EXECUTION COPY
ACE RV AND MARINE TRUST 2001-RV1
TRUST AGREEMENT
BETWEEN
ACE SECURITIES CORP.
AND
U.S. BANK TRUST NATIONAL ASSOCIATION,
AS OWNER TRUSTEE
-----------------------------------------
DATED AS OF JUNE 1, 2001
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1 Capitalized Terms..............................................1
SECTION 1.2 Other Interpretive Provisions..................................1
ARTICLE II
ORGANIZATION
SECTION 2.1 Name...........................................................1
SECTION 2.2 Office.........................................................2
SECTION 2.3 Purposes and Powers............................................2
SECTION 2.4 Appointment of Owner Trustee...................................2
SECTION 2.5 Initial Capital Contribution of Trust Estate...................2
SECTION 2.6 Declaration of Trust...........................................3
SECTION 2.7 Organizational Expenses; Liabilities of the Holders............3
SECTION 2.8 Title to Issuer Property.......................................3
SECTION 2.9 Situs of Issuer................................................3
SECTION 2.10 Representations and Warranties of Depositor....................3
SECTION 2.11 Federal Income Tax Allocations.................................4
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1 Initial Ownership..............................................5
SECTION 3.2 The Certificates...............................................5
SECTION 3.3 Authentication of Certificates.................................5
SECTION 3.4 Registration of Transfer and Exchange of Certificates..........5
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificates..............6
SECTION 3.6 Persons Deemed Certificateholders..............................7
SECTION 3.7 Access to List of Certificateholders' Names and Addresses......7
SECTION 3.8 Maintenance of Office or Agency................................7
SECTION 3.9 Appointment of Paying Agent....................................7
SECTION 3.10 Form of the Certificates.......................................8
SECTION 3.11 Transfer Restrictions..........................................8
SECTION 3.12 Legending of Certificates.....................................11
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Owners with Respect to Certain Matters........15
SECTION 4.2 Action by Certificateholders with Respect to Certain Matters..15
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy.......15
SECTION 4.4 Restrictions on Certificateholders' Power.....................16
SECTION 4.5 Certificateholder Control.....................................16
SECTION 4.6 The Owner Trustee will not elect to treat the Owner Trust
as a corporation for federal income tax purposes.............16
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution Account.............16
SECTION 5.2 Application of Funds in Certificate Distribution Account......16
SECTION 5.3 Method of Payment.............................................17
SECTION 5.4 No Segregation of Monies; No Interest.........................17
SECTION 5.5 Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and
Others.......................................................17
SECTION 5.6 Signature on Returns; Tax Matters Partner.....................18
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1 General Authority..............................................18
SECTION 6.2 General Duties.................................................18
SECTION 6.3 Action upon Instruction........................................19
SECTION 6.4 No Duties Except as Specified in this Agreement or
in Instructions...............................................19
SECTION 6.5 No Action Except under Specified Documents or Instructions.....20
SECTION 6.6 Restrictions...................................................20
ARTICLE VII
CONCERNING OWNER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties................................20
SECTION 7.2 Furnishing of Documents........................................21
SECTION 7.3 Representations and Warranties.................................21
SECTION 7.4 Reliance; Advice of Counsel....................................22
SECTION 7.5 Not Acting in Individual Capacity..............................22
SECTION 7.6 Owner Trustee Not Liable for Certificates or Receivables.......23
SECTION 7.7 Owner Trustee May Own Certificates and Notes...................23
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1 Owner Trustee's Fees and Expenses.............................23
SECTION 8.2 Indemnification...............................................23
SECTION 8.3 Payments to Owner Trustee.....................................23
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement................................24
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 Eligibility Requirements for Owner Trustee....................25
SECTION 10.2 Resignation or Removal of Owner Trustee.......................25
SECTION 10.3 Successor Owner Trustee.......................................26
SECTION 10.4 Merger or Consolidation of Owner Trustee......................26
SECTION 10.5 Appointment of Co-Trustee or Separate Trustee.................26
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Supplements and Amendments....................................28
SECTION 11.2 No Legal Title to Owner Trust Estate in Certificateholders....29
SECTION 11.3 Limitations on Rights of Others...............................29
SECTION 11.4 Notices.......................................................29
SECTION 11.5 Severability..................................................30
SECTION 11.6 Separate Counterparts.........................................30
SECTION 11.7 Successors and Assigns........................................30
SECTION 11.8 No Petition...................................................30
SECTION 11.9 No Recourse...................................................30
SECTION 11.10 Headings......................................................31
SECTION 11.11 GOVERNING LAW.................................................31
SECTION 11.12 Servicer......................................................31
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Transferor Certificate
Exhibit C Form of Transferee Certificate
Exhibit D Form of Certificate of Trust
This TRUST AGREEMENT is made as of June 1, 2001 (as from time to
amended, supplemented or otherwise modified and in effect, this "Agreement")
between ACE SECURITIES CORP., a Delaware corporation as Depositor and U.S. BANK
TRUST NATIONAL ASSOCIATION, a national banking association with its principal
place of business in the State of Delaware as Owner Trustee.
ARTICLE I
DEFINITIONS
SECTION 1.1 CAPITALIZED TERMS. Capitalized terms are used in this
Agreement as defined in Appendix X to the Sale and Servicing Agreement among the
business trust established by this Agreement, ACE Securities Corp., as Seller,
Wells Fargo Bank Northwest, N.A., Wells Fargo Bank New Mexico, N.A. and Wells
Fargo Bank, N.A., as Servicer, dated as of June 1, 2001, as the same may be
amended and supplemented from time to time.
SECTION 1.2 OTHER INTERPRETIVE PROVISIONS. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document delivered pursuant hereto unless otherwise defined therein. For
purposes of this Agreement and all such certificates and other documents, unless
the context otherwise requires: (a) accounting terms not otherwise defined in
this Agreement, and accounting terms partly defined in this Agreement to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles; (b) terms defined in Article 9 of the
UCC as in effect in the State of Delaware and not otherwise defined in this
Agreement are used as defined in that Article; (c) the words "hereof," "herein"
and "hereunder" and words of similar import refer to this Agreement as a whole
and not to any particular provision of this Agreement; (d) references to any
Article, Section, Schedule or Exhibit are references to Articles, Sections,
Schedules and Exhibits in or to this Agreement, and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (e) the term "including" means "including without limitation"; (f)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (g) references to
any Person include that Person's successors and assigns; and (h) headings are
for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
ARTICLE II
ORGANIZATION
SECTION 2.1 NAME. The business trust created hereby shall be known as
"ACE RV AND MARINE TRUST 2001-RV1", in which name Owner Trustee may conduct the
business of such trust, make and execute contracts and other instruments on
behalf of such trust and sue and be sued on behalf of the Trust.
SECTION 2.2 OFFICE. The office of Issuer shall be in care of the Owner
Trustee at its office at the Corporate Trust Office, or at such other address as
the Owner Trustee may designate by written notice to the Certificateholders and
Depositor.
SECTION 2.3 PURPOSES AND POWERS. The purpose of Issuer is, and Issuer
shall have the power and authority, to engage in the following activities:
a. to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Agreement, and to sell, transfer and exchange the Notes and the
Certificates and to pay interest on and principal of the Notes and distributions
on the Certificates;
b. to acquire the property and assets set forth in the Sale and
Servicing Agreement from the Depositor pursuant to the terms thereof, to make
deposits to and withdrawals from the Reserve Account and to pay the
organizational, start-up and transactional expenses of Issuer;
c. to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the Indenture and to hold, manage and distribute to the
Certificateholders pursuant to the terms of the Sale and Servicing Agreement any
portion of the Trust Estate released from the Lien of, and remitted to Issuer
pursuant to, the Indenture;
d. to enter into and perform its obligations under the Basic Documents
to which it is a party;
e. to engage in those activities, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith; and
f. subject to compliance with the Basic Documents, to engage in such
other activities as may be required in connection with conservation of the Owner
Trust Estate and the making of distributions to the Certificateholders and the
Noteholders.
Issuer is hereby authorized to engage in the foregoing activities. Issuer shall
not engage in any activity other than in connection with the foregoing or other
than as required or authorized by the terms of this Agreement or the other Basic
Documents.
SECTION 2.4 APPOINTMENT OF OWNER TRUSTEE. Depositor hereby appoints
Owner Trustee as trustee of Issuer effective as of the date hereof, to have all
the rights, powers and duties set forth herein and to bind the Issuer under the
Notes and the other Basic Documents to which the Issuer is a party.
SECTION 2.5 INITIAL CAPITAL CONTRIBUTION OF TRUST ESTATE. Depositor
hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee, as
of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges receipt
in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial Owner Trust Estate and shall be
deposited in the Certificate Distribution Account. The Owner trustee is hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in the form attached hereto.
SECTION 2.6 DECLARATION OF TRUST. Owner Trustee hereby declares that
it will hold the Owner Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificateholders, subject to
the obligations of Issuer under the Basic Documents. It is the intention of the
parties hereto that Issuer constitute a business trust under Chapter 38 of Title
12 of the Delaware Code, 12 DEL. C. ss. 3801 ET SEQ. ("Business Trust Statute")
and that this Agreement constitute the governing instrument of such business
trust. It is the intention of the parties hereto that, solely for income and
franchise tax purposes, until any Certificates are held by other than one
Certificateholder, the Issuer will be disregarded as an entity separate from the
Certificateholder. At such time that the Certificates are held by more than one
Person, it is the intention of the parties hereto that, solely for income and
franchise tax purposes, the Issuer will be treated as a partnership, with the
assets of the partnership being the Receivables and other assets held by the
Issuer, the partners of the partnership being the Certificateholders, and the
Notes being debt of the partnership. The Certificateholders by acceptance of a
Certificate agree to such treatment and agree to take no action inconsistent
with such treatment. The parties agree that, unless otherwise required by
appropriate tax authorities, until the Certificates are held by more than one
Person the Issuer will not file or cause to be filed annual or other returns,
reports, elections or other forms consistent with the characterization of the
Issuer as an entity separate from the owner of the Certificates (including the
returns, reports and elections, contemplated by Sections 5.5 and 5.6). Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and to the extent not inconsistent herewith, in the
Business Trust Statute with respect to accomplishing the purposes of the Trust.
The Owner Trustee shall file the Certificate of Trust with the Secretary of
State.
SECTION 2.7 ORGANIZATIONAL EXPENSES; LIABILITIES OF THE HOLDERS.
a. Depositor shall pay organizational expenses of Issuer as they may
arise or shall, upon the request of Owner Trustee, promptly reimburse Owner
Trustee for any such expenses paid by Owner Trustee.
b. No Noteholder or Certificateholder shall have any personal
liability for any liability or obligation of the Trust.
SECTION 2.8 TITLE TO ISSUER PROPERTY. Legal title to all the Owner
Trust Estate shall be vested at all times in the Issuer as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in Owner Trustee for the benefit of the
Issuer and in any co-trustee and/or a separate trustee approved pursuant to this
Agreement.
SECTION 2.9 SITUS OF ISSUER. Issuer will be located and administered
in the State of Delaware or Illinois. All bank accounts maintained by Owner
Trustee on behalf of Issuer shall be located in the State of Delaware or
Illinois. Payments will be received by Issuer only in Delaware or Illinois, and
payments will be made by Issuer only from Delaware or Illinois. The only office
of Issuer will be at the Corporate Trust Office of the Owner Trustee.
