EXECUTION COPY
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INDENTURE
Between
ACE RV AND MARINE TRUST 2001-RV1
as Issuer
And
THE CHASE MANHATTAN BANK
as Indenture Trustee
Dated as of June 1, 2001
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Table of Contents
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE..............2
SECTION 1.1 Definitions.............................................2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.......2
SECTION 1.3 Other Interpretive Provisions...........................2
ARTICLE II THE NOTES...............................................3
SECTION 2.1 Form....................................................3
SECTION 2.2 Execution, Authentication and Delivery..................3
SECTION 2.3 Temporary Notes.........................................4
SECTION 2.4 Registration of Transfer and Exchange...................5
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes..............6
SECTION 2.6 Persons Deemed Owner....................................7
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest...7
SECTION 2.8 Cancellation............................................8
SECTION 2.9 Release of Collateral...................................8
SECTION 2.10 Book-Entry Notes........................................9
SECTION 2.11 Notices to Clearing Agency..............................9
SECTION 2.12 Definitive Notes.......................................10
SECTION 2.13 Authenticating Agents..................................10
SECTION 2.14 Tax Treatment..........................................11
SECTION 2.15 Paying Agents..........................................11
SECTION 2.16 Restrictions on Class E Note Transferability...........12
ARTICLE III COVENANTS..............................................13
SECTION 3.1 Payment of Principal and Interest......................13
SECTION 3.2 Maintenance of Office or Agency........................13
SECTION 3.3 Money for Payments To Be Held in Trust.................14
SECTION 3.4 Existence..............................................15
SECTION 3.5 Protection of Trust Estate.............................15
SECTION 3.6 Opinions as to Trust Estate............................16
SECTION 3.7 Performance of Obligations; Servicing of Receivables...16
SECTION 3.8 Negative Covenants.....................................18
SECTION 3.9 Annual Statement as to Compliance......................19
SECTION 3.10 Issuer May Consolidate, Etc. Only on Certain Terms.....19
SECTION 3.11 Successor or Transferee................................21
SECTION 3.12 No Other Business......................................21
SECTION 3.13 No Borrowing...........................................21
SECTION 3.14 Servicer's Obligations.................................21
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities......21
SECTION 3.16 Capital Expenditures...................................21
SECTION 3.17 Restricted Payments....................................22
SECTION 3.18 Notice of Events of Default............................22
SECTION 3.19 Further Instruments and Acts...........................22
SECTION 3.20 Removal of Administrator...............................22
ARTICLE IV SATISFACTION AND DISCHARGE.............................22
SECTION 4.1 Satisfaction and Discharge of Indenture................22
SECTION 4.2 Application of Trust Money.............................23
SECTION 4.3 Repayment of Moneys Held by Paying Agent...............24
ARTICLE V REMEDIES...............................................24
SECTION 5.1 Events of Default......................................24
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.....25
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee................................26
SECTION 5.4 Remedies; Priorities...................................28
SECTION 5.5 Optional Preservation of the Receivables...............31
SECTION 5.6 Limitation of Suits....................................31
SECTION 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest..............................32
SECTION 5.8 Restoration of Rights and Remedies.....................32
SECTION 5.9 Rights and Remedies Cumulative.........................32
SECTION 5.10 Delay or Omission Not a Waiver.........................32
SECTION 5.11 Control by Controlling Note Class of Noteholders.......33
SECTION 5.12 Waiver of Past Defaults................................33
SECTION 5.13 Undertaking for Costs..................................34
SECTION 5.14 Waiver of Stay or Extension Laws.......................34
SECTION 5.15 Action on Notes........................................34
SECTION 5.16 Performance and Enforcement of Certain Obligations.....34
ARTICLE VI INDENTURE TRUSTEE......................................35
SECTION 6.1 Duties of Indenture Trustee............................35
SECTION 6.2 Rights of Indenture Trustee............................37
SECTION 6.3 Individual Rights of Indenture Trustee.................38
SECTION 6.4 Indenture Trustee's Disclaimer.........................39
SECTION 6.5 Notice of Defaults.....................................39
SECTION 6.6 Reports by Indenture Trustee to Holders................39
SECTION 6.7 Compensation and Indemnity.............................39
SECTION 6.8 Replacement of Indenture Trustee.......................39
SECTION 6.9 Successor Indenture Trustee by Merger..................40
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee....................................41
SECTION 6.11 Eligibility; Disqualification..........................42
SECTION 6.12 Preferential Collection of Claims Against Issuer.......43
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS.........................43
SECTION 7.1 Issuer to Furnish Indenture Trustee Names and
Addresses of Noteholders............................43
SECTION 7.2 Preservation of Information; Communications to
Noteholders.........................................43
SECTION 7.3 Reports by Issuer......................................44
SECTION 7.4 Reports by Indenture Trustee...........................44
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES...................45
SECTION 8.1 Collection of Money....................................45
SECTION 8.2 Trust Accounts.........................................45
SECTION 8.3 General Provisions Regarding Accounts..................49
SECTION 8.4 Release of Trust Estate................................50
SECTION 8.5 Opinion of Counsel.....................................50
ARTICLE IX SUPPLEMENTAL INDENTURES................................51
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.51
SECTION 9.2 Supplemental Indentures with Consent of Noteholders....52
SECTION 9.3 Execution of Supplemental Indentures...................54
SECTION 9.4 Effect of Supplemental Indenture.......................54
SECTION 9.5 Conformity With Trust Indenture Act....................54
SECTION 9.6 Reference in Notes to Supplemental Indentures..........54
ARTICLE X REDEMPTION OF NOTES....................................54
SECTION 10.1 Redemption.............................................54
SECTION 10.2 Form of Redemption Notice..............................55
SECTION 10.3 Notes Payable on Redemption Date.......................55
ARTICLE XI MISCELLANEOUS..........................................55
SECTION 11.1 Compliance Certificates and Opinions, etc..............55
SECTION 11.2 Form of Documents Delivered to Indenture Trustee.......57
SECTION 11.3 Acts of Noteholders....................................58
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and
Rating Agencies.....................................58
SECTION 11.5 Notices to Noteholders; Waiver.........................59
SECTION 11.6 Alternate Payment and Notice Provisions................60
SECTION 11.7 Conflict with Trust Indenture Act......................60
SECTION 11.8 Effect of Headings and Table of Contents...............60
SECTION 11.9 Successors and Assigns.................................60
SECTION 11.10 Severability...........................................60
SECTION 11.11 Benefits of Indenture..................................60
SECTION 11.12 Legal Holidays.........................................60
SECTION 11.13 GOVERNING LAW..........................................61
SECTION 11.14 Counterparts...........................................61
SECTION 11.15 Recording of Indenture.................................61
SECTION 11.16 Trust Obligation.......................................61
SECTION 11.17 No Petition............................................62
SECTION 11.18 Inspection.............................................62
SECTION 11.19 Confidential Information...............................63
INDENTURE dated as of June 1, 2001, (as from time to time amended,
supplemented or otherwise modified and in effect, this "Indenture") between ACE
RV and Marine Trust 2001-RV1, a Delaware business trust ("Issuer"), and The
Chase Manhattan Bank, a New York banking corporation, solely as indenture
trustee and not in its individual capacity ("Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of Issuer's 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, the
Class A-2 Notes, the Class A-3 Notes and the 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"), 7.58% Class D Asset Backed Notes (the
"Class D Notes" and, together with the Class A Notes, the Class B Notes and the
Class C Notes, the "Publicly Offered Notes"), and 8.70% Class E Asset Backed
Notes (the "Class E Note", and, together with the Publicly Offered Notes, the
"Notes"):
GRANTING CLAUSE
Issuer hereby Grants to Indenture Trustee at the Closing Date, as Indenture
Trustee for the benefit of the Holders of the Notes, all of Issuer's right,
title and interest in and to: (a) the Receivables, and all moneys received
thereon on or after the Cutoff Date; (b) the security interests in the Financed
Vehicles granted by Obligors pursuant to the Receivables and any other interest
of Issuer in the Financed Vehicles and any other property that shall secure the
Receivables; (c) any proceeds with respect to the Receivables from claims on any
Insurance Policies covering Financed Vehicles or Obligors or from claims under
any lender's single interest insurance policy naming any Originator as an
insured; (d) any proceeds with respect to (i) any Receivable repurchased by a
Dealer, pursuant to a Dealer Agreement, as a result of a breach of a
representation or warranty in the related Dealer Agreement, (ii) a default by an
Obligor resulting in the repossession of the Financed Vehicle, or (iii) any
Dealer Recourse and other rights under Dealer Agreements; (e) all the Seller's
rights under the Purchase Agreement; (f) any instrument or document relating to
the Receivables; (g) all funds on deposit from time to time in the Trust
Accounts and in all investments and proceeds thereof (including the Reserve
Account Property); (h) the Issuer's rights under the Sale and Servicing
Agreement; and (i) all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any or all of
the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing (collectively, the "Collateral"). The foregoing
Grant is made in trust to secure the payment of principal of and interest on,
and any other amounts owing in respect of, the Notes, equally and ratably
without prejudice, priority or distinction except as set forth herein, and to
secure compliance with the provisions of this Indenture, all as provided in this
Indenture. Indenture Trustee, as Indenture Trustee on behalf of the Holders of
the Notes, acknowledges such Grant, accepts the trusts under this Indenture in
accordance with the provisions of this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end that the
interests of the Holders of the Notes may be adequately and effectively
protected.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE.
SECTION 1.1 DEFINITIONS. Capitalized terms are used in this Indenture as
defined in Appendix X to the Sale and Servicing Agreement dated as of June 1,
2001, among ACE Securities Corp., as Seller, the Issuer, ▇▇▇▇▇ Fargo Bank
Northwest, N.A., ▇▇▇▇▇ Fargo Bank New Mexico, N.A., ▇▇▇▇▇ Fargo Bank, N.A, as
Servicer and Custodian and The Chase Manhattan Bank, as indenture trustee (the
"Indenture Trustee").
SECTION 1.2 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
(a) "Commission" means the Securities and Exchange Commission.
(b) "indenture securities" means the Notes.
(c) "indenture security holder" means a Noteholder.
(d) "indenture to be qualified" means this Indenture.
(e) "indenture trustee" or "institutional trustee" means Indenture Trustee
(f) "obligor" on the indenture securities means Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
SECTION 1.3 OTHER INTERPRETIVE PROVISIONS. All terms defined in this
Indenture shall have the defined meanings when used in any certificate or other
document delivered pursuant hereto unless otherwise defined therein. For
purposes of this Indenture and all such certificates and other documents, unless
the context otherwise requires: (a) accounting terms not otherwise defined in
this Indenture, and accounting terms partly defined in this Indenture to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles; (b) the words "hereof," "herein" and
"hereunder" and words of similar import refer to this Indenture as a whole and
not to any particular provision of this Indenture; (c) references to any
Article, Section, Schedule or Exhibit are references to Articles, Sections,
Schedules and Exhibits in or to this Indenture 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; (d) the term "including" means "including without limitation"; (e)
except as otherwise expressly provided herein, 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; (f) references to any Person include
that Person's successors and assigns; and (g) headings are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
ARTICLE II
THE NOTES
SECTION 2.1 FORM.
(a) The Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class A-5 Notes, Class B Notes, Class C Notes, Class D Notes and Class E Notes,
in each case together with Indenture Trustee's certificate of authentication,
shall be in substantially the forms set forth in Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇,
▇-▇, ▇, ▇, ▇ and E, respectively, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may, consistently herewith,
be determined by the officers executing such Notes, as evidenced by their
execution of the Notes. Any portion of the text of any Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the
Note.
(b) The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
(c) Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇, ▇, ▇ and E are part
of the terms of this Indenture.
SECTION 2.2 EXECUTION, AUTHENTICATION AND DELIVERY. The Notes shall be
executed on behalf of Issuer by any of its Authorized Officers. The signature of
any such Authorized Officer on the Notes may be manual or facsimile.
(a) Notes bearing the manual or facsimile signature of individuals who were
at any time Authorized Officers of Issuer shall bind Issuer, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Notes or did not hold such offices at
the date of such Notes.
(b) Indenture Trustee shall upon Issuer Order authenticate and deliver
Class A-1 Notes for original issue in an aggregate principal amount of
$122,000,000, Class A-2 Notes for original issue in the aggregate principal
amount of $40,000,000, Class A-3 Notes for original issue in the aggregate
principal amount of $52,000,000, Class A-4 Notes for original issue in the
aggregate principal amount of $20,000,000, Class A-5 Notes for original issue in
the aggregate principal amount of $44,805,000, Class B Notes for original issue
in the aggregate principal amount of $20,025,000, Class C Notes for original
issue in the aggregate principal amount of $7,702,000, Class D Notes for
original issue in the aggregate principal amount of $4,621,000 and Class E Notes
for original issue in the aggregate principal amount of $3,081,000. The
aggregate principal amount of Class A-1 Notes, Class A-2 Notes, Class A-3 Notes,
Class A-4 Notes, Class A-5 Notes, Class B Notes, Class C Notes, Class D Notes
and Class E Notes outstanding at any time may not exceed such amounts except as
provided in Section 2.5.
(c) Each Note shall be dated the date of its authentication. The Notes
(other than the Class E Notes) shall be issuable as registered Notes in the
minimum denomination of $1,000 and in integral multiples thereof (except for one
Note of each class which may be issued in a denomination other than an integral
multiple of $1,000). The Class E Notes shall be issuable as registered Notes in
minimum denominations of $100,000 and in integral multiples of $1,000 in excess
thereof (except for one Note which may be issued in a denomination other than an
integral multiple of $1,000).
(d) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by Indenture Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Note shall be conclusive evidence,
and the only evidence, that such Note has been duly authenticated and delivered
hereunder.
SECTION 2.3 TEMPORARY NOTES.
(a) Pending the preparation of Definitive Notes, Issuer may execute, and
upon receipt of an Issuer Order, Indenture Trustee shall authenticate and
deliver, temporary Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced, of the tenor of the Definitive Notes in lieu
of which they are issued and with such variations not inconsistent with the
terms of this Indenture as the officers executing such Notes may determine, as
evidenced by their execution of such Notes.
(b) If temporary Notes are issued, Issuer will cause Definitive Notes to be
prepared without unreasonable delay. After the preparation of Definitive Notes,
the temporary Notes shall be exchangeable for Definitive Notes upon surrender of
the temporary Notes at the office or agency of Issuer to be maintained as
provided in Section 3.2, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes, Issuer shall execute and
Indenture Trustee shall authenticate and deliver in exchange therefor a like
principal amount of Definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as Definitive Notes.
SECTION 2.4 REGISTRATION OF TRANSFER AND EXCHANGE.
(a) Issuer shall cause to be kept a register (the "Note Register") in
which, subject to such reasonable regulations as it may prescribe, Issuer shall
provide for the registration of Notes and the registration of transfers of
Notes. Indenture Trustee shall initially be "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, Issuer shall promptly appoint a successor or,
if it elects not to make such an appointment, assume the duties of Note
Registrar.
(b) If a Person other than Indenture Trustee is appointed by Issuer as Note
Registrar, Issuer will give Indenture Trustee prompt written notice of the
appointment of such Note Registrar and of the location, and any change in the
location, of the Note Register, and Indenture Trustee shall have the right to
inspect the Note Register at all reasonable times and to obtain copies thereof,
and Indenture Trustee shall have the right to conclusively rely upon a
certificate executed on behalf of Note Registrar by an Executive Officer thereof
as to the names and addresses of the Holders of the Notes and the principal
amounts and number of such Notes.
(c) Upon surrender for registration of transfer of any Note at the office
or agency of Issuer to be maintained as provided in Section 3.2, if the
requirements of Section 8-401(1) of the UCC are met, Issuer shall execute and
upon its written request Indenture Trustee shall authenticate and the Noteholder
shall obtain from Indenture Trustee, in the name of the designated transferee or
transferees, one or more new Notes, in any authorized denominations, of the same
class and a like aggregate principal amount.
(d) At the option of the Holder, Notes may be exchanged for other Notes in
any authorized denominations, of the same class and a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, if the requirements of
Section 8-401(1) of the UCC are met Issuer shall execute and upon its written
request Indenture Trustee shall authenticate and the Noteholder shall obtain
from Indenture Trustee, the Notes which the Noteholder making the exchange is
entitled to receive.
(e) All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of Issuer, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Notes surrendered upon such
registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of transfer or
exchange shall be (i) duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to Note Registrar duly executed by,
the Holder thereof or such Holder's attorney duly authorized in writing, with
such signature guaranteed by an "eligible guarantor institution" meeting the
requirements of Note Registrar which requirements include membership or
participation in a Securities Transfer Agents Medallion Program ("Stamp") or
such other "signature guarantee program" as may be determined by Note Registrar
in addition to, or in substitution for, Stamp, all in accordance with the
Exchange Act, and (ii) accompanied by such other documents as Indenture Trustee
may require.
(g) No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
(h) The preceding provisions of this section notwithstanding, Issuer shall
not be required to make and Note Registrar need not register transfers or
exchanges of Notes selected for redemption or of any Note for a period of 15
days preceding the due date for any payment with respect to the Note.
(i) No Note, or any interest therein, may be transferred to an "employee
benefit plan" within the meaning of Section 3(3) of ERISA that is subject to
ERISA, a "plan" described in Section 4975(e)(1) of the Code, any entity that is
deemed to hold "plan assets" of any of the foregoing by reason of an employee
benefit plan's or other plan's investment in such entity, or any governmental
plan subject to applicable law that is substantially similar to the fiduciary
responsibility provisions of ERISA or Section 4975 of the Code, unless such
transferee is acquiring a Class of Notes other than the Class E Notes and it
represents, warrants and covenants that its purchase and holding of such Note is
and will be eligible for, and satisfies and will satisfy all the requirements
of, Department of Labor prohibited transaction class exemption ("PTE") 90-1; PTE
96-23; PTE 95-60: PTE 91-38; PTE 84-14 or another applicable prohibited
transaction exemption (or in the case of a governmental plan, will not violate
any applicable law that is substantially similar to ERISA or Section 4975 of the
Code). By its acquisition of a Note (other than a Class E Note) or any interest
therein, each transferee will be deemed to have represented, warranted and
covenanted that it satisfies the foregoing requirements and the Indenture
Trustee may rely conclusively on the same for purposes hereof.
SECTION 2.5 MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
(a) If (i) any mutilated Note is surrendered to Indenture Trustee, or
Indenture Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Note, and (ii) there is delivered to Indenture Trustee such
security or indemnity as may be required by it to hold Issuer and Indenture
Trustee harmless, then, in the absence of notice to Issuer, Note Registrar or
Indenture Trustee that such Note has been acquired by a bona fide purchaser, and
provided that the requirements of Section 8-405 of the UCC are met, Issuer shall
execute and upon its written request Indenture Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Note, a replacement Note; provided that if any such destroyed, lost or
stolen Note, but not a mutilated Note, shall have become or within seven days
shall be due and payable, or shall have been called for redemption, instead of
issuing a replacement Note, Issuer may upon delivery of the security or
indemnity herein required pay such destroyed, lost or stolen Note when so due or
payable or upon the Redemption Date without surrender thereof. If, after the
delivery of such replacement Note or payment of a destroyed, lost or stolen Note
pursuant to the proviso to the preceding sentence, a bona fide purchaser of the
original Note in lieu of which such replacement Note was issued presents for
payment such original Note, Issuer and Indenture Trustee shall be entitled to
recover such replacement Note (or such payment) from the Person to whom it was
delivered or any Person taking such replacement Note from such Person to whom
such replacement Note was delivered or any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by Issuer or Indenture Trustee in connection therewith.
(b) Upon the issuance of any replacement Note under this Section, Issuer
may require the payment by the Holder of such Note of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the fees and expenses of Indenture
Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 PERSONS DEEMED OWNER. Prior to due presentment for registration
of transfer of any Note, Issuer, Indenture Trustee and any agent of Issuer or
Indenture Trustee may treat the Person in whose name any Note is registered (as
of the day of determination) as the owner of such Note for the purpose of
receiving payments of principal of and interest, if any, on such Note and for
all other purposes whatsoever, whether or not such Note be overdue, and neither
Issuer, Indenture Trustee nor any agent of Issuer or Indenture Trustee shall be
affected by notice to the contrary.
SECTION 2.7 PAYMENT OF PRINCIPAL AND INTEREST; DEFAULTED INTEREST.
(a) The Notes shall accrue interest as provided in the forms of the Class
A-1 Note, Class A-2 Note, Class A-3 Notes, Class A-4 Notes, Class A-5 Notes,
Class B Notes, Class C Notes, Class D Notes, Class E Notes, set forth in
Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇, ▇, ▇ and E, respectively, and such interest
shall be payable on each Payment Date as specified therein, subject to Section
3.1. Any installment of interest or principal, if any, payable on any Note which
is punctually paid or duly provided for by Issuer on the applicable Payment Date
shall be paid to the Person in whose name such Note (or one or more Predecessor
Notes) is registered on the Record Date, by check mailed first-class, postage
prepaid, to such Person's address as it appears on the Note Register on such
Record Date, except that, unless Definitive Notes have been issued pursuant to
Section 2.12, with respect to Notes registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payment will be made by wire transfer in immediately available funds to the
account designated by such nominee and except for the final installment of
principal payable with respect to such Note on a Payment Date or on the Final
Scheduled Payment Date for such Class (and except for the Redemption Price for
any Note called for redemption pursuant to Section 10.1(a)) which shall be
payable as provided below. The funds represented by any such checks returned
undelivered shall be held in accordance with Section 3.3.
