1
EXHIBIT 10.5
================================================================================
ADMINISTRATION AGREEMENT
among
FLEETWOOD CREDIT RV RECEIVABLES 199 - OWNER TRUST,
as Issuer,
FLEETWOOD CREDIT CORP.,
as Administrator,
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Seller,
and
________________,
as Indenture Trustee
Dated as of ____________ 1, 199
================================================================================
2
TABLE OF CONTENTS
Page
----
Section 1. Duties of the Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2. Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4. Additional Information to be Furnished to the Issuer . . . . . . . . . . . . . . . . . 8
Section 5. Independence of the Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 6. No Joint Venture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 7. Other Activities of Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 8. Term of Agreement; Resignation and Removal of Administrator . . . . . . . . . . . . . 9
Section 9. Action upon Termination, Resignation or Removal . . . . . . . . . . . . . . . . . . . 10
Section 10. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 11. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 12. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 13. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 14. Table of Contents and Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 15. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 16. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 17. Limitation of Liability of Owner Trustee and Indenture Trustee . . . . . . . . . . . . 12
Section 18. Third Party Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(i)
3
This Administration Agreement, dated as of ____________ 1, 199 is
among the Fleetwood Credit RV Receivables 199 - Owner Trust, as issuer (the
"Issuer"), Fleetwood Credit Corp., a California corporation ("Fleetwood
Credit"), as administrator (in such capacity, the "Administrator"), Fleetwood
Credit Receivables Corp., a California corporation, as seller (the "Seller"),
and ______________, a __________, as indenture trustee (the "Indenture
Trustee").
WITNESSETH:
WHEREAS, the Issuer is issuing ____% Asset Backed Notes, Class A-1,
____% Floating Rate Asset Backed Notes, Class A-2, and ____% Asset Backed
Notes, Class A-3 (collectively, the "Notes"), pursuant to that certain
indenture, dated as of __________ 1, 199 (the "Indenture"), between the Issuer
and the Indenture Trustee;
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and of certain beneficial ownership interests of
the Issuer, including (i) that certain sale and servicing Agreement, dated as
of ___________ 1, 199 (the "Sale and Servicing Agreement"), among the Issuer,
the Seller and Fleetwood Credit, as servicer (in such capacity, the
"Servicer"), and (ii) a Letter of Representations, dated __________, 199 (the
"Note Depository Agreement"), among the Issuer, the Indenture Trustee and The
Depository Trust Company ("DTC") relating to the Notes, (iii) a Letter of
Representations, dated __________, 199 (together with the Note Depository
Agreement, the "Depository Agreements"), among the Issuer, ____________, a
__________ (the "Owner Trustee"), and DTC and (iv) the Indenture (together with
the Sale and Servicing Agreement and the Depository Agreements, the "Related
Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (i) the Notes
and the collateral therefor pledged pursuant to the Indenture (the
"Collateral") and (ii) the beneficial ownership interests in the Issuer (the
registered holders of such interests being referred to herein as the "Owners");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
4
Section 1. Duties of the Administrator.
(a) Duties with Respect to the Depository Agreements and the
Indenture.
(i) The Administrator shall perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under
the Depository Agreements. The Administrator shall consult with the
Owner Trustee regarding the duties of the Issuer or the Owner Trustee
under the Indenture and the Depository Agreements. The Administrator
shall monitor the performance of the Issuer and shall advise the Owner
Trustee when action is necessary to comply with the respective duties
of the Issuer and the Owner Trustee under the Indenture and the
Depository Agreements. The Administrator shall prepare for execution
by the Issuer, or shall cause the preparation by other appropriate
persons of, all such documents, reports, filings, instruments,
certificates and opinions that it shall be the duty of the Issuer or
the Owner Trustee to prepare, file or deliver pursuant to the
Indenture and the Depository Agreements. In furtherance of the
foregoing, the Administrator shall take all appropriate action that
the Issuer or the Owner Trustee is required to take pursuant to the
Indenture including, without limitation, such of the foregoing as are
required with respect to the following matters under the Indenture
(references are to Sections of the Indenture):
(A) the duty to cause the Note Register to be
kept and to give the Indenture Trustee notice of any
appointment of a new Note Registrar and the location, or
change in location, of the Note Register (Section 2.04);
(B) the notification of Noteholders and the
Rating Agencies of the final principal payment on the Notes
(Section 2.07(b));
(C) the fixing or causing to be fixed of any
special record date and the notification of the Indenture
Trustee and Noteholders with respect to special payment dates,
if any (Section 2.07(c));
(D) the preparation of or obtaining of the
documents and instruments required for execution and
authentication of the Notes and delivery of the same to the
Indenture Trustee (Section 2.02);
(E) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of Collateral (Section 2.12);