SECTION 2.10 REPRESENTATIONS AND WARRANTIES OF DEPOSITOR. Depositor
hereby represents and warrants to Owner Trustee that:
a. Depositor is duly organized and validly existing as a Delaware
corporation with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is presently
conducted.
b. Depositor is duly qualified to do business as a foreign corporation
in good standing, and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the conduct of its
business shall require such qualifications, licenses and approvals, except where
the failure to have such qualifications, licenses and approvals would not have a
material adverse effect on the Depositor.
c. Depositor has the power and authority to execute and deliver this
Agreement and to carry out its terms and Depositor has full power and authority
to sell and assign the property to be sold and assigned to and deposited with
Issuer, and Depositor has duly authorized such sale and assignment and deposit
to Issuer by all necessary corporate action; and the execution, delivery and
performance of this Agreement has been duly authorized by Depositor by all
necessary corporate action.
d. The consummation of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof do not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the certificate of incorporation or
by-laws, of Depositor, or any material indenture, agreement or other instrument
to which Depositor is a party or by which it is bound; nor result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than pursuant
to the Basic Documents); nor violate any law or, to the best of Depositor's
knowledge, any order, rule or regulation applicable to Depositor of any court or
of any Federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over Depositor or its
properties.
e. There are no proceedings or investigations pending or, to the
Depositor's best knowledge, threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties: (i) asserting the invalidity of this
Agreement, the Indenture, any of the other Basic Documents, the Notes or the
Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by this
Agreement, the Indenture or any of the other Basic Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Depositor or its obligations under, or the validity or
enforceability of, this Agreement or (iv) which might adversely affect the
federal income tax attributes, or applicable state tax franchise or income tax
attributes, of the Notes and the Certificates.
SECTION 2.11 FEDERAL INCOME TAX ALLOCATIONS. If Certificates are held
by more than one Person, net income of Issuer for any month as determined for
federal income tax purposes (and each item of income, gain, loss, credit and
deduction entering into the computation thereof) shall be allocated among the
Certificateholders as of the first Record Date following the end of such month,
in accordance with each Certificateholder's Certificate Percentage Interest. Net
losses of Issuer, if any, for any month as determined for federal income tax
purposes (and each item of income, gain, loss, credit and deduction entering
into the computation thereof) shall be allocated among the Certificateholders as
of the first Record Date following the end of such month in accordance with each
Certificateholder's Certificate Percentage Interest. If the Class E Notes are
characterized as equity for tax purposes, appropriate adjustments to the
allocations of income and deduction will be made so that the holders of the
Class E Notes are allocated net income equal to the interest accrued on the
Class E Notes (plus any discount or minus any premium). Depositor is authorized
to modify the allocations in this paragraph if necessary or appropriate, in its
sole discretion, for the allocations to fairly reflect the economic income, gain
or loss to Depositor, the Certificateholders, or as otherwise required by the
Code.
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1 INITIAL OWNERSHIP. Upon the formation of Issuer by the
contribution by Depositor pursuant to SECTION 2.5 and until the issuance of the
Certificates, Deutsche Bank Sharps Pixley Inc. shall be the sole beneficiary of
the Trust.
SECTION 3.2 THE CERTIFICATES. The Certificates shall be executed on
behalf of Issuer by manual or facsimile signature of an authorized officer of
Owner Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of Issuer, shall be validly issued and entitled to
the benefit of this Agreement, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates. If a transfer of the
Certificates is permitted pursuant to SECTION 3.11, a transferee of a
Certificate shall become a Certificateholder, and shall be entitled to the
rights and subject to the obligations of a Certificateholder hereunder upon such
transferee's acceptance of a Certificate duly registered in such transferee's
name pursuant to SECTION 3.4. Certificates will be issued in minimum
denominations of 10%.
SECTION 3.3 AUTHENTICATION OF CERTIFICATES. Concurrently with the
initial sale of the Receivables to Issuer pursuant to the Sale and Servicing
Agreement, Owner Trustee shall cause the Certificates in an aggregate
Certificate Percentage Interest equal to 100% to be executed on behalf of
Issuer, authenticated and delivered to or upon the written order of Depositor,
signed by its chairman of the board, its president, its chief financial officer,
its chief accounting officer, any vice president, its secretary, any assistant
secretary, its treasurer or any assistant treasurer, without further corporate
action by Depositor. No Certificate shall entitle its Holder to any benefit
under this Agreement, or be valid for any purpose, unless there shall appear on
such Certificate a certificate of authentication substantially in the form set
forth in Exhibit A, executed by Owner Trustee by manual signature; such
authentication shall constitute conclusive evidence that such Certificate shall
have been duly authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication.
SECTION 3.4 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
a. Certificate Registrar shall keep or cause to be kept, at the office
or agency maintained pursuant to SECTION 3.8, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, Certificate
Registrar shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Chase Manhattan Bank shall
be the initial Certificate Registrar. No certificate may be sold, transferred,
assigned, participated, pledged, or otherwise disposed of to any Person except
in accordance with the provisions of SECTION 3.11 and any attempted transfer in
violation of SECTION 3.11 shall be null and void.
b. Upon surrender for registration of transfer of any Certificate at
the office or agency maintained pursuant to SECTION 3.8, and upon compliance
with the provisions of this Agreement relating to such transfer, Owner Trustee
shall execute, authenticate and deliver in the name of the designated transferee
or transferees, one or more new Certificates in authorized denominations of a
like class and Certificate Percentage Interest dated the date of authentication
by Owner Trustee or any authenticating agent. At the option of a
Certificateholder, Certificates may be exchanged for other Certificates of the
same class in authorized denominations of a like aggregate amount upon surrender
of the Certificates to be exchanged at the office or agency maintained pursuant
to SECTION 3.8.
c. Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to Owner Trustee and Certificate Registrar duly executed by
the Certificateholder or his attorney duly authorized in writing, with such
signature guaranteed by a member firm of the New York Stock Exchange, a
commercial bank or trust company or an "eligible guarantor institution" with
membership or participation in STAMP or such other "signature guarantee program"
as may be determined by Certificate Registrar in addition to, or substitution
for, STAMP, all in accordance with the Exchange Act. Each Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by Owner Trustee or Certificate Registrar in accordance
with its customary practice.
d. No service charge shall be made for any registration of transfer or
exchange of Certificates, but Owner Trustee or Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
e. The preceding provisions of this SECTION 3.4 notwithstanding, Owner
Trustee shall not make and the Certificate Registrar need not register any
transfer or exchange of Certificates for a period of fifteen (15) days preceding
any Payment Date for any payment with respect to the Certificates.
SECTION 3.5 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (a)
any mutilated Certificate shall be surrendered to Certificate Registrar, or if
Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to Certificate Registrar and Owner Trustee such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Certificate shall have been acquired by a protected purchaser, Owner
Trustee on behalf of Issuer shall execute and Owner Trustee shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like class, tenor and Certificate
Percentage Interest. In connection with the issuance of any new Certificate
under this Section, Owner Trustee or Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in Issuer, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 3.6 PERSONS DEEMED CERTIFICATEHOLDERS. Every Person by virtue
of becoming a Certificateholder in accordance with this Agreement shall be
deemed to be bound by the terms of this Agreement. Prior to due presentation of
a Certificate for registration of transfer, Owner Trustee, Certificate Registrar
or any agent of Owner Trustee or Certificate Registrar may treat the Person in
whose name any Certificate shall be registered in the Certificate Register as
the owner of such Certificate for the purpose of receiving distributions
pursuant to SECTION 5.2 and for all other purposes whatsoever, and none of Owner
Trustee, Certificate Registrar or any agent of Owner Trustee or Certificate
Registrar shall be bound by any notice to the contrary.
SECTION 3.7 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
Certificate Registrar shall furnish or cause to be furnished to Servicer,
Depositor or Indenture Trustee, within 15 days after receipt by Owner Trustee of
a request therefor from Servicer, Depositor or Indenture Trustee in writing, a
list, in such form as Servicer, Depositor or Indenture Trustee may reasonably
require, of the names and addresses of the Certificateholders as of the most
recent Record Date. If Holders of Certificates evidencing not less than 25% of
the Certificate Percentage Interests, apply in writing to Certificate Registrar,
and such application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then Certificate
Registrar shall, within five Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
current list of Certificateholders. Each Certificateholder, by receiving and
holding a Certificate, shall be deemed to have agreed not to hold Depositor,
Certificate Registrar or Owner Trustee accountable by reason of the disclosure
of its name and address, regardless of the source from which such information
was derived.
SECTION 3.8 MAINTENANCE OF OFFICE OR AGENCY. Certificate Registrar
shall maintain in New York, New York, an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon Certificate Registrar in respect of the
Certificates and the Basic Documents may be served. Certificate Registrar
initially designates the office specified in The Corporate Trust Office of the
Indenture Trustee, as its principal corporate trust office for such purposes.
Certificate Registrar shall give prompt written notice to Depositor and to the
Certificateholders of any change in the location of the Certificate Register or
any such office or agency. Owner Trustee shall maintain in Chicago, Illinois, an
office or officer or agency or agencies where the Certificate Registrar may
forward Certificates so surrendered for exchange.
SECTION 3.9 APPOINTMENT OF PAYING AGENT. Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to SECTION 5.2 and shall report the amounts of such distributions to
Owner Trustee; provided that this reporting shall not be required if the Owner
Trustee is serving as Paying Agent. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. Owner Trustee may revoke
such power and remove Paying Agent if Owner Trustee determines in its sole
discretion that Paying Agent shall have failed to perform its obligations under
this Agreement in any material respect. Paying Agent shall initially be The
Chase Manhattan Bank, and any co-paying agent chosen by The Chase Manhattan
Bank, and acceptable to Owner Trustee. Paying Agent shall be permitted to resign
upon 30 days' written notice to Owner Trustee and Servicer. In the event that
The Chase Manhattan Bank shall no longer be Paying Agent, Owner Trustee shall
appoint a successor to act as Paying Agent (which shall be a bank or trust
company). Owner Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by Owner Trustee to execute and deliver to
Owner Trustee an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with Owner Trustee that as Paying Agent, such successor
Paying Agent or additional Paying Agent will hold all sums, if any, held by it
for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. Paying Agent shall return all unclaimed funds to Owner
Trustee and upon removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to Owner Trustee. The provisions of Sections 7.1,
7.3, 7.4 and 8.1 shall apply to Owner Trustee in its role as Paying Agent, in
the event that Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Agreement to Paying Agent shall include any co-paying agent unless the context
requires otherwise.
SECTION 3.10 FORM OF THE CERTIFICATES. The Certificates, upon original
issuance, will be issued in the form of a typewritten Certificate or
Certificates representing definitive Certificates and shall be registered in the
name of ACE Securities Corp. as the initial registered owner thereof. Owner
Trustee shall execute and authenticate, or cause to be authenticated, the
definitive Certificates in accordance with the instructions of the Depositor.
Neither Certificate Registrar nor Owner Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Certificates,
the Owner Trustee and each Paying Agent shall recognize the Holders of the
Certificates as Certificateholders. The Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Owner Trustee, as evidenced by its execution thereof.
SECTION 3.11 TRANSFER RESTRICTIONS.
a. No Certificate may be resold, assigned or transferred (including by
pledge or hypothecation) unless such resale, assignment or transfer is (i)
pursuant to an effective registration statement under the Securities Act and any
applicable state securities or "Blue Sky" laws, (ii) pursuant to Rule 144A
promulgated under the Securities Act ("Rule 144A") or (iii) pursuant to another
exemption from the registration requirements of the Securities Act and subject
to the receipt by the Certificate Registrar and the Depositor of (A) a
certification by both the prospective transferor and the prospective transferee
of the facts surrounding such transfer, which certification shall be in form and
substance satisfactory to the Certificate Registrar and the Depositor and (B) an
opinion of counsel (which will not be at the expense of the Depositor, the
Certificate Registrar or the Owner Trustee), satisfactory to the Depositor and
the Certificate Registrar, to the effect that the transfer is in compliance with
the Securities Act, and, in each case, in compliance with any applicable
securities or "Blue Sky" laws of any state of the United States. In addition,
each transferee shall provide to the Certificate Registrar its tax
identification number, address, nominee name (if applicable) and wire transfer
instructions. Prior to any resale, assignment or transfer of the Certificates
described in clause (ii) above, each prospective purchaser of the Certificates
shall have acknowledged, represented and agreed as follows:
(i) It is a "qualified institutional buyer" as defined in Rule
144A ("QIB") and is acquiring the Certificates for its own
institutional account (and not for the account of others) or as a
fiduciary or agent for others (which others also are QIBs).