(b) The principal of each Note shall be payable on each Payment Date as
provided in the forms of the Class A-1 Note, Class A-2 Note, Class A-3 Note,
Class A-4 Note, Class A-5 Note, Class B Note, Class C Note, Class D Note and
Class E Note, set forth in Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇, ▇, ▇ and E,
respectively. Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes shall be due and payable, if not previously paid, on the date on
which an Event of Default shall have occurred and be continuing, if Indenture
Trustee or the Holders of the Notes representing not less than a majority of the
Outstanding Amount of the Notes of the Controlling Note Class have declared the
Notes to be immediately due and payable in the manner provided in Section 5.2
and, in such event, all principal payments on each class of Notes shall be made
pro rata to the Noteholders of such class entitled thereto. Indenture Trustee
shall notify the Person in whose name a Note is registered at the close of
business on the Record Date preceding the Payment Date on which Issuer expects
that the final installment of principal of and interest on such Note will be
paid. Such notice shall be mailed or transmitted by facsimile prior to such
final Payment Date and shall specify that such final installment will be payable
only upon presentation and surrender of such Note and shall specify the place
where such Note may be presented and surrendered for payment of such
installment. Notices in connection with redemptions of Notes shall be mailed to
Noteholders as provided in Section 10.2.
(c) If Issuer defaults in a payment of interest on the Notes, Issuer shall
pay such defaulted interest (plus interest on such defaulted interest to the
extent lawful) at the applicable Note Interest Rate on the Payment Date
following such default. The Issuer shall pay such defaulted interest to the
Holders of Notes on the Record Date for such following Payment Date.
SECTION 2.8 CANCELLATION. All Notes surrendered for payment, registration
of transfer, exchange or redemption shall, if surrendered to any Person other
than Indenture Trustee, be delivered to Indenture Trustee and shall be promptly
cancelled by Indenture Trustee. Issuer may at any time deliver to Indenture
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which Issuer may have acquired in any manner whatsoever, and all Notes
so delivered shall be promptly cancelled by Indenture Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled
Notes may be held or disposed of by Indenture Trustee in accordance with its
standard retention or disposal policy as in effect at the time unless Issuer
shall direct by an Issuer Order that they be destroyed or returned to it;
provided that such Issuer Order is timely and the Notes have not been previously
disposed of by Indenture Trustee.
SECTION 2.9 RELEASE OF COLLATERAL. Subject to Section 11.1, Indenture
Trustee shall release property from the lien of this Indenture only in
accordance with the Basic Documents and upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that the TIA
does not require any such Independent Certificates. If the Commission shall
issue an exemptive order under TIA Section 304(d) modifying Owner Trustee's
obligations under TIA Sections 314(c) and 314(d)(1), subject to Section 11.1 and
the terms of the Basic Documents, Indenture Trustee shall release property from
the lien of this Indenture in accordance with the conditions and procedures set
forth in such exemptive order.
SECTION 2.10 BOOK-ENTRY NOTES. The Notes (other than the Class E Notes),
upon original issuance, will be issued in the form of typewritten Notes
representing the Book-Entry Notes, to be delivered to Indenture Trustee, as
agent for The Depository Trust Company, the initial Clearing Agency, by, or on
behalf of, Issuer. Such Notes shall initially be registered on the Note Register
in the name of Cede & Co., the nominee of the initial Clearing Agency, and no
Note Owner will receive a Definitive Note representing such Note Owner's
interest in such Note, except as provided in Section 2.12. Unless and until
definitive, fully registered Notes (the "Definitive Notes") have been issued to
Note Owners pursuant to Section 2.12:
(a) the provisions of this Section shall be in full force and effect;
(b) Note Registrar and Indenture Trustee shall be entitled to deal with the
Clearing Agency for all purposes of this Indenture (including the payment of
principal of and interest on the Notes and the giving of instructions or
directions hereunder) as the sole Holder of the Notes, and shall have no
obligation to the Note Owners;
(c) to the extent that the provisions of this Section conflict with any
other provisions of this Indenture, the provisions of this Section shall
control;
(d) the rights of Note Owners shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements between
such Note Owners and the Clearing Agency and/or the Clearing Agency Participants
or Persons acting through Clearing Agency Participants. Pursuant to the Note
Depository Agreement, unless and until Definitive Notes are issued pursuant to
Section 2.12, the initial Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit payments of principal
of and interest on the Notes to such Clearing Agency Participants; and
(e) whenever this Indenture requires or permits actions to be taken based
upon instructions or directions of Holders of Notes evidencing a specified
percentage of the Outstanding Amount of the Notes (or any class thereof,
including the Controlling Note Class), the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has received instructions
to such effect from Note Owners and/or Clearing Agency Participants or Persons
acting through Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the Notes
(or any class thereof, including the Controlling Note Class) and has delivered
such instructions to Indenture Trustee.
SECTION 2.11 NOTICES TO CLEARING AGENCY. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to Section
2.12, Indenture Trustee shall give all such notices and communications specified
herein to be given to Holders of the Notes to the Clearing Agency, and shall
have no obligation to the Note Owners.
SECTION 2.12 DEFINITIVE NOTES. (a) The Class E Notes, upon original
issuance, will be issued in the form of typewritten Notes. Such Class E Notes
shall be registered in the name specified by the Depositor.
(b) If (a) Seller advises Indenture Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Notes that are Book-Entry Notes, and Seller is unable to
locate a qualified successor, (b) Seller at its option advises Indenture Trustee
in writing that it elects to terminate the book-entry system through the
Clearing Agency or (c) after the occurrence of an Event of Default, Note Owners
representing beneficial interests aggregating at least a majority of the
Outstanding Amount of the Notes that are Book-Entry Notes advise Indenture
Trustee through the Clearing Agency in writing that the continuation of a book
entry system through the Clearing Agency is no longer in the best interests of
the related Note Owners, then the Clearing Agency shall notify all related Note
Owners and Indenture Trustee of the occurrence of any such event and of the
availability of Definitive Notes to Note Owners requesting the same. Upon
surrender to Indenture Trustee of the typewritten Note or Notes representing the
Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, Issuer shall execute and Indenture Trustee shall authenticate the
Definitive Notes in accordance with the instructions of the Clearing Agency.
None of Issuer, Note Registrar or Indenture 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 such
Definitive Notes, Indenture Trustee shall recognize the Holders of such
Definitive Notes as Noteholders.
SECTION 2.13 AUTHENTICATING AGENTS.
(a) The Indenture Trustee may appoint one or more Persons (each, an
"Authenticating Agent") with power to act on its behalf and subject to its
direction in the authentication of Notes in connection with issuance, transfers
and exchanges under Sections 2.2, 2.3, 2.4, 2.5 and 9.6, as fully to all intents
and purposes as though each such Authenticating Agent had been expressly
authorized by those Sections to authenticate such Notes. For all purposes of
this Indenture, the authentication of Notes by an Authenticating Agent pursuant
to this Section shall be deemed to be the authentication of Notes "by the
Indenture Trustee." The Indenture Trustee shall be the Authenticating Agent in
the absence of any appointment thereof.
(b) Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the successor
of such Authenticating Agent hereunder, without the execution or filing of any
further act on the part of the parties hereto or such Authenticating Agent or
such successor corporation.
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to Indenture Trustee and Owner Trustee. Indenture Trustee
may at any time terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent and Owner Trustee.
Upon receiving such notice of resignation or upon such a termination, Indenture
Trustee may appoint a successor Authenticating Agent and shall give written
notice of any such appointment to Owner Trustee.
(d) The Administrator agrees to pay to each Authenticating Agent (other
than the Indenture Trustee) from time to time reasonable compensation for its
services as agreed upon between the Authenticating Agent and the Administrative
Agent. The provisions of Sections 2.8 and Article VI shall be applicable to any
Authenticating Agent and Section 4.16(b) of the Sale and Servicing Agreement.
SECTION 2.14 TAX TREATMENT. Issuer has entered into this Indenture, and the
Notes shall be issued, with the intention that, for United States federal, state
and local income, excise, privilege and franchise tax purposes, the Notes (other
than the Class E Notes) shall qualify as indebtedness secured by the Trust
Estate. Issuer, by entering into this Indenture, and each Noteholder, by its
acceptance of a Note other than a Class E Note (and each Note Owner by its
acceptance of an interest in an applicable Book-Entry Note), agree to treat the
Notes (other than the Class E Notes) for federal, state and local income and
franchise tax purposes as indebtedness.
SECTION 2.15 PAYING AGENTS.
(a) The Indenture Trustee may appoint one or more Paying Agents with the
power to make payments to and distributions from the Trust Accounts and the
Reserve Account.
(b) Any corporation into which any Paying Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, consolidation or conversion to which any Paying Agent shall be a party,
or any corporation succeeding to all or substantially all of the corporate trust
business of any Paying Agent shall be the successor of such Paying Agent
hereunder, without the execution or filing of any further act on the part of the
parties hereto or such Paying Agent or such successor corporation.
(c) Any Paying Agent may at any time resign by giving written notice of
resignation to Indenture Trustee and Administrator. Indenture Trustee may at any
time terminate the agency of any Paying Agent by giving written notice of
termination to such Paying Agent. Upon receiving such notice of resignation or
upon such a termination, Indenture Trustee may appoint a successor Paying Agent
and shall give written notice of any such appointment to Administrator.
(d) The Indenture Trustee agrees to pay to each Paying Agent from time to
time reasonable compensation for its services as agreed upon between the Paying
Agent and the Indenture Trustee. The provisions of Article VI and Section
4.16(b) of the Sale and Servicing Agreement shall be applicable to any Paying
Agent.
SECTION 2.16 RESTRICTIONS ON CLASS E NOTE TRANSFERABILITY. The Class E
Notes may not be offered or sold except to Qualified Institutional Buyers in
reliance on the exemption from the registration requirements of the Securities
Act provided by Rule 144A thereunder. The Class E Notes may not be acquired (1)
with assets of an employee benefit plan or (2) by a Non-U.S. Person.
Each purchaser of the Notes will be deemed to have represented and agreed
as follows:
(a) It is a Qualified Institutional Buyer as defined in Rule 144A
promulgated under the Securities Act and is acquiring the Class E Notes for its
own institutional account or for the account of a Qualified Institutional Buyer.
(b) It understands that the Class E Notes will be offered in a transaction
not involving any public offering within the meaning of the Securities Act, and
that, if in the future it decides to resell, pledge or otherwise transfer any
Class E Notes, such Class E Notes may be resold, pledged or transferred only (a)
to the Issuer (upon redemption thereof or otherwise), (b) to a person who the
seller reasonably believes is a Qualified Institutional Buyer that purchases for
its own account or for the account of a Qualified Institutional Buyer to whom
notice is given that the resale, pledge or transfer is being made in reliance on
Rule 144A or (c) pursuant to an effective registration statement under the
Securities Act.
(c) It understands that the Class E Notes will bear a legend substantially
to the following effect:
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES OR "BLUE SKY" LAWS.
THE HOLDER HEREOF, BY PURCHASING ANY NOTE, AGREES FOR THE BENEFIT OF THE
ISSUER THAT SUCH NOTE IS BEING ACQUIRED FOR ITS OWN ACCOUNT AND NOT WITH A
VIEW TO DISTRIBUTION AND MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY (1) TO
THE ISSUER (UPON REDEMPTION THEREOF OR OTHERWISE), (2) TO A PERSON THE
TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR
(3) IN A TRANSACTION COMPLYING WITH THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION.
(d) It understands that the Class E Notes will bear a legend substantially
to the following effect:
THIS NOTE OR INTEREST THEREIN MAY NOT 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").
(e) It understands that the Class E Notes will bear a legend substantially
to the following effect:
THIS NOTE MAY NOT BE ACQUIRED BY A NON-U.S. PERSON.
Neither the Issuer, the Indenture Trustee nor the Registrar shall have any
responsibility to monitor compliance with the transfer restrictions set forth on
the face of the Class E Notes and in this Section 2.16.
ARTICLE III
COVENANTS
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. Issuer will duly and
punctually pay the principal of and interest on the Notes in accordance with the
terms of the Notes and this Indenture. Without limiting the foregoing, subject
to Section 8.2(c), Issuer will cause to be distributed all amounts on deposit in
the Note Distribution Account on a Payment Date deposited therein pursuant to
the Sale and Servicing Agreement. Amounts properly withheld under the Code by
any Person from a payment to any Noteholder of interest and/or principal shall
be considered as having been paid by Issuer to such Noteholder for all purposes
of this Indenture.
SECTION 3.2 MAINTENANCE OF OFFICE OR AGENCY. Issuer will maintain in the
Borough of Manhattan, The City of New York, an office or agency where Notes may
be surrendered for registration of transfer or exchange, and where notices and
demands to or upon Issuer in respect of the Notes and this Indenture may be
served. Issuer hereby initially appoints Indenture Trustee to serve as its agent
for the foregoing purposes. Issuer will give prompt written notice to Indenture
Trustee of the location, and of any change in the location, of any such office
or agency. If at any time Issuer shall fail to maintain any such office or
agency or shall fail to furnish Indenture Trustee with the address thereof, such
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and Issuer hereby appoints Indenture Trustee as its agent to receive all
such surrenders, notices and demands.
SECTION 3.3 MONEY FOR PAYMENTS TO BE HELD IN TRUST.
(a) As provided in Section 8.2, all payments of amounts due and payable
with respect to any Notes that are to be made from amounts withdrawn from the
Collection Account and the Note Distribution Account pursuant to Section 8.2(c)
shall be made on behalf of Issuer by Indenture Trustee or by another Paying
Agent, and no amounts so withdrawn from the Collection Account and the Note
Distribution Account for payments of Notes shall be paid over to Issuer except
as provided in this Section.
(b) On or before each Payment Date and Redemption Date, Issuer shall
deposit or cause to be deposited in the Note Distribution Account an aggregate
sum sufficient to pay the amounts then becoming due under the Notes, such sum to
be held in trust for the benefit of the Persons entitled thereto and (unless the
Paying Agent is Indenture Trustee) shall promptly notify Indenture Trustee of
its action or failure so to act.
(c) Issuer will cause each Paying Agent other than Indenture Trustee to
execute and deliver to Indenture Trustee an instrument in which such Paying
Agent shall agree with Indenture Trustee (and if Indenture Trustee acts as
Paying Agent, it hereby so agrees), subject to the provisions of this Section,
that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with respect to
the Notes in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and pay such sums to such Persons as in the Basic Documents;
(ii) give Indenture Trustee notice of any default by Issuer (or any other
obligor upon the Notes) of which it has actual knowledge in the making of
any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon the
written request of Indenture Trustee, forthwith pay to Indenture Trustee
all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to Indenture
Trustee all sums held by it in trust for the payment of Notes if at any
time it ceases to meet the standards required to be met by a Paying Agent
at the time of its appointment; and
(v) comply with all requirements of the Code and any State or local tax law
with respect to the withholding from any payments made by it on any Notes
of any applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
(d) Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order direct
any Paying Agent to pay to Indenture Trustee all sums held in trust by such
Paying Agent, such sums to be held by Indenture Trustee upon the same trusts as
those upon which the sums were held by such Paying Agent; and upon such a
payment by any Paying Agent to Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
(e) Subject to applicable laws with respect to the escheat of funds, any
money held by Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed for two years
after such amount has become due and payable shall be discharged from such trust
and be paid to Issuer on Issuer Request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to Issuer for payment
thereof (but only to the extent of the amounts so paid to Issuer), and all
liability of Indenture Trustee or such Paying Agent with respect to such trust
money shall thereupon cease; provided that Indenture Trustee or such Paying
Agent, before being required to make any such repayment, shall at the expense of
Issuer cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to Issuer. Indenture Trustee shall also adopt and employ, at the
expense of Issuer, any other reasonable means of notification of such repayment
(including, but not limited to, mailing notice of such repayment to Holders
whose Notes have been called but have not been surrendered for redemption or
whose right to or interest in moneys due and payable but not claimed is
determinable from the records of Indenture Trustee or of any Paying Agent, at
the last address of record for each such Holder).
SECTION 3.4 EXISTENCE. Except as otherwise permitted by the provisions of
Section 3.10, Issuer will keep in full effect its existence, rights and
franchises as a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 DEL. C. ss. 3801 ET SEQ. ("Business Trust Statute") (unless it becomes,
or any successor IssueR hereunder is or becomes, organized under the laws of any
other state or of the United States of America, in which case Issuer will keep
in full effect its existence, rights and franchises under the laws of such other
jurisdiction) and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Notes, the
Collateral and each other instrument or agreement included in the Trust Estate.
SECTION 3.5 PROTECTION OF TRUST ESTATE. Issuer will from time to time
prepare (or shall cause to be prepared), execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and will take such other action necessary or advisable to:
(a) maintain or preserve the lien and security interest (and the priority
thereof) of this Indenture or carry out more effectively the purposes hereof;
(b) perfect, publish notice of or protect the validity of any Grant made or
to be made by this Indenture;
(c) enforce any of the Collateral; or
(d) preserve and defend title to the Trust Estate and the rights of
Indenture Trustee and the Noteholders in such Trust Estate against the claims of
all persons and parties.
Issuer hereby designates Indenture Trustee its agent and attorney-in-fact
to execute any financing statement, continuation statement or other instrument
required by Issuer pursuant to this Section.
SECTION 3.6 OPINIONS AS TO TRUST ESTATE.
(a) On the Closing Date, Issuer shall furnish to Indenture Trustee an
Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording and filing of this
Indenture, any indentures supplemental hereto, and any other requisite
documents, and with respect to the execution and filing of any financing
statements and continuation statements, as are necessary to perfect and make
effective the lien and security interest of this Indenture and reciting the
details of such action, or stating that, in the opinion of such counsel, no such
action is necessary to make such lien and security interest effective.
(b) Within 120 days after the beginning of each calendar year, beginning
with the first calendar year beginning more than three months after the Cutoff
Date, Issuer shall furnish to Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents and with
respect to the execution and filing of any financing statements and continuation
statements as are necessary to maintain the lien and security interest created
by this Indenture and reciting the details of such action or stating that in the
opinion of such counsel no such action is necessary to maintain such lien and
security interest. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and the execution and filing of any
financing statements and continuation statements that will, in the opinion of
such counsel, be required to maintain the lien and security interest of this
Indenture until June 30 in the following calendar year.
SECTION 3.7 PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES.
(a) Issuer will not take any action and will use its best efforts not to
permit any action to be taken by others that would release any Person from any
of such Person's material covenants or obligations under any instrument or
agreement included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
ordered by any bankruptcy or other court or as expressly provided in this
Indenture, the Basic Documents or such other instrument or agreement.
(b) Issuer may contract with other Persons to assist it in performing its
duties under this Indenture, and any performance of such duties by a Person
identified to Indenture Trustee in an Officer's Certificate of Issuer shall be
deemed to be action taken by Issuer. Initially, Issuer has contracted with
Servicer and the Administrator to assist Issuer in performing its duties under
this Indenture.
(c) Issuer will punctually perform and observe all of its obligations and
agreements contained in this Indenture, the Basic Documents and in the
instruments and agreements included in the Trust Estate, including but not
limited to preparing (or causing to prepared) and filing (or causing to be
filed) all UCC financing statements and continuation statements required to be
filed by the terms of this Indenture and the Sale and Servicing Agreement in
accordance with and within the time periods provided for herein and therein.
Except as otherwise expressly provided therein, Issuer shall not waive, amend,
modify, supplement or terminate any Basic Document or any provision thereof
without the consent of Indenture Trustee or the Holders of at least a majority
of the Outstanding Amount of the Notes.
(d) If Issuer shall have knowledge of the occurrence of a Servicer
Termination Event under the Sale and Servicing Agreement, Issuer shall promptly
notify Indenture Trustee and the Rating Agencies thereof in accordance with
Section 11.4, and shall specify in such notice the action, if any, Issuer is
taking in respect of such default. If a Servicer Termination Event shall arise
from the failure of Servicer to perform any of its duties or obligations under
the Sale and Servicing Agreement with respect to the Receivables, Issuer shall
take all reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of termination to
Servicer of Servicer's rights and powers pursuant to Section 8.1 of the Sale and
Servicing Agreement or the Servicer's resignation in accordance with the terms
of the Sale and Servicing Agreement, the Issuer shall appoint a successor
servicer (the "Successor Servicer"), and such Successor Servicer shall accept
its appointment by a written assumption in a form acceptable to Indenture
Trustee. In the event that a Successor Servicer has not been appointed and
accepted its appointment at the time when Servicer ceases to act as Servicer,
Indenture Trustee without further action shall automatically be appointed the
Successor Servicer. Indenture Trustee may resign as Servicer by giving written
notice of such resignation to Issuer and in such event will be released from
such duties and obligations, such release not to be effective until the date a
new servicer enters into a servicing agreement with Issuer as provided below.
Upon delivery of any such notice to Issuer, Issuer shall obtain a new servicer
as the Successor Servicer under the Sale and Servicing Agreement. Any Successor
Servicer other than Indenture Trustee shall (i) be an established financial
institution having a net worth of not less than $50,000,000 and whose regular
business includes the servicing of motor vehicle loans and (ii) enter into a
servicing agreement with Issuer having substantially the same provisions as the
provisions of the Sale and Servicing Agreement applicable to Servicer. If within
30 days after the delivery of the notice referred to above, Issuer shall not
have obtained such a new servicer, Indenture Trustee may appoint, or may
petition a court of competent jurisdiction to appoint, a Successor Servicer. In
connection with any such appointment, Indenture Trustee may make such
arrangements for the compensation of such successor as it and such successor
shall agree, subject to the limitations set forth below and in the Sale and
Servicing Agreement, and in accordance with SECTION 8.2 of the Sale and
Servicing Agreement, Issuer shall enter into an agreement with such successor
for the servicing of the Receivables (such agreement to be in form and substance
satisfactory to Indenture Trustee). If Indenture Trustee shall succeed to
Servicer's duties as servicer of the Receivables as provided herein, it shall do
so in its individual capacity and not in its capacity as Indenture Trustee and,
accordingly, the provisions of Article VI shall be inapplicable to Indenture
Trustee in its duties as the successor to Servicer and the servicing of the
Receivables. In the case that Indenture Trustee becomes successor to Servicer
under the Sale and Servicing Agreement, Indenture Trustee shall be entitled to
appoint as Servicer any one of its Affiliates, or delegate any of its
responsibilities as Servicer to agents, subject to the terms of the Sale and
Servicing Agreement. Notwithstanding anything else herein to the contrary, in no
event shall the Indenture Trustee be liable for any servicing fee or for any
differential in the amount of the servicing fee paid hereunder and the amount
necessary to induce any Successor Servicer to act as Successor Servicer under
this Agreement and the transactions set forth or provided for herein.
