Execution Copy
TRUST AGREEMENT
TRUST AGREEMENT made as of the 7th day of March, 2002, by and between
Credit And Asset Repackaging Vehicle Corporation, as depositor (the
"Depositor"), and Xxxxx Fargo Bank Minnesota, National Association, as trustee
(the "Trustee"), consisting of this agreement and Schedules I, II and III
attached hereto, which Schedules are made a part hereof and are hereinafter
referred to collectively as the "Terms Schedule". The terms of the Standard
Terms for Trust Agreements, dated September 5, 2001 (the "Standard Terms"),
agreed between the Depositor and the Trustee are, except to the extent otherwise
expressly specified herein, hereby incorporated by reference herein in their
entirety with the same force and effect as though set forth herein. Capitalized
terms used and not otherwise defined herein shall have the meanings assigned to
them in the Standard Terms. The words "herein", "hereof", "hereunder", "this
Trust Agreement" and other words of similar import refer to this agreement
including the Terms Schedule and the Standard Terms so incorporated by
reference.
WHEREAS, the Depositor and the Trustee desire to establish the trust
identified in Schedule I attached hereto (the "Trust") for the primary purposes
of (i) holding the Securities, (ii) entering into the Swap Agreement with the
Swap Counterparty, and (iii) issuing the Certificates;
WHEREAS, the Depositor desires that the beneficial interests in the
Trust be divided into transferable fractional shares, such shares to be
represented by the Certificates;
WHEREAS, the Depositor desires to appoint the Trustee as trustee of the
Trust and the Trustee desires to accept such appointment;
WHEREAS, the Depositor desires to transfer to the Trust, without
recourse, and the Trust desires to acquire, all of the Depositor's right, title
and interest in, to and under the Securities (excluding the Retained Interest)
and other property, all as identified in Schedule II to the Trust Agreement (the
"Trust Property"); and
WHEREAS, the Trust desires to acquire the Trust Property specified
herein in consideration for issuing Certificates having an initial Principal
Balance (or Notional Amount, as applicable) identified in Schedule I attached
hereto, subject to the terms and conditions specified in the Trust Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties hereto hereby agree
as follows:
1. The Depositor hereby appoints the Trustee as trustee of the Trust and
requests the Trustee to receive (i) the Securities (excluding the Retained
Interest) and any related documents, (ii) the Swap Agreement, (iii) the Swap
Guarantee and (iv) the documents specified in the Swap Agreement (in Part 3 of
the Schedule to the ISDA Master Agreement).
2. The Trustee hereby accepts the appointment referred to in Section 1 and
declares that it will hold the assets referred to in Section 1 and all other
assets comprising the Trust Property in trust, for the exclusive use and benefit
of all present and future Certificateholders and for the purposes and subject to
the terms and conditions set forth in the Trust Agreement.
3. The Trustee hereby agrees, as agent for and on behalf of the Depositor, to
prepare, deliver to the Depositor for signature, and file after receiving such
signature, each of the Exchange Act Reports referred to in Section 6.04(a)
(other than the current report or reports on Form 8-K to be filed in connection
with the execution and delivery of the Trust Agreement, the Swap Agreement, the
Swap Guarantee), within such time periods (and, if applicable, in such
circumstances) prescribed therefor by the Commission under the Exchange Act. In
this connection, the Depositor agrees to furnish the Trustee with such
information not otherwise available to the Trustee as may be required to
prepare, deliver or file any of the Exchange Act Reports in accordance with the
immediately preceding sentence.
4. It is intended that the Trust be classified as a grantor trust for U.S.
federal income tax purposes and the Trustee hereby agrees, and each
Certificateholder by acquiring one or more Certificates agrees, to take no
action or reporting position that is inconsistent with such classification.
Furthermore, the Trustee hereby agrees, and each initial Certificateholder by
acquiring one or more Certificates agrees (i) that, as of the Closing Date, the
Trustee shall make an election (an "Integration Election"), as agent for and on
behalf of such Certificateholder, pursuant to U.S. Treasury Regulations Section
1.1275-6 to integrate the Securities with the Swap Agreement for all U.S.
federal income tax purposes and (ii) to treat each Certificate purchased by an
initial Certificateholder as subject to the Integration Election for all U.S.
tax purposes.
