EXHIBIT 4.9
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CITIBANK CREDIT CARD ISSUANCE TRUST
TRUST AGREEMENT
dated as of [ ], 2000
among
CITIBANK (NEVADA), NATIONAL ASSOCIATION,
and
CITIBANK (SOUTH DAKOTA), N.A.,
as Beneficiaries,
and
THE BANK OF NEW YORK (DELAWARE),
as Trustee
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TABLE OF CONTENTS
ARTICLE I
Definitions
Page
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SECTION 1.01. Definitions...................................... 1
SECTION 1.02. Generic Terms.................................... 3
ARTICLE II
Organization;
Declaration of Trust by the Trustee
SECTION 2.01. Formation of Trust; Name........................ 4
SECTION 2.02. Transfer of Property to Trust; Initial
Capital Contribution of Trust Estate............ 4
SECTION 2.03. Purposes and Powers; Trust To Operate as
a Single Purpose Entity......................... 4
SECTION 2.04. Appointment of Trustee; Declaration of Trust by
the Trustee..................................... 7
SECTION 2.05. Title to Trust Estate........................... 7
SECTION 2.06. Nature of Interest in the Trust Estate.......... 7
SECTION 2.07. Situs of Trust.................................. 7
SECTION 2.08. Tax Matters..................................... 7
SECTION 2.09. Fiscal Year..................................... 8
ARTICLE III
Representations and Warranties of the Beneficiaries
SECTION 3.01. Representations and Warranties of the
Beneficiaries................................... 8
ARTICLE IV
Distributions of Funds
SECTION 4.01. Distribution of Funds............................ 9
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SECTION 4.02. Payments from Trust Estate Only.................. 9
SECTION 4.03. Method of Payment................................ 10
SECTION 4.04. Establishment of Account......................... 10
ARTICLE V
Duties of the Trustee
SECTION 5.01. Action Upon Instructions......................... 10
SECTION 5.02. No Duty to Act Under Certain Circumstances....... 11
SECTION 5.03. No Duties Except Under Specified Agreements or
Instructions..................................... 11
SECTION 5.04. Trust Operation.................................. 12
SECTION 5.05. Execution of Documents........................... 12
ARTICLE VI
Concerning the Trustee Bank
SECTION 6.01. Acceptance of Trust and Duties................... 13
SECTION 6.02. Furnishing of Documents.......................... 14
SECTION 6.03. Representations and Warranties as to the
Trust Estate..................................... 14
SECTION 6.04. Signature of Returns............................. 14
SECTION 6.05. Reliance; Advice of Counsel...................... 14
SECTION 6.06. Not Acting in Individual Capacity................ 15
SECTION 6.07. Representations and Warranties................... 15
ARTICLE VII
Termination of Trust Agreement
SECTION 7.01. Termination...................................... 16
SECTION 7.02. Certificate of Cancelation....................... 16
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Page
ARTICLE VIII
Successor Trustees, Co-Trustees
and Separate Trustees
SECTION 8.01. Resignation and Removal of the Trustee;
Appointment of Successors........................ 16
SECTION 8.02. Transfer Procedures.............................. 17
SECTION 8.03. Qualification of Trustee......................... 17
SECTION 8.04. Co-trustees and Separate Trustees................ 17
ARTICLE IX
Amendments
SECTION 9.01. Amendments....................................... 17
ARTICLE X
Ownership Interests and Certificates
SECTION 10.01. Issuance of Trust Certificates................... 18
SECTION 10.02. Beneficial Interest; Prohibitions on Transfer.... 18
SECTION 10.03. Lost or Destroyed Trust Certificate.............. 19
ARTICLE XI
Compensation of Trustee and Indemnification
SECTION 11.01. Trustee's Fees and Expenses...................... 19
SECTION 11.02. Indemnification.................................. 20
ARTICLE XII
Miscellaneous
SECTION 12.01. Conveyance by the Trustee is Binding............. 20
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Page
SECTION 12.02. Instructions; Notices............................ 21
SECTION 12.03. Severability..................................... 22
SECTION 12.04. Limitation of Liability.......................... 22
SECTION 12.05. Separate Counterparts............................ 22
SECTION 12.06. Successors and Assigns........................... 22
SECTION 12.07. Headings......................................... 23
SECTION 12.08. Governing Law.................................... 23
Exhibits
Exhibit A -- Form of Trust Certificate
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TRUST AGREEMENT dated as of [ ], 2000, among CITIBANK
(NEVADA), NATIONAL ASSOCIATION ("Citibank (Nevada)"),
CITIBANK (SOUTH DAKOTA), N.A. ("Citibank (South Dakota)"),
and THE BANK OF NEW YORK (DELAWARE), a Delaware banking
corporation, as owner trustee (the "Trustee").