(f) Upon any termination of Servicer's rights and powers pursuant to the
Sale and Servicing Agreement, Issuer shall promptly notify Indenture Trustee. As
soon as a Successor Servicer (other than Indenture Trustee) is appointed, Issuer
shall notify Indenture Trustee of such appointment, specifying in such notice
the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment granted
to Indenture Trustee under this Indenture or the rights of Indenture Trustee
hereunder, Issuer agrees that, unless such action is specifically permitted
hereunder or under the Basic Documents, it will not, without the prior written
consent of the Holders of at least a majority in Outstanding Amount of the
Notes, amend, modify, waive, supplement, terminate or surrender, or agree to any
amendment, modification, supplement, termination, waiver or surrender of, the
terms of any Collateral or the Basic Documents, or waive timely performance or
observance by Servicer or Seller under the Sale and Servicing Agreement;
provided that no such amendment shall (i) except for amendments and
modifications of the Receivables permitted under the Sale and Servicing
Agreement, increase or reduce in any manner the amount of, or accelerate or
delay the timing of, distributions that are required to be made for the benefit
of the Noteholders, or (ii) reduce the aforesaid percentage of the Notes which
are required to consent to any such amendment, without the consent of the
Holders of all the Outstanding Notes. If any such amendment, modification,
supplement or waiver shall be so consented to by Indenture Trustee or such
Holders, Issuer agrees, promptly following a request by Indenture Trustee to do
so, to execute and deliver, in its own name and at its own expense, such
agreements, instruments, consents and other documents as Indenture Trustee may
deem necessary or appropriate in the circumstances.
SECTION 3.8 NEGATIVE COVENANTS. So long as any Notes are Outstanding,
Issuer shall not:
(a) except as expressly permitted by this Indenture or the Basic Documents,
sell, transfer, exchange or otherwise dispose of any of the properties or assets
of Issuer, including those included in the Trust Estate, unless directed to do
so by Indenture Trustee;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly withheld
from such payments under the Code) or assert any claim against any present or
former Noteholder by reason of the payment of the taxes levied or assessed upon
any part of the Trust Estate;
(c) dissolve or liquidate in whole or in part; or
(d) (i) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released from
any covenants or obligations with respect to the Notes under this Indenture
except as may be expressly permitted hereby, (ii) permit any lien, charge,
excise, claim, security interest, mortgage or other encumbrance (other than the
lien of this Indenture) to be created on or extend to or otherwise arise upon or
burden the Trust Estate or any part thereof or any interest therein or the
proceeds thereof (other than tax liens, mechanics' liens and other liens that
arise by operation of law, in each case on a Financed Vehicle and arising solely
as a result of an action or omission of the related Obligor) or (iii) permit the
lien of this Indenture not to constitute a valid first priority (other than with
respect to any such tax, mechanics' or other lien) security interest in the
Trust Estate.
SECTION 3.9 ANNUAL STATEMENT AS TO COMPLIANCE. Issuer will deliver to
Indenture Trustee, within 120 days after the end of each fiscal year of Issuer
(commencing 120 days after the fiscal year ended December 31, 2001, and
otherwise in compliance with the requirements of TIA Section 314(a)(4), an
Officer's Certificate stating, as to the Authorized Officer signing such
Officer's Certificate, that:
(a) a review of the activities of Issuer during such year and of
performance under this Indenture has been made under such Authorized Officer's
supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, Issuer has complied with all conditions and covenants under this
Indenture throughout such year, or, if there has been a default in the
compliance of any such condition or covenant, specifying each such default known
to such Authorized Officer and the nature and status thereof.
SECTION 3.10 ISSUER MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
(a) Issuer shall not consolidate or merge with or into any other Person,
unless
(i) the Person (if other than Issuer) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws of the United States of America or any state and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
Indenture Trustee, in form satisfactory to Indenture Trustee, the due and
punctual payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this Indenture
on the part of Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to
such transaction;
(iv) Issuer shall have received an Opinion of Counsel (and shall have
delivered copies thereof to Indenture Trustee) to the effect that such
transaction will not have any material adverse tax consequence to the
Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and security interest
created by this Indenture shall have been taken; and
(vi) Issuer shall have delivered to Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation
or merger and such supplemental indenture comply with this Article III and
that all conditions precedent herein provided for relating to such
transaction have been complied with (including any filing required by the
Exchange Act).
(b) Except as expressly contemplated by the Basic Documents, Issuer shall
not convey or transfer all or substantially all of its properties or assets,
including those included in the Trust Estate, to any Person, unless
(i) the Person that acquires by conveyance or transfer the properties and
assets of Issuer the conveyance or transfer of which is hereby restricted
shall (A) be a United States citizen or a Person organized and existing
under the laws of the United States of America or any state, (B) expressly
assume, by an indenture supplemental hereto, executed and delivered to
Indenture Trustee, in form satisfactory to Indenture Trustee, the due and
punctual payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this Indenture
on the part of Issuer to be performed or observed, all as provided herein,
(C) expressly agree by means of such supplemental indenture that all right,
title and interest so conveyed or transferred shall be subject and
subordinate to the rights of Holders of the Notes, (D) unless otherwise
provided in such supplemental indenture, expressly agree to indemnify,
defend and hold harmless Issuer against and from any loss, liability or
expense arising under or related to this Indenture and the Notes and (E)
expressly agree by means of such supplemental indenture that such Person
(or if a group of persons, then one specified Person) shall prepare (or
cause to be prepared) and make all filings with the Commission (and any
other appropriate Person) required by the Exchange Act in connection with
the Notes;
(ii) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to
such transaction;
(iv) Issuer shall have received an Opinion of Counsel (and shall have
delivered copies thereof to Indenture Trustee) to the effect that such
transaction will not have any material adverse tax consequence to the
Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and security interest
created by this Indenture shall have been taken; and
(vi) Issuer shall have delivered to Indenture Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such conveyance or
transfer and such supplemental indenture comply with this Article III and
that all conditions precedent herein provided for relating to such
transaction have been complied with (including any filing required by the
Exchange Act).
SECTION 3.11 SUCCESSOR OR TRANSFEREE.
(a) Upon any consolidation or merger of Issuer in accordance with Section
3.10(a), the Person formed by or surviving such consolidation or merger (if
other than Issuer) shall succeed to, and be substituted for, and may exercise
every right and power of, Issuer under this Indenture with the same effect as if
such Person had been named as Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
Issuer pursuant to Section 3.10(b), the Issuer will be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of Issuer with respect to the Notes immediately upon the delivery of written
notice to Indenture Trustee stating that the Issuer is to be so released.
SECTION 3.12 NO OTHER BUSINESS. Issuer shall not engage in any business
other than financing, purchasing, owning, selling, managing and pledging the
Receivables in the manner contemplated by this Indenture and the Basic Documents
and activities incidental thereto.
SECTION 3.13 NO BORROWING. Issuer shall not issue, incur, assume, guarantee
or otherwise become liable, directly or indirectly, for any indebtedness except
for the Notes.
SECTION 3.14 SERVICER'S OBLIGATIONS. Issuer shall cause Servicer to comply
with the Sale and Servicing Agreement, including Sections 4.9, 4.10 and 4.11
thereof.
SECTION 3.15 GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except as
contemplated by the Sale and Servicing Agreement or this Indenture, Issuer shall
not make any loan or advance or credit to, or guarantee (directly or indirectly
or by an instrument having the effect of assuring another's payment or
performance on any obligation or capability of so doing or otherwise), endorse
or otherwise become contingently liable, directly or indirectly, in connection
with the obligations, stocks or dividends of, or own, purchase, repurchase or
acquire (or agree contingently to do so) any stock, obligations, assets or
securities of, or any other interest in, or make any capital contribution to,
any other Person.
SECTION 3.16 CAPITAL EXPENDITURES. Issuer shall not make any expenditure
(by long-term or operating lease or otherwise) for capital assets (either realty
or personalty).
SECTION 3.17 RESTRICTED PAYMENTS. Issuer shall not, directly or indirectly,
(a) pay any dividend or make any distribution (by reduction of capital or
otherwise), whether in cash, property, securities or a combination thereof, to
Owner Trustee or any owner of a beneficial interest in Issuer or otherwise with
respect to any ownership or equity interest or security in or of Issuer or to
Servicer or Administrator, (b) redeem, purchase, retire or otherwise acquire for
value any such ownership or equity interest or security or (c) set aside or
otherwise segregate any amounts for any such purpose; provided that Issuer may
make, or cause to be made, (i) distributions to Servicer, Administrator, Owner
Trustee, Indenture Trustee and the Certificateholders as permitted by, and to
the extent funds are available for such purpose under, the Sale and Servicing
Agreement or Trust Agreement and (ii) distributions by the Administrator on
behalf of the Issuer to be made to the Indenture Trustee or Owner Trustee
pursuant to Section 2(f) of the Administration Agreement. Issuer will not,
directly or indirectly, make payments to or distributions from the Collection
Accounts except in accordance with this Indenture and the Basic Documents.
SECTION 3.18 NOTICE OF EVENTS OF DEFAULT. Issuer agrees to give Indenture
Trustee and the Rating Agencies prompt written notice of each Event of Default
hereunder and each Event of Servicing Termination or default on the part of
Seller of its obligations under the Sale and Servicing Agreement.
SECTION 3.19 FURTHER INSTRUMENTS AND ACTS. Upon request of Indenture
Trustee, Issuer will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 3.20 REMOVAL OF ADMINISTRATOR. For so long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause unless
the Rating Agency Condition shall have been satisfied in connection therewith.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture shall
cease to be of further effect with respect to the Notes except as to (a) rights
of registration of transfer and exchange, (b) substitution of mutilated,
destroyed, lost or stolen Notes, (c) rights of Noteholders to receive payments
of principal thereof and interest thereon, (d) Sections 3.3, 3.4, 3.5, 3.7(a),
3.8, 3.10, 3.12, 3.13, 3.15, 3.18 and 3.20, (e) the rights, obligations and
immunities of Indenture Trustee hereunder (including the rights of Indenture
Trustee under Section 6.7 and the obligations of Indenture Trustee under Section
4.2) and (f) the rights of Noteholders as beneficiaries hereof with respect to
the property so deposited with Indenture Trustee payable to all or any of them,
and Indenture Trustee, on demand of and at the expense of Issuer, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to the Notes, when
(i) either
(A) all Notes theretofore authenticated and delivered (other than
(1) Notes that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 2.5 and (2) Notes for which
payment money has theretofore been deposited in trust or segregated
and held in trust by Issuer and thereafter repaid to Issuer or
discharged from such trust, as provided in Section 3.3) have been
delivered to Indenture Trustee for cancellation; or
(B) all Notes not theretofore delivered to Indenture Trustee for
cancellation
(1) have become due and payable,
(2) will become due and payable at the Final Scheduled
Payment Date within one year, or
(3) are to be called for redemption within one year under
arrangements satisfactory to Indenture Trustee for the giving of
notice of redemption by Indenture Trustee in the name, and at the
expense, of Issuer, and Issuer, in the case of clauses (1), (2)
or (3), has irrevocably deposited or caused to be irrevocably
deposited with Indenture Trustee cash or direct obligations of or
obligations guaranteed by the United States of America (which
will mature prior to the date such amounts are payable), in trust
for such purpose, in an amount sufficient to pay and discharge
the entire indebtedness on such Notes not theretofore delivered
to Indenture Trustee for cancellation when due to the Final
Scheduled Payment Date or Redemption Date (if Notes shall have
been called for redemption pursuant to Section 10.1(a)), as the
case may be;
(ii) Issuer has paid or caused to be paid all other sums payable
hereunder by Issuer; and
(iii) Issuer has delivered to Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or Indenture
Trustee) an Independent Certificate from a firm of certified public
accountants, each meeting the applicable requirements of Section 11.1(a)
and each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied
with.
SECTION 4.2 APPLICATION OF TRUST MONEY. All moneys deposited with Indenture
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent, as Indenture Trustee may determine,
to the Holders of the particular Notes for the payment or redemption of which
such moneys have been deposited with Indenture Trustee, of all sums due and to
become due thereon for principal and interest; but such moneys need not be
segregated from other funds except to the extent required herein or in the Sale
and Servicing Agreement or required by law.
SECTION 4.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In connection with
the satisfaction and discharge of this Indenture with respect to the Notes, all
moneys then held by any Paying Agent other than Indenture Trustee under the
provisions of this Indenture with respect to such Notes shall, upon demand of
Issuer, be paid to Indenture Trustee to be held and applied according to Section
3.3 and thereupon such Paying Agent shall be released from all further liability
with respect to such moneys.
ARTICLE V
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT. "Event of Default", wherever used herein,
means the occurrence of any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any interest on any Note of the Controlling
Note Class when the same becomes due and payable, and such default shall
continue for a period of five days;
(b) default in the payment of the principal of or any installment of the
principal of any Note when the same becomes due and payable;
(c) default in the observance or performance of any material covenant or
agreement of Issuer made in this Indenture (other than a covenant or agreement,
a default in the observance or performance of which is elsewhere in this Section
5.1 specifically dealt with), or any representation or warranty of Issuer made
in this Indenture or in any certificate or other writing delivered pursuant
hereto or in connection herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, which default
materially and adversely affects the Noteholders or the Indenture Trustee and
such default shall continue or not be cured, or the circumstance or condition in
respect of which such misrepresentation or warranty was incorrect shall not have
been eliminated or otherwise cured, for a period of 30 days (or for such longer
period, not in excess of 90 days, as may be reasonably necessary to remedy such
default; provided that such default is capable of remedy within 90 days or less
and Servicer on behalf of Owner Trustee delivers an Officer's Certificate to
Indenture Trustee to the effect that Issuer has commenced, or will promptly
commence and diligently pursue, all reasonable efforts to remedy such default)
after the earlier of discovery or the time that there shall have been given, by
registered or certified mail, to Issuer by Indenture Trustee or to Issuer and
Indenture Trustee by the Holders of at least 25% of the Outstanding Amount of
the Notes of the Controlling Note Class, a written notice specifying such
default or incorrect representation or warranty and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
(d) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of Issuer or any substantial part of the
Trust Estate in an involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of Issuer or for any substantial part of the Trust Estate, or
ordering the winding-up or liquidation of Issuer's affairs, and such decree or
order shall remain unstayed and in effect for a period of 60 consecutive days;
or
(e) the commencement by Issuer of a voluntary case under any applicable
Federal or state bankruptcy, insolvency or other similar law now or hereafter in
effect, or the consent by Issuer to the entry of an order for relief in an
involuntary case under any such law, or the consent by Issuer to the appointment
or taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of Issuer or for any substantial part of the
Trust Estate, or the making by Issuer of any general assignment for the benefit
of creditors, or the failure by Issuer generally to pay its debts as such debts
become due, or the taking of action by Issuer in furtherance of any of the
foregoing.
Issuer shall deliver to Indenture Trustee, within five days after the
occurrence thereof, written notice in the form of an Officer's Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clause (c), its status and what action Issuer is taking
or proposes to take with respect thereto.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
(a) If an Event of Default should occur and be continuing, then and in
every such case Indenture Trustee may, and at the direction of the Holders of
Notes representing not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class, shall declare all the Notes to be
immediately due and payable, by a notice in writing to Issuer (and to Indenture
Trustee if given by Noteholders), and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable.
(b) At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by Indenture Trustee as hereinafter in this Article V provided, the
Holders of Notes representing a majority of the Outstanding Amount of the Notes
of the Controlling Note Class, by written notice to Issuer and Indenture
Trustee, may rescind and annul such declaration and its consequences if:
(i) Issuer has paid or deposited with Indenture Trustee a sum
sufficient to pay
(A) all payments of principal of and interest on all Notes and
all other amounts that would then be due hereunder or upon such Notes
if the Event of Default giving rise to such acceleration had not
occurred; and
(B) all sums paid or advanced by Indenture Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
Indenture Trustee and its agents and counsel; and
(C) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such
acceleration, have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE.
(a) Issuer covenants that if (i) default is made in the payment of any
interest on any Note when the same becomes due and payable, and such default
continues for a period of five days, or (ii) default is made in the payment of
the principal of or any installment of the principal of any Note when the same
becomes due and payable, Issuer will, upon demand of Indenture Trustee, pay to
it, for the benefit of the Holders of the Notes, the whole amount then due and
payable on such Notes for principal and interest, with interest upon the overdue
principal, and, to the extent payment at such rate of interest shall be legally
enforceable, upon overdue installments of interest, at the rate specified in
Section 2.7 and in addition thereto such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of Indenture Trustee and its
agents and counsel.
(b) In case Issuer shall fail forthwith to pay such amounts upon such
demand, Indenture Trustee, in its own name and as trustee of an express trust,
may institute a proceeding for the collection of the sums so due and unpaid, and
may prosecute such proceeding to judgment or final decree, and may enforce the
same against Issuer or other obligor upon such Notes and collect in the manner
provided by law out of the property of Issuer or other obligor upon such Notes,
wherever situated, the moneys adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, Indenture Trustee may,
as more particularly provided in Section 5.4, in its discretion, proceed to
protect and enforce its rights and the rights of the Noteholders, by such
appropriate proceedings as Indenture Trustee shall deem most effective to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to Issuer or any other obligor
upon the Notes or any Person having or claiming an ownership interest in the
Trust Estate, proceedings under Title 11 of the United States Code or any other
applicable Federal or state bankruptcy, insolvency or other similar law, or in
case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of Issuer or its property or such other obligor or Person, or
in case of any other comparable judicial proceedings relative to Issuer or other
obligor upon the Notes, or to the creditors or property of Issuer or such other
obligor, Indenture Trustee, irrespective of whether the principal of any Notes
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether Indenture Trustee shall have made any
demand pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable
in order to have the claims of Indenture Trustee (including any claim
for reasonable compensation to Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and
all advances made, by Indenture Trustee and each predecessor Indenture
Trustee, except as a result of negligence, bad faith or willful
misconduct) and of the Noteholders allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of Notes in any election of a trustee, a
standby trustee or person performing similar functions in any such
proceedings;
(iii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of
Indenture Trustee or the Holders of Notes allowed in any judicial
proceedings relative to Issuer, its creditors and its property; and
any trustee, receiver, liquidator, custodian or other similar official
in any such proceeding is hereby authorized by each of such
Noteholders to make payments to Indenture Trustee, and, in the event
that Indenture Trustee shall consent to the making of payments
directly to such Noteholders, to pay to Indenture Trustee such amounts
as shall be sufficient to cover reasonable compensation to Indenture
Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence, bad
faith or willful misconduct.
(e) Nothing herein contained shall be deemed to authorize Indenture Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof or to authorize
Indenture Trustee to vote in respect of the claim of any Noteholder in any such
proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar person.
(f) All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of Indenture Trustee, each predecessor Indenture
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Notes.
(g) In any proceedings brought by Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which Indenture Trustee shall be a party), Indenture Trustee shall be held to
represent all the Holders of the Notes, and it shall not be necessary to make
any Noteholder a party to any such proceedings.
SECTION 5.4 REMEDIES; PRIORITIES. (a)If an Event of Default shall have
occurred and be continuing, Indenture Trustee may do one or more of the
following (subject to Section 5.5):
(i) institute proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from Issuer and any other obligor upon such Notes moneys adjudged due;
(ii) institute proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust
Estate;
(iii) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the rights
and remedies of Indenture Trustee and the Holders of the Notes; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
provided that Indenture Trustee may not sell or otherwise liquidate the Trust
Estate following an Event of Default unless:
(A) the Event of Default is of the type described in Section
5.1(a) or (b); or
(B) with respect to an Event of Default described in Section
5.1(c):
(1) the Noteholders of all Outstanding Notes and the
Certificateholders of all outstanding Certificates consent
thereto; or
(2) the proceeds of such sale or liquidation are
sufficient to pay in full the principal of and accrued
interest on the Outstanding Notes and outstanding
Certificates.
(C) with respect to any Event of Default described in
Section 5.1(d) and (e):
(1) the Noteholders of Notes evidencing 100% of the
principal amount of the Controlling Note Class consent
thereto; or
(2) the proceeds of such sale or liquidation are
sufficient to pay in full the principal of and the accrued
interest on the Outstanding Notes; or
(3) the Indenture Trustee
(x) determines (but shall have no obligation to
make such determination) that the Indenture Trust Estate
will not continue to provide sufficient funds for the
payment of principal of and interest on the Notes as they
would have become due if the Notes had not been declared due
and payable; and
(y) the Indenture Trustee obtains the consent of
Noteholders of Notes evidencing not less than 66 2/3% of the
principal amount of the Controlling Note Class; or
In determining such sufficiency or insufficiency with respect to clause
(B)(2) and (C)(2) or (C)(3)(x), Indenture Trustee may, but need not, obtain and
rely upon an opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose. The cost of any such opinion
shall be reimbursable for amounts held in the Collection Account and shall not
be included in the aggregate amount payable to the Indenture Trustee pursuant to
Section 5.5(b)(ii) of the Sale and Servicing Agreement.