(ii) It acknowledges that the Certificates have not been and will
not be registered under the Securities Act or the securities laws of
any jurisdiction.
(iii) It is familiar with Rule 144A and is aware that the sale is
being made in reliance on Rule 144A and it is not acquiring the
Certificates with a view to, or for resale in connection with, a
distribution that would constitute a public offering within the
meaning of the Securities Act or a violation of the Securities Act,
and that, if in the future it decides to resell, assign, pledge or
otherwise transfer any Certificates, such Certificates may be resold,
assigned, pledged or transferred only (i) to the Depositor or any
Affiliate thereof, (ii) so long as such Certificate is eligible for
resale pursuant to Rule 144A, to a person whom it reasonably believes
after due inquiry is a QIB acting for its own account (and not for the
account of others) or as a fiduciary or agent for others (which others
also are QIBs) to whom notice is given that the resale, pledge,
assignment or transfer is being made in reliance on Rule 144A, (iii)
pursuant to an effective registration statement under the Securities
Act or (iv) in a sale, pledge or other transfer made in a transaction
otherwise exempt from the registration requirements of the Securities
Act, in which case (A) the Certificate Registrar shall require that
both the prospective transferor and the prospective transferee certify
to the Certificate Registrar and the Depositor in writing the facts
surrounding such transfer, which certification shall be in form and
substance satisfactory to the Certificate Registrar and the Depositor
and (B) the Certificate Registrar shall require a written opinion of
counsel (which will not be at the expense of the Depositor, the
Certificate Registrar or the Owner Trustee) satisfactory to the
Depositor and the Certificate Registrar to the effect that such
transfer will not violate the Securities Act, in each case in
accordance with any applicable securities or "Blue Sky" laws of any
state of the United States.
(iv) It is aware that it (or any account for which it is
purchasing) may be required to bear the economic risk of an investment
in the Certificates for an indefinite period, and it (or such account)
is able to bear such risk for an indefinite period.
(v) It understands that the Certificates will bear legends
substantially as set forth in SECTION 3.12.
(vi) If it is acquiring any Certificates for the account of one
or more qualified institutional buyers, it represents that it has sole
investment discretion with respect to each such account and that it
has full power to make the foregoing acknowledgments, representations
and agreements on behalf of each such account.
(vii) It acknowledges that the Owner Trustee, the Certificate
Registrar, the Depositor, and their Affiliates, and others will rely
upon the truth and accuracy of the foregoing acknowledgments,
representations and agreements.
Each transferor of the Certificates shall be required to execute or to
have executed a representation letter substantially in the form of Exhibit B,
and each transferee (other than the initial transferee) shall be required to
execute or to have executed a representation letter substantially in the form of
Exhibit C, or each may deliver such other representations (or an opinion of
counsel) as may be approved by the Certificate Registrar and the Depositor, to
the effect that such transfer may be made pursuant to an exemption from
registration under the Securities Act and any applicable state securities or
"Blue Sky" laws.
In addition, such prospective purchaser shall be responsible for
providing additional information or certification, as shall be reasonably
requested by the Owner Trustee or the Depositor, to support the truth and
accuracy of the foregoing acknowledgments, representations and agreements, it
being understood that such additional information is not intended to create
additional restrictions on the transfer of the Certificates. None of the
Depositor, the Issuer, the Certificate Registrar nor the Owner Trustee shall be
obligated to register the Certificates under the Securities Act or any state
securities or "Blue Sky" laws.
In determining compliance with the transfer restrictions contained in
this SECTION 3.11, the Owner Trustee, or the Certificate Registrar may rely upon
a written opinion of counsel (which may include in-house counsel of the
transferor), the cost of obtaining which shall be an expense of the Holder of
the Certificate to be transferred.
b. No Certificate or beneficial interest therein (each, a "Certificate
Interest") may be issued, sold, assigned, pledged, hypothecated or otherwise
transferred (each, a "Transfer") to any Person other than Depositor except in
accordance with the following provisions. Each holder and beneficial owner of a
Certificate Interest, by acceptance of such Certificate Interest, acknowledges
and agrees to be bound by such provisions.
(i) No Certificate Interest or any portion thereof may be
Transferred to any Person other than Depositor unless (A) the
transferor of the Certificate Interest notifies the transferee holder
and beneficial owner of the Certificate Interest (the "Assignee") of
the transfer restrictions applicable to such Certificate Interest and
of the representations, agreements and covenants such Assignee is
deemed to make as a result of its acceptance of such Certificate
Interest, as described in this paragraph (b), (B) the transferor has
no actual knowledge that the Assignee is or intends to become a
Prohibited Pass-through Entity (as defined below) and (C) such
transfer would not cause the number of Targeted Holders (as defined
below) to exceed ninety (90). Notwithstanding anything to the contrary
set forth in this Agreement, any attempted transfer of a Certificate
Interest that does not comply with the requirements set forth in this
paragraph (b) shall be void. For purposes of this Agreement, the term
"Targeted Holder" means each beneficial owner of an interest in Issuer
(including each Certificate Interest and any financial instrument or
contract the value of which is determined in whole or in part by
reference to Issuer or any portion thereof or to any Certificate
Interest); provided that any Person holding more than one interest
each of which would cause such Person to be a Targeted Holder shall be
treated as a single Targeted Holder.
(ii) Each holder and beneficial owner of a Certificate Interest,
by acceptance of such Certificate Interest, is deemed to have
represented to, and agreed with Issuer and Owner Trustee that it has
not acquired, and such holder or beneficial owner will not Transfer,
the Certificate Interest or cause the Certificate Interest to be
marketed on or through (i) an "established securities market", as
defined for purposes of SECTION 7704 of the Code or (ii) a "secondary
market (or the substantial equivalent thereof)", as defined for
purposes of SECTION 7704 of the Code. In addition, each holder and
beneficial owner of a Certificate Interest, by acceptance of such
Certificate Interest, is deemed to have represented to and agreed with
Issuer and Owner Trustee that it is not and will not become a
partnership, subchapter S corporation, estate or trust for U.S.
federal income tax purposes a principal purpose of the use of which is
to permit Issuer to satisfy the 100-partner limitation in Treas.
Reg.ss.1.7704-1(h) (a "Prohibited Pass-through Entity").
(iii) No Certificate Interest or any portion thereof may be
Transferred to any Person other than the initial Certificateholder
unless, prior to the first such transfer, tax counsel shall have
rendered its opinion that, for U.S. federal income tax purposes,
Issuer will be treated as a partnership and not as an association or
publicly traded partnership taxable as a corporation and the
Certificates will be treated as partnership interests in Issuer.
c. No Certificate may be acquired or held by any "employee benefit
plan" subject to ERISA or a "plan" described by SECTION 4975(E)(1) of the
Internal Revenue Code of 1986, as amended, or by any entity deemed to hold the
assets of any of the foregoing by reason of an employee benefit plan's or other
plan's investment in such entity (each, a "Benefit Plan"). Each Person who
acquires any Certificate or interest therein shall certify that the foregoing
conditions are satisfied.
SECTION 3.12 LEGENDING OF CERTIFICATES. Each Certificate shall bear a
legend in substantially the following form, unless the Depositor determines
otherwise in accordance with applicable law:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR
ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR
OTHER JURISDICTION, AND MAY NOT BE RESOLD, ASSIGNED, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR ANY OTHER APPLICABLE SECURITIES
OR "BLUE SKY" LAWS, PURSUANT TO AN EXEMPTION THEREFROM OR IN A
TRANSACTION NOT SUBJECT THERETO. IT AGREES, ON ITS OWN BEHALF AND ON
BEHALF OF ANY ACCOUNTS FOR WHICH IT IS ACTING AS AGENT, THAT SUCH
CERTIFICATE MAY BE RESOLD, ASSIGNED, PLEDGED OR TRANSFERRED ONLY (A)
SO LONG AS THE CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT, TO A PERSON WHOM THE TRANSFEROR
REASONABLY BELIEVES AFTER DUE INQUIRY IS A QIB ACTING FOR ITS OWN
ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT
FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO WHOM NOTICE IS GIVEN THAT
THE RESALE, ASSIGNMENT, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144A, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR (C) SUCH RESALE, ASSIGNMENT, PLEDGE OR
OTHER TRANSFER IS MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND OTHER SECURITIES OR "BLUE SKY"
LAWS, IN WHICH CASE THE CERTIFICATE REGISTRAR SHALL REQUIRE (I) THAT
BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY
TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR IN WRITING THE FACTS
SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND (II) A WRITTEN
OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE
CERTIFICATE REGISTRAR, THE OWNER TRUSTEE OR THE DEPOSITOR)
SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES ACT, IN EACH
CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES OR "BLUE SKY" LAWS
OF ANY STATE OR JURISDICTION. ANY ATTEMPTED TRANSFER IN CONTRAVENTION
OF THE IMMEDIATELY PRECEDING RESTRICTIONS WILL BE VOID AB INITIO AND
THE PURPORTED TRANSFEROR WILL CONTINUE TO BE TREATED AS THE OWNER OF
THE CERTIFICATE FOR ALL PURPOSES.
NO CERTIFICATE OR BENEFICIAL INTEREST THEREIN (EACH A "CERTIFICATE
INTEREST") MAY BE RESOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED
(EACH A "TRANSFER") TO ANY PERSON OTHER THAN THE INITIAL
CERTIFICATEHOLDER UNLESS (A) THE TRANSFEROR OF THE CERTIFICATE
INTEREST NOTIFIES THE TRANSFEREE HOLDER AND BENEFICIAL OWNER OF THE
CERTIFICATE INTEREST (THE "ASSIGNEE") OF THE TRANSFER RESTRICTIONS
APPLICABLE TO SUCH CERTIFICATE INTEREST AND OF THE REPRESENTATIONS,
AGREEMENTS AND COVENANTS SUCH ASSIGNEE IS DEEMED TO MAKE AS A RESULT
OF ITS ACCEPTANCE OF SUCH CERTIFICATE INTEREST, AS DESCRIBED IN THIS
PARAGRAPH, (B) THE TRANSFEROR HAS NO ACTUAL KNOWLEDGE THAT THE
ASSIGNEE IS OR INTENDS TO BECOME A PROHIBITED PASS-THROUGH ENTITY (AS
DEFINED BELOW), (C) SUCH TRANSFER WOULD NOT CAUSE THE NUMBER OF
TARGETED HOLDERS (AS DEFINED BELOW) TO EXCEED NINETY (90) AND (D)
PRIOR TO THE FIRST SUCH TRANSFER, TAX COUNSEL FOR TRANSFEROR SHALL
HAVE RENDERED ITS OPINION THAT, FOR U.S. FEDERAL INCOME TAX PURPOSES,
ISSUER WILL BE TREATED AS A PARTNERSHIP AND NOT AS AN ASSOCIATION OR
PUBLICLY TRADED PARTNERSHIP TAXABLE AS A CORPORATION AND THE
CERTIFICATES WILL BE TREATED AS PARTNERSHIP INTERESTS IN ISSUER.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS
CERTIFICATE, ANY ATTEMPTED TRANSFER OF A CERTIFICATE INTEREST THAT
DOES NOT COMPLY WITH THE REQUIREMENTS SET FORTH IN THIS PARAGRAPH
SHALL BE VOID. FOR PURPOSES OF THIS PARAGRAPH, THE TERM "TARGETED
HOLDER" MEANS EACH BENEFICIAL OWNER OF AN INTEREST IN ISSUER
(INCLUDING EACH CERTIFICATE INTEREST AND ANY FINANCIAL INSTRUMENT OR
CONTRACT THE VALUE OF WHICH IS DETERMINED IN WHOLE OR IN PART BY
REFERENCE TO ISSUER OR ANY PORTION THEREOF OR TO ANY CERTIFICATE
INTEREST); PROVIDED THAT ANY PERSON HOLDING MORE THAN ONE INTEREST
EACH OF WHICH WOULD CAUSE SUCH PERSON TO BE A TARGETED HOLDER SHALL BE
TREATED AS A SINGLE TARGETED HOLDER. EACH HOLDER AND BENEFICIAL OWNER
OF A CERTIFICATE INTEREST, BY ACCEPTANCE OF SUCH CERTIFICATE INTEREST,
IS DEEMED TO REPRESENT AND AGREE WITH ISSUER AND OWNER TRUSTEE THAT
(X) IT HAS NOT ACQUIRED, AND SUCH HOLDER OR BENEFICIAL OWNER WILL NOT
TRANSFER, THE CERTIFICATE INTEREST OR CAUSE THE CERTIFICATE INTEREST
TO BE MARKETED ON OR THROUGH (I) AN "ESTABLISHED SECURITIES MARKET" AS
DEFINED FOR PURPOSES OF SECTION 7704 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") OR (II) A "SECONDARY SECURITIES MARKET
(OR THE SUBSTANTIAL EQUIVALENT THEREOF)", AS DEFINED FOR PURPOSES OF
SECTION 7704 OF THE CODE, AND (Y) IT IS NOT AND WILL NOT BECOME A
PARTNERSHIP, SUBCHAPTER S CORPORATION, ESTATE OR TRUST FOR U.S.