In consideration of the mutual agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound hereby,
agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. (a) Capitalized terms used herein and not
defined herein have the meaning assigned to them in the Series 2000
Supplement. For purposes of this Agreement, the following terms have the
following meanings:
"Agreement" means this Trust Agreement.
"Beneficiaries" means Citibank (Nevada), Citibank (South Dakota) and
each Permitted Transferee and other transferee under Section 10.02.
"Beneficiary Percentage" means, (a) with respect to Citibank
(Nevada), [ ]%, and (b) with respect to Citibank (South Dakota), [ ]%;
provided, however, that (i) such percentages may be adjusted from time to time
upon notice by the Managing Beneficiary to the Trustee of such adjustment, and
(ii) the sum of the Beneficiary Percentages will always be 100%.
"Beneficiary Trust Account" means the account established by the
Trustee on behalf of the Trust in accordance with Section 4.04.
"Citibank (Nevada)" is defined in the preamble to this Agreement.
"Citibank (South Dakota)" is defined in the preamble to this
Agreement.
"Code" means the Internal Revenue Code of 1986, as it may be amended
from time to time.
"Deliveries" is defined in Section 12.02.
"Disqualification Event" with respect to the Trustee means (a) the
bankruptcy, insolvency or dissolution of the Trustee, (b) the occurrence of
the date of resignation of the Trustee, as set
forth in a notice of resignation given pursuant to Section 8.01, or (c) the
delivery to the Trustee of the instrument or instruments of removal referred
to in Section 8.01 (or, if such instruments specify a later effective date of
removal, the occurrence of such later date), or (d) failure of the Trustee to
qualify under the requirements of Section 8.03.
"Governmental Authority" means the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Indemnified Person" is defined in Section 11.02.
"Indenture" means the Indenture, between the Trust and the Indenture
Trustee, which by its terms is identified as being the Indenture referred to
herein, as amended, restated, supplemented or otherwise modified from time to
time.
"Indenture Trustee" means Bankers Trust Company as trustee under the
Indenture, and each successor trustee under the Indenture.
"Managing Beneficiary" means the Beneficiary selected by the
Beneficiaries holding a majority of the Beneficiary Percentages. Initially,
Citibank (South Dakota) will be the Managing Beneficiary.
"Master Trust" means Citibank Credit Card Master Trust I.
"Note" is defined in the Indenture.
"Ownership Interest" means the Ownership Interests issued by the
Trust hereunder with the rights and privileges set forth in Section 10.01.
"Person" means any legal person, including any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, governmental entity or other entity of
similar nature.
"Periodic Filing" means any filing or submission that the Trust is
required to make with any federal, state or local authority or regulatory
agency.
"Permitted Transferee" is defined in Section 10.02.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement, dated as of May 29, 1991, among Citibank (Nevada) and Citibank
(South Dakota) as Sellers, Citibank (South Dakota) as Servicer, and Bankers
Trust Company as Trustee, as amended, restated, supplemented or otherwise
modified from time to time, including as supplemented by the Series 2000
Supplement.
"Rating Agency" is defined in the Indenture.
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"Requirement of Law" means any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, whether Federal,
state or local, and, when used with respect to any Person, the certificate of
incorporation and by-laws or other charter or governing documents of such
Person.
"Securities Act" means the Securities Act of 1933, as amended.
"Sellers' Interest" is defined in the Pooling and Servicing
Agreement.
"Series 2000 Certificate" is defined in the Series 2000 Supplement.
"Series 2000 Supplement" means the Series 2000 Supplement relating
to the Pooling and Servicing Agreement, which by its terms is identified as
being the Series 2000 Supplement referred to herein, as amended, restated,
supplemented or otherwise modified from time to time.
"Trust" means the trust established by this Agreement.
"Trust Certificate" is defined in Section 10.01.
"Trust Estate" is defined in Section 2.04.
"Trustee" means The Bank of New York (Delaware), a Delaware banking
corporation not in its individual capacity but solely in its capacity as owner
trustee hereunder, and each successor trustee under Article VIII, in its
capacity as owner trustee hereunder, and each co-trustee under and to the
extent provided in Section 8.04, in its capacity as owner trustee hereunder.