Notwithstanding the provisions of Section 8.2, following the occurrence and
during the continuation of an Event of Default specified in Section 5.1(a),
5.1(b), 5.1(d) or 5.1(e) which has resulted in an acceleration of the Notes (or
following the occurrence of any such event after an Event of Default specified
in Section 5.1(c) has occurred and the Trust has been liquidated), if Indenture
Trustee collects any money or property, it shall pay out such money or property
(and other amounts including amounts held on deposit in the Reserve Account)
held as Collateral for the benefit of the Noteholders, net of liquidation costs
associated with the sale of the Trust Estate, in the following order:
FIRST: to Indenture Trustee for amounts due under Section 6.7 and to Owner
Trustee for fees, expenses and indemnifications provided for in the Sale and
Servicing Agreement;
SECOND: to Servicer for due and unpaid Servicing Fees;
THIRD: to Class A Noteholders for amounts due and unpaid on the Class A
Notes for interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Class A Notes for interest;
FOURTH: to Noteholders of the Class A-1 Notes, Class A-2 Notes, Class A-3
Notes, Class A-4 Notes and Class A-5 Notes, for amounts due and unpaid on the
Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class A-5
Notes for principal, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Class A-1 Notes, Class A-2
Notes, Class A-3 Notes, Class A-4 Notes and Class A-5 Notes for principal, until
the principal amount of the Outstanding Class A-1 Notes, Class A-2 Notes, Class
A-3 Notes, Class A-4 Notes and Class A-5 Notes is reduced to zero;
FIFTH: to Noteholders of the Class B Notes for amounts due and unpaid on
the Class B Notes in respect of interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Class B
Notes for interest;
SIXTH: to Noteholders of the Class B Notes for amounts due and unpaid on
the Class B Notes for principal, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Class B Notes for
principal, until the principal amount of the Outstanding Class B Notes is
reduced to zero;
SEVENTH: to Noteholders of the Class C Notes for amounts due and unpaid on
the Class C Notes in respect of interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Class C
Notes for interest;
EIGHTH: to Noteholders of the Class C Notes for amounts due and unpaid on
the Class C Notes for principal, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Class C Notes for
principal, until the principal amount of the Outstanding Class C Notes is
reduced to zero;
NINTH: to Noteholders of the Class D Notes for amounts due and unpaid on
the Class D Notes in respect of interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Class D
Notes for interest;
TENTH: to Noteholders of the Class D Notes for amounts due and unpaid on
the Class D Notes for principal, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Class D Notes for
principal, until the principal amount of the Outstanding Class D Notes is
reduced to zero;
ELEVENTH: to Noteholders of the Class E Notes for amounts due and unpaid on
the Class E Notes in respect of interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Class E
Notes for interest;
TWELFTH: to Noteholders of the Class E Notes for amounts due and unpaid on
the Class E Notes for principal, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Class E Notes for
principal, until the principal amount of the Outstanding Class E Notes is
reduced to zero; and
THIRTEENTH: to the Certificate Distribution Account, for distribution to
the Certificateholders.
Indenture Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 5.4. At least 15 days before such record
date, Issuer shall mail to each Noteholder and Indenture Trustee a notice that
states the record date, the payment date and, based on information provided by
the Servicer, the amount to be paid. The Indenture Trustee shall not be required
to determine any amount required to be paid pursuant to any of clauses SECOND to
THIRTEENTH above, except in its capacity (if any) as Successor Servicer.
SECTION 5.5 OPTIONAL PRESERVATION OF THE RECEIVABLES. If the Notes have
been declared to be due and payable under Section 5.2 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, Indenture Trustee may, but need not, elect to maintain possession of
the Trust Estate. It is the desire of the parties hereto and the Noteholders
that there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and Indenture Trustee shall take such desire into account
when determining whether or not to maintain possession of the Trust Estate. In
determining whether to maintain possession of the Trust Estate, Indenture
Trustee may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
SECTION 5.6 LIMITATION OF SUITS. No Holder of any Note shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to Indenture Trustee of
a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding Amount of the Notes
of the Controlling Note Class have made written request to Indenture Trustee to
institute such proceeding in respect of such Event of Default in its own name as
Indenture Trustee hereunder;
(c) such Holder or Holders have offered to Indenture Trustee indemnity
reasonably satisfactory to it against the costs, expenses and liabilities to be
incurred in complying with such request;
(d) Indenture Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute such proceedings;
(e) no direction inconsistent with such written request has been given to
Indenture Trustee during such 60-day period by the Holders of a majority of the
Outstanding Amount of the Notes of the Controlling Note Class; and
(f) such Event of Default actually shall have occurred and shall be
continuing; it being understood and intended that no one or more Holders of
Notes shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the rights
of any other Holders of Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture,
except in the manner herein provided.
In the event Indenture Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Holders of Notes, each
representing less than a majority of the Outstanding Amount of the Notes of the
Controlling Note Class, Indenture Trustee shall submit the matter to a vote of
the Notes of the Controlling Note Class to determine what action, if any, shall
be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST. Notwithstanding any other provisions in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Note on or after the
respective due dates thereof expressed in such Note or this Indenture (or, in
the case of redemption, on or after the Redemption Date) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
SECTION 5.8 RESTORATION OF RIGHTS AND REMEDIES. If Indenture Trustee or any
Noteholder has instituted any Proceeding to enforce any right or remedy under
this Indenture and such Proceeding has been discontinued or abandoned for any
reason or has been determined adversely to Indenture Trustee or to such
Noteholder, then and in every such case Issuer, Indenture Trustee and the
Noteholders shall, subject to any determination in such Proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of Indenture Trustee and the Noteholders shall continue
as though no such Proceeding had been instituted.
SECTION 5.9 RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein
conferred upon or reserved to Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.10 DELAY OR OMISSION NOT A WAIVER. No delay or omission of
Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to Indenture Trustee or to the Noteholders may be exercised from time to time,
and as often as may be deemed expedient, by Indenture Trustee or by the
Noteholders, as the case may be.
SECTION 5.11 CONTROL BY CONTROLLING NOTE CLASS OF NOTEHOLDERS. The Holders
of a majority of the Outstanding Amount of the Controlling Note Class Notes
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to Indenture Trustee with respect to the
Notes or exercising any trust or power conferred on Indenture Trustee; provided
that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture;
(b) subject to the express terms of Section 5.4, any direction to Indenture
Trustee to sell or liquidate the Trust Estate shall be by the Holders of Notes
representing not less than 100% of the Outstanding Amount of the Notes of the
Controlling Note Class;
(c) if the conditions set forth in Section 5.5 have been satisfied and
Indenture Trustee elects to retain the Trust Estate pursuant to such Section,
then any direction to Indenture Trustee by Holders of Notes representing less
than 100% of the Outstanding Amount of the Notes of the Controlling Note Class
to sell or liquidate the Trust Estate shall be of no force and effect;
(d) Indenture Trustee may take any other action deemed proper by Indenture
Trustee that is not inconsistent with such direction; and
(e) such direction shall be in writing;
provided, further, that, subject to Section 6.1, Indenture Trustee need not take
any action that it determines might involve it in liability or might materially
adversely affect the rights of any Noteholders not consenting to such action.
Notwithstanding anything contained herein to the contrary, the Indenture Trustee
shall not be bound, obligated or required to take any action at the request or
direction of any Holder pursuant to this Section 5.11 if such Holder shall not
have made available to the Indenture Trustee security or indemnity reasonably
acceptable to the Indenture Trustee against the costs, expenses and liabilities
(including fees and expenses of its agents and counsel) which might be incurred
by it in compliance with the written request or direction.
SECTION 5.12 WAIVER OF PAST DEFAULTS. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the
Holders of Notes of not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class may waive any past Default or Event of
Default and its consequences except a Default (a) in payment of principal of or
interest on any of the Notes, (b) in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Note or (c) depriving the Indenture Trustee or any Noteholder of any lien, which
waiver shall require the consent of the Indenture Trustee or such Noteholder, as
the case may be. In the case of any such waiver, Issuer, Indenture Trustee and
the Holders of the Notes shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 5.13 UNDERTAKING FOR COSTS. All parties to this Indenture agree,
and each Holder of any Note by such Holder's acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by
Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes (or in the case of a right or remedy under this
Indenture which is instituted by the Controlling Note Class, more than 10% of
the Outstanding Amount of the Controlling Note Class) or (c) any suit instituted
by any Noteholder for the enforcement of the payment of principal of or interest
on any Note on or after the respective due dates expressed in such Note and in
this Indenture (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.14 WAIVER OF STAY OR EXTENSION LAWS. Issuer covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
Issuer (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to Indenture Trustee,
but will suffer and permit the execution of every such power as though no such
law had been enacted.
SECTION 5.15 ACTION ON NOTES. Indenture Trustee's right to seek and recover
judgment on the Notes or under this Indenture shall not be affected by the
seeking, obtaining or application of any other relief under or with respect to
this Indenture. Neither the lien of this Indenture nor any rights or remedies of
Indenture Trustee or the Noteholders shall be impaired by the recovery of any
judgment by Indenture Trustee against Issuer or by the levy of any execution
under such judgment upon any portion of the Trust Estate or upon any of the
assets of Issuer. Any money or property collected by the Indenture Trustee shall
be applied in accordance with Section 5.4(b).
SECTION 5.16 PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS.
(a) Promptly following a request from Indenture Trustee to do so and at
Administrator's expense, Issuer agrees to take all such lawful action as
Indenture Trustee may request to compel or secure the performance and observance
by Seller and Servicer, as applicable, of each of their obligations to Issuer
under or in connection with the Sale and Servicing Agreement or by the Seller or
any Seller Affiliate, as applicable, of each of their obligations under or in
connection with each Purchase Agreement, in each case, in accordance with the
terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to Issuer under or in connection with the Sale and
Servicing Agreement and the Purchase Agreement, as the case may be, to the
extent and in the manner directed by Indenture Trustee, including the
transmission of notices of default on the part of Seller, Servicer or applicable
Seller Affiliates thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by Seller or Servicer of
each of their obligations under the Sale and Servicing Agreement or by the
Seller or any Seller Affiliate, as applicable, of each of their obligations
under or in connection with each Purchase Agreement.
(b) If an Event of Default has occurred and is continuing, Indenture
Trustee may, and, at the direction (which direction shall be in writing or by
telephone (confirmed in writing promptly thereafter)) of the Holders of 66-2/3%
of the Outstanding Amount of the Notes of the Controlling Note Class shall,
exercise all rights, remedies, powers, privileges and claims of Issuer against
Seller or Servicer under or in connection with the Sale and Servicing Agreement,
or against the Seller or Seller Affiliate under the Purchase Agreement,
including the right or power to take any action to compel or secure performance
or observance by Seller, Servicer or applicable Seller Affiliate of each of
their obligations to Issuer thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the Sale and Servicing Agreement
or any Purchase Agreement, as applicable, and any right of Issuer to take such
action shall be suspended.
ARTICLE VI
INDENTURE TRUSTEE
SECTION 6.1 DUTIES OF INDENTURE TRUSTEE.
(a) If an Event of Default has occurred and is continuing, of which a
Responsible Officer of Indenture Trustee has actual knowledge, Indenture Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(i) Indenture Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and the other Basic
Documents to which it is a party and no implied covenants or obligations
shall be read into this Indenture and the other Basic Documents against
Indenture Trustee; and
(ii) in the absence of bad faith on its part, Indenture Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
Indenture Trustee and conforming to the requirements of this Indenture and
the other Basic Documents; however, Indenture Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture and the other Basic Documents. If any such
instrument is found not to conform in any material respect to the
requirements of this Agreement, the Indenture Trustee shall notify the
Noteholders of such instrument in the event that the Indenture Trustee,
after so requesting, does not receive a satisfactorily corrected
instrument.
(c) Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) Indenture Trustee shall not be liable in its individual capacity for
any error of judgment made in good faith by a Responsible Officer unless it
is proved that Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) Indenture Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to any Basic Document or the direction of the
Holders of a majority in principal amount of the required Notes.
(d) Indenture Trustee shall not be liable for interest on any money
received by it except as Indenture Trustee may agree in writing with Issuer. The
Indenture Trustee shall have no obligation to invest and reinvest any cash held
in the applicable accounts in the absence of timely and specific written
investment directions. In no event shall the Indenture Trustee be liable for the
selection of investments or for investment losses incurred thereon by reason of
investment performance, liquidation prior to stated maturity or otherwise. The
Indenture Trustee shall have no liability in respect of losses incurred as a
result of the liquidation of any investment prior to its stated maturity or the
failure to be provided with timely written investment directions.
(e) Money held in trust by Indenture Trustee need not be segregated from
other funds except to the extent required by law or the terms of this Indenture
or the Sale and Servicing Agreement.
(f) No provision of this Indenture or any other Basic Document shall
require Indenture Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder or
thereunder or in the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or indemnity
satisfactory to it against such risk or liability is not assured to it. None of
the provisions contained in this Agreement shall in any event require the
Indenture Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Servicer under this Agreement except during
such time, if any, as the Indenture Trustee shall be the successor to, and be
vested with the rights, duties, powers and privileges of, the Servicer in
accordance with the terms of this Agreement.
(g) Every provision of this Indenture and each other Basic Document
relating to the conduct or affecting the liability of or affording protection to
Indenture Trustee shall be subject to the provisions of this Section and to the
provisions of the TIA.
(h) Indenture Trustee shall take all actions required to be taken by the
Indenture Trustee under the Sale and Servicing Agreement.
(i) The Indenture Trustee shall not be required to take notice or be deemed
to have notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Indenture Trustee shall have received written notice
or obtained actual knowledge thereof. In the absence of receipt of such notice
or actual knowledge, the Indenture Trustee may conclusively assume that there is
no default or Event of Default.
SECTION 6.2 RIGHTS OF INDENTURE TRUSTEE.
(a) Indenture Trustee may conclusively rely and shall be protected in
acting or refraining from acting on any document believed by it to be genuine
and to have been signed or presented by the proper person. Indenture Trustee
need not investigate any fact or matter stated in the document. The Indenture
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, note or other paper or document, but
the Indenture Trustee, in its sole discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Indenture Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the Issuer,
Seller or the Servicer, personally or by agent or attorney.
(b) Before Indenture Trustee acts or refrains from acting, it may require
and is entitled to receive an Officer's Certificate or an Opinion of Counsel.
Indenture Trustee shall not be liable for any action it takes, suffers or omits
to take in good faith in reliance on the Officer's Certificate or Opinion of
Counsel. The Indenture Trustee shall be under no obligation to exercise any of
the powers vested in it by this Indenture or any other Basic Document at the
request or direction of any of the Noteholders pursuant to this Indenture,
unless such Noteholders shall have offered to the Indenture Trustee security or
indemnity satisfactory to the Indenture Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
(c) Indenture Trustee may execute any of the trusts or powers hereunder and
under the other Basic Documents or perform any duties hereunder or thereunder
either directly or by or through agents or attorneys or a custodian or nominee,
and Indenture Trustee shall not be responsible for any misconduct or negligence
on the part of, or for the supervision of, ACE Securities Corp., ▇▇▇▇▇ Fargo
Bank, N.A., ▇▇▇▇▇ Fargo Bank Minnesota, National Association, or any other such
agent, attorney, custodian or nominee appointed with due care by it hereunder.
Indenture Trustee shall have no duty to monitor the performance of Issuer.
(d) Indenture Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, that Indenture Trustee's conduct does not constitute willful
misconduct, negligence or bad faith.
(e) Indenture Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture, the Notes
and the other Basic Documents shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder or under any other Basic Document in good faith and in accordance
with the advice or opinion of such counsel.
(f) Except in its capacity as Successor Servicer, the Indenture Trustee
shall not have any obligation or other duty to make, arrange or ensure the
completion of any recording, filing or registration of any instrument or other
document (including any UCC financing statements), or any amendments thereof or
supplements thereto, with respect to any Receivable or Financed Vehicle, or to
determine whether any such document, amendment or supplement is in suitable form
for any purpose, and shall not have any obligation or other duty with respect to
the payment of any fee, tax or other charge in connection therewith.
(g) Except in its capacity as Successor Servicer, the Indenture Trustee
shall not have any obligation to see to the payment or discharge of any lien
securing the Receivables, the application of any payment of interest or
principal in respect of any Receivable or the transfer or delivery of property
released from any such lien, or to make any demand or give any notice with
respect thereto.
(h) The Indenture Trustee shall not have any liability for the acts or
omissions of other parties that are not in accordance with the Basic Documents
and shall not be concerned with or accountable for the use or application of
monies deposited or withdrawn, or required to be deposited or withdrawn, to or
from any account by any other party or, to the extent directed to make any such
deposit or withdrawal by any such party, by the Indenture Trustee.
(i) Any request or direction of the Issuer shall be sufficiently evidenced
by an Issuer Request or Issuer Order.
(j) The Indenture Trustee shall not be required to provide any surety or
bond of any kind in connection with the acceptance or performance of its duties
hereunder or under any other Basic Document.
(k) The Indenture Trustee shall not have any responsibility or liability
with respect to the legality, validity or enforceability of any Receivable or
the sufficiency of any agreement, instrument or other document evidencing or
otherwise related to any Receivable. The Indenture Trustee shall have no
obligation or other duty to inspect, review or otherwise examine any such
document (including any document in a Receivable File) for any purpose.
SECTION 6.3 INDIVIDUAL RIGHTS OF INDENTURE TRUSTEE. Indenture Trustee in
its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with Issuer or its Affiliates with the same rights it
would have if it were not Indenture Trustee. Any Paying Agent, Authenticating
Agent, Note Registrar, co-registrar, co-paying agent or other agent of the
Indenture Trustee may do the same with like rights. However, Indenture Trustee
must comply with Sections 6.11 and 6.12.
SECTION 6.4 INDENTURE TRUSTEE'S DISCLAIMER. Indenture Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes or any other Basic Document, shall not be
accountable for Issuer's use of the proceeds from the Notes, and shall not be
responsible for any statement or omission of Issuer in the Indenture or any
other Basic Document or in any document issued in connection with the sale of
the Notes or in the Notes other than Indenture Trustee's certificate of
authentication.
SECTION 6.5 NOTICE OF DEFAULTS. If a Default occurs and is continuing and
if it is either actually known or written notice of the existence thereof has
been delivered to a Responsible Officer of Indenture Trustee, Indenture Trustee
shall mail to each Noteholder notice of the Default within 90 days after such
knowledge or notice occurs. Except in the case of a Default in payment of
principal of or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note), Indenture Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of Noteholders.
The Indenture Trustee shall not be charged with knowledge of a Default, Event of
Default or Servicer Termination Event unless a Responsible Officer of the
Indenture Trustee has actual knowledge thereof or shall have received written
notice thereof.
SECTION 6.6 REPORTS BY INDENTURE TRUSTEE TO HOLDERS. Indenture Trustee
shall deliver to each Noteholder such information as may be reasonably required
to enable such Holder to prepare its Federal and state income tax returns.
SECTION 6.7 COMPENSATION AND INDEMNITY.
(a) The compensation, indemnity and reimbursement of expenses of Indenture
Trustee shall be governed by the Sale and Servicing Agreement. In addition,
Issuer shall reimburse any expenses incurred by the Indenture Trustee in
pursuing remedies pursuant to SECTION 5.4.
(b) Issuer's payment obligations to Indenture Trustee pursuant to this
Section referenced in the preceding paragraph shall survive the discharge of
this Indenture subject to a satisfaction of the Rating Agency Condition. When
Indenture Trustee incurs expenses after the occurrence of a Default specified in
SECTION 5.1(D) or (E) with respect to Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 REPLACEMENT OF INDENTURE TRUSTEE. (a) Indenture Trustee may
resign at any time by so notifying Issuer. The Holders of a majority in
Outstanding Amount of the Notes of the Controlling Note Class may remove
Indenture Trustee by so notifying Indenture Trustee and may appoint a successor
Indenture Trustee. Issuer shall remove Indenture Trustee if:
(i) Indenture Trustee fails to comply with Section 6.11;
(ii) an Insolvency Event occurs with respect to Indenture Trustee;
(iii) a receiver or other public officer takes charge of Indenture
Trustee or its property; or
(iv) Indenture Trustee otherwise becomes incapable of acting.
(b) If Indenture Trustee resigns or is removed or if a vacancy exists
in the office of Indenture Trustee for any reason (Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), Issuer shall
promptly appoint a successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written acceptance
of its appointment to the retiring Indenture Trustee and to Issuer. Thereupon
the resignation or removal of the retiring Indenture Trustee shall become
effective, and the successor Indenture Trustee shall have all the rights, powers
and duties of Indenture Trustee under this Indenture subject to satisfaction of
the Rating Agency Condition. The successor Indenture Trustee shall mail a notice
of its succession to Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the successor Indenture
Trustee.
(d) If a successor Indenture Trustee does not take office within 30
days after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, Issuer or the Holders of a majority in Outstanding Amount of
the Notes of the Controlling Note Class may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
(e) If Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
Indenture Trustee and the appointment of a successor Indenture Trustee.
(f) Any resignation or removal of Indenture Trustee and appointment of
a Successor Indenture Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Indenture Trustee pursuant to this Section 6.8 and payment of all fees and
expenses owed to the outgoing Indenture Trustee.
(g) Notwithstanding the resignation or removal of Indenture Trustee
pursuant to this Section, Issuer's and Administrator's obligations under Section
6.7 shall continue for the benefit of the retiring Indenture Trustee.
(h) Indenture Trustee shall not be liable for the acts or omissions of
any successor Indenture Trustee.
SECTION 6.9 SUCCESSOR INDENTURE TRUSTEE BY MERGER.