(F) the maintenance of an office in the Borough
of Manhattan, The City of New York, for registration of
transfer or exchange of Notes (Section 3.02);
2
5
(G) the duty to cause newly appointed Paying
Agents, if any, to deliver to the Indenture Trustee the
instrument specified in the Indenture regarding funds held in
trust (Section 3.03);
(H) the direction to the Indenture Trustee to
deposit monies with Paying Agents, if any, other than the
Indenture Trustee (Section 3.03);
(I) the obtaining and preservation of the
Issuer's qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect
the validity and enforceability of the Indenture, the Notes,
the Collateral and each other instrument and agreement
included in the Trust Estate (Section 3.04);
(J) the preparation of all supplements and
amendments to the Indenture and all financing statements,
continuation statements, instruments of further assurance and
other instruments and the taking of such other action as is
necessary or advisable to protect the Trust Estate (Section
3.05);
(K) the delivery of the Opinion of Counsel on the
Closing Date and the annual delivery of Opinions of Counsel as
to the Trust Estate, and the annual delivery of the Officer's
Certificate and certain other statements as to compliance with
the Indenture (Sections 3.06 and 3.09);
(L) the notification of the Indenture Trustee and
each Rating Agency of a Servicer Default under the Sale and
Servicing Agreement and, if such Servicer Default arises from
the failure of the Servicer to perform any of its duties or
obligations under the Sale and Servicing Agreement with
respect to the Receivables, the taking of all reasonable steps
available to remedy such failure (Section 3.07(d));
(M) the duty to cause the Servicer to comply with
Sections 5.08, 5.09, 5.10 and 6.12 and Article Ten of the Sale
and Servicing Agreement (Section 3.14);
(N) the preparation and obtaining of documents
and instruments required for the release of the Issuer from
its obligations under the Indenture (Section 3.10(b));
(O) the delivery of written notice to the
Indenture Trustee and each Rating Agency of each Event of
Default and each Servicer Default or the default by the Seller
under the Sale and Servicing Agreement (Section 3.18);
(P) the monitoring of the Issuer's obligations as
to the satisfaction and discharge of the Indenture and the
preparation of an Officer's Certificate and the
3
6
obtaining of the Opinion of Counsel and the Independent
Certificate relating thereto (Section 4.01);
(Q) the compliance with any written directive of
the Controlling Party with respect to the sale of the Trust
Estate in a commercially reasonable manner if an Event of
Default shall have occurred and be continuing (Section 5.04);
(R) the preparation and delivery of notice to
Noteholders of the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee (Section 6.07);
(S) the preparation of any written instruments
required to confirm more fully the authority of any co-trustee
or separate trustee and any written instruments necessary in
connection with the resignation or removal of the Indenture
Trustee or any co-trustee or separate trustee (Sections 6.09
and 6.11);
(T) the furnishing of the Indenture Trustee with
the names and addresses of Noteholders during any period when
the Indenture Trustee is not the Note Registrar (Section
7.01);
(U) the preparation and, after execution by the
Issuer, the filing with the Commission, any applicable state
agencies and the Indenture Trustee of documents required to be
filed on a periodic basis with, and summaries thereof as may
be required by rules and regulations prescribed by, the
Commission and any applicable state agencies and the
transmission of such summaries, as necessary, to the
Noteholders (Section 7.03);
(V) the opening of one or more accounts in the
Issuer's name, the preparation and delivery of Issuer Orders,
Officer's Certificates and Opinions of Counsel and all other
actions necessary with respect to investment and reinvestment
of funds in the Trust Accounts (Sections 8.02 and 8.03);
(W) the preparation of an Issuer Request and
Officer's Certificate and the obtaining of an Opinion of
Counsel and Independent Certificates, if necessary, for the
release of the Trust Estate (Sections 8.04 and 8.05);
(X) the preparation of Issuer Orders and the
obtaining of Opinions of Counsel with respect to the execution
of supplemental indentures and the mailing to the Noteholders
of notices with respect to such supplemental indentures
(Sections 9.01, 9.02 and 9.03);
(Y) the execution, authentication and delivery of
new Notes conforming to any supplemental indenture (Section
9.06);
4
7
(Z) the duty to notify Noteholders and the Rating
Agencies of redemption of the Notes or to cause the Indenture
Trustee to provide such notification (Section 10.02);
(BB) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent Certificates
with respect to any requests by the Issuer to the Indenture
Trustee to take any action under the Indenture (Section
11.01(a));
(CC) the preparation and delivery of Officer's
Certificates and the obtaining of Independent Certificates, if
necessary, for the release of property from the Lien of the
Indenture (Section 11.01(b));
(DD) the notification of the Rating Agencies, upon
the failure of the Issuer, the Owner Trustee or the Indenture
Trustee to give such notification, of the information required
pursuant to Section 11.04 of the Indenture (Section 11.04);
(EE) the preparation and delivery to Noteholders
and the Indenture Trustee of any agreements with respect to
alternate payment and notice provisions (Section 11.06);
(FF) the recording of the Indenture, if applicable
(Section 11.15); and
(GG) the preparation of Definitive Notes in
accordance with the instructions of the Clearing Agency
(Section 2.11).