FEDERAL INCOME TAX PURPOSES A PRINCIPAL PURPOSE OF THE USE OF WHICH IS
TO PERMIT ISSUER TO SATISFY THE 100-PARTNER LIMITATION IN TREASURY
REGULATION SECTION 1.7704-1(H) (A "PROHIBITED PASS-THROUGH ENTITY").
AT SUCH TIME THAT THE CERTIFICATES ARE HELD BY MORE THAN ONE PERSON,
IT IS INTENDED THAT, SOLELY FOR INCOME AND FRANCHISE TAX PURPOSES, (A)
THE ISSUER BE TREATED AS A PARTNERSHIP FOR U.S. FEDERAL INCOME TAX
PURPOSE. AND (B) A CERTIFICATE BE TREATED AS A PARTNERSHIP INTEREST IN
SUCH PARTNERSHIP. EACH HOLDER AND BENEFICIAL OWNER OF A CERTIFICATE
INTEREST, BY ACCEPTANCE OF SUCH CERTIFICATE INTEREST, IS DEEMED TO
AGREE WITH SUCH TREATMENT AND IS DEEMED TO AGREE THAT IT WILL TAKE NO
ACTION INCONSISTENT WITH SUCH TREATMENT.
NO CERTIFICATE OR INTEREST THEREIN MAY BE ACQUIRED OR HELD (IN THE
INITIAL ACQUISITION OR THROUGH A TRANSFER) WITH PLAN ASSETS OF ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), ANY "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR ANY ENTITY DEEMED TO HOLD THE ASSETS OF ANY OF THE FOREGOING BY
REASON OF AN EMPLOYEE BENEFIT PLAN'S OR OTHER PLAN'S INVESTMENT IN
SUCH ENTITY (EACH, A "BENEFIT PLAN").
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 PRIOR NOTICE TO OWNERS WITH RESPECT TO CERTAIN MATTERS.
With respect to the following matters, Owner Trustee shall not take action
unless at least 30 days before the taking of such action, Owner Trustee shall
have notified the Certificateholders in writing of the proposed action and the
Certificateholders shall not have notified Owner Trustee in writing prior to the
30th day after such notice is given that such Certificateholders have withheld
consent or provided alternative direction:
a. the initiation of any material claim or lawsuit by Issuer (except
claims or lawsuits brought in connection with the collection of the Receivables)
and the compromise of any material action, claim or lawsuit brought by or
against Issuer (except with respect to the aforementioned claims or lawsuits
brought in connection with the collection of the Receivables);
b. the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
c. the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholders;
d. the amendment, change or modification of the Sale and Servicing
Agreement or the Administration Agreement, except to cure any ambiguity or
defect or to amend or supplement any provision in a manner that would not
materially adversely affect the interests of the Certificateholders; or
e. the appointment pursuant to the Indenture of a successor Indenture
Trustee or the consent to the assignment by the Note Registrar, Paying Agent or
Indenture Trustee or Certificate Registrar of its obligations under the
Indenture or this Agreement, as applicable.
Owner Trustee shall notify the Certificateholders in writing of any appointment
of a successor Paying Agent or Certificate Registrar within five Business Days
thereof.
SECTION 4.2 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. Owner Trustee shall not have the power, except upon the direction of
the Certificateholders, to (a) remove Servicer under the Sale and Servicing
Agreement pursuant to SECTION 8.1 thereof, (b) except as expressly provided in
the Basic Documents, sell the Receivables after the termination of the
Indenture, (c) remove the Administrator under the Administration Agreement
pursuant to SECTION 9 thereof or (d) appoint a successor Administrator pursuant
to SECTION 9 of the Administration Agreement. Owner Trustee shall take the
actions referred to in the preceding sentence only upon written instructions
signed by the Certificateholders.
SECTION 4.3 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY.
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to Issuer until one year and one day after the Outstanding
Amount of all the Notes has been reduced to zero and without the unanimous prior
approval of all Certificateholders and the delivery to Owner Trustee by each
such Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that Issuer is insolvent.
SECTION 4.4 RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. The
Certificateholders shall not direct Owner Trustee to take or refrain from taking
any action if such action or inaction would be contrary to any obligation of
Issuer or Owner Trustee under this Agreement or any of the Basic Documents or
would be contrary to SECTION 2.3 nor shall Owner Trustee be obligated to follow
any such direction, if given.
SECTION 4.5 CERTIFICATEHOLDER CONTROL. Except as expressly provided
herein, any action that may be taken by the Certificateholders under this
Agreement may be taken by the Holders of Certificates evidencing not less than a
majority of the Certificate Percentage Interests. Except as expressly provided
herein, any written notice of the Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Certificateholders evidencing not less
than a majority of the Certificate Percentage Interests at the time of the
delivery of such notice.
SECTION 4.6 TAX ELECTION. The Owner Trustee will not elect to treat
the Owner Trust as a corporation for federal income tax purposes.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 ESTABLISHMENT OF CERTIFICATE DISTRIBUTION ACCOUNT. Owner
Trustee, for the benefit of the Certificateholders, shall establish and maintain
in the name of Issuer an Eligible Deposit Account (the "Certificate Distribution
Account"), at the office of the Paying Agent, bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Certificateholders. Except as otherwise provided herein, the Certificate
Distribution Account shall be under the sole dominion and control of the Paying
Agent for the benefit of the Certificateholders.
SECTION 5.2 APPLICATION OF FUNDS IN CERTIFICATE DISTRIBUTION ACCOUNT.
a. On each Payment Date, Owner Trustee will, or will cause Paying
Agent to, based on the information contained in Servicer's Report delivered on
the related Determination Date pursuant to SECTION 4.9 of the Sale and Servicing
Agreement, distribute to Certificateholders, as of the related Record Date, all
amounts deposited in the Certificate Distribution Account pursuant to the Sale
and Servicing Agreement on such Payment Date based upon each Certificateholder's
Certificate Percentage Interest.
b. On each Payment Date, the Paying Agent shall send, or cause to be
sent, to each Certificateholder the statement provided to the Paying Agent
pursuant to SECTION 5.6 of the Sale and Servicing Agreement on such Payment
Date.
c. In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to the Certificateholder in accordance with
this Section. The Paying Agent is hereby authorized and directed to retain from
amounts otherwise distributable to the Certificateholders sufficient funds for
the payment of any tax that is legally owed by Issuer (but such authorization
shall not prevent the Paying Agent from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by Issuer and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-United
States Certificateholder), the Paying Agent may in its sole discretion withhold
such amounts in accordance with this clause (c). In the event that a
Certificateholder wishes to apply for a refund of any such withholding tax, the
Paying Agent shall reasonably cooperate with such Certificateholder in making
such claim so long as such Certificateholder agrees to reimburse the Paying
Agent for any out-of-pocket expenses incurred.
SECTION 5.3 METHOD OF PAYMENT. Subject to SECTION 9.1(C),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if (a) such Certificateholder shall have provided to Paying Agent
appropriate written instructions at least five Business Days prior to such
Payment Dates or (b) such Certificateholder is the initial Certificateholder, or
an Affiliate thereof, or, if not, by check mailed to such Certificateholder at
the address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the foregoing, the final distribution in respect of any
Certificate will be payable only upon presentation and surrender of such
Certificate at the office or agency maintained for that purpose by Certificate
Registrar pursuant to SECTION 3.8.
SECTION 5.4 NO SEGREGATION OF MONIES; NO INTEREST. Subject to Sections
5.1 and 5.2, monies received by Owner Trustee or any Paying Agent hereunder need
not be segregated in any manner except to the extent required by law or the
Indenture or the Sale and Servicing Agreement and may be deposited under such
general conditions as may be prescribed by law, and neither Owner Trustee nor
any Paying Agent shall be liable for any interest thereon.
SECTION 5.5 ACCOUNTING AND REPORTS TO THE NOTEHOLDERS,
CERTIFICATEHOLDERS, THE INTERNAL REVENUE SERVICE AND OTHERS. Subject to SECTION
2.6, (a) the Owner Trustee shall maintain (or cause to be maintained) the books
of Issuer on a calendar year basis on the accrual method of accounting, (b) the
Paying Agent shall deliver (or cause to be delivered) to each Certificateholder,
as may be required by the Code and applicable Treasury Regulations, such
information as may be required (including Schedule K-1) to enable each
Certificateholder to prepare its federal and state income tax returns, (c) the
Paying Agent shall prepare and file such tax returns relating to Issuer
(including a partnership information return, Form 1065, if applicable), and make
such elections as may from time to time be required or appropriate under any
applicable state or federal statute or rule or regulation thereunder so as to
maintain the Issuer's characterization as a partnership for federal income tax
purposes, and (d) the Depositor shall cause such tax returns to be signed in the
manner required by law. Owner Trustee shall cooperate with the Depositor and the
Paying Agent, as the case may be, in making all elections pursuant to this
Section as directed in writing by the Depositor and the Paying Agent, as the
case may be.
SECTION 5.6 SIGNATURE ON RETURNS; TAX MATTERS PARTNER.
a. Notwithstanding the provisions of SECTION 5.5 and subject to
SECTION 2.6, Depositor shall sign on behalf of Issuer the tax returns of Issuer,
unless applicable law requires Owner Trustee to sign such documents, in which
case such documents shall be signed by Owner Trustee at the written direction of
Depositor.
b. Subject to SECTION 2.6, Depositor shall be the "tax matters
partner" of Issuer pursuant to Section 6231(A)(7)(A) of the Code and applicable
Treasury Regulations if the Owner Trust is a partnership for federal income tax
purposes.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1 GENERAL AUTHORITY. Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which it or the Issuer is
named as a party and each certificate or other document attached as an exhibit
to or contemplated by the Basic Documents to which Issuer is named as a party
and any amendment thereto, in each case, in such form as Depositor shall
approve, as evidenced conclusively by Owner Trustee's execution thereof, and on
behalf of Issuer, to direct Indenture Trustee to authenticate and deliver Class
A-1 Notes in the aggregate principal amount of $122,000,000, Class A-2 Notes in
the aggregate principal amount of $40,000,000, Class A-3 Notes in the aggregate
principal amount of $52,000,000, Class A-4 Notes in the aggregate principal
amount of $20,000,000, Class A-5 Notes in the aggregate principal amount of
$44,805,000, Class B Notes in the aggregate principal amount of $20,025,000,
Class C Notes in the aggregate principal amount of $7,702,000, Class D Notes in
the aggregate principal amount of $4,621,000 and Class E Notes in the aggregate
principal amount of $3,081,000. In addition to the foregoing, Owner Trustee is
authorized, but shall not be obligated, to take all actions required of Issuer
pursuant to the Basic Documents. Owner Trustee is further authorized from time
to time to take such action as Servicer recommends or directs in writing with
respect to the Basic Documents, except to the extent that this Agreement
expressly requires the consent of Certificateholders for such action.