(a) If Indenture Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or
transferee corporation without any further act shall be the successor Indenture
Trustee; provided that such corporation or banking association shall be
otherwise qualified and eligible under Section 6.11. Indenture Trustee shall
provide the Rating Agencies and the Administrator written notice of any such
transaction.
(b) In case at the time such successor or successors by merger, conversion
or consolidation to Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to Indenture Trustee may authenticate such Notes
either in the name of any predecessor hereunder or in the name of the successor
to Indenture Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Notes or in this Indenture provided that
the certificate of Indenture Trustee shall have.
SECTION 6.10 APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE INDENTURE
TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture, at any time,
after delivering written notice to the Administrator, for the purpose of meeting
any legal requirement of any jurisdiction in which any part of Issuer may at the
time be located, Indenture Trustee shall have the power and may execute and
deliver all instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity and for the
benefit of the Noteholders, such title to the Trust, or any part hereof, and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as Indenture Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 6.11 and no notice
to Noteholders of the appointment of any co-trustee or separate trustee shall be
required under Section 6.8.
(b) Every 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
Indenture Trustee shall be conferred or imposed upon and exercised or
performed by Indenture 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 Indenture 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 Indenture 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 Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any act
or omission of any other trustee hereunder, including acts or omissions of
predecessor or successor trustees; and
(iii) Indenture Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee.
(c) Any notice, request or other writing given to Indenture 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 VI. 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
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, Indenture Trustee. Every such instrument shall be filed with
Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute Indenture
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 die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall invest in and be exercised by
Indenture Trustee, to the extent permitted by law, without the appointment of a
new or successor trustee.
SECTION 6.11 Eligibility; Disqualification.
(a) Indenture Trustee shall at all times satisfy the requirements of TIA
Section 310(a). Indenture Trustee shall have a combined capital and surplus of
at least $20,000,000 as set forth in its most recent published annual report of
condition and shall have a long term debt rating of investment grade or better
by the Rating Agencies or shall otherwise be acceptable to the Rating Agencies.
Indenture Trustee shall comply with TIA Section 310(b), including the optional
provision permitted by the second sentence of TIA Section 310(b)(9); provided
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities of Issuer are outstanding
if the requirements for such exclusion set forth in TIA Section 310(b)(1) are
met.
(b) Within ninety (90) days after ascertaining the occurrence of an Event
of Default which shall not have been cured or waived, unless authorized by the
TIA or the Commission, the Indenture Trustee shall resign with respect to the
Class A Notes, the Class B Notes the Class C Notes, the Class D Notes and/or the
Class E Notes in accordance with Section 6.8 of this Indenture, and the Issuer
shall appoint a successor Indenture Trustee for two or all of such Classes, as
applicable, so that there will be separate Indenture Trustees for the Class A
Notes, the Class B Notes, the Class C, the Class D and the Class E Notes. In the
event the Indenture Trustee fails to comply with the terms of the preceding
sentence, the Indenture Trustee shall comply with clauses (ii) and (iii) of TIA
Section 310(b).
(c) In the case of the appointment hereunder of a successor Indenture
Trustee with respect to any Class of Notes pursuant to this Section 6.11,
Issuer, the retiring Indenture Trustee and the successor Indenture Trustee with
respect to such Class of Notes shall execute and deliver an indenture
supplemental hereto wherein each successor Indenture Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, the successor Indenture
Trustee all the rights, powers, trusts and duties of the retiring Indenture
Trustee with respect to the Notes of the Class to which the appointment of such
successor Indenture Trustee relates, (ii) if the retiring Indenture Trustee is
not retiring with respect to all Classes of Notes, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights powers,
trusts and duties of the retiring Indenture Trustee with respect to the Notes of
each Class as to which the retiring Indenture Trustee is not retiring shall
continue to be vested in the Indenture Trustee and (iii) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Indenture
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Indenture Trustees co-trustees of the same trust
and that each such Indenture Trustee shall be a trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Indenture Trustee; and upon the removal of the retiring Indenture
Trustee shall become effective to the extent provided herein.
SECTION 6.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. Indenture
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF
NOTEHOLDERS. Issuer will furnish or cause to be furnished to Indenture Trustee
(a) not more than five days after the earlier of (i) each Record Date and (ii)
three months after the last Record Date, a list, in such form as Indenture
Trustee may reasonably require, of the names and addresses of the Holders as of
such Record Date, (b) at such other times as Indenture Trustee may request in
writing, within 30 days after receipt by Issuer of any such request, a list of
similar form and content as of a date not more than 10 days prior to the time
such list is furnished; provided that so long as (i) Indenture Trustee or its
designee is Note Registrar, or (ii) the Publicly Offered Notes are Book-Entry
Notes, no such list shall be required to be furnished and in such case, upon the
written request of Issuer or Owner Trustee, Indenture Trustee or its designee
will promptly furnish Owner Trustee a list of Noteholders as of the date
specified by Owner Trustee.
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO NOTEHOLDERS.
(a) Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders contained in the most recent
list furnished to Indenture Trustee as provided in Section 7.1 and the names and
addresses of Holders received by Indenture Trustee in its capacity as Note
Registrar. Indenture Trustee may destroy any list furnished to it as provided in
such Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes. Upon receipt by the Indenture Trustee of any request by three or more
Noteholders or by one or more Noteholders of Notes evidencing not less than 25%
of the Outstanding Amount of Notes to receive a copy of the current list of
Noteholders (whether or not made pursuant to TIA Section 312(b)), the Indenture
Trustee shall promptly notify the Administrator thereof by providing to the
Administrator a copy of such request and a copy of the list of Noteholders
produced in response thereto.
(c) Issuer, Indenture Trustee and Note Registrar shall have the protection
of TIA Section 312(c).
SECTION 7.3 Reports by Issuer. Issuer shall:
(i) file with Indenture Trustee, at the time that Issuer is required
to file the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which Issuer may be required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with Indenture Trustee and the Commission in accordance with
rules and regulations prescribed from time to time by the Commission such
additional information, documents and reports with respect to compliance by
Issuer with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(iii) supply to Indenture Trustee (and Indenture Trustee shall
transmit by mail to all Noteholders described in TIA Section 313(c)) such
summaries of any information, documents and reports required to be filed by
Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a) as may be
required by rules and regulations prescribed from time to time by the
Commission.
(b) Unless Issuer otherwise determines, the fiscal year of Issuer
shall end on December 31 of each year.
SECTION 7.4 REPORTS BY INDENTURE TRUSTEE. If required by TIA Section
313(a), within 60 days after each June 30, beginning with June 30, 2002,
Indenture Trustee shall mail to each Noteholder as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA Section
313(a). Indenture Trustee also shall comply with TIA Section 313(b)(1). A copy
of each report at the time of its mailing to Noteholders shall be filed by
Indenture Trustee with the Commission and each stock exchange, if any, on which
the Notes are listed. Issuer shall notify Indenture Trustee if and when the
Notes are listed on any stock exchange.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 COLLECTION OF MONEY. Except as otherwise expressly provided
herein, Indenture Trustee may demand payment or delivery of, and shall receive
and collect, directly and without intervention or assistance of any fiscal agent
or other intermediary, all money and other property payable to or receivable by
Indenture Trustee pursuant to this Indenture. Indenture Trustee shall apply all
such money received by it as provided in this Indenture. Except as otherwise
expressly provided in this Indenture, if any default occurs in the making of any
payment or performance under any agreement or instrument that is part of the
Trust Estate, Indenture Trustee may take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate proceedings. Any such action shall be without prejudice to any
right to claim a Default or Event of Default under this Indenture and any right
to proceed thereafter as provided in Article V.
SECTION 8.2 TRUST ACCOUNTS.
(a) On or prior to the Closing Date, Issuer shall cause Servicer to
establish, in the name of Indenture Trustee, for the benefit of the Noteholders
and the Certificateholders, the Trust Accounts as provided in Section 5.1 of the
Sale and Servicing Agreement.
(b) On or before each Payment Date, the Issuer shall cause the Seller and
Servicer to deposit all Available Collections with respect to the Collection
Period preceding such Payment Date in the Collection Account as provided in
Sections 5.2 and 5.4 of the Sale and Servicing Agreement. On or before each
Deposit Date, all amounts required to be withdrawn from the Reserve Account and
deposited in the Collection Account pursuant to Section 5.5 of the Sale and
Servicing Agreement shall be withdrawn by the Indenture Trustee from the Reserve
Account and deposited to the Collection Account as provided therein, as to which
Issuer shall cause Servicer to timely provide the related instructions.
(c) On each Payment Date, the Indenture Trustee (based on the information
contained in the Servicer's Report delivered on or before the related
Determination Date pursuant to Section 4.9 of the Sale and Servicing Agreement)
shall make the withdrawals from the Collection Account and make deposits,
distributions and payments, to the extent of funds on deposit in the Collection
Account with respect to the Collection Period preceding such Payment Date
(including funds, if any, deposited therein from the Reserve Account), in
accordance with the provisions of Section 5.5(b) of the Sale and Servicing
Agreement (as to which Issuer shall cause Servicer to timely provide the related
instructions).
(d) On each Payment Date, the Indenture Trustee (based on the information
contained in the Servicer's Report delivered on or before the related
Determination Date pursuant to Section 4.9 of the Sale and Servicing Agreement)
shall withdraw the funds on deposit in the Interest Distribution Subaccount with
respect to the Collection Period preceding such Payment Date and make
distributions and payments in the following order of priority:
(i) first, to the Noteholders of Class A Notes, the Accrued Class A Note
Interest; provided that if there are not sufficient funds available to pay
the entire amount of the Accrued Class A Note Interest, the amounts
available shall be applied to the payment of such interest on the Class A
Notes on a pro rata basis based upon the amount of interest due on each
Class of Class A Notes;
(ii) second, to the Noteholders of Class B Notes, the Accrued Class B Note
Interest; provided that if there are not sufficient funds available to pay
the entire amount of the Accrued Class B Note Interest, the amounts
available shall be applied to the payment of such interest on the Class B
Notes on a pro rata basis;
(iii) third, to the Noteholders of Class C Notes, the Accrued Class C Note
Interest; provided that if there are not sufficient funds available to pay
the entire amount of the Accrued Class C Note Interest, the amounts
available shall be applied to the payment of such interest on the Class C
Notes on a pro rata basis;
(iv) fourth, to the Noteholders of Class D Notes, the Accrued Class D Note
Interest; provided that if there are not sufficient funds available to pay
the entire amount of the Accrued Class D Note Interest, the amounts
available shall be applied to the payment of such interest on the Class D
Notes on a pro rata basis; and
(v) fifth, to the Noteholders of Class E Notes, the Accrued Class E Note
Interest; provided that if there are not sufficient funds available to pay
the entire amount of the Accrued Class E Note Interest, the amounts
available shall be applied to the payment of such interest on the Class E
Notes on a pro rata basis.
(e) On each Payment Date, the Indenture Trustee (based on the information
contained in the Servicer's Report delivered on or before the related
Determination Date pursuant to Section 4.9 of the Sale and Servicing Agreement)
shall withdraw the funds on deposit in the Principal Distribution Subaccount
with respect to the Collection Period preceding such Payment Date and shall,
except as otherwise provided in Section 5.4(b), make distributions and payments
in the following order of priority:
(i) first, prior to the Crossover Date, or after the Crossover Date if a
Trigger Event is in effect, sequentially to the Notes commencing with the
Class A-1 Notes until each Class of Notes is paid in full.
(ii) second, on and after the Crossover Date so long as a Trigger Event is
not in effect:
(A) first, to the Noteholders of the Class A Notes in reduction of
principal until the principal amount of the Outstanding Class A Notes
has been reduced to an amount equal to the product of (1) (a) the
principal amount of the Class A Notes immediately preceding the
Crossover Date (or if a Trigger Event is in effect on the Crossover
Date, on the first Payment Date after the Crossover Date that a
Trigger Event is not in effect) divided by (b) the Principal Balance
of the Receivables as of the last day of the second Collection Period
preceding the Crossover Date (or if a Trigger Event is in effect on
the Crossover Date, the first Payment Date after the Crossover Date
that a Trigger Event is not in effect) and (2) the Principal Balance
of the Receivables as of the last day of the preceding Collection
Period, in the following order of priority:
(1) first, to the Noteholders of the Class A-1 Notes until
the principal amount of the Outstanding Class A-1 Notes have been
paid in full; provided that if there are not sufficient funds
available to pay the principal amount of the Outstanding Class
A-1 Notes in full, the amounts available shall be applied to the
payment of principal on the Class A-1 Notes on a pro rata basis;
(2) second, to the Noteholders of the Class A-2 Notes until
the principal amount of the Outstanding Class A-2 Notes have been
paid in full; provided that if there are not sufficient funds
available to pay the principal amount of the Outstanding Class
A-2 Notes in full, the amounts available shall be applied to the
payment of principal on the Class A-2 Notes on a pro rata basis;
(3) third, to the Noteholders of the Class A-3 Notes until
the principal amount of the Class A-3 Notes have been paid in
full; provided that if there are not sufficient funds available
to pay the principal amount of the Outstanding Class A-3 Notes in
full, the amounts available shall be applied to the payment of
principal on the Class A-3 Notes on a pro rata basis;
(4) fourth, to the Noteholders of the Class A-4 Notes until
the principal amount of the Class A-4 Notes have been paid in
full; provided that if there are not sufficient funds available
to pay the principal amount of the Outstanding Class A-4 Notes in
full, the amounts available shall be applied to the payment of
principal on the Class A-4 Notes on a pro rata basis;
(5) fifth, to the Noteholders of the Class A-5 Notes until
the principal amount of the Class A-5 Notes have been paid in
full; provided that if there are not sufficient funds available
to pay the principal amount of the Outstanding Class A-5 Notes in
full, the amounts available shall be applied to the payment of
principal on the Class A-5 Notes on a pro rata basis; and
(B) second, to the Noteholders of the Class B Notes in reduction of
principal until the principal amount of the Outstanding Class B Notes
has been reduced to an amount equal to the product of (1) (a) the
principal amount of the Class B Notes immediately preceding the
Crossover Date (or if a Trigger Event is in effect on the Crossover
Date, on the first Payment Date after the Crossover Date that a
Trigger Event is not in effect) divided by (b) the Principal Balance
of the Receivables as of the last day of the second Collection Period
preceding the Crossover Date (or if a Trigger Event is in effect on
the Crossover Date, the first Payment Date after the Crossover Date
that a Trigger Event is not in effect) and (2) the Principal Balance
of the Receivables as of the last day of the preceding Collection
Period; provided that if there are not sufficient funds available to
pay the principal amount of the Outstanding Class B Notes in full, the
amounts available shall be applied to the payment of principal on the
Class B Notes on a pro rata basis;
(C) third, to the Noteholders of the Class C Notes in reduction of
principal until the principal amount of the Outstanding Class C Notes
has been reduced to an amount equal to the product of (1) (a) the
principal amount of the Class C Notes immediately preceding the
Crossover Date (or if a Trigger Event is in effect on the Crossover
Date, on the first Payment Date after the Crossover Date that a
Trigger Event is not in effect) divided by (b) the Principal Balance
of the Receivables as of the last day of the second Collection Period
preceding the Crossover Date (or if a Trigger Event is in effect on
the Crossover Date, the first Payment Date after the Crossover Date
that a Trigger Event is not in effect) and (2) the Principal Balance
of the Receivables as of the last day of the preceding Collection
Period; provided that if there are not sufficient funds available to
pay the principal amount of the Outstanding Class C Notes in full, the
amounts available shall be applied to the payment of principal on the
Class C Notes on a pro rata basis;
(D) fourth, to the Noteholders of the Class D Notes in reduction of
principal until the principal amount of the Outstanding Class D Notes
has been reduced to an amount equal to the product of (1) (a) the
principal amount of the Class D Notes immediately preceding the
Crossover Date (or if a Trigger Event is in effect on the Crossover
Date, on the first Payment Date after the Crossover Date that a
Trigger Event is not in effect) divided by (b) the Principal Balance
of the Receivables as of the last day of the second Collection Period
preceding the Crossover Date (or if a Trigger Event is in effect on
the Crossover Date, the first Payment Date after the Crossover Date
that a Trigger Event is not in effect) and (2) the Principal Balance
of the Receivables as of the last day of the preceding Collection
Period; provided that if there are not sufficient funds available to
pay the principal amount of the Outstanding Class D Notes in full, the
amounts available shall be applied to the payment of principal on the
Class D Notes on a pro rata basis;
(E) fifth, to the Noteholders of the Class E Notes in reduction of
principal until the principal amount of the Outstanding Class E Notes
has been reduced to an amount equal to the product of (1) (a) the
principal amount of the Class E Notes immediately preceding the
Crossover Date (or if a Trigger Event is in effect on the Crossover
Date, on the first Payment Date after the Crossover Date that a
Trigger Event is not in effect) divided by (b) the Principal Balance
of the Receivables as of the last day of the second Collection Period
preceding the Crossover Date (or if a Trigger Event is in effect on
the Crossover Date, the first Payment Date after the Crossover Date
that a Trigger Event is not in effect) and (2) the Principal Balance
of the Receivables as of the last day of the preceding Collection
Period; provided that if there are not sufficient funds available to
pay the principal amount of the Outstanding Class E Notes in full, the
amounts available shall be applied to the payment of principal on the
Class E Notes on a pro rata basis; and
(F) sixth, any remaining amounts, to the Certificate Distribution
Account.
SECTION 8.3 GENERAL PROVISIONS REGARDING ACCOUNTS.
(a) The funds in the Trust Accounts shall be invested in Eligible
Investments in accordance with and subject to Section 5.1(b) of the Sale and
Servicing Agreement. Indenture Trustee shall not be directed to make any
investment of any funds or to sell any investment held in any of the Trust
Accounts unless the security interest Granted and perfected in such account will
continue to be perfected in such investment or the proceeds of such sale, in
either case without any further action by any Person, and, in connection with
any direction to Indenture Trustee to make any such investment or sale, if
requested by Indenture Trustee, Issuer shall deliver to Indenture Trustee an
Opinion of Counsel, acceptable to Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), Indenture Trustee shall not in any way be
held liable by reason of any insufficiency in any of the Trust Accounts
resulting from any loss on any Eligible Investment included therein except for
losses attributable to Indenture Trustee's failure to make payments on such
Eligible Investments issued by Indenture Trustee, in its commercial capacity as
principal obligor and not as trustee, in accordance with their terms.
(c) If (i) investment directions shall not have been given for any funds on
deposit in the Trust Accounts to Indenture Trustee by 11:00 a.m. Eastern Time
(or such other time as may be agreed by Issuer, Servicer and Indenture Trustee)
on any Business Day; (ii) a Default or Event of Default shall have occurred and
be continuing with respect to the Notes but the Notes shall not have been
declared due and payable pursuant to Section 5.2, or (iii) if such Notes shall
have been declared due and payable following an Event of Default, amounts
collected or receivable from the Trust Estate are being applied in accordance
with Section 5.5 as if there had not been such a declaration; then Indenture
Trustee shall, to the fullest extent practicable, invest and reinvest funds in
the Trust Accounts in one or more Eligible Investments in accordance with the
standing instructions most recently given by the Servicer. Indenture Trustee
shall not be liable for losses in respect of such investments in Eligible
Investments that comply with the requirements of the Basic Documents.
SECTION 8.4 RELEASE OF TRUST ESTATE.
(a) Subject to the payment of its fees and expenses pursuant to Section
6.7, Indenture Trustee may, and when required by the provisions of this
Indenture shall, execute instruments to release property from the lien of this
Indenture or any other Basic Document, or convey Indenture Trustee's interest in
the same, in a manner and under circumstances that are not inconsistent with the
provisions of this Indenture or such other document. No party relying upon an
instrument executed by Indenture Trustee as provided in this Article VIII shall
be bound to ascertain Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
moneys.
(b) Indenture Trustee shall, at such time as there are no Notes outstanding
and all sums due Indenture Trustee pursuant to Section 6.7 have been paid,
release any remaining portion of the Trust Estate that secured the Notes from
the lien of this Indenture and release to Issuer or any other Person entitled
thereto any funds then on deposit in the Trust Accounts. Indenture Trustee shall
release property from the lien of this Indenture pursuant to this Section 8.4(b)
only upon receipt of an Issuer Request accompanied by an Officer's Certificate,
an Opinion of Counsel and (if required by the TIA) Independent Certificates in
accordance with TIA Sections 314(c) and 314(d)(1) meeting the applicable
requirements of Section 11.1.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, acknowledges that from time to time
the Indenture Trustee shall release the lien of this Indenture on any Receivable
to be sold to (i) Seller in accordance with Section 3.3 of the Sale and
Servicing Agreement and (ii) to Servicer in accordance with Section 4.7 of the
Sale and Servicing Agreement.
SECTION 8.5 OPINION OF COUNSEL. Indenture Trustee shall receive at least
seven days' notice when requested by Issuer to take any action pursuant to
Section 8.4(a), accompanied by copies of any instruments involved, and Indenture
Trustee may also require as a condition to such action, an Opinion of Counsel,
in form and substance satisfactory to Indenture Trustee, stating the legal
effect of any such action, outlining the steps required to complete the same,
and concluding that all conditions precedent to the taking of such action have
been complied with and such action will not materially and adversely impair the
security for the Notes or the rights of the Noteholders in contravention of the
provisions of this Indenture; provided that such Opinion of Counsel shall not be
required to express an opinion as to the fair value of the Trust Estate. Counsel
rendering any such opinion may rely, without independent investigation, on the
accuracy and validity of any certificate or other instrument delivered to
Indenture Trustee in connection with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS. (a)
Without the consent of the Holders of any Notes but with prior written notice to
the Rating Agencies by Issuer, as evidenced to Indenture Trustee, Issuer and
Indenture Trustee, when authorized by an Issuer Order, at any time and from time
to time, may enter into one or more indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as in force at the date of
the execution thereof), in form satisfactory to Indenture Trustee, for any of
the following purposes:
(i) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and
confirm unto Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to the lien of this
Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another person to Issuer, and the assumption by any
such successor of the covenants of Issuer herein and in the Notes
contained;
(iii) to add to the covenants of Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein conferred
upon Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent with any
other provision herein or in any supplemental indenture or to make any
other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture; provided that such action shall
not materially and adversely affect the interests of the Holders of the
Notes;
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI;
(vii) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the TIA or under any similar federal statute hereafter
enacted and to add to this Indenture such other provisions as may be
expressly required by the TIA; or
(viii) (A) to add, modify or eliminate such provisions of the
Indenture 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 Indenture 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 the Rating Agency Condition shall have
been satisfied; and
(ix) 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 Seller
to Issuer, (b) Issuer to avoid becoming a member of Seller's or
Transferor's consolidated group under GAAP or (c) the Seller, the
Transferor, any Seller Affiliate or any of other 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.