5. This Trust Agreement and each Certificate issued hereunder shall be governed
by, and construed in accordance with, the laws of the State of New York.
The Federal and State courts in the Borough of Manhattan in The City of
New York shall have non-exclusive jurisdiction in respect of any Proceeding
arising out of or relating to this Trust Agreement or any Certificate.
6. This Trust Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, each of the Depositor and the Trustee has caused
this instrument to be executed by its duly authorized officer as of the date
first written above.
CREDIT AND ASSET REPACKAGING
VEHICLE CORPORATION, as Depositor
By: /s/ Xxxxx Xxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxx Xxxxxxx
Title: Secretary and Vice President
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee on
behalf of the Trust identified in Schedule I
hereto, and not in its individual capacity
By: /s/ Xxxxx XxXxxxxx
------------------------------------
Name: Xxxxx XxXxxxxx
Title: Vice President
Attachments: Terms Schedule (consisting of Schedules I, II and III)
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SCHEDULE I
(Terms of Trust and Certificates)
Trust: Public Credit and Repackaged
Securities(SM) (PCARS)(SM) Trust Series
2002-1
Date of Trust Agreement: March 7, 2002
Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Notional Amount: $29,571,825
Issue Price: 100%
Par Value;
Minimum Denomination: $25
Closing Date: March 7, 2002
Business Day: Each day on which commercial banks are
open for business in The City of New York
Interest Rate: 7.5% per annum
If any payment of interest payable
hereunder is deferred, interest will
accrue on such deferred payment at a rate
of 7.5% per annum, compounded
semi-annually.
Payments of interest on the Certificates
will be calculated on the basis of a
360-day year consisting of twelve 30-day
months. No adjustment will be made with
respect to interest payable on the
Certificates for Distribution Dates that
occur on a date other than the scheduled
date therefor.
Calculation Agent: Swap Calculation Agent
Rating: "A3" by Xxxxx'x and "BBB" by S&P
Rating Agencies: Xxxxx'x and S&P
Method of Distribution: Firm commitment underwriting
I-1
Distribution Dates: The first day of each June and December,
commencing on June 1, 2002, subject to
deferral if and for as long as
distributions on the Securities are
deferred in accordance with the terms
thereof.
If any payment with respect to the
Securities is not received by the Trustee
by 12 noon (New York City time) on a
Distribution Date, the corresponding
distribution on the Certificates will not
occur until the next Business Day that the
Trust is in receipt of such payment by 12
noon (New York City time), with no
adjustment to the amount distributed.
Record Dates: With respect to any Distribution Date, the
15th day of the month immediately
preceding such Distribution Date,
regardless of whether such day is a
Business Day and notwithstanding any
adjustment to the related Distribution
Date due to such Distribution Date falling
on a day other than a Business Day.
Scheduled Final Distribution Date: December 1, 2026
Form of Certificate: Global, Registered
Alternative ERISA Restrictions: Do Not Apply
Deemed Representations: Apply
Trigger Amount: $25,000
Maximum Reimbursable Amount: $150,000
Exchangeable Series Terms: Not applicable
Depositor Optional Exchange: Not applicable
Retained Interest: The Depositor's right to receive the
aggregate amount of all distributions on
the Securities in respect of the period
from and including December 1, 2001 to but
excluding March 7, 2002. These accumulated
distributions will be paid to the
Depositor, or upon its direction, on the
first Distribution Date for the
Certificates, from the first distribution
payment made in respect of the
I-2
Securities after the Closing Date.
Callable Series: No (but see "Redemption of Certificates"
below)
Redemption of Certificates: If there is a partial redemption of
Securities, a pro rata share of the
Principal Balance corresponding to the pro
rata share of the Securities being
redeemed shall be redeemed in accordance
with the following provisions; provided
that, if such pro rata share of the
Principal Balance would otherwise be a
number that is not evenly divisible by
$25, such pro rata share shall be rounded
down to the next number that is evenly
divisible by $25. Promptly after receiving
notice of such partial redemption of
Securities, the Trustee shall allocate the
number of Certificates to be redeemed
ratably based on the aggregate Principal
Balance of Certificates then held by each
holder of Certificates, and shall notify
each holder of the Principal Balance of
Certificates to be redeemed from that
holder. The selected Certificates shall
become redeemable without any further
action on the part of the Trustee or the
Certificateholders upon receipt by the
Trustee of the proceeds from the related
partial redemption of Securities. In
respect of the Certificates being
redeemed, each holder shall receive, out
of the redemption proceeds and any payment
under the Swap Agreement (as defined in
Schedule III), an amount equal to 100% of
the aggregate Principal Balance of the
Certificates held by it that are being
redeemed, together with any accrued and
unpaid interest on those Certificates. No
premium shall be paid on any redeemed
Certificates.