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time
reasonable compensation for all services rendered by the
Indenture Trustee under the Indenture (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the
Indenture, reimburse the Indenture Trustee upon its request
for all reasonable expenses, disbursements and advances
incurred or made by the Indenture Trustee in accordance with
any provision of the Indenture (including the reasonable
compensation, expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its
agents for, and hold them harmless against, any Loss incurred
without negligence or bad faith on their part, arising out of
or in connection with the acceptance or administration of the
transactions contemplated by the Indenture, including the
reasonable costs and expenses of defending themselves against
any Claim or Liability in connection
5
8
with the exercise or performance of any of their powers or
duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents
for, and hold them harmless against, any Loss incurred without
negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the
transactions contemplated by the Trust Agreement, including
the reasonable costs and expenses of defending themselves
against any Claim or Liability in connection with the exercise
or performance of any of their powers or duties under the
Trust Agreement.
(b) Additional Duties.
(i) In addition to the duties set forth in Section
1(a)(i), the Administrator shall perform such calculations and shall
prepare or shall cause the preparation by other appropriate persons
of, and shall execute on behalf of the Issuer or the Owner Trustee,
all such documents, reports, filings, instruments, certificates and
opinions that the Issuer or the Owner Trustee are required to prepare,
file or deliver pursuant to the Related Agreements or Section 5.05 of
the Trust Agreement, and at the request of the Owner Trustee shall
take all appropriate action that the Issuer or the Owner Trustee are
required to take pursuant to the Related Agreements. In furtherance
thereof, the Owner Trustee shall, on behalf of itself and of the
Issuer, execute and deliver to the Administrator and to each successor
Administrator appointed pursuant to the terms hereof, one or more
powers of attorney substantially in the form of Exhibit A, appointing
the Administrator the attorney-in-fact of the Owner Trustee and the
Issuer for the purpose of executing on behalf of the Owner Trustee and
the Issuer all such documents, reports, filings, instruments,
certificates and opinions. Subject to Section 5, and in accordance
with the directions of the Owner Trustee, the Administrator shall
administer, perform or supervise the performance of such other
activities in connection with the Collateral (including the Related
Agreements) as are not covered by any of the foregoing provisions and
as are expressly requested by the Owner Trustee and are reasonably
within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be
responsible for promptly notifying the Owner Trustee in the event that
any withholding tax is imposed on the Trust's payments (or allocations
of income) to an Owner as contemplated in Section 5.02(c) of the Trust
Agreement. Any such notice shall specify the amount of any
withholding tax required to be withheld by the Owner Trustee pursuant
to such provision.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be
responsible for performance of the duties of the Owner Trustee set
forth in Section 5.05(i), (ii), (iii) and (iv), the penultimate
sentence of Section 5.05 and Section 5.06(a) of the Trust Agreement
with respect to, among other things, accounting and reports to Owners;
provided, however, that the Owner Trustee
6
9
shall retain responsibility for the distribution of the Schedule K-1s
necessary to enable each Owner to prepare its federal and state income
tax returns.