"Trustee Bank" means The Bank of New York (Delaware) in its
individual capacity, each bank appointed as successor Trustee under Article
VIII in its individual capacity and each bank appointed as co-trustee under
and to the extent provided in Section 8.04 in its individual capacity.
SECTION 1.02. Generic Terms. (a) The terms "hereby", "hereof",
"hereto", "herein", "hereunder" and any similar terms will refer to this
Agreement.
(b) Unless otherwise indicated in context, the terms "Article",
"Section", "Exhibit" or "Schedule" will refer to an Article or Section of, or
an Exhibit or Schedule to, this Agreement.
(c) Words of the masculine, feminine or neuter gender mean and
include the correlative words of other genders, and words importing the
singular number mean and include the plural number and vice versa.
(d) The terms "include", "including" and similar terms will be
construed as if followed by the phrase "without limitation".
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(e) All terms defined in this Agreement will have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto or in connection herewith unless otherwise defined therein.
(f) Any agreement, instrument or statute defined or referred to
herein or in any certificate or other document made or delivered pursuant
hereto or in connection herewith means such agreement, instrument or statute
as from time to time amended, modified or supplemented and includes (in the
case of agreements or instruments) references to all attachments thereto and
instruments incorporated therein; references to a Person are also to its
permitted successors and assigns.
ARTICLE II
Organization;
Declaration of Trust by the Trustee
SECTION 2.01. Formation of Trust; Name. The Trust is hereby formed,
to be named "Citibank Credit Card Issuance Trust ", under which name the
Trustee may conduct any activities and business of the Trust contemplated
hereby, execute contracts and other instruments on behalf of the Trust and xxx
and be sued on behalf of the Trust.
SECTION 2.02. Transfer of Property to Trust; Initial Capital
Contribution of Trust Estate. Each Beneficiary hereby sells, assigns, grants
and transfers, over to the Trustee, as of the date hereof, $1.00. The Trustee
hereby acknowledges receipt in trust from the Beneficiaries, as of the date
hereof, of the foregoing contribution, which shall constitute the initial
Trust Estate.
SECTION 2.03. Purposes and Powers; Trust To Operate as a Single
Purpose Entity. (a) The purpose of the Trust is to engage solely in a program
of acquiring interests in the Master Trust and issuing Notes under the
Indenture and related activities. Without limiting the generality of the
foregoing, the Trust may and shall have the power and authority to:
(i) acquire from Citibank (Nevada) and Citibank (South Dakota) the
Series 2000 Certificate of the Master Trust;
(ii) from time to time, cause the Invested Amount of the Series 2000
Certificate to be increased and decreased as provided in the Series 2000
Supplement;
(iii) from time to time, grant a security interest in the Series
2000 Certificate, including the pledge of any portion of the Invested
Amount of the Series 2000 Certificate, and grant a security interest in
accounts established for the benefit of indebtedness of the Trust, all to
secure indebtedness of the Trust, or make any permitted transfer of
interests in any portion of the Invested Amount of the Series 2000
Certificate directly or beneficially to any third party;
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(iv) from time to time authorize and approve the issuance of Notes
pursuant to the Indenture without limitation to aggregate amounts and, in
connection therewith, determine the terms and provisions of such Notes
and of the issuance and sale thereof, including the following:
(A) determining the principal amount of the Notes,
(B) determining the maturity date of the Notes,
(C) determining the rate of interest, if any, to be paid on the
Notes,
(D) determining the price or prices at which such Notes will be
sold by the Trust,
(E) determining the provisions, if any, for the redemption of
such Notes,
(F) determining the form, terms and provisions of the
indentures, fiscal agency agreements or other instruments under
which the Notes may be issued and the banks or trust companies to
act as trustees, fiscal agents and paying agents thereunder,
(G) preparing and filing all documents necessary or appropriate
in connection with the registration of the Notes under the
Securities Act of 1933, the qualification of indentures under the
Trust Indenture Act of 1939 and the qualification under any other
applicable federal, foreign, state, local or other governmental
requirements,
(H) preparing any offering memorandum or other descriptive
material relating to the issuance of the Notes,
(I) listing the Notes on any United States or non-United States
stock exchange,
(J) entering into one or more interest rate or currency swaps,
caps, collars guaranteed investment contracts or other derivative
agreements with counterparties (which may include, without
limitation, Citibank (South Dakota), Citibank (Nevada) or any of
their affiliates) to manage interest rate or currency risk relating
to the Notes;
(K) appointing a paying agent or agents for purposes of
payments on the Notes; and
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(L) arranging for the underwriting, subscription, purchase or
placement of the Notes and selecting underwriters, managers and
purchasers or agents for that purpose;
(v) from time to time receive payments and proceeds with respect to
the Series 2000 Certificate and the Indenture and either invest or
distribute those payments and proceeds,
(vi) from time to time make deposits to and withdrawals from
accounts established under the Indenture;
(vii) from time to time make and receive payments pursuant to
derivative agreements;
(viii) from time to time make payments on the Notes; and
(ix) from time to time perform such obligations and exercise and
enforce such rights and pursue such remedies as may be appropriate by
virtue of the Trust being party to any of the agreements contemplated in
clauses (i) through (viii) above;
In connection with any of the foregoing, the Trust may (x) execute and
deliver, and/or accept, such instruments, agreements, certificates, Uniform
Commercial Code financing statements and other documents, and create such
security interests, as may be necessary or desirable in connection therewith,
and (y) subject to the terms of this Agreement, take such other action as may
be necessary or incidental to the foregoing.