Indenture Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) Issuer and Indenture Trustee, when authorized by an Issuer Order, may,
also without the consent of any of the Holders of the Notes but with prior
written notice to the Rating Agencies by Issuer, as evidenced to Indenture
Trustee, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or of modifying in any manner the
rights of the Holders of the Notes under this Indenture; provided that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS. (a) Issuer
and Indenture Trustee, when authorized by an Issuer Order, also may, with prior
notice to the Rating Agencies and with the consent of the Holders of not less
than a majority of the Outstanding Amount of the Notes, by Act of such Holders
delivered to Issuer and Indenture Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(i) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof, the interest rate
thereon or the Redemption Price with respect thereto, change the provision of
this Indenture relating to the application of collections on, or the proceeds of
the sale of, the Trust Estate to payment of principal of or interest on the
Notes, or change any place of payment where, or the coin or currency in which,
any Note or the interest thereon is payable, or impair the right to institute
suit for the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V, to the
payment of any such amount due on the Notes on or after the respective due dates
thereof (or, in the case of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the Notes or the
Controlling Note Class, the consent of the Holders of which is required for any
such supplemental indenture, or the consent of the Holders of which is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture;
(iii) modify or alter (x) the provisions of the proviso as to the
definition of the term "Outstanding" or (y) the definition of "Controlling Note
Class";
(iv) reduce the percentage of the Outstanding Amount of the Notes or
Controlling Note Class required to direct Indenture Trustee to direct Issuer to
sell or liquidate the Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to increase any percentage
specified herein or to provide that certain additional provisions of this
Indenture or the Basic Documents cannot be modified or waived without the
consent of the Holder of each Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in such manner as to
affect the calculation of the amount of any payment of interest or principal due
on any Note on any Payment Date (including the calculation of any of the
individual components of such calculation) or to affect the rights of the
Holders of Notes to the benefit of any provisions for the mandatory redemption
of the Notes contained herein; or
(vii) permit the creation of any lien ranking prior to or on a parity with
the lien of this Indenture with respect to any part of the Trust Estate or,
except as otherwise permitted or contemplated herein or in the Basic Documents,
terminate the lien of this Indenture on any property at any time subject hereto
or deprive the Holder of any Note of the security provided by the lien of this
Indenture.
(b) Indenture Trustee may determine whether or not any Notes would be
affected by any supplemental indenture and any such determination shall be
conclusive upon the Holders of all Notes, whether theretofore or thereafter
authenticated and delivered hereunder. Indenture Trustee shall not be liable for
any such determination made in good faith.
(c) It shall not be necessary for any Act of Noteholders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
(d) Promptly after the execution by Issuer and Indenture Trustee of any
supplemental indenture pursuant to this Section, Indenture Trustee shall mail to
the Holders of the Notes to which such amendment or supplemental indenture
relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of Indenture Trustee to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, Indenture Trustee shall be entitled to receive, and subject
to Sections 6.1 and 6.2, shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects Indenture
Trustee's own rights, duties, liabilities or immunities under this Indenture or
otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith with respect
to the Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of
Indenture Trustee, Issuer and the Holders of the Notes shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of this
Indenture and every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture Act as then in effect
so long as this Indenture shall then be qualified under the Trust Indenture Act.
SECTION 9.6 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by Indenture Trustee shall,
bear a notation in form approved by Indenture Trustee as to any matter provided
for in such supplemental indenture. If Issuer or Indenture Trustee shall so
determine, new Notes so modified as to conform, in the opinion of Indenture
Trustee and Issuer, to any such supplemental indenture may be prepared and
executed by Issuer and authenticated and delivered by Indenture Trustee in
exchange for Outstanding Notes.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 REDEMPTION. The Notes are subject to redemption in whole, but
not in part, at the direction of Servicer pursuant to Section 9.1(a) of the Sale
and Servicing Agreement, on any Payment Date on which Servicer exercises its
option to purchase the Trust Estate pursuant to said Section 9.1(a), for a
purchase price equal to the Redemption Price; provided that Issuer has available
funds sufficient to pay the Redemption Price. Servicer or Issuer shall furnish
the Rating Agencies notice of such redemption. If the Notes are to be redeemed
pursuant to this Section 10.1(a), Servicer or Issuer shall furnish notice of
such election to Indenture Trustee not later than 25 days prior to the
Redemption Date and Issuer shall deposit with Indenture Trustee in the Note
Distribution Account the Redemption Price of the Notes to be redeemed whereupon
all such Notes shall be due and payable on the Redemption Date upon the
furnishing of a notice complying with Section 10.2 to each Holder of the Notes.
SECTION 10.2 FORM OF REDEMPTION NOTICE. (a) Notice of redemption under SECTION
10.1(A) shall be given by Indenture Trustee by facsimile or by first-class mail,
postage prepaid, transmitted or mailed prior to the applicable Redemption Date
to each Holder of Notes, as of the close of business on the Record Date
preceding the applicable Redemption Date, at such Holder's address appearing in
the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to such Redemption
Date is not applicable and that payments shall be made only upon
presentation and surrender of such Notes and the place where such Notes are
to be surrendered for payment of the Redemption Price (which shall be the
office or agency of Issuer to be maintained as provided in Section 3.2);
and
(iv) that interest on the Notes shall cease to accrue on the
Redemption Date.
Notice of redemption of the Notes shall be given by Indenture Trustee in the
name and at the expense of Issuer. Failure to give notice of redemption, or any
defect therein, to any Holder of any Note shall not impair or affect the
validity of the redemption of such Note.
(b) Prior notice of redemption under Section 10.1(b) is not required
to be given to Noteholders.
SECTION 10.3 NOTES PAYABLE ON REDEMPTION DATE. The Notes to be redeemed
shall, following notice of redemption as required by Section 10.2 (in the case
of redemption pursuant to Section 10.1(a)), on the Redemption Date become due
and payable at the Redemption Price and (unless Issuer shall default in the
payment of the Redemption Price) no interest shall accrue on the Redemption
Price for any period after the date to which accrued interest is calculated for
purposes of calculating the Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 COMPLIANCE CERTIFICATES AND OPINIONS, ETC. (a)Upon any
application or request by Issuer to Indenture Trustee to take any action under
any provision of this Indenture, Issuer shall furnish to Indenture Trustee (i)
an Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with,
(ii) an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with and (iii) (if required by
the TIA) an Independent Certificate from a firm of certified public accountants
meeting the applicable requirements of this Section, except that, in the case of
any such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished. Every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(i) a statement that each signatory of such certificate or opinion has
read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory
such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with Indenture Trustee that is to be made the basis for the release
of any property or securities subject to the lien of this Indenture, Issuer
shall, in addition to any obligation imposed in Section 11.1(a) or elsewhere in
this Indenture, furnish to Indenture Trustee an Officer's Certificate certifying
or stating the opinion of each person signing such certificate as to the fair
value (within 90 days of such deposit) to Issuer of the Collateral or other
property or securities to be so deposited.
(ii) Whenever Issuer is required to furnish to Indenture Trustee an
Officer's Certificate certifying or stating the opinion of any signer
thereof as to the matters described in clause (i), Issuer shall also
deliver to Indenture Trustee an Independent Certificate as to the same
matters, if the fair value to Issuer of the securities to be so deposited
and of all other such securities made the basis of any such withdrawal or
release since the commencement of the then-current fiscal year of Issuer,
as set forth in the certificates delivered pursuant to clause (i) and this
clause (ii), is 10% or more of the Outstanding Amount of the Notes, but
such a certificate need not be furnished with respect to any securities so
deposited, if the fair value thereof to Issuer as set forth in the related
Officer's Certificate is less than $25,000 or less than one percent of the
Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any Purchased
Receivables or Defaulted Receivables, whenever any property or securities
are to be released from the lien of this Indenture, Issuer shall also
furnish to Indenture Trustee an Officer's Certificate certifying or stating
the opinion of each person signing such certificate as to the fair value
(within 90 days of such release) of the property or securities proposed to
be released and stating that in the opinion of such person the proposed
release will not impair the security under this Indenture in contravention
of the provisions hereof.
(iv) Whenever Issuer is required to furnish to Indenture Trustee an
Officer's Certificate certifying or stating the opinion of any signer
thereof as to the matters described in clause (iii), Issuer shall also
furnish to Indenture Trustee an Independent Certificate as to the same
matters if the fair value of the property or securities and of all other
property other than Purchased Receivables and Defaulted Receivables, or
securities released from the lien of this Indenture since the commencement
of the then current calendar year, as set forth in the certificates
required by clause (iii) and this clause (iv), equals 10% or more of the
Outstanding Amount of the Notes, but such certificate need not be furnished
in the case of any release of property or securities if the fair value
thereof as set forth in the related Officer's Certificate is less than
$25,000 or less than one percent of the then Outstanding Amount of the
Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section, Issuer may without compliance with the requirements of the other
provisions of this section 11.1, (A) collect, liquidate, sell or otherwise
dispose of Receivables as and to the extent permitted or required by the
Basic Documents and (B) make cash payments out of the Trust Accounts as and
to the extent permitted or required by the Basic Documents.
SECTION 11.2 FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE.
(a) In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an Authorized Officer of Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate of an Authorized Officer or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of
Servicer, Seller, Administrator or Issuer, stating that the information with
respect to such factual matters is in the possession of Servicer, Seller,
Administrator or Issuer, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Whenever in this Indenture, in connection with any application or
certificate or report to Indenture Trustee, it is provided that Issuer shall
deliver any document as a condition of the granting of such application, or as
evidence of Issuer's compliance with any term hereof, it is intended that the
truth and accuracy, at the time of the granting of such application or at the
effective date of such certificate or report (as the case may be), of the facts
and opinions stated in such document shall in such case be conditions precedent
to the right of Issuer to have such application granted or to the sufficiency of
such certificate or report. The foregoing shall not, however, be construed to
affect Indenture Trustee's right to rely upon the truth and accuracy of any
statement or opinion contained in any such document as provided in Article VI.
SECTION 11.3 ACTS OF NOTEHOLDERS. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Noteholders in person
or by agents duly appointed in writing; and except as herein otherwise expressly
provided such action shall become effective when such instrument or instruments
are delivered to Indenture Trustee, and, where it is hereby expressly required,
to Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.1) conclusive in
favor of Indenture Trustee and Issuer, if made in the manner provided in this
Section.
(a) The fact and date of the execution by any person of any such instrument
or writing may be proved in any customary manner of Indenture Trustee.
(b) The ownership of Notes shall be proved by the Note Register.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Notes shall bind the Holder of every Note
issued upon the registration thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by Indenture Trustee
or Issuer in reliance thereon, whether or not notation of such action is made
upon such Note.
SECTION 11.4 NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUER AND RATING
AGENCIES. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this Indenture
to be made upon, given or furnished to or filed with:
(a) Indenture Trustee by any Noteholder, Administrator or Issuer shall be
sufficient for every purpose hereunder if personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested and shall
be deemed to have been duly given upon receipt to Indenture Trustee at its
Corporate Trust Office, or
(b) Issuer by Indenture Trustee or by any Noteholder shall be sufficient
for every purpose hereunder if personally delivered, delivered by overnight
courier or mailed certified mail, return receipt requested and shall be deemed
to have been duly given upon receipt to Issuer addressed to: ACE RV and Marine
Trust 2001-RV1, in care of U.S. Bank Trust National Association, as Owner
Trustee, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to Administrator at ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, Sixth and Marquette Avenue, MAC N9311-161, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, or at any other address
previously furnished in writing to Indenture Trustee by Issuer or Administrator.
Issuer shall promptly transmit any notice received by it from the Noteholders to
Indenture Trustee.
Notices required to be given to the Rating Agencies by Issuer, Indenture Trustee
or Owner Trustee shall be in writing, personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested to (i) in
the case of Moody's, at the following address: ▇▇▇▇▇'▇ Investors Service, Inc.,
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and (ii) in the case of S&P, at the
following address: Standard & Poor's Ratings Services, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of Asset Backed Surveillance Department or
as to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 11.5 NOTICES TO NOTEHOLDERS; WAIVER.
(a) Where this Indenture provides for notice to Noteholders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class, postage prepaid to each
Noteholder affected by such event, at his address as it appears on the Note
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Noteholders is given by mail, neither the failure to mail such notice nor any
defect in any notice so mailed to any particular Noteholder shall affect the
sufficiency of such notice with respect to other Noteholders, and any notice
that is mailed in the manner herein provided shall conclusively be presumed to
have been duly given.
(b) Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with Indenture Trustee
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to Issuer shall be deemed to be a
sufficient giving of such notice.
(d) Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
SECTION 11.6 ALTERNATE PAYMENT AND NOTICE PROVISIONS. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, Issuer may
enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by Indenture Trustee or any Paying Agent to such Holder, that
is different from the methods provided for in this Indenture for such payments
or notices, provided that such methods are reasonable and consented to by
Indenture Trustee. Issuer will furnish to the Indenture Trustee a copy of each
such agreement and Indenture Trustee will cause payments to be made and notices
to be given in accordance with such agreements.
SECTION 11.7 CONFLICT WITH TRUST INDENTURE ACT. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control. The provisions of TIA Sections 310
through 317 that impose duties on any person (including the provisions
automatically deemed included herein unless expressly excluded by this
Indenture) are a part of and govern this Indenture, whether or not physically
contained herein.
SECTION 11.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.9 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Indenture and the Notes by Issuer shall bind its successors and assigns, whether
so expressed or not. All agreements of Indenture Trustee in this Indenture shall
bind its successors.
SECTION 11.10 SEVERABILITY. In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 11.11 BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders, and any other party
secured hereunder, and any other person with an ownership interest in any part
of the Trust Estate, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 11.12 LEGAL HOLIDAYS. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE 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 11.14 COUNTERPARTS. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
SECTION 11.15 RECORDING OF INDENTURE. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by Issuer and at its expense accompanied by an Opinion of Counsel
delivered to the Indenture Trustee (which may be counsel to Indenture Trustee or
any other counsel reasonably acceptable to Indenture Trustee) to the effect that
such recording is necessary either for the protection of the Noteholders or any
other person secured hereunder or for the enforcement of any right or remedy
granted to Indenture Trustee under this Indenture.
SECTION 11.16 TRUST OBLIGATION.
(a) No recourse may be taken, directly or indirectly, with respect to the
obligations of Issuer, Seller, Servicer, Transferor, Owner Trustee or Indenture
Trustee on the Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) Seller, Servicer,
Transferor, Indenture Trustee or Owner Trustee in its individual capacity, (ii)
any owner of a beneficial interest in Issuer, (iii) any partner, owner, member,
beneficiary, agent, officer, director, employee or agent of Seller, Servicer,
Transferor, Indenture Trustee or Owner Trustee in its individual capacity as
such, (iv) or any holder of a beneficial interest in Issuer, Seller, Servicer,
Transferor, Owner Trustee or Indenture Trustee or of any successor or assign of
Seller, Indenture Trustee or Owner Trustee in its individual capacity as such,
except as any such Person may have expressly agreed (it being understood that
Indenture Trustee and Owner Trustee have no such obligations in their individual
capacity) and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law, for any unpaid consideration
for stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity. For all purposes of this Indenture, in the performance of
any duties or obligations of Issuer hereunder, Owner Trustee shall be subject
to, and entitled to the benefits of, the terms and provisions of Article VI, VII
and VIII of the Trust Agreement.
(b) In furtherance of and not in derogation of the foregoing, to the extent
Seller enters into other securitization transactions, each Noteholder, by
accepting a Note, acknowledges and agrees that it shall have no right, title or
interest in or to any assets or interests therein of Seller (other than the
Trust Property and Reserve Account relating to this transaction) conveyed or
purported to be conveyed by Seller 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 Noteholder either (i) asserts an interest
or claim to, or benefit from, Other Assets, whether asserted against or through
Seller or any other Person owned by Seller, 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 Seller or any other Person owned by
Seller, then each Noteholder, by accepting a Note, 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 Seller 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 Seller
or any other Person owned by Seller), 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 Noteholder, by acceptance of a Note, further
acknowledges and agrees that no adequate remedy at law exists for a breach of
this Section 11.16(b) and the terms of this Section 11.16(b) may be enforced by
an action for specific performance. The provisions of this Section 11.16(b)
shall be for the third party benefit of those entitled to rely thereon and shall
survive the termination of this Agreement.
SECTION 11.17 NO PETITION. Indenture Trustee, by entering into this
Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree
that they will not at any time institute against Seller or Issuer, or join in
any institution against Seller 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 Notes, this Indenture or any of the Basic
Documents.
SECTION 11.18 INSPECTION. Issuer agrees that, on reasonable prior notice,
it will permit any representative of Indenture Trustee, during Issuer's normal
business hours, to examine all the books of account, records, reports, and other
papers of Issuer, to make copies and extracts therefrom, to cause such books to
be audited by Independent certified public accountants, and to discuss Issuer's
affairs, finances and accounts with Issuer's officers, employees, and
independent certified public accountants, all at such reasonable times and as
often as may be reasonably requested. Indenture Trustee shall and shall cause
its representatives to hold in confidence all such information except to the
extent disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent that Indenture
Trustee may reasonably determine that such disclosure is consistent with its
obligations hereunder.
SECTION 11.19 CONFIDENTIAL INFORMATION. Any Holder, by its acceptance of a
Note, shall be deemed to have agreed to keep any information obtained by it
pursuant to Section 4.12 of the Sale and Servicing Agreement confidential and
not to use such information for any other purpose, except as required by
applicable law.
IN WITNESS WHEREOF, Issuer and Indenture Trustee have caused this Indenture
to be duly executed by their respective officers, thereunto duly authorized, all
as of the day and year first above written.
ACE RV AND MARINE TRUST 2001-RV1
By: U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Owner Trustee,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely as
Indenture Trustee,
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
EXHIBIT A-1
FORM OF CLASS A-1 NOTE
REGISTERED
$[___________] ISIN NO. US00441RAA59
No. R-1 CUSIP NO. 00441R AA 5
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
ACE RV AND MARINE TRUST 2001-RV1
4.05% CLASS A-1 ASSET BACKED NOTES
ACE RV and Marine Trust 2001-RV1, a Delaware business trust (herein
referred to as the "Issuer"), for value received, hereby promises to pay to CEDE
& CO., or registered assigns, the principal sum of [__________________________]
DOLLARS ($[______________]) payable on each Payment Date in an amount equal to
the aggregate amount, if any, payable to Noteholders of Class A-1 Notes on such
Payment Date from the Principal Distribution Account in respect of principal on
the Class A-1 Notes pursuant to Section 3.1 of the Indenture dated as of June 1,
2001 (as from time to time amended, supplemented or otherwise modified and in
effect, the "Indenture"), between the Issuer and The Chase Manhattan Bank, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided, however,
that the entire unpaid principal amount of this Note shall be due and payable on
the April 2006 Payment Date (the "Class A-1 Final Scheduled Payment Date").
Capitalized terms used but not defined herein are defined in Article I of the
Indenture, which also contains rules as to construction that shall be applicable
herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid, or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the twentieth day of the calendar month immediately preceding
such Payment Date (or, in the case of the initial Payment Date, from the Closing
Date) to but excluding the twentieth day of the following calendar month.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: ______________ __, 2001
ACE RV AND MARINE TRUST 2001-RV1
By: U.S. Bank Trust National Association,
as Owner Trustee of ACE RV and Marine
Trust 2001-RV1
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Notes designated above and referred to in the
within-mentioned Indenture.
Date: ______________ __, 2001
[__________________], not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 4.05% Class A-1 Asset Backed Notes (the "Class A-1 Notes")
which, together with the Issuer's 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, the
Class A-2 Notes, the Class A-3 Notes and the 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"), 7.58% Class D Asset Backed Notes (the
"Class D Notes") and 8.70% Class E Asset Backed Notes (the "Class E Notes" and,
together with the Class A Notes, the Class B Notes, the Class C Notes, the Class
D Notes, the "Notes"), are issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class A-1 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-1 Notes are senior in right of payment to the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes, the Class A-5 Notes, the Class B Notes, the Class C
Notes, the Class D Notes and the Class E Notes, each as and to the extent
provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth day of
each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing July, 2001. All principal payments on the Class A-1
Notes shall be made pro rata to the Class A-1 Noteholders entitled thereto.
As described on the face hereof, the entire unpaid principal amount of this
Note shall be due and payable on the Class A-1 Final Scheduled Payment Date.
Notwithstanding the foregoing, if an Event of Default should occur and be
continuing, then and in every such case the Indenture Trustee or the Holders of
Notes representing not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class may declare all the Notes to be immediately
due and payable, by a notice in writing to Issuer (and to the Indenture Trustee
if given by Noteholders), and upon any such declaration the unpaid principal
amount of such Notes, together with accrued and unpaid interest thereon through
the date of acceleration, shall become immediately due and payable in the manner
provided in Section 5.2 of the Indenture. In such event, all payments on the
Class A-1 Notes will be made in accordance with the provisions of the Indenture.
