution, delivery
and performance by the Trustee of the Agreement shall not require the
authorization, consent or approval of, the giving of notice to, the
filing or registration with or the taking of any other action in
respect of, any governmental authority or agency regulating the
banking and corporate trust activities of the Trustee.
(v) Duly Executed. The Agreement shall have been duly
executed and delivered by the Trustee and shall constitute the legal,
valid and binding agreement of the Trustee, enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or at law.
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ARTICLE TWENTY ONE
TERMINATION
Section 21.01. Termination of the Trust. The Trust and the
respective obligations and responsibilities of the Seller, the Servicer, any
Letter of Credit Bank and the Trustee shall terminate upon the first to occur
of (i) the purchase on any Distribution Date by the Seller or the Servicer, or
any successor to the Servicer, at its option, pursuant to Section 21.02, of the
corpus of the Trust, (ii) the payment to Certificateholders of all amounts
required to be paid to them pursuant to the Agreement, (iii) the maturity or
liquidation of the last Receivable and the disposition of all property held as
part of the Trust or (iv) the sale by the Trustee of all of the Receivables
remaining in the Trust pursuant to Section 21.03; provided, however, that in no
event shall the trust created by the Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of George
Herbert Walker Bush of the State of Texas living on the date of the Agreement.
The Servicer shall promptly notify the Trustee of any prospective termination
pursuant to this Section.
Notice of any termination, specifying the Distribution Date upon which
Certificateholders are expected to be able to surrender their Certificates to
the Trustee for payment of the final distribution and cancellation, shall be
given promptly by the Trustee by letter to Certificateholders and each Rating
Agency mailed not earlier than the 15th day and not later than the 25th day of
the month next preceding the specified Distribution Date stating (i) the
Distribution Date upon which final payment of the Certificates shall be made
upon presentation and surrender of the Certificates at the office of the
Trustee therein designated, (ii) the amount of any such final payment and (iii)
if applicable, 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 Trustee therein specified.
The Trustee shall give such notice to the Certificate Registrar (if other than
the Trustee) and the Letter of Credit Bank, if any, at the time such notice is
given to Certificateholders. Upon presentation and surrender of the
Certificates, the Trustee shall cause to be distributed to Certificateholders
amounts distributable on such Distribution Date pursuant to Section 14.07.
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 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 the Certificates shall not have
been surrendered for cancellation, the 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 the Agreement. Any funds remaining in the Trust after exhaustion of
such remedies shall be distributed by the Trustee to the United Way.
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As soon as practicable after the Distribution Date specified for the
final distribution or upon such other date upon which all amounts to be paid to
the Certificateholders pursuant to the Agreement have been paid, the Trustee
shall surrender the Servicer Letter of Credit to the Letter of Credit Bank for
cancellation.
Section 21.02. Optional Purchase of All Receivables. On each
Distribution Date following a Record Date as of which the Pool Balance is 10%
or less of the sum of the Original Pool Balance and the aggregate principal
balance of all Subsequent Receivables conveyed to the Trust as of the related
Subsequent Cutoff Dates, the Seller or the Servicer, or any successor to the
Servicer, shall have the option to purchase the corpus of the Trust; provided
that the option to purchase provided in this Section shall not be exercised if
the final distribution to Certificateholders would be less than the aggregate
outstanding principal amount of the Certificates plus the sum of (i) the Class
A Interest Distributable Amount for the related Distribution Date, (ii) any
outstanding Class A Interest Carryover Shortfall, (iii) the Class B Interest
Distributable Amount for such Distribution Date and (iv) any outstanding Class
B Interest Carryover Shortfall. To exercise such option, the Seller or the
Servicer, or any successor to the Servicer, as the case may be, shall notify
the Trustee in writing, no later than the tenth day of the month in which the
Record Date as of which such purchase is to be effected and, if there are any
Book-Entry Certificates, the Clearing Agency in accordance with the Letter of
Representations, and shall deposit pursuant to Section 14.06 in the Certificate
Account an amount equal to the aggregate Repurchase Amount for the Receivables
(including Defaulted Receivables), plus the appraised value of any other
property held by the Trust (less liquidation expenses), such value to be
determined by an appraiser mutually agreed upon by the Servicer and the
Trustee, and shall succeed to all interests in and to the Trust; provided,
however, the Seller or the Servicer, or any successor to the Servicer, as the
case may be, may not effect any such purchase if the long-term unsecured debt
obligations of the related entity are rated less than Baa3, unless the Trustee
shall have received an Opinion of Counsel that such purchase will not
constitute a fraudulent conveyance. The payment shall be made in the manner
specified in Section 14.06(a)(i), and shall be distributed pursuant to Section
14.07. In the event that both the Seller and the Servicer, or any successor to
the Servicer, elect to purchase the Receivables pursuant to this Section, the
party first notifying the Trustee (based on the Trustee's receipt of such
notice) shall be permitted to purchase the Receivables.
Section 21.03. Sale of All Receivables. If none of the Seller, the
Servicer or any successor to the Servicer exercises its optional termination
right pursuant to Section 21.02 within 90 days after the last day of the
Collection Period as of which such right can first be exercised, in accordance
with the procedures and schedule set forth as an Exhibit to the Agreement (the
"Auction Procedures"), the Trustee shall conduct an auction (the "Auction") of
the Receivables remaining in the Trust (such Receivables hereinafter referred
to as the "Auction Property") in order to effect a termination of the Trust
pursuant to clause (iv) of the first paragraph of Section 21.01 on the second
Distribution Date succeeding the last day of the Collection Period as of which
the Pool Balance is 10% or less of the sum of the Original Pool Balance and the
aggregate
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principal balance of all Subsequent Receivables conveyed to the Trust as of the
related Subsequent Cutoff Dates. Fleetwood Credit may, but shall not be
required to, bid at the Auction. The Trustee shall sell and transfer the
Auction Property to the highest bidder therefor at the Auction provided that:
(i) the Auction has been conducted in accordance with the
Auction Procedures;
(ii) the Trustee has received good faith bids for the
Auction Property from at least two bidders;
(iii) one or more financial advisors, as advisor to the
Trustee (each, an "Advisor"), shall have advised the Trustee in
writing that at least two of such bidders (including the winning
bidder) are participants in the market for motor vehicle retail
installment sale contracts willing and able to purchase the Auction
Property;
(iv) the highest bid in respect of the Auction Property is
not less than the aggregate fair market value of the Auction Property
(as set forth in a written opinion of the Advisor to the Trustee);
(v) any bid submitted by Fleetwood Credit or any
affiliate of Fleetwood Credit shall reasonably represent the fair
market value of the Auction Property, as independently verified and
represented in writing by a qualified independent third party
evaluator (which may include an investment banking firm), selected by
the Trustee; and
(vi) the highest bid would result in proceeds from the
sale of the Auction Property which will be at least equal to the sum
of (a) the greater of (1) the aggregate Repurchase Amounts for the
Receivables (including Defaulted Receivables), plus the appraised
value of any other property held by the Trust (less liquidation
expenses) or (2) an amount that when added to amounts on deposit in
the Certificate Account that would constitute Available Funds for such
second succeeding Distribution Date would result in proceeds
sufficient to distribute the sum of (A) the Class A Distributable
Amount plus any unpaid Class A Interest Carryover Shortfall and any
unpaid Class A Principal Carryover Shortfall with respect to one or
more prior Distribution Dates, and (B) the Class B Distributable
Amount plus any unpaid Class B Interest Carryover Shortfall and any
unpaid Class B Principal Carryover Shortfall, and (b) the sum of (1)
an amount sufficient to reimburse the Servicer for any unreimbursed
Advances and (2) the Servicing Fee payable on such final Distribution
Date, including any unpaid Servicing Fees with respect to one or more
prior Collection Periods.