Issuance of Additional Certificates: Not applicable
Listing: The Certificates have been approved,
subject to issuance, for listing on the
New York Stock Exchange under the symbol
"GRH".
Other Provisions: The Trust Wind-Up Event specified in
clause (e) of Section 9.01 of the Standard
Terms shall not apply.
I-3
SCHEDULE II
(Terms of Trust Property)
Concentrated Securities: KeyCorp Institutional Capital A 7.826%
Capital Securities, representing preferred
beneficial interests in KeyCorp
Institutional Capital A, a statutory
business trust formed under the laws of
the State of Delaware for the purpose of,
among other things, investing in 7.826%
Junior Subordinated Deferrable Interest
Debentures (the "Junior Subordinated
Debentures") issued by the Security
Guarantor
Other Securities: None
Security Issuer: KeyCorp Institutional Capital A
Security Guarantor: The Security Issuer's obligations under
the Securities are fully and
unconditionally guaranteed, on a
subordinated basis and subject to
specified limitations, by KeyCorp.
Liquidation Amount: $28,340,000
Security Rate: 7.826%
Current Credit Ratings: "A3" by Xxxxx'x, "BBB" by S&P and "A-" by
Fitch Ratings
Listing: None
Security Issuance Agreement: Amended and Restated Trust Agreement,
dated as of December 4, 1996, among the
Security Guarantor, as Depositor, Bankers
Trust Company, as Property Trustee,
Bankers Trust (Delaware), as Delaware
Trustee and the holders, from time to
time, of the undivided beneficiary
interests in the assets of the Security
Issuer.
Form of Security: One or more registered global certificates
Currency of Denomination: U.S. Dollars
Acquisition Price by Trust: Certificates having an initial Principal
Balance of $29,571,825.
II-1
Security Payment Dates: Each June 1 and December 1
In the event of any election by the
Security Guarantor to defer payment of
interest on the Junior Subordinated
Debentures, the Security Issuer will defer
payment of distributions on the Securities
for a period not exceeding 10 consecutive
semi-annual periods, with respect to each
deferral period, except that no such
deferral period may extend beyond the
Maturity Date (as defined below).
Original Issue Date: On March 5, 1997
Maturity Date: December 1, 2026
Sinking Fund Terms: Not applicable
Redemption Terms: On December 1, 2026, the stated maturity
date of the Junior Subordinated
Debentures. In addition: (i) at any time
in whole but not in part,
contemporaneously with the prepayment of
the Junior Subordinated Debentures, upon
the occurrence of certain events specified
in the Security Issuance Agreement; and
(ii) in whole at any time or in part from
time to time on or after December 1, 2006
subject to payment of the applicable
redemption price by the Security
Guarantor.
CUSIP No.: CUSIP No. 493265ac6
Security Trustee: Bankers Trust Company, as Property
Trustee, and Bankers Trust (Delaware), as
Delaware Trustee.
Available Information Regarding the The Security Guarantor is subject to the
Security Issuer: informational requirements of the Exchange
Act, and in accordance therewith files,
reports and other information with the
Securities and Exchange Commission (the
"Commission"). Such reports and other
information can be inspected and copied at
the public reference facilities maintained
by the Commission at 000 Xxxxx Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000 and at the
Regional Office of the Commission, at
Northwest Atrium Center, 000 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000. Copies of
such materials can be obtained from the
Public Reference Section of the Commission
at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx,
XX-0
X.X. 00000 at prescribed rates. The
Security Issuer is exempt from the
informational requirements of the Exchange
Act.
Cut-Off Date: Not applicable
Credit Support: None
Credit Support Default: Not applicable
Other Trust Property: None
II-3
SCHEDULE III
(Swap Agreement)
Swap Agreement: A confirmation in the form of Exhibit A
hereto, evidencing an obligation of the
Swap Counterparty to pay a certain amount
to the Trust in the case of a Trust
Wind-Up Event or a redemption of the
Securities (the "Swap Agreement"), as well
as (i) any amendments to, or restatements
of, such agreement and (ii) any additional
swap agreements entered into in connection
with any additional issuance of
Certificates.