(iv) The Administrator shall satisfy its obligations with
respect to clauses (ii) and (iii) above by retaining, at the expense
of the Trust payable by the Administrator, a firm of independent
public accountants (the "Accountants") acceptable to the Owner
Trustee, which shall perform the obligations of the Administrator
thereunder. In connection with paragraph (ii) above, the Accountants
will provide prior to December 31, 199 , a letter in form and
substance satisfactory to the Owner Trustee as to whether any tax
withholding is then required and, if required, the procedures to be
followed with respect thereto to comply with the requirements of the
Code. The Accountants shall be required to update the letter in each
instance that any additional tax withholding is subsequently required
or any previously required tax withholding shall no longer be
required.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.02 of the Trust Agreement
required to be performed in connection with the resignation or removal
of the Owner Trustee, and any other duties expressly required to be
performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may enter
into transactions or otherwise deal with any of its Affiliates;
provided, however, that the terms of any such transactions or dealings
shall be in accordance with any directions received from the Issuer
and shall be, in the Administrator's opinion, no less favorable to the
Issuer than would be available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the Administrator
shall not take any action unless within a reasonable time before the
taking of such action, the Administrator shall have notified the Owner
Trustee of the proposed action and the Owner Trustee shall not have
withheld consent or provided an alternative direction. For the
purpose of the preceding sentence, "non-ministerial matters" shall
include, without limitation:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or lawsuit
brought by or against the Issuer (other than in connection
with the collection of the Receivables);
(C) the amendment, change or modification of the
Related Agreements;
7
10
(D) the appointment of successor Note Registrars,
successor Paying Agents and successor Indenture Trustees
pursuant to the Indenture or the appointment of successor
Administrators or a successor Servicer, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture
Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not,
(A) make any payments to the Noteholders under the Related Agreements,
(B) sell the Trust Estate pursuant to clause (d) of Section 5.04 of
the Indenture, (C) take any other action that the Issuer directs the
Administrator not to take on its behalf or (D) take any other action
which may be construed as having the effect of varying the investment
of the Holders.
Section 2. Records. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Issuer
at any time during normal business hours.
Section 3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to an annual
payment of compensation which shall be solely an obligation of the Servicer.
Section 4. Additional Information to be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
Section 5. Independence of the Administrator. For all purposes of
this Agreement, the Administrator shall be an independent contractor and shall
not be subject to the supervision of the Issuer or the Owner Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or the
Owner Trustee in any way and shall not otherwise be deemed an agent of the
Issuer or the Owner Trustee.
Section 6. No Joint Venture. Nothing contained in this Agreement
shall (i) constitute the Administrator and either of the Issuer or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) be construed to impose
any liability as such on any of them or (iii) be deemed to confer on any of
them any express, implied or apparent authority to incur any obligation or
liability on behalf of the others.
Section 7. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other Person or entity even though such
8
11
person or entity may engage in business activities similar to those of the
Issuer, the Owner Trustee or the Indenture Trustee.
Section 8. Term of Agreement; Resignation and Removal of
Administrator. This Agreement shall continue in force until the dissolution of
the Issuer, upon which event this Agreement shall automatically terminate.
(a) Subject to Section 8(e), the Administrator may resign
its duties hereunder by providing the Issuer with at least 60 days'
prior written notice.
(b) Subject to Section 8(e), the Issuer may remove the
Administrator without cause by providing the Administrator with at
least 60 days' prior written notice.
(c) Subject to Section 8(e), at the sole option of the
Issuer, the Administrator may be removed immediately upon written
notice of termination from the Issuer to the Administrator if any of
the following events shall occur:
(i) the Administrator shall default in the
performance of any of its duties under this Agreement and,
after notice of such default, shall not cure such default
within ten days (or, if such default cannot be cured in such
time, shall not give within ten days such assurance of cure as
shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises
shall enter a decree or order for relief, and such decree or
order shall not have been vacated within 60 days, in respect
of the Administrator in any involuntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official
for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary
case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, shall consent to the
entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or
similar official for the Administrator or any substantial part
of its property, shall consent to the taking of possession by
any such official of any substantial part of its property,
shall make any general assignment for the benefit of creditors
or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified
in clauses (ii) or (iii) above shall occur, it shall give written
notice thereof to the Issuer and the Indenture Trustee within seven
days after the occurrence of such event.
9
12
(d) No resignation or removal of the Administrator
pursuant to this Section shall be effective until (i) a successor
Administrator shall have been appointed by the Issuer and (ii) such
successor Administrator shall have agreed in writing to be bound by
the terms of this Agreement in the same manner as the Administrator is
bound hereunder.
(e) The appointment of any successor Administrator shall
be effective only after satisfaction of the Rating Agency Condition
with respect to the proposed appointment.
(f) Subject to Section 8(d) and 8(e), the Administrator
acknowledges that upon the appointment of a Successor Servicer
pursuant to the Sale and Servicing Agreement, the Administrator shall
immediately resign and such Successor Servicer shall automatically
become the Administrator under this Agreement; provided, however, that
this paragraph shall not apply at such times as the Trustee shall be
the Successor Servicer.