SECTION 6.2 GENERAL DUTIES. It shall be the duty of Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Basic Documents and to administer
Issuer in the interest of Certificateholders, subject to the Basic Documents and
in accordance with the provisions of this Agreement. Notwithstanding the
foregoing, Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the extent
Administrator has agreed in the Administration Agreement to perform any act or
to discharge any duty of Owner Trustee or Issuer hereunder or under any Basic
Document, and Owner Trustee shall not be liable for the default or failure of
Administrator to carry out its obligations under the Administration Agreement.
Except as expressly provided in the Basic Documents, the Owner Trustee shall
have no obligation to administer, service or collect the Receivables or to
maintain, monitor or otherwise supervise the administration, servicing or
collection of the Receivables.
SECTION 6.3 ACTION UPON INSTRUCTION.
a. Subject to Article IV, and in accordance with the Basic Documents,
the Certificateholders may, by written instruction, direct Owner Trustee in the
management of Issuer. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Article IV.
b. Owner Trustee shall not be required to take any action hereunder or
under any Basic Document if Owner Trustee shall have reasonably determined or
been advised by counsel that such action is likely to result in liability on the
part of Owner Trustee or is contrary to the terms hereof or of any Basic
Document or is otherwise contrary to law.
c. Whenever Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
Basic Document or is unsure as to the application of any provision of this
Agreement or any Basic Document or any such provision is ambiguous as to its
application, or is, or appears to be, in conflict with any other applicable
provision, or in the event that this Agreement permits any determination by
Owner Trustee or is silent or is incomplete as to the course of action that
Owner Trustee is required to take with respect to a particular set of facts,
Owner Trustee shall promptly give notice (in such form as shall be appropriate
under the circumstances) to the Certificateholders requesting instruction as to
the course of action to be adopted or application of such provision, and to the
extent Owner Trustee acts or refrains from acting in good faith in accordance
with any written instruction of the Certificateholders received, Owner Trustee
shall not be liable on account of such action or inaction to any Person. If the
Owner Trustee receive two or more sets of conflicting instructions, the Owner
Trustee shall act on the instructions from the group of Certificateholders
holding the largest Certificate Percentage Interest. If Owner Trustee shall not
have received appropriate instruction within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action, not inconsistent with this Agreement or
the Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
SECTION 6.4 NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which Owner Trustee is a party, except as expressly provided by the terms of
this Agreement or in any document or written instruction received by Owner
Trustee pursuant to SECTION 6.3; and no implied duties or obligations shall be
read into this Agreement or any Basic Document against Owner Trustee. Owner
Trustee shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder or to
prepare or file any Commission filing for Issuer or to record this Agreement or
any Basic Document. Owner Trustee nevertheless agrees that it will, at its own
cost and expense, promptly take all action as may be necessary to discharge any
Liens on any part of the Owner Trust Estate that result from actions by, or
claims against, Owner Trustee in its individual capacity that are not related to
the ownership or the administration of the Owner Trust Estate.
SECTION 6.5 NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. Owner Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Owner Trust Estate except (i) in accordance
with the powers granted to and the authority conferred upon Owner Trustee
pursuant to this Agreement, (ii) in accordance with the Basic Documents and
(iii) in accordance with any document or instruction delivered to Owner Trustee
pursuant to SECTION 6.3.
SECTION 6.6 RESTRICTIONS. Owner Trustee shall not take any action (a)
that is inconsistent with the purposes of Issuer set forth in SECTION 2.3 or (b)
that, to the actual knowledge of a Responsible Officer of the Owner Trustee,
would (i) affect the treatment of the Notes as indebtedness for federal income,
state and local income and franchise tax purposes, (ii) be deemed to cause a
taxable exchange of the Notes for federal income or state income or franchise
tax purposes or (iii) cause Issuer or any portion thereof to be treated as an
association or publicly traded partnership taxable as a corporation for federal
income, state and local income or franchise tax purposes. The Certificateholders
shall not direct Owner Trustee to take action that would violate the provisions
of this Section.
ARTICLE VII
CONCERNING OWNER TRUSTEE
SECTION 7.1 ACCEPTANCE OF TRUSTS AND DUTIES. Owner Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Agreement. Owner Trustee also agrees
to disburse all moneys actually received by it constituting part of the Owner
Trust Estate upon the terms of the Basic Documents and this Agreement. Owner
Trustee shall not be answerable or accountable hereunder or under any Basic
Document under any circumstances, except (i) for its own willful misconduct or
gross negligence, (ii) in the case of the inaccuracy of any representation or
warranty contained in SECTION 7.3 expressly made by Owner Trustee in its
individual capacity, (iii) for liabilities arising from the failure of the Owner
Trustee to perform obligations expressly undertaken by it in the last sentence
of SECTION 6.4 or (iv) for taxes, fees or other charges on, based on or measured
by, any fees, commissions or compensation received by the Owner Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
a. Owner Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer of Owner Trustee;
b. Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of Depositor,
Servicer, Administrator or any Certificateholder;
c. no provision of this Agreement or any Basic Document shall require
Owner Trustee to expend or risk funds or otherwise incur any financial liability
in the performance of any of its rights or powers hereunder or under any Basic
Document if Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it;
d. under no circumstances shall Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes or amounts distributable on the
Certificates;
e. Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution hereof by
Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate or for or in respect of the validity
or sufficiency of the Basic Documents, other than the certificate of
authentication on the Certificates, and Owner Trustee shall in no event assume
or incur any liability, duty or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in the Basic
Documents;
f. Owner Trustee shall not be liable for the default or misconduct of
Indenture Trustee, Servicer, Custodian, Certificate Registrar, Paying Agent or
Administrator under any of the Basic Documents or otherwise and Owner Trustee
shall have no obligation or liability to perform the obligations of Issuer under
this Agreement or the Basic Documents that are required to be performed by
Indenture Trustee under the Indenture, Servicer or Custodian under the Sale and
Servicing Agreement, Administrator under the Administration Agreement or
Certificate Registrar or Paying Agent hereunder; and
g. Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any Basic Document, at the request, order or written direction of
any of the Certificateholders, unless such Certificateholders have offered to
Owner Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by Owner Trustee therein or
thereby. The right of Owner Trustee to perform any discretionary act enumerated
in this Agreement or in any Basic Document shall not be construed as a duty, and
Owner Trustee shall not be answerable for other than its gross negligence or
willful misconduct in the performance of any such act.
SECTION 7.2 FURNISHING OF DOCUMENTS. Owner Trustee shall furnish to
the Certificateholders promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to Owner Trustee under
the Basic Documents.
SECTION 7.3 REPRESENTATIONS AND WARRANTIES. U.S. Bank Trust National
Association hereby represents and warrants to Depositor, for the benefit of the
Certificateholders, that:
a. It is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America and
having an office within the State of Delaware. It has all requisite corporate
power and authority to execute, deliver and perform its obligations under this
Agreement.
b. It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
c. This Agreement constitutes a legal, valid and binding obligation of
Owner Trustee, enforceable against Owner Trustee in accordance with its terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other similar
laws affecting enforcement of the rights of creditors of banks generally and to
equitable limitations on the availability of specific remedies.
d. Neither the execution nor the delivery by it of this Agreement, nor
the consummation by it of the transactions contemplated hereby nor compliance by
it with any of the terms or provisions hereof will contravene any federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of Owner Trustee or any judgment or order binding on it, or constitute
any default under its charter documents or by-laws or any indenture, mortgage,
contract, agreement or instrument to which it is a party or by which any of its
properties may be bound.
SECTION 7.4 RELIANCE; ADVICE OF COUNSEL.
a. Owner Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties. Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by the
treasurer, secretary or other authorized officers of the relevant party, as to
such fact or matter, and such certificate shall constitute full protection to
Owner Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
b. In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, Owner Trustee (i) may act directly or through its agents or attorneys
pursuant to agreements entered into with any of them, but Owner Trustee shall
not be liable for the conduct or misconduct of such agents, custodians, nominees
(including persons acting under a power of attorney) or attorneys selected in
good faith and (ii) may consult with counsel, accountants and other skilled
persons knowledgeable in the relevant area to be selected in good faith and
employed by it at the expense of the Trust. Owner Trustee shall not be liable
for anything done, suffered or omitted in good faith by it in accordance with
the written opinion or advice of any such counsel, accountants or other such
persons.
SECTION 7.5 NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article VII, in accepting the trusts hereby created, U.S. Bank Trust
National Association acts solely as Owner Trustee hereunder and not in its
individual capacity and all Persons having any claim against Owner Trustee by
reason of the transactions contemplated by this Agreement or any Basic Document
shall look only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 7.6 OWNER TRUSTEE NOT LIABLE FOR CERTIFICATES OR RECEIVABLES.
The recitals contained herein and in the Certificates (other than the signature
and countersignature of Owner Trustee on the Certificates) shall be taken as the
statements of Depositor, and Owner Trustee assumes no responsibility for the
correctness thereof. Owner Trustee makes no representations as to the validity
or sufficiency of this Agreement, of any Basic Document or of the Certificates
(other than the signature and countersignature of Owner Trustee on the
Certificates) or the Notes, or of any Receivable or related documents. Owner
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Receivable, or the
perfection and priority of any security interest created by any Receivable in
any Financed Vehicle or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the Owner Trust Estate or its ability
to generate the payments to be distributed to Certificateholders under this
Agreement or the Noteholders under the Indenture, including: the existence,
condition and ownership of any Financed Vehicle; the existence and
enforceability of any insurance thereon; the existence and contents of any
Receivable on any computer or other record thereof; the validity of the
assignment of any Receivable to Issuer or of any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by Depositor or Servicer with any warranty or
representation made under any Basic Document or in any related document or the
accuracy of any such warranty or representation or any action of Indenture
Trustee, Administrator or Servicer or any subservicer taken in the name of Owner
Trustee.
SECTION 7.7 OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES. Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with Depositor, Indenture Trustee,
Administrator and Servicer in banking transactions with the same rights as it
would have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1 OWNER TRUSTEE'S FEES AND EXPENSES. The Owner Trustee shall
be paid compensation for all services rendered by Owner Trustee under this
Agreement and shall be reimbursed upon its request for its expenses pursuant to
SECTION 4.16 of the Sale and Servicing Agreement.
SECTION 8.2 INDEMNIFICATION. The Owner Trustee and its successors,
assigns, directors, officers, employees and agents are to be indemnified
pursuant to SECTION 4.16 of the Sale and Servicing Agreement.
SECTION 8.3 PAYMENTS TO OWNER TRUSTEE. Any amounts paid to Owner
Trustee pursuant to this Article VIII and the Administration Agreement shall be
deemed not to be a part of the Owner Trust Estate immediately after such
payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 TERMINATION OF TRUST AGREEMENT.
a. Issuer shall dissolve upon the final distribution by Owner Trustee
of all moneys or other property or proceeds of the Owner Trust Estate in
accordance with the terms of the Indenture, the Sale and Servicing Agreement and
Article V. The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or Issuer,
nor (y) entitle such Certificateholder's legal representatives or heirs to claim
an accounting or to take any action or proceeding in any court for a partition
or winding up of all or any part of Issuer or Owner Trust Estate nor (z)
otherwise affect the rights, obligations and liabilities of the parties hereto.
b. Except as provided in clause (a), neither Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Issuer.
c. Notice of any dissolution of Issuer, specifying the Payment Date
upon which the Certificateholders shall surrender their Certificates to Paying
Agent for payment of the final distribution and cancellation, shall be given by
Owner Trustee by letter to Certificateholders mailed within five Business Days
of receipt of notice of such termination from Servicer given pursuant to SECTION
9.1(C) of the Sale and Servicing Agreement, stating (i) the Payment Date upon or
with respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of Paying Agent
therein designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Payment Date is not applicable,
payments being made only upon presentation and surrender of the Certificates at
the office of Paying Agent therein specified. Owner Trustee shall give such
notice to Certificate Registrar (if other than Owner Trustee) and Paying Agent
at the time such notice is given to Certificateholders. Upon presentation and
surrender of the Certificates, Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Payment Date pursuant to
SECTION 5.2.