Provided that all of the conditions set forth in clauses (i) through
(vi) above have been met, the Trustee shall sell and transfer the Auction
Property, without recourse, to such highest
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bidder in accordance with and upon completion of the Auction Procedures. The
Trustee shall deposit the purchase price for the Auction Property in the
Certificate Account at least one Business Day prior to such second succeeding
Distribution Date. In addition, the Auction must stipulate that the Servicer
be retained to service the Receivables on terms substantially similar to those
in the Agreement. In the event that any of such conditions are not met or such
highest bidder fails or refuses to comply with any of the Auction Procedures,
the Trustee shall decline to consummate such sale and transfer. In the event
such sale and transfer is not consummated in accordance with the foregoing,
however, the Trustee may from time to time in the future, but shall not under
any further obligation to, solicit bids for sale of the assets of the Trust
upon the same terms and conditions as set forth above.
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ARTICLE TWENTY TWO
MISCELLANEOUS PROVISIONS
Section 22.01. Amendment. The Agreement may be amended by the
Seller, the Servicer and the Trustee, without the consent of any of the
Certificateholders or the Letter of Credit Bank, if any, (a) to cure any
ambiguity, to correct or supplement any provision in the Agreement which may be
inconsistent with any other provision of the Agreement, or to add, change or
eliminate any other provision with respect to matters or questions arising
under the Agreement that shall not be inconsistent with the provisions of the
Agreement, (b) to change the formula for determining the Specified Reserve Fund
Balance or the manner in which the Reserve Fund is funded and (c) to amend or
modify any provisions in the Agreement relating to the Servicer Letter of
Credit, if any, or the acquisition thereof (provided that no such amendment or
modification pursuant to this clause (c) shall be made without the consent of
the Letter of Credit Bank, if any, which consent shall not be unreasonably
withheld); provided, however, that for purposes of clauses (a) through (c)
above, no such amendment shall, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder
(including any amendment that would adversely affect the Trust's status as a
grantor trust for federal income tax purposes) and provided, further, that
prior to changing the formula for determining the Specified Reserve Fund
Balance or the manner in which the Reserve Fund is funded or amending or
modifying any provisions relating to the Servicer Letter of Credit or the
Letter of Credit Bank, if any, the Servicer shall deliver to the Trustee a
letter from each Rating Agency to the effect that such revised formula will not
cause the rating then assigned to the Rated Certificates to be qualified,
reduced or withdrawn.
The Agreement may also be amended from time to time by the Seller, the
Servicer and the Trustee, with the consent of the Holders of Certificates
evidencing not less than 51% of the Voting Interests of each Class of
Certificates, voting together as a single class, and upon not less than two
weeks' prior notice to each Rating Agency, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Agreement, or of modifying in any manner the rights of the
Certificateholders or the Letter of Credit Bank, if any; provided, however,
that no such amendment shall (i) except as otherwise provided in the first
paragraph of this Section, increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments of the Receivables,
or distributions that shall be required to be made on any Certificate or to or
by the Letter of Credit Bank, if any, or (ii) reduce the aforesaid percentage
of the Voting Interests of the Certificates of each Class required to consent
to any such amendment, without the consent of the Holders of all Certificates
of such Class then outstanding. The Trustee shall furnish written notification
of the substance of such amendment or consent to each Certificateholder and to
the Letter of Credit Bank, if any.
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
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such consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the
Trustee may prescribe.
Prior to the execution of any amendment to the Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by the Agreement.
The Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Trustee's own rights, duties or immunities under the
Agreement or otherwise.
Section 22.02. Protection of Title to Trust.
(a) Each of the Seller and the Servicer shall execute and file
such financing statements and cause to be executed and filed such continuation
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interest of the Certificateholders,
the Letter of Credit Bank, if any, and the Trustee in the Receivables and in
the proceeds thereof. Each of the Seller and the Servicer shall deliver (or
cause to be delivered) to the Trustee file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed by the Servicer in
accordance with paragraph (a) above seriously misleading within the meaning of
Section 9-402(7) of the UCC, unless it shall have given the Trustee at least 60
days' prior written notice thereof and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Seller and the Servicer shall give the Trustee at least 60
days' prior written notice of any relocation of their respective principal
executive offices if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement and shall
promptly file any such amendment. The Servicer shall at all times maintain
each office from which it shall service the Receivables, and its principal
executive office, within the United States.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Certificate
Account in respect of such Receivable.
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(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale under the Agreement of the Receivables to the
Trustee, the Servicer's master computer records (including any back-up
archives) that refer to a Receivable shall indicate clearly the interest of the
particular grantor trust in such Receivable and that such Receivable is owned
by the Trustee. Indication of the Trustee's ownership of a Receivable shall be
deleted from or modified on the Servicer's computer systems when, and only
when, the Receivable shall have been paid in full, repurchased or assigned
pursuant to the Agreement.
(f) If at any time the Seller or the Servicer shall propose to
sell, grant a security interest in or otherwise transfer any interest in
recreational vehicle receivables to any prospective purchaser, lender or other
transferee, the Servicer shall give to such prospective purchaser, creditor or
other transferee computer tapes, records or print-outs (including any restored
from back-up archives) that, if they shall refer in any manner whatsoever to
any Receivable, shall indicate clearly that such Receivable has been sold and
is owned by the Trustee.