(b) The Trust and the Managing Beneficiary, on behalf of the Trust, are
authorized and shall have the power to execute and deliver from time to time
loan agreements, purchase agreements, swap and other derivative agreements,
indentures, notes, security agreements, and other agreements and instruments
as are consistent with the purposes of the Trust. Without limiting the
generality of the foregoing, the Managing Beneficiary, on behalf of the Trust,
is specifically authorized to execute and deliver, without any further act,
vote or approval, and notwithstanding any other provision of this Agreement,
the Delaware Business Trust Act or other applicable law, rule or regulation,
agreements, documents or securities relating to the purposes of the Trust
including:
(i) the Indenture and each Issuer's Certificate and supplemental
indenture relating to the Indenture;
(ii) the Notes;
(iii) each interest rate or currency swap, cap, collar, guaranteed
investment contract or other derivative agreement between the Trust and a
counterparty (which may include, without limitation, Citibank (Nevada),
Citibank (South Dakota) or any of their affiliates) to manage interest
rate or currency risk relating to the Notes; and
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(iv) any other document necessary or desirable in connection
with the fulfillment of the purposes of the Trust described in, and
pursuant to, Section 2.03(a).
The authorization set forth in the preceding sentence will not be deemed a
restriction on the power and authority of the Managing Beneficiary, on behalf
of the Trust, to execute and deliver other agreements, documents instruments
and securities or to take other actions on behalf of the Trust in connection
with the fulfillment of the purposes of the Trust described in, and pursuant
to, Section 2.03(a).
(c) The Trustee and the Managing Beneficiary will at all times
maintain the books, records and accounts of the Trust separate and apart from
those of any other Person, and will cause the Trust to hold itself out as
being a Person separate and apart from any other Person.
(d) The Trust will not engage in any business or own any assets
unrelated to the purposes of the Trust.
SECTION 2.04. Appointment of Trustee; Declaration of Trust by the
Trustee. The Beneficiaries hereby appoint The Bank of New York (Delaware) as
Trustee of the Trust effective as of the date hereof, to have all the rights,
powers and duties set forth herein and the Delaware Business Trust Act. The
Trustee hereby declares that it will hold the initial Trust Estate, the Series
2000 Certificate and the other documents and assets described in Section 2.03,
together with any payments, proceeds or income of any kind from such documents
or assets or any other source and any other property held under this Agreement
(collectively, the "Trust Estate"), upon the trust set forth herein and for
the sole use and benefit of the Beneficiaries.
SECTION 2.05. Title to Trust Estate. Title to all of the Trust
Estate will be vested in the Trust until this Agreement terminates pursuant to
Article VII; provided, however, that if the laws of any jurisdiction require
that title to any part of the Trust Estate be vested in the trustees of a
trust, then title to that part of the Trust Estate will be deemed to be vested
in the Trustee or any co-trustee or separate trustee, as the case may be,
appointed pursuant to Article VIII.
SECTION 2.06. Nature of Interest in the Trust Estate. The
Beneficiaries will not have any legal title to or right to possession of any
part of the Trust Estate.