Payments of interest on this Note on each Payment Date, together with the
installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Final Scheduled Payment Date for such
Class (and except for the Redemption Price for any Note called for redemption
pursuant to Section 10.1(a) of the Indenture) which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.3 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default shall
have occurred and be continuing, if Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class have declared the Notes to be immediately
due and payable in the manner provided in Section 5.2 of the Indenture and, in
such event, all principal payments on each class of Notes shall be made pro rata
to the Noteholders of such class entitled thereto. Indenture Trustee shall
notify the Person in whose name a Note is registered at the close of business on
the Record Date preceding the Payment Date on which Issuer expects that the
final installment of principal of and interest on such Note will be paid. Such
notice shall be mailed or transmitted by facsimile prior to such final Payment
Date and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class A-1 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes, the
Class C Notes, the Class D Notes and the Class E Notes may be redeemed, in whole
but not in part, in the manner and to the extent described in the Indenture and
the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Seller, the Transferor, the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Seller, the Transferor or the Issuer, (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Transferor, the Seller,
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Seller 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 paragraph, a Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through Seller or any other Person owned by Seller, 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 Seller or any
other Person owned by Seller, then each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, 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 Seller 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 Seller or any other Person owned by Seller), 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 Noteholder or Note
Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, 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 this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller, the Transferor or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, and franchise tax purposes,
the Notes will qualify as indebtedness secured by the Trust Estate. Each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of a beneficial interest in a Note), will be deemed to agree to treat the Notes
for federal, state and local income, single business and franchise tax purposes
as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Issuer and the Indenture Trustee to enter
into one or more supplemental indentures without the consent of the Noteholders
provided certain conditions are satisfied. The Indenture also contains
provisions permitting the Noteholders of Notes evidencing specified percentages
of the Outstanding Amount of the Controlling Note Class, on behalf of all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon
all future Noteholders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICTS OF
LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
______________________________________ FOR VALUE RECEIVED, the undersigned
hereby sells, assigns and transfers unto:
_____________________________________________ (name and address of assignee) the
within Note and all rights thereunder, and hereby irrevocably constitutes and
appoints ______________________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 200_ By: */____________________________
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 Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
EXHIBIT A-2
FORM OF CLASS A-2 NOTE
REGISTERED
$[___________] ISIN NO. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. ▇-▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ 3
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
ACE RV AND MARINE TRUST 2001-RV1
4.85 % CLASS A-2 ASSET BACKED NOTES
ACE RV and Marine Trust 2001-RV1, a Delaware business trust (herein
referred to as the "Issuer"), for value received, hereby promises to pay to CEDE
& CO., or registered assigns, the principal sum of [_______________________]
DOLLARS ($[___________]) payable on each Payment Date in an amount equal to the
aggregate amount, if any, payable to Noteholders of Class A-2 Notes on such
Payment Date from the Principal Distribution Account in respect of principal on
the Class A-2 Notes pursuant to Section 3.1 of the Indenture dated as of June 1,
2001 (as from time to time amended, supplemented or otherwise modified and in
effect, the "Indenture"), between the Issuer and The Chase Manhattan Bank, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided, however,
that the entire unpaid principal amount of this Note shall be due and payable on
the April 2008 Payment Date (the "Class A-2 Final Scheduled Payment Date").
Capitalized terms used but not defined herein are defined in Article I of the
Indenture, which also contains rules as to construction that shall be applicable
herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid, or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the twentieth day of the calendar month immediately preceding
such Payment Date (or, in the case of the initial Payment Date, from the Closing
Date) to but excluding the twentieth day of the following calendar month.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: ______________ __, 2001
ACE RV AND MARINE TRUST 2001-RV1
By: U.S. Bank Trust National Association,
as Owner Trustee of ACE RV and Marine
Trust 2001-RV1
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Notes designated above and referred to in the
within-mentioned Indenture.
Date: ______________ __, 2001
[__________________], not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 4.85% Class A-2 Asset Backed Notes (the "Class A-2 Notes")
which, together with the Issuer's 4.05% Class A-1 Asset Backed Notes (the "Class
A-1 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, the
Class A-2 Notes, the Class A-3 Notes and the 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"), 7.58% Class D Asset Backed Notes (the
"Class D Notes") and 8.70% Class E Asset Backed Notes (the "Class E Notes" and,
together with the Class A Notes, the Class B Notes, the Class C Notes, the Class
D Notes, the "Notes"), are issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class A-2 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-2 Notes are subordinated in right of payment to the Class A-1 Notes and are
senior in right of payment to the Class A-3 Notes, the Class A-4 Notes, the
Class A-5 Notes, the Class B Notes, the Class C Notes, the Class D Notes and the
Class E Notes, each as and to the extent provided in the Indenture.
Principal of the Class A-2 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth day of
each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing July 2001. All principal payments on the Class A-2
Notes shall be made pro rata to the Class A-2 Noteholders entitled thereto.
As described on the face hereof, the entire unpaid principal amount of this
Note shall be due and payable on the Class A-2 Final Scheduled Payment Date.
Notwithstanding the foregoing, if an Event of Default should occur and be
continuing, then and in every such case the Indenture Trustee or the Holders of
Notes representing not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class may declare all the Notes to be immediately
due and payable, by a notice in writing to Issuer (and to the Indenture Trustee
if given by Noteholders), and upon any such declaration the unpaid principal
amount of such Notes, together with accrued and unpaid interest thereon through
the date of acceleration, shall become immediately due and payable in the manner
provided in Section 5.2 of the Indenture. In such event, all payments on the
Class A-2 Notes will be made in accordance with the provisions of the Indenture.
Payments of interest on this Note on each Payment Date, together with the
installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Final Scheduled Payment Date for such
Class (and except for the Redemption Price for any Note called for redemption
pursuant to Section 10.1(a) of the Indenture) which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.3 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default shall
have occurred and be continuing, if Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
Controlling Note Class of Notes have declared the Notes to be immediately due
and payable in the manner provided in Section 5.2 of the Indenture and, in such
event, all principal payments on each class of Notes shall be made pro rata to
the Noteholders of such class entitled thereto. Indenture Trustee shall notify
the Person in whose name a Note is registered at the close of business on the
Record Date preceding the Payment Date on which Issuer expects that the final
installment of principal of and interest on such Note will be paid. Such notice
shall be mailed or transmitted by facsimile prior to such final Payment Date and
shall specify that such final installment will be payable only upon presentation
and surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such installment. Notices in connection
with redemptions of Notes shall be mailed to Noteholders as provided in Section
10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class A-2 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes and the
Class C Notes may be redeemed, in whole but not in part, in the manner and to
the extent described in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Seller, the Transferor, the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Seller, the Transferor or the Issuer, (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Transferor, the Seller,
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Seller 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 paragraph, a Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through Seller or any other Person owned by Seller, 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 Seller or any
other Person owned by Seller, then each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, 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 Seller 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 Seller or any other Person owned by Seller), 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
Noteholder or Note Owner, by its acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, 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 this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller, the Transferor or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, and franchise tax purposes,
the Notes will qualify as indebtedness secured by the Trust Estate. Each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of a beneficial interest in a Note), will be deemed to agree to treat the Notes
for federal, state and local income, single business and franchise tax purposes
as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Issuer and the Indenture Trustee to enter
into one or more supplemental indentures without the consent of the Noteholders
provided certain conditions are satisfied. The Indenture also contains
provisions permitting the Noteholders of Notes evidencing specified percentages
of the Outstanding Amount of the Controlling Note Class, on behalf of all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon
all future Noteholders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICTS OF
LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
___________________________ FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers
unto:________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 200_
By: */____________________________
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 Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
EXHIBIT A-3
FORM OF CLASS A-3 NOTE
REGISTERED
$[___________] ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. ▇-▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ AC 1
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
ACE RV AND MARINE TRUST 2001-RV1
5.36% CLASS A-3 ASSET BACKED NOTES
ACE RV and Marine Trust 2001-RV1, a Delaware business trust (herein
referred to as the "Issuer"), for value received, hereby promises to pay to CEDE
& CO., or registered assigns, the principal sum of [__________________________]
DOLLARS ($[_____________]) payable on each Payment Date in an amount equal to
the aggregate amount, if any, payable to Noteholders of Class A-3 Notes on such
Payment Date from the Principal Distribution Account in respect of principal on
the Class A-3 Notes pursuant to Section 3.1 of the Indenture dated as of June 1,
2001 (as from time to time amended, supplemented or otherwise modified and in
effect, the "Indenture"), between the Issuer and The Chase Manhattan Bank, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided, however,
that the entire unpaid principal amount of this Note shall be due and payable on
the January 2011 Payment Date (the "Class A-3 Final Scheduled Payment Date").
Capitalized terms used but not defined herein are defined in Article I of the
Indenture, which also contains rules as to construction that shall be applicable
herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid, or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the twentieth day of the calendar month immediately preceding
such Payment Date (or, in the case of the initial Payment Date, from the Closing
Date) to but excluding the twentieth day of the following calendar month.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: ______________ __, 2001
ACE RV AND MARINE TRUST 2001-RV1
By: U.S. Bank Trust National Association,
as Owner Trustee of ACE RV and Marine Trust
2001-RV1
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Notes designated above and referred to in the
within-mentioned Indenture.
Date: ______________ __, 2001
[__________________], not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 5.36% Class A-3 Asset Backed Notes (the "Class A-3 Notes")
which, together with the Issuer's 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"), 5.75%
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, the
Class A-2 Notes, the Class A-3 Notes and the 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"), 7.58% Class D Asset Backed Notes (the
"Class D Notes") and 8.70% Class E Asset Backed Notes (the "Class E Notes" and,
together with the Class A Notes, the Class B Notes, the Class C Notes, the Class
D Notes, the "Notes"), are issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class A-3 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-3 Notes are subordinated in right of payment to the Class A-1 Notes and the
Class A-2 Notes and are senior in right of payment to the Class A-4 Notes, the
Class A-5 Notes, the Class B Notes, the Class C Notes, the Class D Notes and the
Class E Notes, each as and to the extent provided in the Indenture.
Principal of the Class A-3 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth day of
each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing July 2001. All principal payments on the Class A-3
Notes shall be made pro rata to the Class A-3 Noteholders entitled hereto.
As described on the face hereof, the entire unpaid principal amount of this
Note shall be due and payable on the Class A-3 Final Scheduled Payment Date.
Notwithstanding the foregoing, if an Event of Default should occur and be
continuing, then and in every such case the Indenture Trustee or the Holders of
Notes representing not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class may declare all the Notes to be immediately
due and payable, by a notice in writing to Issuer (and to the Indenture Trustee
if given by Noteholders), and upon any such declaration the unpaid principal
amount of such Notes, together with accrued and unpaid interest thereon through
the date of acceleration, shall become immediately due and payable in the manner
provided in Section 5.2 of the Indenture. In such event, all payments on the
Class A-3 Notes will be made in accordance with the provisions of the Indenture.
Payments of interest on this Note on each Payment Date, together with the
installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Final Scheduled Payment Date for such
Class (and except for the Redemption Price for any Note called for redemption
pursuant to Section 10.1(a) of the Indenture) which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.3 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default shall
have occurred and be continuing, if Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class have declared the Notes to be immediately
due and payable in the manner provided in Section 5.2 of the Indenture and, in
such event, all principal payments on each class of Notes shall be made pro rata
to the Noteholders of such class entitled thereto. Indenture Trustee shall
notify the Person in whose name a Note is registered at the close of business on
the Record Date preceding the Payment Date on which Issuer expects that the
final installment of principal of and interest on such Note will be paid. Such
notice shall be mailed or transmitted by facsimile prior to such final Payment
Date and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class A-3 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes, the
Class C Notes, the Class D Notes and the Class E Notes may be redeemed, in whole
but not in part, in the manner and to the extent described in the Indenture and
the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Seller, the Transferor, the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Seller, the Transferor or the Issuer, (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Transferor, the Seller,
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Seller 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 paragraph, a Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through Seller or any other Person owned by Seller, 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 Seller or any
other Person owned by Seller, then each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, 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 Seller 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 Seller or any other Person owned by Seller), 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 Noteholder or Note
Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, 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 this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller, the Transferor or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, and franchise tax purposes,
the Notes will qualify as indebtedness secured by the Trust Estate. Each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of a beneficial interest in a Note), will be deemed to agree to treat the Notes
for federal, state and local income, single business and franchise tax purposes
as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Issuer and the Indenture Trustee to enter
into one or more Supplemental indentures without the consent of the Noteholders
provided certain conditions are satisfied. The Indenture also contains
provisions permitting the Noteholders of Notes evidencing specified percentages
of the Outstanding Amount of the Controlling Note Class, on behalf of all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon
all future Noteholders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICTS OF
LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_____________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 200_
By: */______________________________
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 Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
EXHIBIT A-4
FORM OF CLASS A - 4 NOTE
REGISTERED
$[___________] ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. ▇-▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ AD 9
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
ACE RV AND MARINE TRUST 2001-RV1
5.75% CLASS A-4 ASSET BACKED NOTES
ACE RV and Marine Trust 2001-RV1, a Delaware business trust (herein
referred to as the "Issuer"), for value received, hereby promises to pay to CEDE
& CO., or registered assigns, the principal sum of [____________] DOLLARS
($[____________]) payable on each Payment Date in an amount equal to the
aggregate amount, if any, payable to Noteholders of Class A-4 Notes on such
Payment Date from the Principal Distribution Account in respect of principal on
the Class A-4 Notes pursuant to Section 3.1 of the Indenture dated as of June 1,
2001 (as from time to time amended, supplemented or otherwise modified and in
effect, the "Indenture"), between the Issuer and The Chase Manhattan Bank, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided, however,
that the entire unpaid principal amount of this Note shall be due and payable on
the May 2012 Payment Date (the "Class A-4 Final Scheduled Payment Date").
Capitalized terms used but not defined herein are defined in Article I of the
Indenture, which also contains rules as to construction that shall be applicable
herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid, or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the twentieth day of the calendar month immediately preceding
such Payment Date (or, in the case of the initial Payment Date, from the Closing
Date) to but excluding the twentieth day of the following calendar month.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: [____________]
ACE RV AND MARINE TRUST 2001-RV1
By: U.S. Bank Trust National Association,
as Owner Trustee of ACE RV and Marine Trust
2001-RV1
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Notes designated above and referred to in the
within-mentioned Indenture.
Date: ______________ __, 2001
[__________________], not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 5.75% Class A-4 Asset Backed Notes (the "Class A-4 Notes")
which, together with the Issuer's 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"), 6.30% Class A-5 Asset
Backed Notes (the "Class A-5 Notes" and, together with the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the 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"), 7.58% Class D Asset Backed Notes (the
"Class D Notes") and 8.70% Class E Asset Backed Notes (the "Class E Notes" and,
together with the Class A Notes, the Class B Notes, the Class C Notes, the Class
D Notes, the "Notes"), are issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class A-4 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-4 Notes are subordinated in right of payment to the Class A-1 Notes, the Class
A-2 Notes and the Class A-3 Notes and are senior in right of payment to the
Class A-5 Notes, the Class B Notes, the Class C Notes, the Class D Notes and the
Class E Notes, each as and to the extent provided in the Indenture.
Principal of the Class A-4 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth day of
each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing July 2001. All principal payments on the Class A-4
Notes shall be made pro rata to the Class A-4 Noteholders entitled thereto.
As described on the face hereof, the entire unpaid principal amount of this
Note shall be due and payable on the Class A-4 Final Scheduled Payment Date.
Notwithstanding the foregoing, if an Event of Default should occur and be
continuing, then and in every such case the Indenture Trustee or the Holders of
Notes representing not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class may declare all the Notes to be immediately
due and payable, by a notice in writing to Issuer (and to the Indenture Trustee
if given by Noteholders), and upon any such declaration the unpaid principal
amount of such Notes, together with accrued and unpaid interest thereon through
the date of acceleration, shall become immediately due and payable in the manner
provided in Section 5.2 of the Indenture. In such event, all payments on the
Class A-4 Notes will be made in accordance with the provisions of the Indenture.
Payments of interest on this Note on each Payment Date, together with the
installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Final Scheduled Payment Date for such
Class (and except for the Redemption Price for any Note called for redemption
pursuant to Section 10.1(a) of the Indenture) which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.3 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default shall
have occurred and be continuing, if Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class have declared the Notes to be immediately
due and payable in the manner provided in Section 5.2 of the Indenture and, in
such event, all principal payments on each class of Notes shall be made pro rata
to the Noteholders of such class entitled thereto. Indenture Trustee shall
notify the Person in whose name a Note is registered at the close of business on
the Record Date preceding the Payment Date on which Issuer expects that the
final installment of principal of and interest on such Note will be paid. Such
notice shall be mailed or transmitted by facsimile prior to such final Payment
Date and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class A-4 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes, the
Class C Notes, the Class D Notes and the Class E Notes may be redeemed, in whole
but not in part, in the manner and to the extent described in the Indenture and
the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Seller, the Transferor, the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Seller, the Transferor or the Issuer, (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Transferor, the Seller,
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Seller 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 paragraph, a Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through Seller or any other Person owned by Seller, 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 Seller or any
other Person owned by Seller, then each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, 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 Seller 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 Seller or any other Person owned by Seller), 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 Noteholder or Note
Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, 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 this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller, the Transferor or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, and franchise tax purposes,
the Notes will qualify as indebtedness secured by the Trust Estate. Each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of a beneficial interest in a Note), will be deemed to agree to treat the Notes
for federal, state and local income, single business and franchise tax purposes
as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Issuer and the Indenture Trustee to enter
into one or more supplemental indentures without the consent of the Noteholders
provided certain conditions are satisfied. The Indenture also contains
provisions permitting the Noteholders of Notes evidencing specified percentages
of Outstanding Amount of the Controlling Note Class, on behalf of all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon
all future Noteholders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
THE NOTES ARE ISSUABLE ONLY IN REGISTERED FORM IN DENOMINATIONS AS PROVIDED
IN THE INDENTURE, SUBJECT TO CERTAIN LIMITATIONS THEREIN SET FORTH.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICTS OF
LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 200__
By: */____________________________
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 Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
EXHIBIT A-5
FORM OF CLASS A - 5 NOTE
REGISTERED
$[___________] ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. ▇-▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ AE 7
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
ACE RV AND MARINE TRUST 2001-RV1
6.30% CLASS A-5 ASSET BACKED NOTES
ACE RV and Marine Trust 2001-RV1, a Delaware business trust (herein
referred to as the "Issuer"), for value received, hereby promises to pay to CEDE
& CO., or registered assigns, the principal sum of [____________] DOLLARS
($[____________]) payable on each Payment Date in an amount equal to the
aggregate amount, if any, payable to Noteholders of Class A-5 Notes on such
Payment Date from the Principal Distribution Account in respect of principal on
the Class A-5 Notes pursuant to Section 3.1 of the Indenture dated as of June 1,
2001 (as from time to time amended, supplemented or otherwise modified and in
effect, the "Indenture"), between the Issuer and The Chase Manhattan Bank, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided, however,
that the entire unpaid principal amount of this Note shall be due and payable on
the September 2021 Payment Date (the "Class A-5 Final Scheduled Payment Date").
Capitalized terms used but not defined herein are defined in Article I of the
Indenture, which also contains rules as to construction that shall be applicable
herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid, or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the twentieth day of the calendar month immediately preceding
such Payment Date (or, in the case of the initial Payment Date, from the Closing
Date) to but excluding the twentieth day of the following calendar month.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: [____________]
ACE RV AND MARINE TRUST 2001-RV1
By: U.S. Bank Trust National Association,
as Owner Trustee of ACE RV and Marine Trust
2001-RV1
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-5 Notes designated above and referred to in the
within-mentioned Indenture.
Date: ______________ __, 2001
[__________________], not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 6.30% Class A-5 Asset Backed Notes (the "Class A-5 Notes")
which, together with the Issuer's 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", and, together with the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-5 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"), 7.58% Class D Asset Backed Notes (the
"Class D Notes") and 8.70% Class E Asset Backed Notes (the "Class E Notes" and,
together with the Class A Notes, the Class B Notes, the Class C Notes, the Class
D Notes, the "Notes"), are issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class A-5 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-5 Notes are subordinated in right of payment to the Class A-1 Notes, the Class
A-2 Notes, the Class A-3 Notes and the Class A-4 Notes and are senior in right
of payment to the Class B Notes, the Class C Notes, the Class D Notes and the
Class E Notes, each as and to the extent provided in the Indenture.
Principal of the Class A-5 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth day of
each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing July 2001. All principal payments on the Class A-5
Notes shall be made pro rata to the Class A-5 Noteholders entitled thereto.
As described on the face hereof, the entire unpaid principal amount of this
Note shall be due and payable on the Class A-5 Final Scheduled Payment Date.
Notwithstanding the foregoing, if an Event of Default should occur and be
continuing, then and in every such case the Indenture Trustee or the Holders of
Notes representing not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class may declare all the Notes to be immediately
due and payable, by a notice in writing to Issuer (and to the Indenture Trustee
if given by Noteholders), and upon any such declaration the unpaid principal
amount of such Notes, together with accrued and unpaid interest thereon through
the date of acceleration, shall become immediately due and payable in the manner
provided in Section 5.2 of the Indenture. In such event, all payments on the
Class A-5 Notes will be made in accordance with the provisions of the Indenture.
Payments of interest on this Note on each Payment Date, together with the
installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Final Scheduled Payment Date for such
Class (and except for the Redemption Price for any Note called for redemption
pursuant to Section 10.1(a) of the Indenture) which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.3 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default shall
have occurred and be continuing, if Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class have declared the Notes to be immediately
due and payable in the manner provided in Section 5.2 of the Indenture and, in
such event, all principal payments on each class of Notes shall be made pro rata
to the Noteholders of such class entitled thereto. Indenture Trustee shall
notify the Person in whose name a Note is registered at the close of business on
the Record Date preceding the Payment Date on which Issuer expects that the
final installment of principal of and interest on such Note will be paid. Such
notice shall be mailed or transmitted by facsimile prior to such final Payment
Date and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class A-5 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes, the
Class C Notes, the Class D Notes and the Class E Notes may be redeemed, in whole
but not in part, in the manner and to the extent described in the Indenture and
the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Seller, the Transferor, the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Seller, the Transferor or the Issuer, (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Transferor, the Seller,
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Seller 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 paragraph, a Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through Seller or any other Person owned by Seller, 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 Seller or any
other Person owned by Seller, then each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, 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 Seller 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 Seller or any other Person owned by Seller), 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 Noteholder or Note
Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, 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 this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller, the Transferor or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, and franchise tax purposes,
the Notes will qualify as indebtedness secured by the Trust Estate. Each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of a beneficial interest in a Note), will be deemed to agree to treat the Notes
for federal, state and local income, single business and franchise tax purposes
as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Issuer and the Indenture Trustee to enter
into one or more supplemental indentures without the consent of the Noteholders
provided certain conditions are satisfied. The Indenture also contains
provisions permitting the Noteholders of Notes evidencing specified percentages
of Outstanding Amount of the Controlling Note Class, on behalf of all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon
all future Noteholders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
THE NOTES ARE ISSUABLE ONLY IN REGISTERED FORM IN DENOMINATIONS AS PROVIDED
IN THE INDENTURE, SUBJECT TO CERTAIN LIMITATIONS THEREIN SET FORTH.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICTS OF
LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 200__
By: */____________________________
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 Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
EXHIBIT B
FORM OF CLASS B NOTE
REGISTERED
$[___________] ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. ▇-▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ AF 4
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
ACE RV AND MARINE TRUST 2001-RV1
6.61% CLASS B ASSET BACKED NOTES
ACE RV and Marine Trust 2001-RV1, a Delaware business trust (herein
referred to as the "Issuer"), for value received, hereby promises to pay to CEDE
& CO., or registered assigns, the principal sum of [____________] DOLLARS
($[____________]) payable on each Payment Date in an amount equal to the
aggregate amount, if any, payable to Noteholders of Class B Notes on such
Payment Date from the Principal Distribution Account in respect of principal on
the Class B Notes pursuant to Section 3.1 of the Indenture dated as of June 1,
2001 (as from time to time amended, supplemented or otherwise modified and in
effect, the "Indenture"), between the Issuer and The Chase Manhattan Bank, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided, however,
that the entire unpaid principal amount of this Note shall be due and payable on
the earlier of the September 2021 Payment Date (the "Class B Final Scheduled
Payment Date") and the Redemption Date, if any, pursuant to Section 10.1(a) of
the Indenture. Capitalized terms used but not defined herein are defined in
Article I of the Indenture, which also contains rules as to construction that
shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid, or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the twentieth day of the calendar month immediately preceding
such Payment Date (or, in the case of the initial Payment Date, from the Closing
Date) to but excluding the twentieth day of the following calendar month.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: ______________ __, 2001
ACE RV AND MARINE TRUST 2001-RV1
By: U.S. Bank Trust National Association,
as Owner Trustee of ACE RV and Marine Trust
2001-RV1
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes designated above and referred to in the
within-mentioned Indenture.
Date: ______________ __, 2001
[__________________], not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 6.61% Class B Asset Backed Notes (the "Class B Notes") which,
together with the Issuer's 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, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes, the "Class A Notes"), 6.85% Class C
Asset Backed Notes (the "Class C Notes"), 7.58% Class D Asset Backed Notes (the
"Class D Notes") and 8.70% Class E Asset Backed Notes (the "Class E Notes" and,
together with the Class A Notes, the Class B Notes, the Class C Notes, the Class
D Notes, the "Notes"), are issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class B Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
B Notes are subordinated in right of payment to the Class A Notes and are senior
in right of payment to the Class C Notes, the Class D Notes and the Class E
Notes, each as and to the extent provided in the Indenture.
Principal of the Class B Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth day of
each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing July 2001. All principal payments on the Class B Notes
shall be made pro rata to the Class B Noteholders entitled thereto.
As described on the face hereof, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Class B Final Scheduled
Payment Date or the Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. Notwithstanding the foregoing, if an Event of Default should occur
and be continuing, then and in every such case the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Notes of the Controlling Note Class may declare all the Notes to be
immediately due and payable, by a notice in writing to Issuer (and to the
Indenture Trustee if given by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class B Notes will be made in accordance with the provisions
of the Indenture.
Payments of interest on this Note on each Payment Date, together with the
installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed first-
class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Final Scheduled Payment Date for such
Class (and except for the Redemption Price for any Note called for redemption
pursuant to Section 10.1(a) of the Indenture) which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.3 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default shall
have occurred and be continuing, if Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class have declared the Notes to be immediately
due and payable in the manner provided in Section 5.2 of the Indenture and, in
such event, all principal payments on each class of Notes shall be made pro rata
to the Noteholders of such class entitled thereto. Indenture Trustee shall
notify the Person in whose name a Note is registered at the close of business on
the Record Date preceding the Payment Date on which Issuer expects that the
final installment of principal of and interest on such Note will be paid. Such
notice shall be mailed or transmitted by facsimile prior to such final Payment
Date and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class B Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes, the
Class C Notes, the Class D Notes and the Class E Notes may be redeemed, in whole
but not in part, in the manner and to the extent described in the Indenture and
the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Seller, the Transferor, the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Seller, the Transferor or the Issuer, (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Transferor, the Seller,
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Seller 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 paragraph, a Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through Seller or any other Person owned by Seller, 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 Seller or any
other Person owned by Seller, then each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, 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 Seller 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 Seller or any other Person owned by Seller), 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
Noteholder or Note Owner, by its acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, 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 this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller, the Transferor or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, and franchise tax purposes,
the Notes will qualify as indebtedness secured by the Trust Estate. Each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of a beneficial interest in a Note), will be deemed to agree to treat the Notes
for federal, state and local income, single business and franchise tax purposes
as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Issuer and the Indenture Trustee to enter
into one or more supplemental indentures without the consent of the Noteholders
provided certain conditions are satisfied. The Indenture also contains
provisions permitting the Noteholders of Notes evidencing specified percentages
of the Outstanding Amount of the Controlling Note Class, on behalf of all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon
all future Noteholders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICTS OF
LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 200_
By: */____________________________
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 Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
EXHIBIT C
FORM OF CLASS C NOTE
REGISTERED
$[___________] ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. ▇-▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ AG 2
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
ACE RV AND MARINE TRUST 2001-RV1
6.85% CLASS C ASSET BACKED NOTES
ACE RV and Marine Trust 2001-RV1, a Delaware business trust (herein
referred to as the "Issuer"), for value received, hereby promises to pay to CEDE
& CO., or registered assigns, the principal sum of [____________] DOLLARS
($[____________]) payable on each Payment Date in an amount equal to the
aggregate amount, if any, payable to Noteholders of Class C Notes on such
Payment Date from the Principal Distribution Account in respect of principal on
the Class C Notes pursuant to Section 3.1 of the Indenture dated as of June 1,
2001 (as from time to time amended, supplemented or otherwise modified and in
effect, the "Indenture"), between the Issuer and The Chase Manhattan Bank, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided, however,
that the entire unpaid principal amount of this Note shall be due and payable on
the earlier of the September 2021 Payment Date (the "Class C Final Scheduled
Payment Date") and the Redemption Date, if any, pursuant to Section 10.1(a) of
the Indenture. Capitalized terms used but not defined herein are defined in
Article I of the Indenture, which also contains rules as to construction that
shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid, or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the twentieth day of the calendar month immediately preceding
such Payment Date (or, in the case of the initial Payment Date, from the Closing
Date) to but excluding the twentieth day of the following calendar month.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: [____________]
ACE RV AND MARINE TRUST 2001-RV1
By: U.S. Bank Trust National Association,
as Owner Trustee of ACE RV and Marine Trust
2001-RV1
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Notes designated above and referred to in the
within-mentioned Indenture.
Date: ______________ __, 2001
[__________________], not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 6.85% Class C Asset Backed Notes (the "Class C Notes") which,
together with the Issuer's 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, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes, the "Class A Notes"), 6.61% Class B
Asset Backed Notes (the "Class B Notes"), 7.58% Class D Asset Backed Notes (the
"Class D Notes") and 8.70% Class E Asset Backed Notes (the "Class E Notes" and,
together with the Class A Notes, the Class B Notes, the Class C Notes, the Class
D Notes, the "Notes"), are issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class C Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
C Notes are subordinated in right of payment to the Class A Notes and the Class
B Notes and are senior in right of payment to the Class D Notes and the Class E
notes, each as and to the extent provided in the Indenture.
Principal of the Class C Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth day of
each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing July 2001. All principal payments on the Class C Notes
shall be made pro rata to the Class C Noteholders entitled thereto.
As described on the face hereof, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Class C Final Scheduled
Payment Date and the Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. Notwithstanding the foregoing, if an Event of Default should occur
and be continuing, then and in every such case the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Notes of the Controlling Note Class may declare all the Notes to be
immediately due and payable, by a notice in writing to Issuer (and to the
Indenture Trustee if given by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class C Notes will be made in accordance with the provisions
of the Indenture.
Payments of interest on this Note on each Payment Date, together with the
installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed first-
class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Final Scheduled Payment Date for such
Class (and except for the Redemption Price for any Note called for redemption
pursuant to Section 10.1(a) of the Indenture) which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.3 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default shall
have occurred and be continuing, if Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class have declared the Notes to be immediately
due and payable in the manner provided in Section 5.2 of the Indenture and, in
such event, all principal payments on each class of Notes shall be made pro rata
to the Noteholders of such class entitled thereto. Indenture Trustee shall
notify the Person in whose name a Note is registered at the close of business on
the Record Date preceding the Payment Date on which Issuer expects that the
final installment of principal of and interest on such Note will be paid. Such
notice shall be mailed or transmitted by facsimile prior to such final Payment
Date and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class C Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes, the
Class C Notes, the Class D Notes and the Class E Notes may be redeemed, in whole
but not in part, in the manner and to the extent described in the Indenture and
the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Seller, the Transferor, the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Seller, the Transferor or the Issuer, (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Transferor, the Seller,
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Seller 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 paragraph, a Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through Seller or any other Person owned by Seller, 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 Seller or any
other Person owned by Seller, then each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, 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 Seller 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 Seller or any other Person owned by Seller), 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
Noteholder or Note Owner, by its acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, 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 this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller, the Transferor or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, and franchise tax purposes,
the Notes will qualify as indebtedness secured by the Trust Estate. Each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of a beneficial interest in a Note), will be deemed to agree to treat the Notes
for federal, state and local income, single business and franchise tax purposes
as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Issuer and the Indenture Trustee to enter
into one or more supplemental indentures without the consent of the Noteholders
provided certain conditions are satisfied. The Indenture also contains
provisions permitting the Noteholders of Notes evidencing specified percentages
of the Outstanding Amount of the Controlling Note Class, on behalf of all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon
all future Noteholders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICTS OF
LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_____________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 200_
By: */______________________________
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 Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
EXHIBIT D
FORM OF CLASS D NOTE
REGISTERED
$[___________] ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. ▇-▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ AH 0
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
ACE RV AND MARINE TRUST 2001-RV1
7.58% CLASS D ASSET BACKED NOTES
ACE RV and Marine Trust 2001-RV1, a Delaware business trust (herein
referred to as the "Issuer"), for value received, hereby promises to pay to CEDE
& CO., or registered assigns, the principal sum of [____________] DOLLARS
($[____________]) payable on each Payment Date in an amount equal to the
aggregate amount, if any, payable to Noteholders of Class D Notes on such
Payment Date from the Principal Distribution Account in respect of principal on
the Class D Notes pursuant to Section 3.1 of the Indenture dated as of June 1,
2001 (as from time to time amended, supplemented or otherwise modified and in
effect, the "Indenture"), between the Issuer and The Chase Manhattan Bank, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided, however,
that the entire unpaid principal amount of this Note shall be due and payable on
the earlier of the September 2021 Payment Date (the "Class D Final Scheduled
Payment Date") and the Redemption Date, if any, pursuant to Section 10.1(a) of
the Indenture. Capitalized terms used but not defined herein are defined in
Article I of the Indenture, which also contains rules as to construction that
shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid, or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the twentieth day of the calendar month immediately preceding
such Payment Date (or, in the case of the initial Payment Date, from the Closing
Date) to but excluding the twentieth day of the following calendar month.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: [____________]
ACE RV AND MARINE TRUST 2001-RV1
By: U.S. Bank Trust National Association,
as Owner Trustee of ACE RV and Marine Trust
2001-RV1
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Notes designated above and referred to in the
within-mentioned Indenture.
Date: ______________ __, 2001
[__________________], not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 7.58% Class D Asset Backed Notes (the "Class D Notes") which,
together with the Issuer's 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, the Class A-2 Notes, the
Class A-3 Notes and the 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 8.70% Class E Asset Backed Notes (the "Class E Notes" and,
together with the Class A Notes, the Class B Notes, the Class C Notes, the Class
D Notes, the "Notes"), are issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class D Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
D Notes are subordinated in right of payment to the Class A Notes, Class B Notes
and the Class C Notes, and senior in right of payment to the Class E Notes, as
and to the extent provided in the Indenture.
Principal of the Class D Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth day of
each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing July 2001. All principal payments on the Class D Notes
shall be made pro rata to the Class D Noteholders entitled thereto.
As described on the face hereof, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Class D Final Scheduled
Payment Date and the Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. Notwithstanding the foregoing, if an Event of Default should occur
and be continuing, then and in every such case the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Notes of the Controlling Note Class may declare all the Notes to be
immediately due and payable, by a notice in writing to Issuer (and to the
Indenture Trustee if given by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class D Notes will be made in accordance with the provisions
of the Indenture.
Payments of interest on this Note on each Payment Date, together with the
installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed first-
class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Final Scheduled Payment Date for such
Class (and except for the Redemption Price for any Note called for redemption
pursuant to Section 10.1(a) of the Indenture) which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.3 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default shall
have occurred and be continuing, if Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class have declared the Notes to be immediately
due and payable in the manner provided in Section 5.2 of the Indenture and, in
such event, all principal payments on each class of Notes shall be made pro rata
to the Noteholders of such class entitled thereto. Indenture Trustee shall
notify the Person in whose name a Note is registered at the close of business on
the Record Date preceding the Payment Date on which Issuer expects that the
final installment of principal of and interest on such Note will be paid. Such
notice shall be mailed or transmitted by facsimile prior to such final Payment
Date and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class D Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes, the
Class C Notes, the Class D Notes and the Class E Notes may be redeemed, in whole
but not in part, in the manner and to the extent described in the Indenture and
the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Seller, the Transferor, the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Seller, the Transferor or the Issuer, (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Transferor, the Seller,
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Seller 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 paragraph, a Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through Seller or any other Person owned by Seller, 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 Seller or any
other Person owned by Seller, then each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, 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 Seller 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 Seller or any other Person owned by Seller), 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
Noteholder or Note Owner, by its acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, 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 this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller, the Transferor or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, and franchise tax purposes,
the Notes will qualify as indebtedness secured by the Trust Estate. Each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of a beneficial interest in a Note), will be deemed to agree to treat the Notes
for federal, state and local income, single business and franchise tax purposes
as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Issuer and the Indenture Trustee to enter
into one or more supplemental indentures without the consent of the Noteholders
provided certain conditions are satisfied. The Indenture also contains
provisions permitting the Noteholders of Notes evidencing specified percentages
of the Outstanding Amount of the Controlling Note Class, on behalf of all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon
all future Noteholders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICTS OF
LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_____________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 200_
By: */______________________________
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 Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
EXHIBIT E
FORM OF CLASS E NOTE
REGISTERED
$[___________] ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. ▇-▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ AJ 6
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES OR "BLUE SKY" LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE BENEFIT OF THE ISSUER
THAT SUCH NOTE IS BEING ACQUIRED FOR ITS OWN ACCOUNT AND NOT WITH A VIEW TO
DISTRIBUTION AND MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY (1) TO THE ISSUER
(UPON REDEMPTION THEREOF OR OTHERWISE), (2) TO A PERSON THE TRANSFEROR
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (3) IN A TRANSACTION
COMPLYING WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER JURISDICTION.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS NOTE OR INTEREST THEREIN MAY NOT 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 NOTE MAY NOT BE ACQUIRED BY A NON-U.S. PERSON.
ACE RV AND MARINE TRUST 2001-RV1
8.70% CLASS E ASSET BACKED NOTES
ACE RV and Marine Trust 2001-RV1, a Delaware business trust (herein
referred to as the "Issuer"), for value received, hereby promises to pay to
______________________, the principal sum of [____________] DOLLARS
($[____________]) payable on each Payment Date in an amount equal to the
aggregate amount, if any, payable to Noteholders of Class E Notes on such
Payment Date from the Principal Distribution Account in respect of principal on
the Class E Notes pursuant to Section 3.1 of the Indenture dated as of June 1,
2001 (as from time to time amended, supplemented or otherwise modified and in
effect, the "Indenture"), between the Issuer and The Chase Manhattan Bank, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided, however,
that the entire unpaid principal amount of this Note shall be due and payable on
the earlier of the September 2021 Payment Date (the "Class E Final Scheduled
Payment Date") and the Redemption Date, if any, pursuant to Section 10.1(a) of
the Indenture. Capitalized terms used but not defined herein are defined in
Article I of the Indenture, which also contains rules as to construction that
shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid, or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the twentieth day of the calendar month immediately preceding
such Payment Date (or, in the case of the initial Payment Date, from the Closing
Date) to but excluding the twentieth day of the following calendar month.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: [____________]
ACE RV AND MARINE TRUST 2001-RV1
By: U.S. Bank Trust National Association,
as Owner Trustee of ACE RV and Marine Trust
2001-RV1
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Notes designated above and referred to in the
within-mentioned Indenture.
Date: ______________ __, 2001
[__________________], not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 8.70% Class E Asset Backed Notes (the "Class E Notes") which,
together with the Issuer's 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, the Class A-2 Notes, the
Class A-3 Notes and the 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" and,
together with the Class A Notes, the Class B Notes, the Class C Notes, the Class
E Notes, the "Notes"), are issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class E Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
E Notes are subordinated in right of payment to the Class A Notes, the Class B
Notes, the Class C Notes and the Class D Notes, as and to the extent provided in
the Indenture.
Principal of the Class E Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth day of
each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing July 2001. All principal payments on the Class E Notes
shall be made pro rata to the Class E Noteholders entitled thereto.
As described on the face hereof, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Class E Final Scheduled
Payment Date and the Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. Notwithstanding the foregoing, if an Event of Default should occur
and be continuing, then and in every such case the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Notes of the Controlling Note Class may declare all the Notes to be
immediately due and payable, by a notice in writing to Issuer (and to the
Indenture Trustee if given by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class E Notes will be made in accordance with the provisions
of the Indenture.
Payments of interest on this Note on each Payment Date, together with the
installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed first-
class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except for the final installment of principal
payable with respect to such Note on a Payment Date or on the Final Scheduled
Payment Date for such Class (and except for the Redemption Price for any Note
called for redemption pursuant to Section 10.1(a) of the Indenture) which shall
be payable as provided below. The funds represented by any such checks returned
undelivered shall be held in accordance with Section 3.3 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable, if not previously paid, on the date on which an Event
of Default shall have occurred and be continuing, if Indenture Trustee or the
Holders of the Notes representing not less than a majority of the Outstanding
Amount of the Notes of the Controlling Note Class have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture and, in such event, all principal payments on each class of Notes
shall be made pro rata to the Noteholders of such class entitled thereto.
Indenture Trustee shall notify the Person in whose name a Note is registered at
the close of business on the Record Date preceding the Payment Date on which
Issuer expects that the final installment of principal of and interest on such
Note will be paid. Such notice shall be mailed or transmitted by facsimile prior
to such final Payment Date and shall specify that such final installment will be
payable only upon presentation and surrender of such Note and shall specify the
place where such Note may be presented and surrendered for payment of such
installment. Notices in connection with redemptions of Notes shall be mailed to
Noteholders as provided in Section 10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class E Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes, the
Class C Notes, the Class D Notes and the Class E Notes may be redeemed, in whole
but not in part, in the manner and to the extent described in the Indenture and
the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Seller, the Transferor, the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Seller, the Transferor or the Issuer, (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Transferor, the Seller,
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Seller 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 paragraph, a Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through Seller or any other Person owned by Seller, 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 Seller or any
other Person owned by Seller, then each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, 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 Seller 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 Seller or any other Person owned by Seller), 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
Noteholder or Note Owner, by its acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, 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 this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller, the Transferor or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, and franchise tax purposes,
the Notes will qualify as indebtedness secured by the Trust Estate. Each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of a beneficial interest in a Note), will be deemed to agree to treat the Notes
for federal, state and local income, single business and franchise tax purposes
as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Issuer and the Indenture Trustee to enter
into one or more supplemental indentures without the consent of the Noteholders
provided certain conditions are satisfied. The Indenture also contains
provisions permitting the Noteholders of Notes evidencing specified percentages
of the Outstanding Amount of the Controlling Note Class, on behalf of all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon
all future Noteholders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICTS OF
LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_____________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
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(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 200_
By: */______________________________
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 Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.