(g) The Servicer shall permit the Trustee and its agents at any
time during normal business hours and upon reasonable notice to inspect, audit
and make copies of and abstracts from the Servicer's records regarding any
Receivable.
(h) Upon request, the Servicer shall furnish to the Trustee,
within five Business Days, a list of all Receivables (by contract number and
name of Obligor) then held as part of the Trust, together with a reconciliation
of such list to the Schedule of Receivables and to each of the Servicer's
Certificates furnished before such request indicating removal of Receivables
from the Trust.
(i) The Servicer shall deliver to the Trustee promptly after the
execution and delivery of the Agreement and of each amendment thereto, an
Opinion of Counsel either (A) stating that, in the opinion of such Counsel, all
financing statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the Trustee in
the Receivables, and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given or (B) stating that, in the
opinion of such Counsel, no such action shall be necessary to preserve and
protect such interest.
(j) The Seller shall, to the extent required by applicable law,
cause the Certificates to be registered with the Commission pursuant to Section
12(b) or 12(g) of the Exchange Act within the time periods specified in such
sections.
(k) For the purpose of facilitating the execution of the Agreement
and for other purposes, the Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and all of which counterparts shall constitute but one and the same
instrument.
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Section 22.03. Limitation on Certificateholder Rights. The death or
incapacity of any Certificateholder shall not operate to terminate the
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties to the Agreement or any of them.
No Certificateholder shall have any right to vote (except as provided
in Sections 19.05 and 22.01) or in any manner otherwise control the operation
and management of the Trust, or the obligations of the parties to the
Agreement, nor shall anything set forth in the Agreement or contained in the
terms of the Certificates, be construed so as to constitute the holders from
time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken pursuant to any provision of the Agreement.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of the Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to the Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of Certificates evidencing not less than 25% of the Voting
Interests of the Class A Certificates and the Class B Certificates, voting
together as a single class, shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee under the
Agreement and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee, for 30 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding; no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of the Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or
seek to obtain priority over or preference to any other such Holder, or to
enforce any right, under the Agreement except in the manner provided in the
Agreement and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section, each Certificateholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
Section 22.04. Governing Law. The Agreement shall be construed in
accordance with the laws of the State of California and the obligations, rights
and remedies of the parties under the Agreement shall be determined in
accordance with such laws; provided, however, the immunities, authority and
standard of care of the Trustee shall be governed by the jurisdiction in which
its principal office is located.
Section 22.05. Notices. All demands, notices and communications
under the Agreement shall be in writing, personally delivered or mailed by
certified mail, return receipt requested, and
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shall be deemed to have been duly given upon receipt (i) in the case of the
Seller or the Servicer, to the agent for service as specified in the Agreement,
or at such other address as shall be designated by the Seller or the Servicer
in a written notice to the Trustee; (ii) in the case of the Trustee, at the
Corporate Trust Office; (iii) in the case of any Letter of Credit Bank to the
address provided in the Agreement or in the reimbursement agreement pursuant to
which the Servicer Letter of Credit is issued; (iv) in the case of Standard &
Poor's, at 26 Broadway, 15th Floor, New York, New York 10004, Attention: Asset
Backed Surveillance Department; (v) in the case of Moody's, at 99 Church
Street, New York, New York 10007 Attention: ABS Monitoring Department; and
(vi) in the case of Duff & Phelps, at 55 East Monroe, Chicago, Illinois 60603.
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 Holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in the Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder shall receive such notice.
Section 22.06. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of the Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of the Agreement and shall in no way affect the validity or
enforceability of the other covenants, agreements, provisions or terms of the
Agreement or of the Certificates or the rights of the Holders thereof.
Section 22.07. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 17.03 and 18.03 and as
provided in the provisions of the Agreement concerning the resignation of the
Servicer, the Agreement may not be assigned by the Seller or the Servicer
without the prior written consent of the Trustee and the Holders of
Certificates evidencing not less than 51% of the Voting Interests of the Class
A Certificates and the Class B Certificates, voting together as a single class.
Section 22.08. Certificates Nonassessable and Fully Paid. The
interests represented by the Certificates shall be nonassessable for any losses
or expenses of the Trust or for any reason whatsoever, and, upon authentication
thereof by the Trustee pursuant to Section 16.02, 16.03, 16.04, 16.08, 16.09 or
16.11, each of the related Certificates shall be deemed fully paid.
Section 22.09. No Petition. Each of the Servicer and the Trustee
covenants and agrees that prior to the date which is one year and one day after
the date upon which each Class of Certificates has been paid in full, it will
not institute against, or join any other Person in instituting against the
Seller any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceedings under any federal or state bankruptcy or
similar law.
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This Section shall survive the termination of the Agreement or the termination
of the Servicer or the Trustee, as the case may be, under the Agreement.
* * * *
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EXHIBIT A
SERVICER LETTER OF CREDIT
____________, _____
Credit No. ___________
__________________________________
__________________________________
__________________________________
__________________________________
Attention: ______________________
Ladies and Gentlemen:
At the request and for the account of our customer, Fleetwood Credit
Corp., a California corporation ("Fleetwood Credit"), we (the "Letter of Credit
Bank") hereby establish in your favor this Servicer Letter of Credit, wherein
you, as trustee (the "Trustee") under the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") dated as of ______ 1, ____, among Fleetwood
Credit Receivables Corp. ("FCRC"), Fleetwood Credit and you, pursuant to which
$______________ in aggregate principal amount of Asset Backed Certificates (the
"Certificates") of the Fleetwood Credit RV Receivables Grantor Trust (the
"Trust") have been issued, are hereby irrevocably authorized to draw upon the
terms and conditions hereinafter set forth, in an aggregate amount not
exceeding $_______ (hereinafter, as reduced from time to time in accordance
with the provisions hereof, the "Stated Amount"). This Servicer Letter of
Credit is effective immediately and expires at the close of business on
__________, ____ (the "Expiration Date") at the counters of the Letter of
Credit Bank's _____________ Branch.
Funds under this Servicer Letter of Credit are available to you
against your written certificate signed by one who states therein that he is
your duly authorized officer, appropriately completed, in the form of Annex 1
hereto for payment of certain amounts due from, but unpaid by, Fleetwood Credit
under the Pooling and Servicing Agreement.