If all of the Certificateholders shall not surrender their
Certificates for cancellation within sixty (60) days after the date specified in
the above mentioned written notice, Owner Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
sixty (60) days after the second notice all the Certificates shall not have been
surrendered for cancellation, Owner Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining after exhaustion of such remedies
shall be distributed, subject to applicable escheat laws, by Owner Trustee to
Depositor.
Upon the completion of winding up of the Issuer, including the payment
or the making reasonable provision for payment of all obligations of the Issuer
in accordance with SECTION 3808(E) of the Business Trust Statute, the Owner
Trustee shall file a certificate of cancellation with the Delaware Secretary of
State in accordance with SECTION 3810 of the Business Trust Statute, at which
time the Issuer and this Agreement (other than Article VIII) shall terminate.
The Depositor shall act as the liquidator of the Issuer and shall be responsible
for directing the Owner Trustee to take all required actions in connection with
winding up the Issuer.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. Owner Trustee
shall at all times be a bank (i) authorized to exercise corporate trust powers,
(ii) having, together with its parent, a combined capital and surplus of at
least $50,000,000 and (iii) subject to supervision or examination by Federal or
state authorities. If such bank shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time Owner Trustee shall cease to be eligible in accordance with the
provisions of this Section, Owner Trustee shall resign immediately in the manner
and with the effect specified in SECTION 10.2.
SECTION 10.2 RESIGNATION OR REMOVAL OF OWNER TRUSTEE. Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to Depositor. Upon receiving such notice of
resignation, Depositor shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee; provided,
however, that such right to appoint or to petition for the appointment of any
such successor shall in no event relieve the resigning Owner Trustee from any
obligations otherwise imposed on it under the Basic Documents until such
successor has in fact assumed such appointment.
If at any time Owner Trustee shall cease to be eligible in accordance
with the provisions of SECTION 10.1 and shall fail to resign after written
request therefor by Depositor, or if at any time Owner Trustee shall be legally
unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of
Owner Trustee or of its property shall be appointed, or any public officer shall
take charge or control of Owner Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then Depositor may
remove Owner Trustee. If Depositor shall remove Owner Trustee under the
authority of the immediately preceding sentence, Depositor shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate, one copy
of which instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee and payment of all fees owed to the
outgoing Owner Trustee.
Any resignation or removal of Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to SECTION 10.3 and payment of all fees and expenses owed to
the outgoing Owner Trustee. Depositor shall provide notice of such resignation
or removal of Owner Trustee to each of the Rating Agencies.
SECTION 10.3 SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to SECTION 10.2 shall execute, acknowledge and deliver to
Depositor and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and Depositor and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to SECTION 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, Certificate Registrar shall mail notice of the successor of
such Owner Trustee to all Certificateholders, Indenture Trustee, the Noteholders
and each of the Rating Agencies. If Certificate Registrar shall fail to mail
such notice within 10 days after acceptance of appointment by the successor
Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed
at the expense of the Depositor.
SECTION 10.4 MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any corporation
into which Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of Owner
Trustee, shall, without the execution or filing of any instrument or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, be the successor of Owner Trustee hereunder; provided that such
corporation shall be eligible pursuant to SECTION 10.1; and provided further
that Owner Trustee shall mail notice of such merger or consolidation to the
Rating Agencies.
SECTION 10.5 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
Administrator and Owner Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
Owner Trustee to act as co-trustee, jointly with Owner Trustee, or separate
trustee or separate trustees, of all or any part of the Owner Trust Estate, and
to vest in such Person, in such capacity, such title to Issuer, or any part
thereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as Administrator and Owner Trustee may
consider necessary or desirable. If Administrator shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, Owner
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to SECTION 10.1 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant to
SECTION 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon Owner Trustee shall be conferred upon and exercised or
performed by Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without Owner Trustee joining in
such act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed, Owner Trustee
shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the
holding of title to Issuer or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(iii) Administrator and Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with Owner Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, Owner Trustee. Each
such instrument shall be filed with Owner Trustee and a copy thereof given to
Administrator.
Any separate trustee or co-trustee may at any time appoint Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by Owner
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 SUPPLEMENTS AND AMENDMENTS.
a. This Agreement may be amended by Depositor, Owner Trustee,
Certificate Registrar and Paying Agent, with prior written notice to the Rating
Agencies, without the consent of any of the Noteholders or the
Certificateholders:
(i) to cure any ambiguity or defect, to correct or supplement any
provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions in this Agreement or of modifying in any manner the rights
of the Noteholders or the Certificateholders; provided that such
action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Noteholder or
Certificateholder;
(ii) (A) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable all or a portion of Issuer
to qualify as, and to permit an election to be made to cause all or a
portion of Issuer to be treated as, a "financial asset securitization
investment trust" under the Code, and (B) in connection with any such
election, to modify or eliminate existing provisions set forth in this
Agreement relating to the intended federal income tax treatment of the
Notes or Certificates and Issuer in the absence of the election; it
being a condition to any such amendment that each Rating Agency shall
have notified the Depositor, the Servicer, Indenture Trustee and the
Owner Trustee in writing that the amendment will not result in a
reduction or withdrawal of the rating of any outstanding Notes or
Certificates with respect to which it is a Rating Agency; and
(iii) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable (a) the transfer to Issuer
of all or any portion of the Receivables to be recognized as a sale
under GAAP by Depositor to Issuer, (b) Issuer to avoid becoming a
member of Depositor's or Transferor's consolidated group under GAAP or
(c) the Depositor or any of their Affiliates to otherwise comply with
or obtain more favorable treatment under any law or regulation or any
accounting rule or principle; it being a condition to any such
amendment that the Rating Agency Condition shall have been satisfied.
b. This Agreement may also be amended from time to time by Depositor,
Owner Trustee, Certificate Registrar and Paying Agent, with prior written notice
to the Rating Agencies, with the consent of the Holders of Notes evidencing not
less than a majority of the Outstanding Amount of the Notes and, to the extent
affected thereby, the consent of the Holders of Certificates evidencing not less
than a majority of the Certificate Percentage Interests 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
Noteholders or the Certificateholders; provided that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made for the benefit of the Noteholders or the Certificateholders
or (b) reduce the aforesaid percentage of the Outstanding Amount of the Notes
and the Certificate Percentage Interests required to consent to any such
amendment, without the consent of the Holders of all the outstanding Notes and
Holders of all outstanding Certificates.
c. Promptly after the execution of any such amendment or consent, the
Certificate Registrar shall furnish written notification of the substance of
such amendment or consent to each Certificateholder, Indenture Trustee and each
of the Rating Agencies.
d. It shall not be necessary for the consent of Certificateholders,
the Noteholders or Indenture Trustee pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent, where required, shall approve the substance thereof. The manner
of obtaining such consents (and any other consents of Certificateholders
provided for in this Agreement or in any other Basic Document) and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as Owner Trustee may prescribe.
e. Prior to the execution of any amendment to this Agreement, Owner
Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent to the execution and delivery of
such amendment have been satisfied. Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects Owner Trustee's own
rights, duties or immunities under this Agreement or otherwise.
SECTION 11.2 NO LEGAL TITLE TO OWNER TRUST ESTATE IN
CERTIFICATEHOLDERS. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided ownership interest therein
only in accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders to and in
their ownership interest in the Owner Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
SECTION 11.3 LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of Owner Trustee, Depositor,
Certificateholders, Certificate Registrar and Paying Agent and, to the extent
expressly provided herein, Indenture Trustee and the Noteholders, and nothing in
this Agreement, whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Owner Trust
Estate or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 11.4 NOTICES.
a. Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given by telecopy
with receipt acknowledged by the recipient thereof or upon receipt personally
delivered, delivered by overnight courier or mailed certified mail, return
receipt requested, if to Owner Trustee, addressed to the Corporate Trust Office;
if to Depositor, addressed to ACE Securities Corp., 6525 Morrison Boulevard,
Suite 318, Charlotte North Carolina 28211; if to Certificate Registrar or Paying
Agent, addressed to the Corporate Trust Department of the Indenture Trustee; or,
as to each party, at such other address as shall be designated by such party in
a written notice to each other party.
b. Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register. Any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the Certificateholder receives such notice.
SECTION 11.5 SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.6 SEPARATE COUNTERPARTS. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7 SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, Depositor,
Owner Trustee, Administrator, Certificate Registrar and Paying Agent, and their
respective successors and permitted assigns and each Certificateholder and its
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by a Certificateholder
shall bind the successors and assigns of such Certificateholder.
SECTION 11.8 NO PETITION. Each of Certificate Registrar, Paying Agent
and Owner Trustee (not in its individual capacity but solely as Owner Trustee),
by entering into this Agreement, each Certificateholder, by accepting a
Certificate, and Indenture Trustee and each Noteholder or Note Owner by
accepting the benefits of this Agreement, hereby covenants and agrees that they
will not at any time institute against Depositor or Issuer, or solicit or join
in or cooperate with or encourage any institution against Depositor or Issuer of
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, this Agreement or any of the Basic Documents.
SECTION 11.9 NO RECOURSE.
a. Each Certificateholder by accepting a Certificate acknowledges that
such Certificateholder's Certificates represent beneficial interests in Issuer
only and do not represent interests in or obligations of Seller, Servicer,
Administrator, Depositor, Owner Trustee, Indenture Trustee or any Affiliate
thereof and no recourse may be had against such parties or their assets, except
as expressly set forth or contemplated in this Agreement, the Certificates or
the Basic Documents.
b. In furtherance of and not in derogation of the foregoing, to the
extent Depositor enters into other securitization transactions, each
Certificateholder, by accepting a Certificate, acknowledges and agrees that it
shall have no right, title or interest in or to any assets or interests therein
of Depositor (other than the Trust Estate relating to this transaction) conveyed
or purported to be conveyed by Depositor to another securitization trust or
other Person or Persons in connection therewith (whether by way of a sale,
capital contribution or by virtue of the granting of a lien) ("Other Assets").
To the extent that, notwithstanding the agreements and provisions contained in
the preceding sentences of this Section, a Certificateholder either (i) asserts
an interest or claim to, or benefit from, Other Assets, whether asserted against
or through Depositor or any other Person owned by Depositor, or (ii) is deemed
to have any such interest, claim or benefit in or from Other Assets, whether by
operation of law, legal process, pursuant to applicable provisions of insolvency
laws or otherwise (including by virtue of SECTION 1111(B) of the Federal
Bankruptcy Code or any successor provision having similar effect under the
Bankruptcy Code), and whether deemed asserted against or through Depositor or
any other Person owned by Depositor, then each Certificateholder, by accepting a
Certificate, further acknowledges and agrees that any such interest, claim or
benefit in or from Other Assets is and shall be expressly subordinated to the
indefeasible payment in full of all obligations and liabilities of Depositor
which, under the terms of the relevant documents relating to the securitization
of such Other Assets, are entitled to be paid from, entitled to the benefits of,
or otherwise secured by such Other Assets (whether or not any such entitlement
or security interest is legally perfected or otherwise entitled to priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against Depositor or any other Person owned by Depositor),
including the payment of post-petition interest on such other obligations and
liabilities. This subordination agreement shall be deemed a subordination
agreement within the meaning of SECTION 510(A) of the Bankruptcy Code. Each
Certificateholder, by acceptance of a Certificate, further acknowledges and
agrees that no adequate remedy at law exists for a breach of this SECTION
11.9(B) and the terms of this SECTION 11.9(B) may be enforced by an action for
specific performance. The provisions of this SECTION 11.9(B) shall be for the
third party benefit of those entitled to rely thereon and shall survive the
termination of this Agreement.