Swap Counterparty: Xxxxxxx Xxxxx Capital Markets, L.P.
Swap Guarantee: The Xxxxxxx Sachs Group, Inc. will
guarantee the obligations of the Swap
Counterparty under the Swap Agreement
under a guarantee dated the date hereof.
III-1
EXHIBIT A
Execution Copy
XXXXXXX XXXXX CAPITAL MARKETS, L.P. | 00 XXXXX XXXXXX x XXX XXXX, XXX XXXX
00000 | TEL: 000-000-0000
--------------------------------------------------------------------------------
CONFIRMATION
DATE: March 7, 2002
TO: Public Credit and Repackaged Securities(SM) (PCARS)(SM) Trust
Series 2002-1
FROM: Xxxxxxx Xxxxx Capital Markets, L.P.
SUBJECT: Par Value Swap Transaction
REF. NO.: NUUS202RA0 (860000000)
The purpose of this communication is to set forth the terms and conditions of
the above referenced transaction entered into on the Trade Date specified below
(the "Transaction") between Xxxxxxx Sachs Capital Markets, L.P. ("Party A"),
guaranteed by The Xxxxxxx Xxxxx Group, Inc., and Public Credit and Repackaged
Securities(SM) (PCARS)(SM) Trust Series 2002-1 ("Party B" and, together with
Party A, the "Parties"). Party B was formed pursuant to a Trust Agreement, dated
as of the date hereof (the "Trust Agreement"), between Credit and Repackaging
Vehicle Corporation, as depositor, and Xxxxx Fargo Bank Minnesota, National
Association, as trustee. This communication constitutes a "Confirmation" as
referred to in the Swap Agreement specified below.
1. This Confirmation is subject to, and incorporates, the 2000 ISDA Definitions
(the "Definitions"), published by the International Swaps and Derivatives
Association, Inc. This Confirmation supplements, forms a part of and is subject
to the ISDA Master Agreement dated as of the date hereof, as amended and
supplemented from time to time (the "Swap Agreement") between Party A and Party
B. All provisions contained in, or incorporated by reference into, the Swap
Agreement shall govern this Confirmation except as expressly modified below. In
the event of any inconsistency between this Confirmation, the Definitions or the
Swap Agreement, as the case may be, this Confirmation will control for purposes
of the Transactions to which this Confirmation relates.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Fixed Amount Payer A: Party A
Fixed Amount Payer B: Party B
Trade Date: February 21, 2002
Effective Date: Xxxxx 0, 0000
Xxxxxxxxxxx Date: December 1, 2026
Notional Amount: USD 1,231,825, as reduced from time to
time by the aggregate amount of any
Redemption Notional Amounts.
Business Days: New York City
Calculation Agent: Party A
Party B Fixed Amount:
Party B Fixed Amount: USD 258,386
Party B Payment Date: Effective Date
Party A Fixed Amounts:
Party A Fixed Amounts: Subject to the following two paragraphs,
the Party A Fixed Amount payable on any
Early Termination Date shall equal the
Notional Amount, multiplied by a factor
(i) the numerator of which is equal to the
amount of the proceeds from the sale of
the Securities then held by Party B
pursuant to Section 9.03 of the Trust
Agreement (if any) net of the aggregate
amount of distributions on the Securities
representing the Retained Interest (if
any) and (ii) the denominator of which is
equal to the aggregate liquidation amount
of the Securities then held by Party B;
provided that under no circumstances shall
such factor be greater than one.
The Party A Fixed Amount payable on the
date of any Securities Redemption related
to a "tax event" or "capital treatment
event" under the Securities shall equal
the Notional Amount.
The Party A Fixed Amount payable on the
date of any Securities Redemption
unrelated to a "tax event" or "capital
treatment event" under the Securities
shall equal the Redemption Notional Amount
minus the difference of (i) the amount
paid by the issuer of the Securities to
the Trust in connection with such
Securities Redemption (net of any
accumulated distributions on the
Securities being redeemed) and (ii) the
aggregate liquidation amount of the
Securities then held by Party B that is
subject to such Securities Redemption.