We hereby agree that each demand made under and in compliance with the
terms of this Servicer Letter of Credit will be duly honored by us upon due
delivery of the certificate(s), as specified above, appropriately completed
(together with such enclosures, if any, required thereby), if presented as
specified on or before the expiration date hereof. If a presentation in
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respect of payment is made by you hereunder at or prior to 12:00 Noon, [LOS
ANGELES] time, on a Business Day, and provided that the documents so presented
conform to the terms and conditions hereof, payment shall be made to you of the
amount specified, in immediately available funds, not later than 9:00 a.m.,
[LOS ANGELES] time, on the following Business Day. If a presentation in
respect of payment is made by you hereunder after 12:00 Noon, [LOS ANGELES]
time, on a Business Day, such presentation shall be deemed to have been made
prior to 12:00 Noon, [LOS ANGELES] time, on the next succeeding Business Day.
You agree to use your best efforts to provide us telephonic notice at the time
any presentation in respect of payment is made hereunder; provided, however,
that failure to provide such telephonic notice shall not affect our obligation
to make payment in respect of any such presentation in respect of payment. If
requested by you, payment under this Servicer Letter of Credit will be wire
transferred to an account specified by the Trustee in the related certificate.
As used herein, "Business Day" shall mean any day other than a Saturday, a
Sunday, or a day on which the Trustee or banking institutions in New York, New
York or [LOS ANGELES], California shall be authorized or obligated by law,
executive order or governmental decree to be closed.
If a drawing made by you hereunder does not, in any instance, conform
to the terms and conditions of this Servicer Letter of Credit, we shall give
you prompt notice that the purported drawing was not effected in accordance
with the terms and conditions of this Servicer Letter of Credit, stating the
reasons therefor and that we are holding any documents presented in connection
therewith at your disposal or are returning the same to you, as we may elect.
Only you, as Trustee, may make a drawing under this Servicer Letter of
Credit. Upon the payment of the amount specified in the related certificate(s)
presented hereunder, we shall be fully discharged of our obligation under this
Servicer Letter of Credit with respect to such certificate(s) and we shall not
thereafter be obligated to make any further payments under this Servicer Letter
of Credit in respect of such certificate(s) to you or any other person. By
paying to you an amount demanded in accordance herewith, we make no
representation as to the correctness of the amount demanded.
This Servicer Letter of Credit shall automatically terminate at our
close of business in [LOS ANGELES], California on the first to occur of the
following dates (the "Termination Date"): (i) the Expiration Date, or if said
date shall not be a Business Day, on the Business Day next succeeding said
date, (ii) the date of receipt by us of your written certificate signed by your
authorized officer, appropriately completed, in the form of Annex 2 hereto,
(iii) the payment by us of the final drawing available to be made hereunder or
(iv) on the date specified in our letter to you in the form of Annex 5 hereto.
If we are not then in default hereunder by reason of our having wrongfully
failed to honor a demand for payment hereunder, this Servicer Letter of Credit
shall be promptly surrendered to us upon the Termination Date.
Drawings in respect of payments hereunder honored by us shall not, in
the aggregate, exceed the Stated Amount in effect immediately prior to such
drawing. Each drawing honored
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by us hereunder shall pro tanto reduce the Stated Amount in effect immediately
prior to such drawing.
The Stated Amount under the Servicer Letter of Credit shall be
automatically further reduced at the close of business on the 15th day of each
month, or if such day is not a Business Day, the next following Business Day,
commencing on __________, ____ (each, a "Reset Date"), so that the Stated
Amount at the close of business on such Reset Date will equal the lesser of (i)
the Stated Amount as theretofore in effect or (ii) the product of $_________
and the Reset Percentage; provided that the Stated Amount as of the close of
business on any Reset Date shall be further reduced if the Stated Amount would
otherwise exceed the Pool Balance (as defined in the Pooling and Servicing
Agreement). For purposes of this Servicer Letter of Credit, the Reset
Percentage on any Reset Date shall be equal to a fraction the numerator of
which is the number of Receivables in the Trust at the close of business on the
last day of the calendar month preceding the calendar month in which such Reset
Date occurs (as evidenced by the Servicer's Certificate for such calendar
month) and the denominator of which is the original number of Receivables in
the Trust as of _____________. Although the adjustment on each Reset Date
shall occur automatically, by acceptance of this Servicer Letter of Credit you
agree on or as soon as practicable following each Reset Date on which any
reduction has been effected pursuant to the preceding sentence, and in any
event within one Business Day after our written request (which may be by telex
or telecopier) on any subsequent date on which a drawing certificate is
presented hereunder, to deliver to us your certificate in the form of Annex 3
hereto (each, a "Reduction Certificate"), appropriately completed, setting
forth the calculation of the Stated Amount as so adjusted; but the failure to
deliver such Reduction Certificate shall not otherwise affect the effectiveness
of any such reduction.
This Servicer Letter of Credit shall be governed by the internal laws
of the State of California, including, without limitation, Article 5 of the
Uniform Commercial Code as in effect in the State of California. This Servicer
Letter of Credit shall be supplemented by the provisions (to the extent that
such provisions are not inconsistent with this Servicer Letter of Credit and
said Article 5) of the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce, Publication No. 500, except
Article 45 thereof.
All documents presented to us in connection with any demand for
payment hereunder, as well as all notices and other communications to us in
respect of this Servicer Letter of Credit shall be in writing, or shall be
transmitted by tested telex or telecopier (promptly confirmed in either case in
writing), and shall be addressed to us at _____________, specifically referring
thereon to this Servicer Letter of Credit by number.
You may transfer your rights under this Servicer Letter of Credit in
their entirety (but not in part) to any transferee who has succeeded you as
trustee pursuant to the Pooling and Servicing Agreement and such transferred
rights may be successively transferred. The transfer of your rights under this
Servicer Letter of Credit to any such transferee shall be effected upon the
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presentation to us of this Servicer Letter of Credit accompanied by a transfer
letter in the form attached hereto as Annex 4.
This Servicer Letter of Credit sets forth in full our undertaking, and
such undertaking shall not in any way be modified, amended, amplified or
limited by reference to any document, instrument or agreement referred to
herein (including, without limitation, the Certificates), except only Annexes 1
through 5 hereto; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement except as set forth
above.
Very truly yours,
--------------------------------------
By:
---------------------------------
Name:
Title:
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ANNEX 1 TO SERVICER
LETTER OF CREDIT NO.
CERTIFICATE FOR "ANNEX 1 DRAWING"
The undersigned, ________________________, as trustee (the "Trustee"),
acting through the undersigned duly authorized officer of the Trustee, hereby
certifies to ______________________ (the "Letter of Credit Bank"), with
reference to the Bank's Servicer Letter of Credit No. __________ (the "Servicer
Letter of Credit"; any capitalized terms used herein and not defined having its
respective meaning as set forth in the Servicer Letter of Credit) issued in
favor of the Trustee, that:
(1) The Trustee is the Trustee under the Pooling and
Servicing Agreement.
(2) Fleetwood Credit, as servicer ("Servicer") under the
Pooling and Servicing Agreement, has notified us, as Trustee under the
Pooling and Servicing Agreement, pursuant to a Servicer's Certificate
(as defined in the Pooling and Servicing Agreement) (a copy of which
is attached hereto) furnished pursuant to Section 13.09 of the Pooling
and Servicing Agreement that the following amount was required to be
remitted by the Servicer to the Certificate Account (as such term is
defined in the Pooling and Servicing Agreement) pursuant to Section
14.02 of the Pooling and Servicing Agreement with respect to the
Distribution Date (as defined in the Pooling and Servicing Agreement)
occurring on [insert applicable Distribution Date]: $[insert amount
required to be remitted pursuant to Section 14.02].
(3) Fleetwood Credit has failed to deposit the following
portion of amounts owed by it with respect to such Distribution Date
as set forth in paragraph (2) above: $[insert amount of deficiency].
(4) The Trustee is making a drawing under the Servicer
Letter of Credit in the amount of $__________ which amount equals the
lesser of (a) the amount set forth in paragraph (3) and (b) the amount
identified by the Servicer in the Servicer's Certificate referred to
in paragraph (2) above as being available on the date hereof to be
drawn under the Servicer Letter of Credit.
(5) The Trustee has not received notice from Fleetwood
Credit or any other person or entity contesting the accuracy of such
Servicer's Certificate.
(6) The account to which payment under the Servicer
Letter of Credit is to be wire transferred is Account No. __________,
maintained at ___________________________.
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IN WITNESS WHEREOF, the Trustee has executed and delivered this
certificate as of the _____ day of ___________.
-------------------------------
as Trustee
By:
---------------------------
Name:
Title:
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ANNEX 2 TO SERVICER
LETTER OF CREDIT NO. ___
CERTIFICATE FOR THE TERMINATION
OF SERVICER LETTER OF CREDIT NO. ___
The undersigned, a duly authorized officer of _______________, as
trustee (the "Trustee"), hereby certifies to ______________ (the "Letter of
Credit Bank") with reference to the Servicer Letter of Credit Bank's
Irrevocable Servicer Letter of Credit No. _______ (the "Servicer Letter of
Credit"; any capitalized term used herein and not defined having its respective
meaning as set forth in the Servicer Letter of Credit) issued in favor of the
Trustee, that [the Pooling and Servicing Agreement has been terminated in
accordance with its terms and the Certificate Account defined therein contains
sufficient funds to pay in full all outstanding Certificates issued thereunder]
or [in accordance with Section 15.01(b) of the Pooling and Servicing Agreement,
the Servicer Letter of Credit has been terminated on the date hereof] or [the
Trustee has received the Letter of Credit Bank's letter in the form of Annex 5
to the Servicer Letter of Credit].* Accordingly, we herewith return to you for
cancellation the Servicer Letter of Credit which is terminated, as of the date
hereof, pursuant to its terms.
Date: ______________
-------------------------------
as Trustee
By:
----------------------------
Authorized Officer
- -----------------------------------
* Select appropriate alternative.
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ANNEX 3 TO SERVICER
LETTER OF CREDIT NO. ___
CERTIFICATE FOR THE REDUCTION OF THE STATED
AMOUNT OF SERVICER LETTER OF CREDIT NO. ___
The undersigned, a duly authorized officer of ________________, as
trustee (the "Trustee"), hereby certifies to _______________ (the "Letter of
Credit Bank") with reference to the Letter of Credit Bank's Servicer Letter of
Credit No. __________ (the "Servicer Letter of Credit"; any capitalized terms
used herein and not defined having its respective meaning as set forth in the
Servicer Letter of Credit) issued in favor of the Trustee, that:
(1) The Trustee is the Trustee under the Pooling and
Servicing Agreement.
(2) On the basis of the Servicer's Certificate attached
hereto, the Trustee hereby confirms that effective [insert Reset Date]
the Stated Amount of the Servicer Letter of Credit has been reduced
from $__________ to $__________, which amount equals the product of
$__________ and the Reset Percentage; provided that if the Stated
Amount would exceed the Pool Balance set forth in such certificate as
of the end of last month, the Stated Amount shall be reduced to the
amount of the Pool Balance.
(3) This Certificate has been prepared and presented in
strict compliance with the terms of the Pooling and Servicing
Agreement and the Servicer Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
certificate as of the _______ day of __________, ____.
-------------------------------
as Trustee
By:
---------------------------
Name:
Title:
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ANNEX 4 TO SERVICER
LETTER OF CREDIT NO. ___
_____________, _____
__________________________________
__________________________________
__________________________________
__________________________________
Re: Servicer Letter of Credit No. _________
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
-------------------------------------
(Name and Address of Transferee)
all rights of the undersigned beneficiary to draw under the above-captioned
Servicer Letter of Credit (the "Servicer Letter of Credit"). The transferee
has succeeded the undersigned as Trustee under the Pooling and Servicing
Agreement (as defined in the Servicer Letter of Credit).
By this transfer, all rights of the undersigned beneficiary in the
Servicer Letter of Credit are transferred to the transferee and the transferee
shall hereafter have the sole rights as beneficiary thereof; provided, however,
that no rights shall be deemed to have been transferred to the transferee until
such transfer complies with the requirements of the Servicer Letter of Credit
pertaining to transfers.
The Servicer Letter of Credit is returned herewith and in accordance
therewith we ask that this transfer be effective and that you cause the
transfer of the Servicer Letter of Credit to
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our transferee or that, if so requested by the transferee, you cause the
issuance of a new Servicer Letter of Credit in favor of the transferee with
provisions consistent with the Servicer Letter of Credit.
Very truly yours,
---------------------------------------
as predecessor Trustee
By:
-----------------------------------
Name:
Title:
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ANNEX 5 TO SERVICER
LETTER OF CREDIT NO. ___
[Letterhead of Letter of Credit Bank]
____________, ____
[Insert name of Beneficiary]
[Address]
Attention: _______________________
Re: Servicer Letter of Credit No. _________
of
Ladies and Gentlemen:
On the date hereof we have received notice from Fleetwood Credit Corp.
("Fleetwood Credit") that its short-term credit rating has been upgraded to
[the Required Servicer Rating] by [insert name of applicable Rating Agency].