SECTION 11.10 HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.12 SERVICER. Servicer is authorized to execute on behalf of
Issuer all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of Issuer to prepare, file or deliver pursuant
to the Basic Documents. Upon written request, Owner Trustee shall execute and
deliver to Servicer a power of attorney appointing Servicer as Issuer's agent
and attorney-in-fact to execute all such documents, reports, filings,
instruments, certificates and opinions.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Owner Trustee
By: /s/ MELISSA ROSAL
------------------------------
Name: Melissa Rosal
Title: Vice President
ACE SECURITIES CORP.,
as Depositor
By: /s/ EVELYN ECHEVARRIA
---------------------------
Name: Evelyn Echevarria
Title: Vice President
Acknowledged:
THE CHASE MANHATTAN BANK,
as Paying Agent and Certificate Registrar
By: /s/ JENNIFER H. BARAN
-----------------------------
Name: Jennifer H. Baran
Title: Assistant Vice President
EXHIBIT A
FORM OF CERTIFICATE
NUMBER 100% CERTIFICATE PERCENTAGE INTEREST
R-1
ACE RV AND MARINE TRUST 2001-RV1
ASSET BACKED CERTIFICATE
Evidencing a beneficial interest in certain distributions of Issuer,
as defined below, the property of which includes a pool of retail installment
sale contracts sold to Issuer by Seller.
(This Certificate does not represent an interest in or obligation of
ACE Securities Corp. or any of its Affiliates, except to the extent described
below.)
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR
ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR OTHER
JURISDICTION, AND MAY NOT BE RESOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS, PURSUANT TO AN EXEMPTION
THEREFROM OR IN A TRANSACTION NOT SUBJECT THERETO. IT AGREES, ON ITS OWN BEHALF
AND ON BEHALF OF ANY ACCOUNTS FOR WHICH IT IS ACTING AS AGENT, THAT SUCH
CERTIFICATE MAY BE RESOLD, ASSIGNED, PLEDGED OR TRANSFERRED ONLY (A) SO LONG AS
THE CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE
INQUIRY IS A QIB ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS)
OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO WHOM
NOTICE IS GIVEN THAT THE RESALE, ASSIGNMENT, PLEDGE OR TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OR (C) SUCH RESALE, ASSIGNMENT, PLEDGE OR OTHER TRANSFER IS
MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND OTHER SECURITIES OR "BLUE SKY" LAWS, IN WHICH CASE THE OWNER
TRUSTEE SHALL REQUIRE (I) THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE
PROSPECTIVE TRANSFEREE CERTIFY TO THE OWNER TRUSTEE AND THE DEPOSITOR IN WRITING
THE FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND
SUBSTANCE SATISFACTORY TO THE OWNER TRUSTEE AND (II) A WRITTEN OPINION OF
COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE OWNER TRUSTEE OR THE
DEPOSITOR) SATISFACTORY TO THE OWNER TRUSTEE AND THE DEPOSITOR, TO THE EFFECT
THAT SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR
JURISDICTION. ANY ATTEMPTED TRANSFER IN CONTRAVENTION OF THE IMMEDIATELY
PRECEDING RESTRICTIONS WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEROR WILL
CONTINUE TO BE TREATED AS THE OWNER OF THE CERTIFICATE FOR ALL PURPOSES.
NO CERTIFICATE OR BENEFICIAL INTEREST THEREIN (EACH A "CERTIFICATE
INTEREST") MAY BE RESOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED (EACH A
"TRANSFER") TO ANY PERSON OTHER THAN THE INITIAL CERTIFICATEHOLDER UNLESS (A)
THE TRANSFEROR OF THE CERTIFICATE INTEREST NOTIFIES THE TRANSFEREE HOLDER AND
BENEFICIAL OWNER OF THE CERTIFICATE INTEREST (THE "ASSIGNEE") OF THE TRANSFER
RESTRICTIONS APPLICABLE TO SUCH CERTIFICATE INTEREST AND OF THE REPRESENTATIONS,
AGREEMENTS AND COVENANTS SUCH ASSIGNEE IS DEEMED TO MAKE AS A RESULT OF ITS
ACCEPTANCE OF SUCH CERTIFICATE INTEREST, AS DESCRIBED IN THIS PARAGRAPH, (B) THE
TRANSFEROR HAS NO ACTUAL KNOWLEDGE THAT THE ASSIGNEE IS OR INTENDS TO BECOME A
PROHIBITED PASS-THROUGH ENTITY (AS DEFINED BELOW), (C) SUCH TRANSFER WOULD NOT
CAUSE THE NUMBER OF TARGETED HOLDERS (AS DEFINED BELOW) TO EXCEED NINETY (90)
AND (D) PRIOR TO THE FIRST SUCH TRANSFER, TAX COUNSEL FOR TRANSFEROR SHALL HAVE
RENDERED ITS OPINION THAT, FOR U.S. FEDERAL INCOME TAX PURPOSES, ISSUER WILL BE
TREATED AS A PARTNERSHIP AND NOT AS AN ASSOCIATION OR PUBLICLY TRADED
PARTNERSHIP TAXABLE AS A CORPORATION AND THE CERTIFICATES WILL BE TREATED AS
PARTNERSHIP INTERESTS IN ISSUER. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET
FORTH IN THIS CERTIFICATE, ANY ATTEMPTED TRANSFER OF A CERTIFICATE INTEREST THAT
DOES NOT COMPLY WITH THE REQUIREMENTS SET FORTH IN THIS PARAGRAPH SHALL BE VOID.
FOR PURPOSES OF THIS PARAGRAPH, THE TERM "TARGETED HOLDER" MEANS EACH BENEFICIAL
OWNER OF AN INTEREST IN ISSUER (INCLUDING EACH CERTIFICATE INTEREST AND ANY
FINANCIAL INSTRUMENT OR CONTRACT THE VALUE OF WHICH IS DETERMINED IN WHOLE OR IN
PART BY REFERENCE TO ISSUER OR ANY PORTION THEREOF OR TO ANY CERTIFICATE
INTEREST); PROVIDED THAT ANY PERSON HOLDING MORE THAN ONE INTEREST EACH OF WHICH
WOULD CAUSE SUCH PERSON TO BE A TARGETED HOLDER SHALL BE TREATED AS A SINGLE
TARGETED HOLDER. EACH HOLDER AND BENEFICIAL OWNER OF A CERTIFICATE INTEREST, BY
ACCEPTANCE OF SUCH CERTIFICATE INTEREST, IS DEEMED TO REPRESENT AND AGREE WITH
ISSUER AND OWNER TRUSTEE THAT (X) IT HAS NOT ACQUIRED, AND SUCH HOLDER OR
BENEFICIAL OWNER WILL NOT TRANSFER, THE CERTIFICATE INTEREST OR CAUSE THE
CERTIFICATE INTEREST TO BE MARKETED ON OR THROUGH (I) AN "ESTABLISHED SECURITIES
MARKET" AS DEFINED FOR PURPOSES OF SECTION 7704 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") OR (II) A "SECONDARY SECURITIES MARKET (OR THE
SUBSTANTIAL EQUIVALENT THEREOF)", AS DEFINED FOR PURPOSES OF SECTION 7704 OF THE
CODE, AND (Y) IT IS NOT AND WILL NOT BECOME A PARTNERSHIP, SUBCHAPTER S
CORPORATION, ESTATE OR TRUST FOR U.S. FEDERAL INCOME TAX PURPOSES A PRINCIPAL
PURPOSE OF THE USE OF WHICH IS TO PERMIT ISSUER TO SATISFY THE 100-PARTNER
LIMITATION IN TREASURY REGULATION SECTION 1.7704-1(H) (A "PROHIBITED
PASS-THROUGH ENTITY").
AT SUCH TIME THAT THE CERTIFICATES ARE HELD BY MORE THAN ONE PERSON,
IT IS INTENDED THAT, SOLELY FOR INCOME AND FRANCHISE TAX PURPOSES, (A) THE
ISSUER BE TREATED AS A PARTNERSHIP FOR U.S. FEDERAL INCOME TAX PURPOSE. AND (B)
A CERTIFICATE BE TREATED AS A PARTNERSHIP INTEREST IN SUCH PARTNERSHIP. EACH
HOLDER AND BENEFICIAL OWNER OF A CERTIFICATE INTEREST, BY ACCEPTANCE OF SUCH
CERTIFICATE INTEREST, IS DEEMED TO AGREE WITH SUCH TREATMENT AND IS DEEMED TO
AGREE THAT IT WILL TAKE NO ACTION INCONSISTENT WITH SUCH TREATMENT.
NO CERTIFICATE OR INTEREST THEREIN MAY BE ACQUIRED OR HELD (IN THE
INITIAL ACQUISITION OR THROUGH A TRANSFER) WITH PLAN ASSETS OF ANY "EMPLOYEE
BENEFIT PLAN" SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), ANY "PLAN" DESCRIBED BY SECTION 4975(E)(1) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY ENTITY DEEMED TO HOLD THE ASSETS OF ANY
OF THE FOREGOING BY REASON OF AN EMPLOYEE BENEFIT PLAN'S OR OTHER PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "BENEFIT PLAN").
THIS CERTIFIES THAT DEUTSCHE BANK SHARPS PIXLEY INC. is the registered
owner of a 100% Certificate Percentage Interest that is nonassessable,
fully-paid, beneficial interest in certain distributions of ACE RV AND MARINE
TRUST 2001-RV1 ("Issuer") formed by ACE Securities Corp., a Delaware corporation
("Depositor").
Issuer was created pursuant to a Trust Agreement dated as of June 1,
2001 (the "Trust Agreement"), between Depositor and U.S. Bank Trust National
Association, as owner trustee ("Owner Trustee"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in Appendix X to the Sale and Servicing Agreement among Issuer, ACE
Securities Corp., as Seller ("Seller"), Wells Fargo Bank, N.A., as Servicer
("Servicer"), Wells Fargo Bank Northwest, N.A., Wells Fargo Bank New Mexico,
N.A. and The Chase Manhattan Bank, as Indenture Trustee ("Indenture Trustee"),
dated as of June 1, 2001, as the same may be amended or supplemented from time
to time.
This Certificate is one of the duly authorized Certificates designated
as ACE RV and Marine Trust 2001-RV1 Asset Backed Certificates (herein called the
"Certificates"). Also issued under the Indenture dated as of June 1, 2001,
between Issuer and Indenture Trustee, are the classes of Notes designated as
4.05% Class A-1 Asset Backed Notes (the "Class A-1 Notes"), 4.85% Class A-2
Asset Backed Notes (the "Class A-2 Notes"), 5.36% Class A-3 Asset Backed Notes
(the "Class A-3 Notes"), 5.75% Class A-4 Asset Backed Notes (the "Class A-4
Notes", 6.30% Class A-5 Asset Backed Notes (the "Class A-5 Notes" and, together
with the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes and Class A-4 Notes,
the "Class A Notes"), 6.61% Class B Asset Backed Notes (the "Class B Notes"),
6.85% Class C Asset Backed Notes (the "Class C Notes") and 7.58% Class D Asset
Backed Notes (the "Class D Notes", together with the Class A Notes, Class B
Notes and Class C Notes, the "Offered Notes") and 8.70% Class E Asset Backed
Notes (the "Class E Notes", together with the Offered Notes, the "Notes"). This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the holder of this
Certificate by virtue of the acceptance hereof assents and by which such holder
is bound.
Under the Trust Agreement, there will be distributed on the 20th day
of each month (or, if such 20th day is not a Business Day, the next Business
Day), commencing on July 20, 2001, to the Person in whose name this Certificate
is registered at the close of business on the last day of the preceding month,
such Certificateholder's Certificate Percentage Interest in the amount to be
distributed to Certificateholders on such date.
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Sale and Servicing Agreement, the
Indenture and the Trust Agreement, as applicable.
It is the intent of the Depositor, Servicer and the Certificateholders
that, for purposes of federal income, state and local income and franchise tax,
until the Trust Certificates are held by more than one Certificateholder, the
Issuer will be disregarded as an entity separate from its owner. At such time
that the Certificates are held by more than one person, it is the intent of the
Seller, Servicer and the Certificateholders that, for purposes of federal
income, state and local income and franchise tax, the Issuer will be treated as
a partnership, the assets of which are the assets held by the Issuer, and the
Certificateholders will be treated as partners in that partnership. The Seller
and the other Certificateholders, by acceptance of a Certificate, agree to
treat, and to take no action inconsistent with the treatment of, the
Certificates as such for tax purposes.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
Depositor or the Issuer, or join in or encourage any institution against
Depositor or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, the Trust Agreement or any
of the Basic Documents.