Party A Payment Dates: (i) Any Early Termination Date, and (ii)
the date or dates of any Securities
Redemption that does not result in an
Early Termination Date.
Additional Amounts: On any Party A Payment Date other than the
date of any Securities Redemption
unrelated to a "tax event" or "capital
treatment event" under the Securities, in
consideration of the obligations of Party
A hereunder, an amount (if positive) equal
to (i) any amounts received by Party B as
proceeds from the related sale or
redemption (as applicable) of Securities
then held by Party B net of the aggregate
amount of distributions on the Securities
representing the Retained Interest (if
any), minus (ii) the aggregate liquidation
amount of the Securities being sold or
redeemed (as applicable), minus (iii) , in
the case of a Securities Redemption, the
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amount of any accumulated distributions on
the Securities being redeemed (other than
the aggregate amount of distributions on
the Securities representing the Retained
Interest, if any), shall be paid by Party
B to Party A.
Payments on Early Termination: Except as specified under "Party B Fixed
Amount", "Party A Fixed Amounts" and
"Additional Amounts" above, no payment
shall be payable in respect of this
Transaction by either Party in connection
with the occurrence of an Early
Termination Date.
Additional Definitions: "Securities" means the securities held by
Party B as trust property pursuant to the
Trust Agreement.
"Securities Redemption" means any
redemption of the Securities in whole or
in part by the issuer thereof, including
the scheduled redemption on the
Termination Date.
"Redemption Notional Amount" means (i) in
the event of a Securities Redemption with
respect to all of the Securities then held
by Party B, the Notional Amount and (ii)
in the event of a Securities Redemption
with respect to less than all of the
Securities then held by Party B, an amount
equal to the (A) the Notional Amount
(without giving effect to any reductions
after the date hereof), multiplied by (B)
the aggregate liquidation amount of
Securities then held by Party B that is
subject to such Securities Redemption,
divided by (C) USD 28,340,000.
"Retained Interest" means the aggregate
amount of all distributions on the
Securities in respect of the period from
and including December 1, 2001 to but
excluding March 7, 2002.
3. Account Details:
Payments to Party A:
For the Account of: Xxxxxxx Xxxxx Capital Markets, L.P.
Name of Bank: Citibank, N.A. New York
Account No: 40670834
ABA No: 021000089
Inquiries Swap Operations
Xxxxxxx Sachs Capital
Markets, L.P. Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Payments to Party B: In accordance with Party B's written
instructions as set forth below or
otherwise delivered to Party A. Party A
shall make no payments
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without having received (i) such written
instructions and (ii) a fully executed
facsimile copy of this Confirmation or
other written acceptance of the terms
hereof.
For the Account of : Corporate Trust Services
Name of Bank: Xxxxx Fargo Bank, Minneapolis, MN
Account No: 0000000000
ABA No.: 091000019
Attention: Xxxxxx X'Xxxxxxx
Ref.: PCARS/Keycorp Series 2002-1 (SEI#12308800)
4. Offices:
(i) The Office of Party A for this Transaction is 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000.
(ii) The Office of Party B for this Transaction is Xxxxx Fargo Bank
Minnesota, N.A., 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000.
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5. Party B hereby agrees (i) to check this Confirmation (Reference No.
NUUS202RA0 (860000000)) carefully and immediately upon receipt so that errors or
discrepancies can be promptly identified and rectified and (ii) to confirm that
the foregoing correctly sets forth the terms of the agreement between Party A
and Party B with respect to the particular Transaction to which this
Confirmation relates, by manually signing this Confirmation and providing the
other information requested herein and immediately returning an executed copy to
Swap Administration, facsimile No. 000-000-0000.
Very truly yours,
XXXXXXX SACHS CAPITAL MARKETS, L.P.
By: Xxxxxxx Xxxxx Capital Markets, L.L.C.
General Partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Agreed and Accepted By:
PUBLIC CREDIT AND REPACKAGED SECURITIES(SM)
(PCARS)(SM) TRUST SERIES 2002-1
By: Xxxxx Fargo Bank Minnesota, National
Association, as Trustee
By: /s/ Xxxxx XxXxxxxx
---------------------------------------
Name: Xxxxx XxXxxxxx
Title: Vice President
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