[On the date hereof, as a result of such upgrading] or [At the close
of business on the [immediately] [second]* succeeding Distribution Date (as
defined in the Servicer Letter of Credit) following the date hereof, as a
result of such downgrading]**, the Servicer Letter of Credit is hereby
terminated. Please deliver the Servicer Letter of Credit to us for
cancellation as soon as practicable following such date, accompanied by your
certificate in the form of Annex 2 to the Servicer Letter of Credit.
Very truly yours,
-------------------------------
By:
---------------------------
Name:
Title:
- -----------------------------
* Insert "immediately" if the date of this letter is after the 15th day of
the month. Insert "second" if the date of this letter is on or prior to
the 15th day of the month.
** Select appropriate alternative.
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EXHIBIT B
TRANSFER AGREEMENT
TRANSFER NO. __ OF SUBSEQUENT RECEIVABLES, dated as of __________,
among FLEETWOOD CREDIT RV RECEIVABLES 199_ -____ GRANTOR TRUST (the
"Trust"), FLEETWOOD CREDIT CORP., a California corporation ("Fleetwood
Credit"), FLEETWOOD CREDIT RECEIVABLES CORP., a California corporation
(the "Seller"), and __________, as trustee (the "Trustee") pursuant to
the Pooling and Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Fleetwood Credit, the Seller and the Trustee are parties to
the Pooling and Servicing Agreement, dated as of __________, _____ (the
"Pooling and Servicing Agreement");
WHEREAS, Fleetwood Credit and the Seller are parties to the
Receivables Purchase Agreement, dated as of __________, _____ (the "Receivables
Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, Fleetwood
Credit desires to convey certain Subsequent Receivables to the Seller and
pursuant to the Pooling and Servicing Agreement and this Agreement the Seller
desires to convey such Subsequent Receivables to the Trust; and
WHEREAS, the Trustee is willing to accept such conveyance subject to
the terms and conditions hereof.
NOW, THEREFORE, the Trustee, the Seller and Fleetwood Credit hereby
agree as follows:
Section 1. Defined Terms. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement.
"Agreement" means this Transfer Agreement and all amendments hereof
and supplements hereto.
"Subsequent Cutoff Date" means, with respect to the Subsequent
Receivables conveyed hereby, __________.
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"Subsequent Receivables" means the Receivables identified on the
supplement to Schedule A to the Pooling and Servicing Agreement attached
hereto.
"Subsequent Transfer Date" means, with respect to the Subsequent
Receivables conveyed hereby, __________.
Section 2. Schedule of Receivables. Annexed hereto is a supplement
to Schedule A to the Pooling and Servicing Agreement listing the Subsequent
Receivables to be conveyed by the Seller to the Trust pursuant to this
Agreement on the Subsequent Transfer Date.
Section 3. Conveyance of Subsequent Receivables. Subject to the
conditions set forth in Section 5 hereof, in consideration of the Trustee's
delivery on behalf of the Trust to or upon the order of the Seller of an amount
equal to $__________ (i.e., the aggregate Principal Balance of the Subsequent
Receivables as of the Subsequent Cutoff Date), the Seller does hereby sell,
transfer, assign and otherwise convey to the Trust, without recourse (subject
to the Seller's obligations hereunder):
(a) all right, title and interest of the Seller in and to
the Subsequent Receivables listed on Schedule A hereto and all monies
due thereon and paid thereon or in respect thereof (including proceeds
of the repurchase of such Subsequent Receivables by the Seller
pursuant to Section 12.02 or 21.02 of the Pooling and Servicing
Agreement or the purchase of such Subsequent Receivables by Fleetwood
Credit pursuant to Section 13.07 or 21.02 of the Pooling and Servicing
Agreement) on or after the Subsequent Cutoff Date;
(b) the interest of the Seller in the security interests
in the related Financed Vehicles granted by the related Obligors
pursuant to such Subsequent Receivables;
(c) the interest of the Seller in any Liquidation
Proceeds, in any proceeds of any physical damage insurance policies
covering the related Financed Vehicles and in any proceeds of any
credit life or credit disability insurance policies relating to such
Subsequent Receivables or the related Obligors;
(d) the interest of the Seller in any proceeds from
Dealer repurchase obligations relating to such Subsequent Receivables;
and
(e) all proceeds of the foregoing.
Section 4. Representations and Warranties of the Seller.
(a) The Seller does hereby make the following representations on
which the Trustee shall rely in accepting the Subsequent Receivables in trust
pursuant to the Pooling and Servicing
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Agreement. The representations shall speak as of the execution and delivery of
this Agreement and as of the Subsequent Transfer Date, and in each case shall
survive the sale, transfer and assignment of the Subsequent Receivables to the
Trustee.
(i) Organization and Good Standing. The Seller shall
have been duly organized and shall be validly existing as a
corporation in good standing under the laws of the State of
California, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is presently conducted, and had at all relevant times, and
shall now have, power, authority and legal right to acquire, own and
sell the Subsequent Receivables.
(ii) Due Qualification. The Seller shall be duly
qualified to do business as a foreign corporation in good standing,
and shall have obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(iii) Power and Authority. The Seller shall have the power
and authority to execute and deliver this Agreement and to carry out
its terms, the Seller shall have full power and authority to sell and
assign the property to be sold and assigned to and deposited with the
Trustee as part of the Trust and shall have duly authorized such sale
and assignment to the Trustee by all necessary corporate action; and
the execution, delivery and performance of this Agreement shall have
been duly authorized by the Seller by all necessary corporate action.
(iv) Valid Sale; Binding Obligations. This Agreement
shall evidence a valid sale, transfer and assignment of the Subsequent
Receivables, enforceable against creditors of and purchasers from the
Seller; and shall constitute a legal, valid and binding obligation of
the Seller enforceable against the Seller in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or at law.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of
this Agreement shall not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or
bylaws of the Seller, or conflict with or breach any of the material
terms or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement or other instrument
to which the Seller is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument (other than this Agreement and the
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Pooling and Servicing Agreement); nor violate any law or, to the best
of the Seller's knowledge, any order, rule or regulation applicable to
Seller of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Seller or its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Seller,
threatened against the Seller, before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties:
(a) asserting the invalidity of this Agreement, (b) seeking to prevent
the consummation of any of the transactions contemplated by this
Agreement, or (c) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this
Agreement.
(b) The Seller does hereby make the following representations and
warranties as to the Subsequent Receivables on which the Trustee shall rely in
accepting the Subsequent Receivables in trust. The representations shall speak
as of the execution and delivery of this Agreement and as of the Subsequent
Transfer Date, and in each case shall survive the sale, transfer and assignment
of the Subsequent Receivables to the Trustee.