SECTION 2.07. Situs of Trust. It is the intention of the parties
hereto that the Trust constitute a business trust under Title 12, Chapter 38
of the Delaware Code and that this Agreement constitute the governing
instrument of the Trust. The Trustee will file a certificate of trust relating
to the Trust with the Secretary of State of the State of Delaware and maintain
its principal office in the State of Delaware.
SECTION 2.08. Tax Matters. The parties hereto intend that the Trust
will not be treated as a partnership, agency, sole proprietorship or
association for Federal income tax purposes but instead will be treated as a
custodial arrangement for the Beneficiaries, and the parties hereto will file
all their tax returns in a manner consistent with that intent unless otherwise
required by a taxing authority. Except as otherwise expressly provided herein,
any tax elections required or
7
permitted to be made by the Trust under the Code or otherwise will be made in
such manner as may be determined by the Managing Beneficiary to be in the best
interests of the Beneficiaries. The Trust will not elect to be treated as a
corporation for any tax purpose.
SECTION 2.09. Fiscal Year. The fiscal year of the Trust will end on
the last day of December of each year.
ARTICLE III
Representations and Warranties of the Beneficiaries
SECTION 3.01. Representations and Warranties of the Beneficiaries.
Each Beneficiary hereby represents and warrants to the Trustee as of the date
of this Agreement and as of the date of each increase in the Invested Amount
of the Series 2000 Certificate that:
(a) Such Beneficiary is a national banking association validly
existing under the laws of the United States and has, in all material
respects, full power and authority to own its properties and conduct its
business as presently owned and conducted, and to execute, deliver and perform
its obligations under this Agreement.
(b) Such Beneficiary has been duly organized as an association
licensed as a national banking association and is validly existing and in good
standing under the laws of the United States, is duly qualified to do business
and is in good standing under the laws of each jurisdiction which requires
such qualification wherein it owns or leases material properties or conducts
material business, and has full power and authority to enter into and perform
its obligations under this Agreement and to consummate the transactions
contemplated hereby.
(c) The execution and delivery of this Agreement by such Beneficiary
and the consummation of the transactions provided for in this Agreement have
been duly authorized by such Beneficiary by all necessary corporate action on
the part of such Beneficiary.
(d) The execution and delivery by such Beneficiary of this
Agreement, the performance of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof applicable to such Beneficiary will
not conflict with or violate any Requirements of Law applicable to such
Beneficiary or conflict with, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of
time or both) a material default under, any indenture, contract, agreement,
mortgage, deed of trust or other instrument to which such Beneficiary is a
party or by which it or its properties are bound.
(e) There are no proceedings or investigations, pending or, to the
best knowledge of such Beneficiary, threatened against such Beneficiary before
any Governmental Authority (i) asserting the invalidity of this Agreement,
(ii) seeking to prevent the consummation of any of the
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transactions contemplated by this Agreement, (iii) seeking any determination
or ruling that, in the reasonable judgment of such Beneficiary, would
materially and adversely affect the performanceby such Beneficiary of its
obligations under this Agreement or (iv) seeking any determination or ruling
that would materially and adversely affect the validity or enforceability of
this Agreement.
(f) All authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required to be
obtained, effected or given by such Beneficiary in connection with the
execution and delivery by such Beneficiary of this Agreement and the
performance of the transactions contemplated by this Agreement have been duly
obtained, effected or given and are in full force and effect.
(g) This Agreement constitutes a legal, valid and binding obligation
of such Beneficiary enforceable against such Beneficiary in accordance with
its terms, except (i) as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect affecting the enforcement of creditors' rights in
general, and (ii) as such enforceability may be limited by general principles
of equity (whether considered in a suit at law or in equity).
(h) The Beneficiaries transferred all of their right, title and
interest in and to the Trust Estate to the Trust free and clear of all claims,
liens and other encumbrances.
ARTICLE IV
Distributions of Funds
SECTION 4.01. Distribution of Funds. All funds received by the Trust
to the extent not encumbered by the Indenture and otherwise available for
distribution (or if encumbered by the Indenture, which have been released by
the relevant parties benefitting from such encumbrance) will be applied in the
following order of priority:
(i) First, to pay any amounts owing to the Trustee pursuant to
Sections 11.01 and 11.02; and
(ii) Second, to be distributed to the Beneficiaries.