Section 9. Action upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to the first
sentence of Section 8 or the resignation or removal of the Administrator
pursuant to Section 8(a), (b) or (c), respectively, the Administrator shall be
entitled to be paid all fees and reimbursable expenses accruing to it to the
date of such termination, resignation or removal. The Administrator shall
forthwith upon such termination pursuant to the first sentence of Section 8
deliver to the Issuer all property and documents of or relating to the
Collateral then in the custody of the Administrator. In the event of the
resignation or removal of the Administrator pursuant to Section 8(a), (b) or
(c), respectively, the Administrator shall cooperate with the Issuer and take
all reasonable steps requested to assist the Issuer in making an orderly
transfer of the duties of the Administrator.
Section 10. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows: (i) if to the Issuer
or the Owner Trustee, at the Corporate Trust Office; (ii) if to the
Administrator, at 00000 Xxxx Xxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000,
Attention: Senior Vice President; (iii) if to the Indenture Trustee, at
________________, Attention: ____________; or (iv) with respect to any of the
foregoing Persons, at such other address as shall be designated by such Person
in a written notice to the other foregoing Persons. Delivery shall occur only
upon actual receipt or rejected tender of such communication by an officer of
the recipient entitled to receive such notices located at the address of such
recipient for notices hereunder.
Section 11. Amendments. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the parties hereto,
with the written consent of the Owner Trustee but without the consent of the
Securityholders, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying
in any manner the rights of the Securityholders; provided that such amendment
will not, in the Opinion of Counsel satisfactory to the Indenture Trustee,
materially and adversely affect the interest of any Securityholder. This
Agreement may also be amended by the parties hereto with the written consent of
the Owner Trustee and Noteholders evidencing at least a majority of the Voting
Interest thereof and Certificateholders evidencing at least a majority of the
10
13
Voting Interest thereof for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of Securityholders; provided, however, that
no such amendment may (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on the Receivables
or distributions required to be made for the benefit of the Securityholders or
(ii) reduce the aforesaid percentage of Securityholders required to consent to
any such amendment, without the consent of all Securityholders.
Notwithstanding the foregoing, the Administrator may not amend this Agreement
without the permission of the Seller, which permission shall not be
unreasonably withheld.
Section 12. Successors and Assigns. This Agreement may not be
assigned by the Administrator unless such assignment is previously consented to
in writing by the Issuer and the Owner Trustee and subject to the satisfaction
of the Rating Agency Condition in respect thereof. An assignment with such
consent and satisfaction, if accepted by the assignee, shall bind the assignee
hereunder in the same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by the
Administrator without the consent of the Issuer or the Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator; provided, that such successor
organization executes and delivers to the Issuer and the Trustees an agreement,
in form and substance reasonably satisfactory to the Trustees, in which such
corporation or other organization agrees to be bound hereunder by the terms of
said assignment in the same manner as the Administrator is bound hereunder.
Subject to the foregoing, this Agreement shall bind any successors or assigns
of the parties hereto.
Section 13. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, EXCEPT THAT
THE DUTIES OF THE INDENTURE TRUSTEE SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK.
Section 14. Table of Contents and Headings. The Table of Contents
and Article and Section headings herein are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Section 15. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original, but all of which counterparts shall together constitute but
one and the same instrument.
Section 16. Severability. If one or more of the covenants,
agreements, provisions or terms of this Agreement (including any amendment or
supplement hereto) shall be for any reason whatsoever held invalid or
unenforceable, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement, as the same may be amended or supplemented, and shall in no
way affect the validity
11
14
or enforceability of the other covenants, agreements, provisions or terms of
this Agreement or any amendment or supplement hereto.
Section 17. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary,
this instrument has been countersigned by _______________ not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall ______________ in its individual capacity or any beneficial owner
of the Issuer have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder, as to all
of which recourse shall be had solely to the assets of the Issuer. For all
purposes of this Agreement, in the performance of any duties or obligations of
the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles Six, Seven and Eight of
the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by _______________ not in its individual
capacity but solely as Indenture Trustee and in no event shall ________________
have any liability for the representations, warranties, covenants, agreements
or other obligations of the Issuer hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which recourse
shall be had solely to the assets of the Issuer.
Section 18. Third Party Beneficiary. The Owner Trustee is a third
party beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
12
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
FLEETWOOD CREDIT RV RECEIVABLES
199 - OWNER TRUST
By:
---------------------------------,
as Owner Trustee
By:
---------------------------------
Name:
Title:
FLEETWOOD CREDIT RECEIVABLES CORP.,
as Seller
By:
---------------------------------
Name:
Title:
---------------------------
as Indenture Trustee
By:
---------------------------------
Name:
Title:
FLEETWOOD CREDIT CORP.,
as Administrator
By:
---------------------------------
Name:
Title:
13