(i) Characteristics of Subsequent Receivables. Each
Subsequent Receivable (a) shall have been originated in the United
States by a Dealer for the retail sale of the related Financed Vehicle
in the ordinary course of such Dealer's business, shall have been
fully and properly executed by the parties thereto, shall have been
purchased by Fleetwood Credit from such Dealer under an agreement with
Fleetwood Credit and shall have been validly assigned by such Dealer
to Fleetwood Credit in accordance with its terms and shall have been
subsequently sold by Fleetwood Credit to the Seller; (b) shall have
created or shall create a valid, subsisting and enforceable first
priority security interest in favor of Fleetwood Credit in the related
Financed Vehicle, which security interest has been assigned by
Fleetwood Credit to the Seller, and shall be assignable, and shall be
so assigned, by the Seller to the Trustee; (c) shall contain customary
and enforceable provisions such that the rights and remedies of the
holder thereof shall be adequate for the realization against the
collateral of the benefits of the security; (d) shall provide for
level monthly payments (provided that the payment in the first or last
month in the life of the Subsequent Receivable may be minimally
different from the level payment) that fully amortize the Amount
Financed by maturity and yield interest at its APR; and (e) shall
provide for, in the event that such Subsequent Receivable is prepaid,
a prepayment that fully pays the Principal Balance and includes
accrued but unpaid interest at least through the date of prepayment in
an amount calculated by using an interest rate at least equal to its
APR.
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(ii) Schedule of Receivables. The information set forth
in the supplement to the Schedule of Receivables annexed hereto shall
be true and correct in all material respects as of the opening of
business on the Subsequent Cutoff Date, and no selection procedure
adverse to the Certificateholders shall have been utilized in
selecting the Subsequent Receivables from those Receivables of
Fleetwood Credit which met the selection criteria set forth in this
Section.
(iii) Compliance with Law. Each Subsequent Receivable and
each sale of the related Financed Vehicle shall have complied at the
time it was originated or made, and shall comply at the time of
execution of this Agreement in all material respects with all
requirements of applicable federal, state and local laws, and
regulations thereunder, including usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, Federal Reserve Board Regulations B and Z,
state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code and other consumer credit, equal credit
opportunity and disclosure laws.
(iv) Binding Obligation. Each Subsequent Receivable shall
constitute the genuine, legal, valid and binding payment obligation in
writing of the related Obligor, enforceable by the holder thereof in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation and other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity regardless of whether such enforceability
shall be considered in a proceeding in equity or at law.
(v) No Government Obligor. None of the Subsequent
Receivables shall be due from the United States or any state or local
government thereof or from any agency, department or instrumentality
of the United States or any state or local government.
(vi) Security Interest in Financed Vehicles. Immediately
prior to the sale, assignment and transfer thereof, each Subsequent
Receivable shall be secured by a validly perfected first security
interest in the related Financed Vehicle in favor of Fleetwood Credit
as secured party or all necessary and appropriate action with respect
to such Subsequent Receivable shall have been taken to perfect a first
priority security interest in such Financed Vehicle in favor of
Fleetwood Credit as secured party.
(vii) Receivables in Force. No Subsequent Receivable shall
have been satisfied, subordinated or rescinded, nor shall any related
Financed Vehicle have been released from the lien granted by the
related Subsequent Receivable in whole or in part.
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(viii) No Waiver. No provision of a Subsequent Receivable
shall have been waived in such a manner that such Subsequent
Receivable fails to meet all of the other representations and
warranties made by the Seller herein with respect thereto.
(ix) No Amendments. No Subsequent Receivable shall have
been amended in such a manner that such Subsequent Receivable fails to
meet all of the other representations and warranties made by the
Seller herein with respect thereto.
(x) No Defenses. No facts shall be known to the Seller
which would give rise to any right of rescission, setoff, counterclaim
or defense, nor shall the same have been asserted or threatened, with
respect to any Subsequent Receivable.
(xi) No Liens. To the knowledge of the Seller, no liens
or claims shall have been filed, including liens for work, labor or
materials relating to a Financed Vehicle related to a Subsequent
Receivable, that shall be liens prior to, or equal or coordinate with,
the security interest in such Financed Vehicle granted by the related
Subsequent Receivable.
(xii) No Default. Except for payment defaults continuing
for a period of not more than 30 days as of the Subsequent Cutoff
Date, no default, breach, violation or event permitting acceleration
under the terms of any Subsequent Receivable shall have occurred; and
no continuing condition that with notice or the lapse of time would
constitute a default, breach, violation or event permitting
acceleration under the terms of any Subsequent Receivable shall have
arisen; and the Seller shall not have waived any of the foregoing.
(xiii) Insurance. Fleetwood Credit, in accordance with its
customary servicing procedures, shall have determined that each
Obligor had obtained physical damage insurance covering the related
Financed Vehicle.
(xiv) Good Title. It is the intention of the Seller that
the transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Subsequent Receivables from the Seller to the
Trust and that the beneficial interest in and title to the Subsequent
Receivables not be a part of the debtor's estate in the event of a
filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Subsequent Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the
Trustee, and no provision of a Subsequent Receivable shall have been
waived, except as provided in clause (viii) above; immediately prior
to the transfer and assignment herein contemplated, the Seller had
good and marketable title to each Subsequent Receivable free and clear
of all Liens and rights of others; immediately upon the transfer and
assignment thereof, the Trustee, for the benefit of the
Certificateholders, shall have good and marketable title to each
Subsequent Receivable, free and clear of all Liens and rights
B-6
105
of others; and the transfer and assignment herein contemplated has
been perfected under the UCC.
(xv) Lawful Assignment. No Subsequent Receivable shall
have been originated in, or shall be subject to the laws of, any
jurisdiction under which the sale, transfer and assignment of such
Subsequent Receivable under the Agreement or pursuant to transfers of
the Certificates shall be unlawful, void or voidable.
(xvi) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Trustee a first
perfected ownership interest in the Subsequent Receivables shall have
been made.
(xvii) One Original. There shall be only one original
executed copy of each Subsequent Receivable.