Each Certificateholder by accepting a Certificate acknowledges that
such Certificateholder's Certificates represent beneficial interests in Issuer
only and do not represent interests in or obligations of Depositor, Servicer,
Administrator, Seller, Owner Trustee, Indenture Trustee or any Affiliate thereof
and no recourse may be had against such parties or their assets, except as
expressly set forth or contemplated in the Trust Agreement, the Certificates or
the Basic Documents.
In furtherance of and not in derogation of the foregoing, to the
extent Depositor enters into other securitization transactions, each
Certificateholder, by accepting a Certificate, acknowledges and agrees that it
shall have no right, title or interest in or to any assets or interests therein
of Depositor (other than the Trust Estate and Reserve Account relating to this
transaction) conveyed or purported to be conveyed by Depositor to another
securitization trust or other Person or Persons in connection therewith (whether
by way of a sale, capital contribution or by virtue of the granting of a lien)
("Other Assets"). To the extent that, notwithstanding the agreements and
provisions contained herein, a Certificateholder either (i) asserts an interest
or claim to, or benefit from, Other Assets, whether asserted against or through
Depositor or any other Person owned by Depositor, or (ii) is deemed to have any
such interest, claim or benefit in or from Other Assets, whether by operation of
law, legal process, pursuant to applicable provisions of insolvency laws or
otherwise (including by virtue of SECTION 1111(B) of the Federal Bankruptcy Code
or any successor provision having similar effect under the Bankruptcy Code), and
whether deemed asserted against or through Depositor or any other Person owned
by Depositor, then each Certificateholder, by accepting a Certificate, further
acknowledges and agrees that any such interest, claim or benefit in or from
Other Assets is and shall be expressly subordinated to the indefeasible payment
in full of all obligations and liabilities of Depositor which, under the terms
of the relevant documents relating to the securitization of such Other Assets,
are entitled to be paid from, entitled to the benefits of, or otherwise secured
by such Other Assets (whether or not any such entitlement or security interest
is legally perfected or otherwise entitled to priority of distribution or
application under applicable law, including insolvency laws, and whether
asserted against Depositor or any other Person owned by Depositor), including
the payment of post-petition interest on such other obligations and liabilities.
This subordination agreement shall be deemed a subordination agreement within
the meaning of SECTION 510(A) of the Bankruptcy Code. Each Certificateholder, by
acceptance of a Certificate, further acknowledges and agrees that no adequate
remedy at law exists for a breach of this paragraph and the terms of this
paragraph may be enforced by an action for specific performance. The provisions
of this paragraph shall be for the third party benefit of those entitled to rely
thereon and shall survive the termination of the Trust Agreement.
The Certificates may not be acquired by or for the account of or with
the assets of (a) an employee benefit plan (as defined in SECTION 3(3) of ERISA)
that is subject to the provisions of Title 1 of ERISA, (b) a plan described in
SECTION 4975(E)(1) of the Code or (c) any entity whose underlying assets include
plan assets by reason of a plan's investment in the entity (each, a "Benefit
Plan"). By accepting and holding this Certificate, the Holder hereof shall be
deemed to have represented and warranted that it is not a Benefit Plan and is
not purchasing on behalf of a Benefit Plan.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of Owner Trustee or its authenticating agent,
by manual signature, this Certificate shall not entitle the holder hereof to any
benefit under the Trust Agreement or the Sale and Servicing Agreement or be
valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, Owner Trustee on behalf of Issuer and not in its
individual capacity, has caused this Certificate to be duly executed.
By: U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Owner Trustee
Dated:________________
By:_______________________________________
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
U.S. BANK TRUST NATIONAL ASSOCIATION, as
Owner Trustee
By:_______________________________________
Authenticating Agent
By:_______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
__________________________________________________________________________ the
within Certificate, and all rights thereunder, hereby irrevocably constituting
and appointing
________________________________________________________ Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:______________________________________________________
______________________________________*
Signature Guaranteed:
______________________________________*
* NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock Exchange or
a commercial bank or trust company.
EXHIBIT B
FORM OF TRANSFEROR CERTIFICATE
[Date]
ACE RV and Marine Trust 2001-RV1,
as Issuer
c/o The Chase Manhattan Bank
as Certificate Registrar
450 West 33rd Street
New York, New York 10001
Attention: Institutional Trust Services
Ladies and Gentlemen:
In connection with our proposed sale of the 100% Asset Backed
Certificates (the "Certificate") of ACE RV and Marine Trust 2001-RV1 (the
"Issuer"), a Delaware business trust formed by ACE Securities Corp. (the
"Depositor" or "Seller"), we confirm that:
a. The Transferor is the lawful owner of the Certificate with the full
right to transfer the Certificate free from any and all claims and encumbrances
whatsoever.
b. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificate, any interest in the Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to the Certificate, any interest in the Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation with respect to the Certificate, any interest in the Certificate or
any other similar security be means of general advertising or in any manner, or
(e) taken any other action with respect to the Certificate, any interest in the
Certificate or any other similar security, which (in the case of any of the acts
described in clauses (a) through (e) hereof) would constitute a distribution
under the Securities Act of 1933 (the "Securities Act"), or would render the
disposition of the Certificate a violation of SECTION 5 of the Securities Act or
any state securities laws, or would require registration or qualification of the
Certificate pursuant to the Securities Act or any state securities laws.
c. The Transferor and any person acting on behalf of the Transferor in
this matter reasonably believe that the Transferee is either (a) a "qualified
institutional buyer" (as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act) purchasing for its own account or (b) either (i) an
"accredited investor" within the meaning of paragraph (1), (2), (3) or (7) of
Rule 501(a) under the Securities Act or (ii) an entity in which all the equity
owners are "accredited investors" within the meaning of paragraph (1), (2), (3)
or (7) of Rule 501(a) under the Securities Act, and has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Certificate.
d. Unless the Transferee is either (a) an "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act or (b)
an entity in which all the equity owners are "accredited investors" within the
meaning of paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities
Act that is furnishing a Transferee Certificate in the form of Exhibit C to the
Trust Agreement, the Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the Transferor is
relying on the exemption from the provisions of SECTION 5 of the Securities Act
provided by Rule 144A.
e. The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information regarding (a) the
Certificates and distributions thereon, (b) the Sale and Servicing Agreement,
and (c) any credit enhancement mechanism associated with the Certificates, that
the Transferee has requested.
f. The Transferor has notified the Transferee of the transfer
restrictions applicable to the Certificate and of the representations,
agreements and covenants such Transferee is deemed to make as a result of its
acceptance of such Certificate, as described in the Trust Agreement. The
Transferor has no actual knowledge that the Transferee is or intends to become a
Prohibited Pass-through Entity (as defined in the Trust Agreement). The proposed
Transfer will not cause the number of Targeted Holders (as defined in the Trust
Agreement) to exceed ninety (90).
Very truly yours,
Print Name of Transferor
------------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
EXHIBIT C
FORM OF TRANSFEREE CERTIFICATE
[Date]
ACE RV and Marine Trust 2001-RV1,
as Issuer
c/o The Chase Manhattan Bank
as Certificate Registrar
450 West 33rd Street
New York, New York 10001
Attention: Institutional Trust Services
Ladies and Gentlemen:
In connection with our proposed purchase of the 100% Asset Backed
Certificates (the "Certificates") of ACE RV and Marine Trust 2001-RV1 (the
"Issuer"), a Delaware business trust formed by ACE Securities Corp. (the
"Depositor" or "Seller"), we confirm that:
(a) We are a "qualified institutional buyer" as defined in Rule 144A
("QIB") and are acquiring the Certificate for its own institutional account (and
not for the account of others) or as a fiduciary or agent for others (which
others also are QIBs);
(b) We acknowledge that the Certificates have not been and will not be
registered under the Securities Act or the securities laws of any jurisdiction;
(c) We are familiar with Rule 144A and are aware that the sale is
being made in reliance on Rule 144A and we are not acquiring the Certificates
with a view to, or for resale in connection with, a distribution that would
constitute a public offering within the meaning of the Securities Act or a
violation of the Securities Act, and that, if in the future we decide to resell,
assign, pledge or otherwise transfer any Certificates, such Certificates may be
resold, assigned, pledged or transferred only (i) to the Depositor or any
Affiliate thereof, (ii) so long as such Certificate is eligible for resale
pursuant to Rule 144A, to a person whom we reasonably believe after due inquiry
is a QIB acting for its own account (and not for the account of others) or as a
fiduciary or agent for others (which others also are QIBs) to whom notice is
given that the resale, pledge, assignment or transfer is being made in reliance
on Rule 144A, (iii) pursuant to an effective registration statement under the
Securities Act or (iv) in a sale, pledge or other transfer made in a transaction
otherwise exempt from the registration requirements of the Securities Act, in
which case (A) the Owner Trustee will require that both the prospective
transferor and the prospective transferee certify to the Owner Trustee and the
Depositor in writing the facts surrounding such transfer, which certification
shall be in form and substance satisfactory to the Owner Trustee and the
Depositor and (B) the Owner Trustee will require a written opinion of counsel
(which will not be at the expense of the Depositor or the Owner Trustee)
satisfactory to the Depositor and the Owner Trustee to the effect that such
transfer will not violate the Securities Act, in each case in accordance with
any applicable securities or "Blue Sky" laws of any state of the United States;
(d) No Certificate will be acquired or held by any "employee benefit
plan" subject to ERISA or a "plan" described by SECTION 4975(E)(1) of the
Internal Revenue Code of 1986, as amended, or by any entity deemed to hold the
assets of any of the foregoing by reason of an employee benefit plan's or other
plan's investment in such entity. Each Person who acquires any Certificate or
interest therein will certify that the foregoing conditions are satisfied;
(e) We are aware that we (or any account for which we are purchasing)
may be required to bear the economic risk of an investment in the Certificates
for an indefinite period, and we (or such account) are able to bear such risk
for an indefinite period;
(f) We understand that the Certificates will bear legends
substantially as set forth in SECTION 3.12 of the Trust Agreement;
(g) If we are acquiring any Certificates for the account of one or
more qualified institutional buyers, we represents that we have sole investment
discretion with respect to each such account and that we have full power to make
the foregoing acknowledgments, representations and agreements on behalf of each
such account;
(h) We acknowledge that the Owner Trustee, the Depositor, and their
Affiliates, and others will rely upon the truth and accuracy of the foregoing
acknowledgments, representations and agreements;
(i) We acknowledge that we have been notified of the transfer
restrictions and related provisions applicable to the Certificates set forth in
the Trust Agreement and agree to be bound by such restrictions and provisions;
and
(j) We hereby represent to and agree with Issuer and Owner Trustee
that we have not acquired, and will not transfer, any Certificate or cause any
Certificate to be marketed on or through (i) an "established securities market",
as defined for purposes of SECTION 7704 of the Code or (ii) a "secondary market
(or the substantial equivalent thereof)", as defined for purposes of SECTION
7704 of the Code. In addition, we represent to and agree with Issuer and Owner
Trustee that we are not and will not become a partnership, subchapter S
corporation, estate or trust for U.S. federal income tax purposes a principal
purpose of the use of which is to permit Issuer to satisfy the 100-partner
limitation in Treas. Reg. ss. 1.7704-1(h).
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:________________________________
Name:
Title:
EXHIBIT D
[FORM OF]
CERTIFICATE OF TRUST OF
ACE RV AND MARINE TRUST 2001-RV1
THIS Certificate of Trust of ACE RV and Marine Trust 2001-RV1 (the
"Trust"), is being duly executed and filed by U.S. Bank Trust National
Association, a Delaware banking corporation, as trustee, to form a business
trust under the Delaware Business Trust Act (12 DEL. CODE, ss. 3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is ACE RV AND
MARINE TRUST 2001-RV1.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust in the State of Delaware is U.S. Bank Trust National Association,
__________, _____________________, ________________________ Delaware _________,
Attention: _____________________________.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but
solely as owner trustee of the Trust.
By:________________________________
Name:
Title: