1
EXHIBIT 1.1
$_____________
FLEETWOOD CREDIT RV RECEIVABLES 199__-__ GRANTOR TRUST
____% ASSET BACKED CERTIFICATES, CLASS A
____% ASSET BACKED CERTIFICATES, CLASS B
UNDERWRITING AGREEMENT
____________, 199__
______________________,
as Representative of
the several Underwriters
______________________
______________________
Dear Sirs:
1. Introductory. Fleetwood Credit Receivables Corp., a
California corporation (the "Seller") and a wholly owned subsidiary of
Fleetwood Credit Corp., a California corporation ("Fleetwood Credit"), proposes
to sell to ____________ and __________ (the "Underwriters"), acting severally
and not jointly, for whom ___________ is acting as representative (in such
capacity, the "Representative"), $___________ aggregate principal amount of
____% Asset Backed Certificates, Class A (the "Class A Certificates") and
$___________ aggregate principal amount of ____% Asset Backed Certificates,
Class B (the "Class B Certificates" and, together with the Class A
Certificates, the "Certificates") of the Fleetwood Credit RV Receivables
199__-__ Grantor Trust (the "Trust"). The Certificates will be issued pursuant
to a pooling and servicing agreement, dated as of __________ 1, 199__ (the
"Pooling and Servicing Agreement"), among the Seller, Fleetwood Credit, as
servicer (in such capacity, the "Servicer"), and ______________, as trustee
(the "Trustee"). The Class B Certificates will be subordinated to the Class A
Certificates to the limited extent described in the Pooling and Servicing
Agreement. This Underwriting Agreement shall hereinafter be referred to as
"this Agreement." Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in the Pooling and Servicing
Agreement.
2
Each Certificate will represent a fractional undivided interest in the
Trust. The assets of the Trust will include, among other things, a pool of
simple interest retail installment sale contracts (the "Initial Receivables")
secured by the new and used recreational vehicles financed thereby (the
"Initial Financed Vehicles"), certain monies due under the Receivables on and
after __________ 1, 199__ (the "Initial Cutoff Date") and amounts on deposit in
a trust account (the "Pre-Funding Account"), in each case as more fully
described in the Prospectus, as defined below. The Initial Receivables will be
sold by Fleetwood Credit to the Seller pursuant to a receivables purchase
agreement, dated as of __________ 1, 199__ (the "Receivables Purchase
Agreement"), between Fleetwood Credit and the Seller, and the Seller in turn
will sell the Initial Receivables to the Trust pursuant to the Pooling and
Servicing Agreement. From time to time during the Funding Period pursuant to
the Receivables Purchase Agreement, to the extent available, Fleetwood Credit
will be obligated to sell, and the Seller will be obligated to purchase,
additional simple interest retail installment sale contracts (the "Subsequent
Receivables" and, together with the Initial Receivables, the "Receivables")
secured by the new and used recreational vehicles financed thereby (the
"Subsequent Financed Vehicles" and, together with the Initial Financed
Vehicles, the "Financed Vehicles"), which Subsequent Receivables will be
described in one or more agreements among Fleetwood Credit, the Seller and the
Trustee (each, a "Transfer Agreement"), dated as of the related date of
transfer (each, a "Subsequent Transfer Date"). The Subsequent Receivables will
in turn be sold by the Seller to the Trust pursuant to the Pooling and
Servicing Agreement and the related Transfer Agreement. The maximum aggregate
principal amount of Subsequent Receivables to be sold during the Funding Period
by Fleetwood Credit to the Seller and by the Seller to the Trust is
$_____________.
2. Representations and Warranties of the Seller and Fleetwood
Credit.
(a) The Seller represents and warrants to, and agrees with, each
Underwriter that:
(i) A registration statement on Form S-3 (No. 333-91848),
including a form of prospectus, relating to the Certificates has been
filed with the Securities and Exchange Commission (the "Commission")
and either (1) has been declared effective under the Securities Act of
1933, as amended (the "Act"), and is not proposed to be amended or (2)
is proposed to be amended by amendment or post-effective amendment.
If the Seller does not propose to amend the registration statement and
if any post-effective amendment to such registration statement has
been filed with the Commission prior to the execution and delivery of
this Agreement, the most recent post-effective amendment has been
declared effective by the Commission. For purposes of this Agreement,
"Effective Time" means (1) if the Seller has advised the Underwriters
that it does not propose to amend the registration statement, the date
and time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or (2) if the Seller has advised the Underwriters that it
proposes to file an amendment or post-effective amendment to the
registration statement, the date and time as of which such
registration
2
3
statement, as amended by such amendment or post-effective amendment,
as the case may be, is declared effective by the Commission.
"Effective Date" means the date of the Effective Time. The
registration statement, as amended at the Effective Time, including
all information (if any) deemed to be a part of such registration
statement as of the Effective Time pursuant to Rule 430A(b) under the
Act, and including the exhibits thereto, is hereinafter referred to as
the "Registration Statement," and the form of prospectus relating to
the Certificates, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) under the Act ("Rule 424(b)"), or (if
no such filing is required) as included in the Registration Statement,
is hereinafter referred to as the "Prospectus."
(ii) If the Effective Time is prior to the execution and
delivery of this Agreement: (A) on the Effective Date, the
Registration Statement conformed, and on the date of this Agreement
the Registration Statement conforms, in all material respects with the
requirements of the Act and the rules and regulations of the
Commission promulgated under the Act (the "Rules and Regulations"),
and at such times did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (B) on
the date of this Agreement, at the time of filing of the Prospectus
pursuant to Rule 424(b) and at the Closing Date, the Prospectus will
conform in all material respects to the requirements of the Act and
the Rules and Regulations, and does not include and will not include
any untrue statement of a material fact and does not omit and will not
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. If the Effective Time is subsequent to the
execution and delivery of this Agreement: (A) on the Effective Date,
the Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Act and the Rules and
Regulations and the Registration Statement will not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (B) at the Effective Date and at the Closing
Date the Prospectus will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (C) the Prospectus delivered
to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system, except to the extent permitted by Regulation S-T.
The two immediately preceding sentences do not apply to statements in
or omissions from the Registration Statement or Prospectus in reliance
upon and in conformity with written information furnished to the
Seller by the Underwriters specifically for use therein.
(iii) This Agreement has been duly authorized, executed
and delivered by the Seller.
3
4
(iv) As of the Closing Date, the representations and
warranties of the Seller in the Pooling and Servicing Agreement will
be true and correct and as of each Subsequent Transfer Date, the
representations and warranties of the Seller in the Pooling and
Servicing Agreement and in the related Transfer Agreement will be true
and correct.
(b) Fleetwood Credit represents and warrants to, and agrees with,
each Underwriter that:
(i) This Agreement has been duly authorized, executed and
delivered by Fleetwood Credit.
(ii) As of the Closing Date, the representations and
warranties of the Servicer in the Pooling and Servicing Agreement will
be true and correct and as of each Subsequent Transfer Date, the
representations and warranties of the Servicer in the Pooling and
Servicing Agreement and in the related Transfer Agreement will be true
and correct.
3. Purchase, Sale and Delivery of Certificates. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Seller agrees to sell to the
Underwriters, and the Underwriters, acting severally and not jointly, agree to
purchase from the Seller, the respective principal amounts of Class A
Certificates and Class B Certificates set forth opposite the names of the
Underwriters in Schedule A hereto. The Certificates are to be purchased at a
purchase price equal to, in the case of (i) the Class A Certificates,
__________% of the aggregate principal amount thereof and (ii) the Class B
Certificates, ________% of the aggregate principal amount thereof.
The Seller will deliver the Certificates to the Underwriters against
payment of the respective purchase prices therefor in immediately available
funds to the order of the Seller at the office of ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, at ___:00 __.M., ________ time,
on ___________, 199__, or at such other time not later than seven full Business
Days thereafter as the Underwriters and the Seller determine, such time being
herein referred to as the "Closing Date." Each Class of Certificates will be
initially represented by one certificate (the "DTC Certificates") registered in
the name of Cede & Co., the nominee of The Depository Trust Company ("DTC").
The interests of beneficial owners of the DTC Certificates will be represented
by book entries on the records of DTC and participating members thereof.
Definitive certificates evidencing the Class A Certificates or the Class B
Certificates will be available only under the limited circumstances specified
in the Pooling and Servicing Agreement.
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), the Seller and the Underwriters have agreed
that the Closing Date will be not less than seven Business Days following the
date hereof.
4
5
4. Offering by the Underwriters. It is understood that the
Underwriters propose to offer the Certificates for sale to the public as set
forth in the Prospectus.
5. Certain Agreements of the Seller and Fleetwood Credit. Each
of the Seller and Fleetwood Credit, as the case may be, covenants and agrees
with each Underwriter that:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Seller will file the Prospectus with
the Commission pursuant to and in accordance with subparagraph (1)
(or, if applicable and if consented to by the Underwriters,
subparagraph (4)) of Rule 424(b) not later than the earlier of (i) the
second business day following the execution and delivery of this
Agreement or (ii) the fifth business day after the Effective Date.
The Seller will advise the Underwriters promptly of any such filing
pursuant to Rule 424(b).
(b) The Seller will advise the Underwriters promptly of
any proposal to amend or supplement the registration statement as
filed or the related prospectus or the Registration Statement or the
Prospectus and will not effect any such amendment or supplement
without the consent of the Underwriters, which consent will not
unreasonably be withheld; and the Seller will advise the Underwriters
promptly of the effectiveness of the Registration Statement (if the
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplement of the Registration
Statement or the Prospectus and of the institution by the Commission
of any stop order proceedings in respect of the Registration Statement
and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend
or supplement the Prospectus to comply with the Act, the Seller
promptly will prepare and file, or cause to be prepared and filed,
with the Commission an amendment or supplement which will correct such
statement or omission, or an amendment or supplement which will effect
such compliance. Neither the consent of the Underwriters to, nor the
delivery by the Underwriters of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in
Section 6 hereof.
(d) As soon as practicable, but not later than ________,
____, the Seller will cause the Trustee to make generally available to
holders of the Certificates an earnings statement with respect to the
Trust covering a period of at least 12 months beginning after
5
6
the Effective Date which will satisfy the provisions of Section 11(a)
of the Act (including, at the option of the Seller, Rule 158
promulgated thereunder).
(e) The Seller will furnish to the Underwriters copies of
the Registration Statement (at least two of which will be signed and
will include all exhibits), each related preliminary prospectus, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the
Underwriters may reasonably request.
(f) The Seller will use its best efforts to arrange for
the qualification of the Certificates for sale under the laws of such
jurisdictions in the United States as the Underwriters may reasonably
designate and will continue such qualifications in effect so long as
required for the distribution of the Certificates, provided that the
Seller shall not be obligated to qualify to do business nor become
subject to service of process generally, but only to the extent
required for such qualification, in any jurisdiction in which it is
not currently so qualified.
(g) For a period from the date of this Agreement until
the retirement of all of the Certificates, or until such time as the
Underwriters shall cease to maintain a secondary market in either
Class of Certificates, whichever occurs first, the Seller will deliver
to the Underwriters the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the
Trustee pursuant to Article Thirteen of the Pooling and Servicing
Agreement, as soon as such statements and reports are furnished to the
Trustee.
(h) So long as any of the Certificates are outstanding,
the Seller or Fleetwood Credit, as the case may be, shall furnish to
the Underwriters, as soon as practicable, (i) all documents required
to be distributed to holders of either Class of Certificates (or
available at such holders' request) or filed with the Commission
pursuant to the Exchange Act, or any order of the Commission
thereunder and (ii) from time to time, any other information
concerning the Seller or Fleetwood Credit filed with any government or
regulatory authority which is otherwise publicly available, as the
Underwriters may reasonably request.
(i) Whether or not the transactions contemplated by this
Agreement are consummated other than as a result of a failure by the
Underwriters to perform hereunder, the Seller and Fleetwood Credit
will, subject to the provisions of Section 9 hereof, pay all expenses
incident to the performance of their respective obligations under this
Agreement, including without limitation, expenses incident to the
printing, reproduction and distribution of the registration statement
as originally filed with the Commission and all amendments thereto,
any fees charged by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and
Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
("Standard &
6
7
Poor's" and, together with Moody's, the "Rating Agencies") for the
rating of the Class A Certificates and the Class B Certificates, the
fees of DTC in connection with the book-entry registration of the
Class A Certificates and the Class B Certificates and reasonable
expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) and will
reimburse the Underwriters for all reasonable expenses incurred in
connection with the initial qualification of the Certificates for sale
under the laws of such jurisdictions in the United States as the
Underwriters may designate, including, but not limited to, fees of
counsel and disbursements incurred by such counsel in connection
therewith.
(j) On or before the Closing Date with respect to the
Initial Receivables, and on or before each Subsequent Transfer Date
with respect to the Subsequent Receivables to be transferred to the
Trust on such date, the Seller and Fleetwood Credit shall cause their
respective computer records to be marked relating to the Receivables
to show the Trust's absolute ownership of the Receivables, and from
and after the Closing Date or such Subsequent Transfer Date, as the
case may be, Fleetwood Credit Receivables Corp., as Seller, and
Fleetwood Credit, as Servicer, shall not take any action inconsistent
with the Trust's ownership of the Receivables, other than as permitted
by the Pooling and Servicing Agreement.
(k) To the extent, if any, that the rating provided with
respect to the Class A Certificates or the Class B Certificates by
either Rating Agency is conditional upon the furnishing of documents
or the taking of any other actions by the Seller or Fleetwood Credit,
the Seller or Fleetwood Credit, as the case may be, shall furnish such
documents and take any such other actions.
(l) In the event the Servicer obtains a Servicer Letter
of Credit pursuant to the Pooling and Servicing Agreement, the Seller
and the Servicer shall cause the Underwriters to receive:
(i) A copy of the Servicer Letter of Credit.
(ii) An original of the servicer letter of credit
reimbursement agreement (the "Reimbursement Agreement")
between the Servicer and the letter of credit bank named
therein (the "Letter of Credit Bank") pursuant to which the
Servicer Letter of Credit was issued.
(iii) An original of any amendment to the Pooling
and Servicing Agreement relating to the obtaining of the
Servicer Letter of Credit.
(iv) An opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Senior
Vice President and Assistant General Counsel of Fleetwood
Credit, dated the date of issuance of the
7
8
Servicer Letter of Credit (the "Issuance Date") and
satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, and substantially to the effect
of clauses (i), (v), (viii), (ix) and (x) of Section 6(f)
hereof, appropriately modified to relate to the Reimbursement
Agreement.
(v) An opinion of counsel to the Letter of Credit
Bank, satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, dated the Issuance Date and
substantially to the effect that:
(A) The Letter of Credit Bank is duly
organized as a corporation and is validly existing
under the laws of the country of its organization,
and has the full power and authority (corporate and
other) to issue, and to take all action required of
it under, the Servicer Letter of Credit.
(B) The execution, delivery and
performance by the Letter of Credit Bank of the
Servicer Letter of Credit and the Reimbursement
Agreement have been duly authorized by all necessary
corporate action on the part of the Letter of Credit
Bank.
(C) The execution, delivery and
performance by the Letter of Credit Bank of the
Servicer Letter of Credit and the Reimbursement
Agreement do not require the consent or approval of,
the giving of notice to, the registration with, or
the taking of any other action in respect of any
state or other governmental agency or authority which
has not previously been effected.
(D) The Servicer Letter of Credit and
the Reimbursement Agreement have been duly
authorized, executed and delivered by the Letter of
Credit Bank and constitute legal, valid and binding
obligations of the Letter of Credit Bank, enforceable
against the Letter of Credit Bank in accordance with
their respective terms (subject, as to enforcement,
to bankruptcy, reorganization, insolvency, moratorium
and other laws affecting creditors' rights generally
and to general equity principles).
(E) The Servicer Letter of Credit is not
required to be registered under the Act in connection
with the offer and sale of the Certificates in the
manner contemplated by the Prospectus.
In rendering such opinion, such counsel may rely as to all
matters of the law of the country of organization of the
Letter of Credit Bank upon counsel satisfactory to the
Underwriters and counsel for the Underwriters.
8
9
(vi) A certificate, dated the Issuance Date, of
the President or any Vice President of the Letter of Credit
Bank to the effect that, among other things, since the date of
this Agreement, there has been no material adverse change in
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects, of the Letter of
Credit Bank.
(vii) A letter from each Rating Agency, to the
extent required by the Pooling and Servicing Agreement, to the
effect that the obtaining of the Servicer Letter of Credit, in
and of itself, would not cause its rating of either Class of
Certificates to be reduced, withdrawn or modified.
6. Conditions of the Obligations of the Underwriters. The
obligation of the Underwriters to purchase and pay for the Certificates will be
subject to the accuracy of the respective representations and warranties on the
part of the Seller and Fleetwood Credit herein, to the accuracy of the
statements of the respective officers of the Seller and Fleetwood Credit made
pursuant to the provisions hereof, to the performance by the Seller and
Fleetwood Credit of their respective obligations hereunder and to the following
additional conditions precedent:
(a) The Underwriters and the Seller shall have received
from Coopers & ▇▇▇▇▇▇▇ L.L.P., independent public accountants
("Coopers & ▇▇▇▇▇▇▇") (i) on the date of this Agreement, a letter,
dated as of such date, substantially in the form of the draft to which
the Underwriters have previously agreed, and (ii) on the Closing Date,
a letter, dated as of the Closing Date, updating the letter referred
to in clause (i) above, which letters shall in each case be in form
and substance satisfactory to the Underwriters and counsel for the
Underwriters.
(b) If the Effective Time is not prior to the execution
and delivery of this Agreement, the Effective Time shall have occurred
not later than 10:00 P.M., New York City time, on the date of this
Agreement or such later date as shall have been consented to by the
Underwriters. If the Effective Time is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and
Section 5(a) hereof. Prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Seller or the Underwriters,
shall be contemplated by the Commission.
(c) The Underwriters shall have received an officer's
certificate dated the Closing Date by the President, any Vice
President, the Treasurer or the Secretary of (i) the Seller
representing and warranting to the Underwriters that, as of the
Closing Date, the representations and warranties of the Seller in the
Pooling and Servicing Agreement are true and correct and (ii)
Fleetwood Credit representing and warranting that, as of the
9
10
Closing Date, the representations and warranties of Fleetwood Credit
in the Pooling and Servicing Agreement are true and correct.
(d) The Underwriters shall have received an opinion of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Senior Vice President and Assistant General
Counsel to the Seller, or, insofar as such matters relate to
California law, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, addressed to the
Underwriters, the Rating Agencies and the Trustee, dated the Closing
Date and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, substantially to the effect that:
(i) The Seller has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of California with full power and authority
(corporate and other), and has obtained all necessary licenses
and approvals, to own its properties and conduct its business
as presently conducted by it, and to enter into and perform
its obligations under the Pooling and Servicing Agreement and
the Receivables Purchase Agreement (collectively, the "Basic
Documents"), this Agreement and the Certificates, and,
assuming no change in law or factual circumstance (as
confirmed in the Officer's Certificates to be delivered as of
each Subsequent Transfer Date), will have such power and
authority with regard to each Transfer Agreement, and had at
all relevant times, now has, and on each Subsequent Transfer
Date will have, the power, authority and legal right to
acquire, own and sell the Initial Receivables and the
Subsequent Receivables.
(ii) The Seller has obtained all necessary
licenses and approvals to conduct its business as presently
conducted in California and does not currently conduct
business in any other state in which a Receivable was
originated and does not need any licenses or approvals from
any of such other states for purposes of the transactions
contemplated by the Basic Documents, each Transfer Agreement
and this Agreement.
(iii) This Agreement has been duly authorized,
executed and delivered by the Seller and constitutes the
legal, valid and binding agreement of the Seller, enforceable
in accordance with its terms, except that (A) the
enforceability hereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights, (B)
the remedies of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding
therefor may be brought and (C) rights to indemnity and
contribution hereunder may be limited by federal or state
securities laws or the public policies underlying such laws.
10
11
(iv) Each Basic Document has been and, assuming no
change in law or factual circumstance (as confirmed in the
Officer's Certificates to be delivered as of each Subsequent
Transfer Date), each Transfer Agreement will be, duly
authorized, executed and delivered by the Seller and
constitutes the legal, valid and binding obligation of the
Seller, enforceable in accordance with its terms, except that
(A) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights and
(B) the remedies of specific performance and injunctive and
other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(v) At the time of execution and delivery of the
Pooling and Servicing Agreement, the Seller had the power and
authority to transfer the Initial Receivables and such other
property being transferred to the Trust pursuant to the
Pooling and Servicing Agreement and to cause the Certificates
to be sold and transferred to the Underwriters.
(vi) The Registration Statement has become
effective under the Act, and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and
the Prospectus, and each amendment or supplement thereto, as
of their respective effective or issue dates, complied as to
form in all material respects with the requirements of the Act
and the Rules and Regulations; such counsel has no reason to
believe that either the Registration Statement, at the
Effective Time, or any such amendment or supplement, as of its
effective date, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, at the date of this
Agreement, or any such amendment or supplement, as of its
respective date, or at the Closing Date, included or includes
an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; it being understood that
such counsel need express no opinion as to the financial
statements or other financial or statistical data contained in
the Registration Statement or the Prospectus.
(vii) Neither the transfer of the Initial
Receivables or, assuming no change in law or factual
circumstance (as confirmed in the Officer's Certificates to be
delivered as of each Subsequent Transfer Date), the Subsequent
Receivables to the Trust, nor the assignment of the security
interest of the Seller in the Financed
11
12
Vehicles, nor the issuance and delivery of the Certificates,
nor the sale of the Certificates, nor the execution and
delivery of the Basic Documents, this Agreement, or, assuming
no change in law or factual circumstance (as confirmed in the
Officer's Certificates to be delivered as of each Subsequent
Transfer Date), any Transfer Agreement, nor the consummation
of any other of the transactions contemplated herein or in the
Basic Documents or in any Transfer Agreement, or the
fulfillment of the terms of the Certificates, the Basic
Documents or this Agreement by the Seller will conflict with,
or result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the
articles of incorporation or bylaws of the Seller or, to the
best knowledge of such counsel, of any indenture or other
agreement or instrument to which the Seller is a party or by
which it is bound or any of its properties may be subject, or
result in a violation of or contravene the terms of any
statute, order or regulation applicable to the Seller of any
court, regulatory body, administrative agency or governmental
body having jurisdiction over the Seller or its properties.
(viii) The Certificates have been duly and validly
authorized and, when executed, authenticated and delivered to
the Underwriters as specified in the Pooling and Servicing
Agreement against payment of the consideration therefor
determined in accordance with this Agreement, will be duly and
validly issued and outstanding and will be entitled to the
benefits of the Pooling and Servicing Agreement.
(ix) The Seller has, and pursuant to the Pooling
and Servicing Agreement is transferring to the Trust,
ownership of the Initial Receivables, in each case free and
clear of any and all other assignments, encumbrances, options,
rights, claims, liens or security interests that may affect
the rights of the Seller or the Trustee in and to such
Receivables; provided, however, that (A) such counsel need
express no opinion with respect to the enforceability of any
individual Receivable or the existence of any claims, rights
or other matters that are not of record in favor of the
related Obligor or the owner of the related Financed Vehicle,
(B) such opinion may be limited to the extent that any one or
more of the Initial Receivables could be subject to claims of
creditors of the dealers that may have originated certain of
the Initial Receivables to the extent such creditors can claim
the benefits of a security interest in such Receivables either
by reason of the filing of a financing statement with respect
to chattel paper of such dealer or as proceeds from the sale
of inventory in which such creditor had a security interest,
(C) such opinion may be further limited to the extent that any
such transfer may be subject to the rights of other persons
who take, or have taken, possession of any of the Initial
Receivables without knowledge of the transfer to the Trust and
(D) such counsel need express no opinion as to the existence
of tax liens, mechanics' liens or other security interests and
liens that are not of record.
12
13
(x) The Certificates, each Basic Document, the
form of Transfer Agreement attached as an exhibit to the
Pooling and Servicing Agreement and this Agreement each
conform in all material respects with the description thereof
contained in the Registration Statement and the Prospectus.
(xi) The statements in the Registration Statement
and Prospectus under the heading "Certain Legal Aspects of the
Receivables," to the extent that they constitute matters of
law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and are correct in all
material respects.
(xii) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended, and the Trust created by the Pooling and
Servicing Agreement is not required to be registered under the
Investment Company Act of 1940, as amended.
(xiii) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation by the Seller of the transactions
contemplated in this Agreement, the Basic Documents or any
Transfer Agreement except such as may be required under
federal or state securities laws in connection with the
purchase by the Underwriters of the Certificates, filings with
respect to the transfer of the Receivables to Fleetwood
Credit, filings with respect to the transfer of the
Receivables by Fleetwood Credit to the Seller pursuant to the
Receivables Purchase Agreement and the related Transfer
Agreement, and by the Seller to the Trustee pursuant to the
Pooling and Servicing Agreement and the related Transfer
Agreement and such other approvals as have been obtained.
(xiv) There are no actions, proceedings or
investigations pending or, to the best knowledge of such
counsel after due inquiry, threatened before any court,
administrative agency or other tribunal (A) asserting the
invalidity of this Agreement, any Basic Document, any Transfer
Agreement or the Certificates, (B) seeking to prevent the
issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Basic
Documents or any Transfer Agreement, (C) that might materially
and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this
Agreement, any Basic Document, any Transfer Agreement or the
Certificates or (D) seeking to adversely affect the federal
income tax attributes of the Certificates as described in the
Prospectus under the heading "Certain Federal Income Tax
Consequences."
(e) The Underwriters shall have received an opinion of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Senior Vice President and Assistant General
Counsel of Fleetwood Credit, or,
13
14
insofar as such matters relate to California law, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
& ▇▇▇▇▇ LLP, addressed to the Underwriters, the Rating Agencies and
the Trustee, dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, and
substantially to the effect that:
(i) Fleetwood Credit has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of California with full power and
authority (corporate and other), and has obtained all
necessary licenses and approvals, to own its properties and
conduct its business as presently conducted by it, and to
enter into and perform its obligations under the Basic
Documents, this Agreement and the Certificates and, assuming
no change in law or factual circumstance (as confirmed in the
Officer's Certificates to be delivered as of each Subsequent
Transfer Date), any Transfer Agreement, and had at all
relevant times, now has, and on each Subsequent Transfer Date
will have, the power, authority and legal right to acquire,
own, sell and service the Receivables.
(ii) Fleetwood Credit is duly qualified to do
business and in good standing, and has obtained all necessary
licenses and approvals to conduct its business as presently
conducted in California and each other state in which an
Initial Receivable was originated.
(iii) At the time of the execution and delivery of
the Receivables Purchase Agreement, Fleetwood Credit had the
power and authority to transfer to the Seller the Initial
Receivables and other property of the Trust being transferred
to the Seller.
(iv) Neither the transfer of the Initial
Receivables or, assuming no change in law or factual
circumstance (as confirmed in the Officer's Certificates to be
delivered as of each Subsequent Transfer Date), the Subsequent
Receivables to the Seller, nor the assignment of the security
interest of Fleetwood Credit in the Financed Vehicles, nor the
issuance and delivery of the Certificates, nor the sale of the
Certificates to the Underwriters, nor the execution and
delivery of the Basic Documents, this Agreement or, assuming
no change in law or factual circumstance (as confirmed in the
Officer's Certificates to be delivered as of each Subsequent
Transfer Date), any Transfer Agreement, nor the consummation
of any other of the transactions contemplated herein, in the
Basic Documents or any Transfer Agreement, nor the fulfillment
of the terms of the Certificates, the Basic Documents, this
Agreement or the Transfer Agreement by Fleetwood Credit will
conflict with, or result in a breach, violation or
acceleration of, or constitute a default under, any term or
provision of the articles of incorporation or bylaws of
Fleetwood Credit or, to the best knowledge of such counsel, of
any indenture or other agreement or instrument to which
Fleetwood Credit is a party or by which it
14
15
is bound or any of its properties may be subject, or result in
a violation of, or contravene the terms of any statute, order
or regulation, applicable to Fleetwood Credit of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over it or its properties.
(v) Fleetwood Credit has, and is transferring to
the Seller, ownership of the Initial Receivables and, assuming
no change in law or factual circumstance and the performance
of certain specified procedures (as confirmed in the Officer's
Certificates to be delivered as of each Subsequent Transfer
Date), will transfer to the Seller ownership of the Subsequent
Receivables, in each case, free and clear of any and all other
assignments, encumbrances, options, rights, claims, liens or
security interests that may affect the rights of Fleetwood
Credit or the Seller in and to such Receivables; provided,
however, that (A) such counsel need express no opinion with
respect to the enforceability of any individual Receivable or
the existence of any claims, rights or other matters that are
not of record in favor of the related Obligor or the owner of
the related Financed Vehicle, (B) such opinion may be limited
to the extent that any one or more of the Receivables could be
subject to claims of creditors of the dealers that may have
originated certain of the Receivables to the extent such
creditors can claim the benefits of a security interest in
such Receivables either by reason of the filing of a financing
statement with respect to chattel paper of such dealer or as
proceeds from the sale of inventory in which such creditor had
a security interest, (C) such opinion may be further limited
to the extent that any such transfer may be subject to the
rights of other persons who take, or have taken, possession of
any of the Receivables without knowledge of the transfer to
the Seller and (D) such counsel need express no opinion as to
the existence of tax liens, mechanics' liens or other security
interests and liens that are not of record.
(vi) This Agreement has been duly authorized,
executed and delivered by Fleetwood Credit and constitutes the
legal, valid and binding agreement of Fleetwood Credit,
enforceable in accordance with its terms, except that (A) the
enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights, (B)
the remedies of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding
therefor may be brought and (C) rights to indemnity and
contribution thereunder may be limited by federal or state
securities laws or the public policies underlying such laws.
(vii) Each Basic Document has been and, assuming no
change in law or factual circumstance and the performance of
certain specified procedures (as confirmed in the Officer's
Certificates to be delivered as of each Subsequent
15
16
Transfer Date), the related Transfer Agreement will be duly
authorized, executed and delivered by Fleetwood Credit and
constitutes the legal, valid and binding obligation of
Fleetwood Credit, enforceable in accordance with its terms,
except that (A) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights and (B) the remedies of specific performance and
injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(viii) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation by Fleetwood Credit of the transactions
contemplated in this Agreement, the Basic Documents or any
Transfer Agreement except filings with respect to the transfer
of the Receivables by Fleetwood Credit to the Seller pursuant
to the Receivables Purchase Agreement and each Transfer
Agreement, and such other approvals as have been obtained.
(ix) There are no actions, proceedings or
investigations pending or, to the best of such counsel's
knowledge after due inquiry, threatened before any court,
administrative agency or other tribunal (A) asserting the
invalidity of this Agreement, any Basic Document, any Transfer
Agreement or the Certificates, (B) seeking to prevent the
issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Basic
Documents or any Transfer Agreement, (C) that might materially
and adversely affect the performance by Fleetwood Credit of
its obligations under, or the validity or enforceability of,
this Agreement, any Basic Document, any Transfer Agreement or
the Certificates or (D) seeking to affect adversely the
federal income tax attributes of the Certificates as described
in the Prospectus under the heading "Certain Federal Income
Tax Consequences."
(f) The Underwriters shall have received an opinion of
▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel to the Seller, addressed to the
Underwriters, the Rating Agencies and the Trustee, dated the Closing
Date and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, to the effect that the Trust will not be
classified as an association taxable as a corporation for federal
income tax purposes and, instead, under subpart E, part I of
subchapter J of the Internal Revenue Code of 1986, as amended, the
Trust will be treated as a grantor trust.
(g) The Underwriters shall have received an opinion of
▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special income tax counsel to the Seller, dated
the Closing Date and satisfactory in form and substance to the
Underwriters, to the effect that the statements in the Registration
16
17
Statement and Prospectus under the headings "Certain Federal Income
Tax Considerations" and "ERISA Considerations," to the extent that
they constitute matters of law or legal conclusions with respect
thereto, have been prepared or reviewed by such counsel and are
correct in all material respects.
(h) The Underwriters shall have received an opinion of
▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel to the Seller, addressed to the
Underwriters and the Rating Agencies, dated the Closing Date, with
respect to the characterization of the transfer of the Initial
Receivables and, assuming no change in law or factual circumstance (as
confirmed in the Officer's Certificate to be delivered as of each
Subsequent Transfer Date), the Subsequent Receivables, as a sale, in
substantially a form acceptable to the Underwriters.
(i) The Underwriters shall have received the opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special California counsel to the
Seller and Fleetwood Credit, addressed to the Underwriters, the Rating
Agencies and the Trustee, dated the Closing Date and satisfactory in
form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
(i) As to each security interest in a Financed
Vehicle created by a Receivable originated in California
(each, a "California Receivable"), notwithstanding that each
such California Receivable may not be stamped to reflect its
transfer to the Trustee, nor will the certificate of ownership
be so stamped or re-registered to reflect the transfer of the
California Receivable to the Trustee, the Trustee will have a
perfected security interest in each such Financed Vehicle
which will be prior in right to any other security interest in
a Financed Vehicle that is or would be perfected solely by
notation of such security interest on the certificate of
ownership for the Financed Vehicle, and no filing or other
action is necessary to perfect or continue the priority status
of such security interest as against creditors of or
transferees from the Obligor under such California Receivable
or the Trustee, so long as such Financed Vehicle is not
removed from the State of California for a period longer than
four months or before the end of such four-month period, such
security interest is duly perfected under applicable law.
(ii) The California Receivables constitute
"chattel paper" as such term is defined in the California UCC.
(iii) The California Receivables, assuming each is
full and correctly completed as required by applicable law,
constitutes the valid, legal and binding obligation of the
Obligor as to each such California Receivable enforceable
against each such Obligor in accordance with its term, to the
extent the
17
18
enforcement of remedies is reasonably necessary to protect the
interests of the parties.
(iv) Assuming the validity, binding effect and
enforceability in all other respects, the preprinted parts of
the California Receivables are in sufficient compliance with
federal and California consumer protection laws so as not to
be rendered void or voidable at the election of the related
Obligor.
(v) The Trust will not be classified as an
association (or a publicly traded partnership) taxable as a
corporation for California income tax purposes
(j) The Underwriters shall have received the opinion of
_____________, special Texas counsel to the Seller and Fleetwood
Credit, or such other counsel acceptable to the Underwriters,
addressed to the Underwriters, the Rating Agencies and the Trustee,
dated the Closing Date and satisfactory in form and substance to the
Underwriters and counsel for the Underwriters to the effect that:
(i) As to each security interest in a Financed
Vehicle created by an Initial Receivable originated in Texas
(each, a "Texas Receivable"), notwithstanding that each such
Texas Receivable may not be stamped to reflect its transfer to
the Trust, nor will the certificate of ownership be so stamped
or re-registered to reflect the transfer of the Texas
Receivable to the Trust, the Trustee will have a perfected
security interest in each such Financed Vehicle which will be
prior in right to any other security interest in a Financed
Vehicle that is or would be perfected solely by notation of
such security interest on the certificate of ownership for the
Financed Vehicle, and no filing or other action is necessary
to perfect or continue the priority status of such security
interest as against creditors of or transferees from the
Obligor under such Texas Receivable or the Trustee, so long as
such Financed Vehicle is not removed from the State of Texas
for a period longer than four months or before the end of such
four-month period, such security interest is duly perfected
under applicable law.
(ii) The Texas Receivables constitute "chattel
paper" as such term is defined in the Texas UCC.
(iii) The Texas Receivables, assuming each is full
and correctly completed as required by applicable law,
constitutes the valid, legal and binding obligation of the
Obligor as to each such Texas Receivable enforceable against
each such Obligor in accordance with its terms, subject to
applicable bankruptcy and equitable principle exceptions, to
the extent the enforcement of remedies is reasonably necessary
to protect the interests of the parties.
18
19
(iv) Assuming the validity, binding effect and
enforceability in all other respects, the preprinted parts of
the Texas Receivables are in sufficient compliance with
federal and Texas consumer protection laws so as not to be
rendered void or voidable at the election of the related
Obligor.
(k) The Underwriters shall have received an opinion of
counsel to the Trustee, addressed to the Underwriters, the Seller and
Fleetwood Credit, dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters to the
effect that:
(i) The Trustee has been duly incorporated and is
validly existing as a ____________ in good standing under the
laws of _________ with full power and authority (corporate and
other) to own its properties and conduct its business, as
presently conducted by it, and to enter into and perform its
obligations under the Pooling and Servicing Agreement and,
assuming no change in law or factual circumstance, will have
such power and authority to enter into and to perform its
obligations under each Transfer Agreement.
(ii) The Pooling and Servicing Agreement has been,
and each Transfer Agreement will be, duly authorized, executed
and delivered by the Trustee, and constitutes a legal, valid
and binding obligation of the Trustee, enforceable in
accordance with its terms, except that (A) the enforceability
thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and (B) the
remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and
to the discretion of the court before which any proceeding
therefor may be brought.
(iii) The Certificates have been duly executed,
authenticated and delivered by the Trustee.
(iv) Neither the execution or delivery by the
Trustee of the Pooling and Servicing Agreement and each
Transfer Agreement, nor the consummation of any of the
transactions by the Trustee contemplated thereby, require the
consent or approval of, the giving of notice to, the
registration with or the taking of any other action with
respect to, any governmental authority or agency under any
existing federal or state law governing the banking or trust
powers of the Trustee.
(l) The Underwriters shall have received an opinion of
▇▇▇▇▇ & ▇▇▇▇ LLP, addressed to the Underwriters and dated the Closing
Date, with respect to the validity of the Certificates and such other
related matters as the Underwriters shall request, and the Seller and
Fleetwood Credit shall have furnished or caused to be furnished to
such
19
20
counsel such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters.
(m) The Underwriters shall have received a reliance
letter to each opinion rendered to either Rating Agency in connection
with the rating of the Certificates, to the extent that any such
opinion is not otherwise addressed to the Underwriters and covered by
Section 6(d) through 6(l).
(n) The Underwriters shall have received a certificate
dated the Closing Date of the President, any Vice President, the
Treasurer or the Secretary of (i) the Seller, in which such officer
shall state that, to the best of his knowledge after reasonable
investigation, the representations and warranties of the Seller in
this Agreement are true and correct, the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date and that no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted
or are contemplated by the Commission, and (ii) Fleetwood Credit, in
which such officer shall state that, to the best of his knowledge
after reasonable investigation, the representations and warranties of
Fleetwood Credit in this Agreement are true and correct and that
Fleetwood Credit has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder.
(o) The Class A Certificates shall be rated "Aaa" by
▇▇▇▇▇'▇ and "AAA" by Standard & Poor's.
(p) The Class B Certificates shall be rated at least
"Baa2" by ▇▇▇▇▇'▇ and "A" by Standard & Poor's.
The Seller will provide or cause to be provided to the Underwriters
such conformed copies of such opinions, certificates, letters and documents as
the Underwriters may reasonably request, including those delivered to the
Rating Agencies.
7. Indemnification.
(a) Each of the Seller and Fleetwood Credit agrees, jointly and
severally, to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act
as follows:
(i) against any and all loss, liability, claim, damage
and expense, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant
to Rule 430A(b) of
20
21
the Rules and Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage
and expense, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Seller and Fleetwood Credit;
and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(c) hereof, the fees and disbursements
of counsel chosen by the Underwriters), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clause
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Seller by the
Underwriters expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided further, that neither the Seller nor
Fleetwood Credit shall be liable to any Underwriter under the indemnity
agreement in this subsection with respect to any Preliminary Prospectus to the
extent that any such loss, liability, claim, damage or expense of such
Underwriter results from the fact that such Underwriter sold Certificates to a
person as to whom it shall be established that there was not sent or given, at
or prior to written confirmation of such sale, a copy of the Prospectus or of
the Prospectus as then amended or supplemented in any case where such delivery
is required by the Act if the Seller or Fleetwood Credit previously furnished
copies thereof in the quantity requested in accordance with Section 5(e) hereof
to such Underwriter and the loss, liability, claim, damage or expense of such
Underwriter results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus and corrected in the Prospectus or the
Prospectus as then amended or supplemented.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Seller and Fleetwood Credit, each of their respective directors,
each of their respective officers who signed
21
22
the Registration Statement, and each person, if any, who controls either the
Seller or Fleetwood Credit within the meaning of Section 15 of the Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), in reliance upon and in conformity with written information furnished
to the Seller by the Underwriters expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it with respect to which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnified party
from any liability which it may have other than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 7 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Seller, Fleetwood
Credit and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Seller, Fleetwood Credit and the
Underwriters, as incurred, in such proportions that the Underwriters are
responsible for that portion represented by the percentage that the aggregate
underwriting discounts appearing on the cover page of the Prospectus bears to
the aggregate initial public offering prices of the Certificates appearing
thereon and the Seller and Fleetwood Credit are responsible for the balance.
Notwithstanding the provisions of this Section, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Certificates underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission and no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person,
if any, who controls an Underwriter within the meaning of Section 15 of the Act
shall have the same rights to contribution as such Underwriter, and each
director of the Seller and Fleetwood Credit, each officer of the Seller who
signed the Registration Statement and each person, if any, who controls either
the Seller or Fleetwood Credit within the meaning of Section 15 of the Act
shall have the same rights to contribution as the Seller or Fleetwood Credit,
as the case may be.
22
23
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller and Fleetwood Credit or their respective officers and
of the Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation or statement as to
the results thereof, made by or on behalf of any Underwriter, the Seller,
Fleetwood Credit or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Certificates. If for any reason the purchase of the Certificates by
the Underwriters is not consummated, the Seller and Fleetwood Credit shall
remain responsible for the expenses to be paid or reimbursed by the Seller and
Fleetwood Credit pursuant to Section 5(i) hereof and the respective obligations
of the Seller, Fleetwood Credit and the Underwriters pursuant to Section 7
hereof shall remain in effect. The indemnification and contribution agreements
contained in Section 7 hereof shall survive the termination and cancellation of
this Agreement. If for any reason (other than solely by reason of the
termination of this Agreement because of a failure to satisfy the conditions
set forth in items (iii), (iv) or (v) of Section 9 hereof), the purchase of the
Certificates by the Underwriters is not consummated, the Seller and Fleetwood
Credit will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Certificates.
10. Termination of Agreement. The Underwriters may terminate
this Agreement, by notice to the Seller and Fleetwood Credit, at any time prior
to or at the Closing Date (i) if there has been, since the date of this
Agreement or since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Seller or Fleetwood Credit, whether or not arising in the ordinary course of
business; (ii) if there has occurred any downgrading in the rating of the debt
securities of the Seller or Fleetwood Credit by any "nationally recognized
statistical rating organization" (as such term is defined for purposes of Rule
436(g) under the Act), or any public announcement that any such organization
has under surveillance or review its rating of any debt securities of the
Seller or Fleetwood Credit (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or other calamity or crisis, the effect of which is such as to make
it, in the reasonable judgment of the Underwriters, impracticable to market the
Certificates or to enforce contracts for the sale of the Certificates; (iv) if
trading generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by
either of said Exchanges or by order of the Commission or any other
governmental authority; or (v) if a banking moratorium has been declared by
federal, New York or California authorities.
11. Default By an Underwriter. If one of the Underwriters shall
fail at the Closing Date to purchase the Certificates which it is obligated to
purchase under this Agreement (the
23
24
"Defaulted Securities"), the Representative shall have the right, but not the
obligation, within 24 hours thereafter, to make arrangements for the
non-defaulting Underwriter, or any other underwriter, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, the Representative shall
not have completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the total aggregate principal amount
of the Certificates, the non-defaulting Underwriter shall be obligated
to purchase the full amount thereof, or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the total aggregate principal amount of the
Certificates, this Agreement shall terminate without liability on the
part of the non-defaulting Underwriter.
No action pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Seller shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangement.
12. Notices. All communications hereunder will be in writing and,
if sent to (i) the Underwriters, will be mailed, delivered or sent by facsimile
and confirmed to them at ______________, Attention: __________ (facsimile
number (___) ___-____); (ii) the Seller, will be mailed, delivered or sent by
facsimile and confirmed to it at Fleetwood Credit Receivables Corp., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Senior Vice
President (facsimile number (▇▇▇) ▇▇▇-▇▇▇▇); or (iii) Fleetwood Credit, will be
mailed, delivered or sent by facsimile and confirmed to it at Fleetwood Credit
Corp., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Senior Vice President (facsimile number (▇▇▇) ▇▇▇-▇▇▇▇).
13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
24
25
15. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California.
25
26
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts duplicate
hereof, whereupon it will become a binding agreement between the Seller and
Fleetwood Credit and the Underwriters in accordance with its terms.
Very truly yours,
FLEETWOOD CREDIT CORP.
By:
-------------------------------------
Name:
Title:
FLEETWOOD CREDIT RECEIVABLES CORP.
By:
-------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
-----------------.
For itself and as Representative of the Underwriters
By:
------------------------------------------
Name:
Title:
27
SCHEDULE A
Principal Principal
Amount of Amount of
Class A Class B
Underwriter Certificates Certificates
----------- ------------ ------------
_______________ . . . . . . . . . . . . . . . . . . . $___________ $___________
_______________ . . . . . . . . . . . . . . . . . . .
------------ -----------
Total $___________ $___________
============ ============
A-1