(xviii) Additional Representations and Warranties. (a) Each
Subsequent Receivable shall have an original maturity of not less than
__ months nor greater than __ months and, as of the Subsequent Cutoff
Date, a scheduled remaining maturity of not less than __ months nor
greater than __ months; (b) the weighted average remaining term of the
Receivables (including the Subsequent Receivables) as of the
Subsequent Transfer Date is not greater than __ months; (c) each
Subsequent Receivable shall have an Annual Percentage Rate equal to or
greater than _____% and equal to or less than _____%; (d) the weighted
average APR of the Receivables (including the Subsequent Receivables)
is not less than _____%; (e) each Subsequent Receivable shall have no
payment that is more than 30 days past due as of the related
Subsequent Cutoff Date; (f) such Subsequent Receivables were
originated on or prior to __________; and (g) the related Receivable
Files shall be kept at one or more of the locations listed in Schedule
B to the Pooling and Servicing Agreement.
Section 5. Conditions Precedent. The obligation of the Trust to
acquire the Subsequent Receivables hereunder is subject to the satisfaction, on
or prior to the Subsequent Transfer Date, of the following conditions
precedent:
(a) Representations and Warranties. (i) Each of the
representations and warranties made by Fleetwood Credit in Section
2.03 of the Receivables Purchase Agreement and (ii) each of the
representations and warranties made by the Seller in Section 4 of this
Agreement and Sections 7.01 and 17.01 of the Pooling and Servicing
Agreement, shall be true and correct as of the date of this Agreement
and as of the Subsequent Transfer Date.
(b) Pooling and Servicing Agreement Conditions. Each of
the conditions set forth in Section 2.02(b) to the Pooling and
Servicing Agreement shall have been satisfied.
B-7
106
(c) Receivables Purchase Agreement Conditions. Fleetwood
Credit shall have complied with the requirements of Section 2.03 of
the Receivables Purchase Agreement and shall have delivered all
documents required to be delivered pursuant to Section 2.01 of the
Receivables Purchase Agreement.
(d) Security Interest Perfection. In connection with the
conveyance contemplated by this Agreement, the Seller agrees to record
and file, at its own expense, a financing statement with respect to
the related Subsequent Receivables now existing and hereafter created
for the sale of chattel paper (as defined in Section 9105 of the UCC
as in effect in the State of California) meeting the requirements of
applicable state law in such manner as is sufficient to perfect the
sale and assignment of such Subsequent Receivables to the Trust, and
the proceeds thereof (and any continuation statements as are required
by applicable state law), and to deliver a file-stamped copy of each
such financing statement (or continuation statement) or other evidence
of such filings (which may, for purposes of this Section, consist of
telephone confirmation of such filing with the file stamped copy of
each such filing to be provided to the Trustee in due course), as soon
as is practicable after the Seller's receipt thereof.
In connection with such conveyance, the Seller further
agrees, at its own expense, on or prior to the Subsequent Transfer Date
(i) to annotate and indicate in its computer files that the Subsequent
Receivables have been transferred to the Trust pursuant to the
Agreement and (ii) to deliver to the Trustee a computer file printed or
microfiche list containing a true and complete list of all such
Subsequent Receivables, identified by account number and by the
Principal Balance of each Subsequent Receivable as of the related
Subsequent Cutoff Date.
(e) Additional Information. The Seller shall have
delivered to the Trustee on behalf of the Trust such information as
was reasonably requested by the Trustee on behalf of the Trust to
satisfy itself as to (i) the accuracy of the representations and
warranties set forth in Section 4 of this Agreement and Sections 7.01
and 17.01 of the Pooling and Servicing Agreement and (ii) the
satisfaction of the conditions set forth in this Section.
The Trustee shall not be required to investigate or otherwise verify
satisfaction of the conditions listed above, but shall be entitled to
conclusively rely upon Opinions of Counsel and Certificates of the Servicer
confirming such fulfillment.
Section 6. Ratification of Agreement. As supplemented by this
Agreement, the Pooling and Servicing Agreement is in all respects ratified and
confirmed and the Pooling and Servicing Agreement as so supplemented by this
Agreement shall be read, taken and construed as one and the same instrument.
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Section 7. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of California and the obligations, rights
and remedies of the parties under this Agreement shall be determined in
accordance with such laws; provided, however, the immunities, authority and
standard of care of the Trustee shall be governed by the jurisdiction in which
its principal office is located.
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IN WITNESS WHEREOF, the Trustee, Fleetwood Credit and the Seller have
caused this Agreement to be duly executed and delivered by their respective
duly authorized officers as of the day and the year first above written.
FLEETWOOD CREDIT CORP.
By:
---------------------------------
Name:
Title:
FLEETWOOD CREDIT RECEIVABLES CORP.
By:
---------------------------------
Name:
Title:
--------------------,
as Trustee
By:
---------------------------------
Name:
Title:
B-10
109
EXHIBIT C-1
TRUSTEE'S CERTIFICATE
PURSUANT TO SECTION 20.02 OR 20.03
OF THE POOLING AND SERVICING
AGREEMENT
__________________, as trustee (the "Trustee") of the Fleetwood Credit
199__-__ Grantor Trust created pursuant to the Pooling and Servicing Agreement
(the "Agreement") dated as of ________ 1, ____ among Fleetwood Credit
Receivables Corp., as Seller, Fleetwood Credit Corp., as Servicer, and the
Trustee, does hereby sell, transfer, assign and otherwise convey to the Seller,
without recourse, representation or warranty, all of the Trustee's right, title
and interest in and to all of the Receivables (as defined in the Agreement)
identified in the attached Servicer's Certificate as "Repurchased Receivables,"
which are to be repurchased by the Seller pursuant to Section 12.02 or 21.02 of
the Agreement and all security and documents relating thereto.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
__________, 199__.
-------------------------------
as Trustee
By:
----------------------------
Name:
Title:
C-1-1
110
EXHIBIT C-2
TRUSTEE'S CERTIFICATE
PURSUANT TO SECTION 20.02 OR 20.03
OF THE POOLING AND SERVICING
AGREEMENT
___________________, as trustee (the "Trustee") of the Fleetwood
Credit 199__-__ Grantor Trust created pursuant to the Pooling and Servicing
Agreement (the "Agreement") dated as of ______ 1, 199__ among Fleetwood Credit
Receivables Corp., as Seller, Fleetwood Credit Corp., as Servicer (the
"Servicer"), and the Trustee, does hereby sell, transfer, assign and otherwise
convey to the Servicer, without recourse, representation or warranty, all of
the Trustee's right, title and interest in and to all of the Receivables (as
defined in the Agreement) identified in the attached Servicer's Certificate as
"Repurchased Receivables," which are to be repurchased by the Servicer pursuant
to Section 13.07 or 21.02, and all security and documents relating thereto.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
__________, 199__.
-------------------------------
as Trustee
By:
---------------------------
Name:
Title:
C-2-1