SECTION 4.02. Payments from Trust Estate Only. All payments to be
made by the Trustee under this Agreement will be made only from the income and
the capital proceeds derived from the Trust Estate and only to the extent that
the Trustee will have received income or capital proceeds from the Trust
Estate. Each Beneficiary agrees that it will look solely to the income and
capital proceeds derived from the Trust Estate (to the extent available for
payment as herein provided) and that, except as specifically provided herein,
the Trustee will not be subject to any liability in its individual capacity
under this Agreement to such Beneficiary or to any other Person.
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SECTION 4.03. Method of Payment. All amounts payable to the
Beneficiaries pursuant to this Agreement will be paid by the Trustee to the
applicable Beneficiary or a nominee therefor in such manner as such
Beneficiary may from time to time designate in written instructions to the
Trustee. All funds received by the Trustee on behalf of the Trust not later
than 2:00 p.m. (New York City time) on a Business Day will be applied by the
Trustee on that Business Day. Funds received after that time will be applied
on the next following Business Day.
SECTION 4.04. Establishment of Account. The Beneficiaries hereby
authorize the Trustee to establish and maintain an account on behalf of the
Trust into which all funds received by the Trustee on behalf of the Trust
shall be deposited. Such account shall be designated the Beneficiary Trust
Account.
ARTICLE V
Duties of the Trustee
SECTION 5.01. Action Upon Instructions. (a) It is the intention of
the Beneficiaries that the powers and duties of the Trustee are to be purely
ministerial only, and that the Managing Beneficiary will have the power to
direct the Trustee as to all nonministerial matters concerning the
administration of the Trust (to the extent such matters are within the powers
of the Managing Beneficiary). Accordingly, subject to Sections 5.01(b),
5.01(c), and Article XII, the Managing Beneficiary will direct the Trustee in
the management of the Trust and the Trust Estate. Such direction shall be
exercised at any time only by written instruction of the Managing Beneficiary
delivered to the Trustee pursuant to this Article V.
(b) The Trustee will take such action or actions as may be specified
in any instructions delivered in accordance with Section 5.01(a); provided,
however, that the Trustee will not be required to take any such action if the
Trustee Bank will have been advised by counsel, that such action (i) is
contrary to the terms hereof or of any document contemplated hereby to which
the Trustee is a party or is otherwise contrary to law, or (ii) is likely to
result in liability on the part of the Trustee Bank, unless the Trustee Bank
will have received additional indemnification or security satisfactory to the
Trustee Bank from the Managing Beneficiary against all costs, expenses and
liabilities arising from the Trustee's taking such action.
(c) The Managing Beneficiary will not direct the Trustee to take or
refrain from taking any action contrary to this Agreement, nor will the
Trustee be obligated to follow any such direction.
(d) In the event that the Trustee is unsure as to the application of
any provision of this Agreement, or such provision is ambiguous as to its
application, or is, or appears to be, in conflict with any other applicable
provision, or this Agreement permits any determination by the Trustee or is
silent or is incomplete as to the course of action to be adopted, the Trustee
will promptly give notice to the Managing Beneficiary requesting written
instructions as to the course of action to be adopted and, to the extent the
Trustee acts in good faith in accordance with such written
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instructions received from the Managing Beneficiary, the Trustee will not be
liable on account of such action to any Person. If the Trustee will not have
received appropriate written instructions within 30 days of such notice (or
within such shorter period of time as reasonably may be specified in such
notice) it may, but shall be under no duty to, take or refrain from taking
such action, not inconsistent with this Agreement, as it deems to be in the
best interests of the Beneficiaries, and will have no liability to any Person
for such action or inaction.
(e) The Trustee will, subject to this Section 5.01, act in
accordance with the instructions given to it by the Managing Beneficiary
pursuant to Section 5.01(a), and to the extent the Trustee acts in good faith
in accordance with such instructions, the Trustee will not be liable on
account of such action to any Person.
SECTION 5.02. No Duty to Act Under Certain Circumstances.
Notwithstanding anything contained herein to the contrary, neither the Trustee
Bank nor the Trustee, except a Trustee Bank authorized as co-trustee, will be
required to take any action in any jurisdiction other than in the State of
Delaware if the taking of such action would (i) require the consent or
approval or authorization or order of or the giving of notice to, or the
registration with or taking of any action in respect of, any state or other
governmental authority or agency of any jurisdiction other than the State of
Delaware; (ii) result in any fee, tax or governmental charge under the laws of
any jurisdiction or any political subdivisions thereof in existence on the
date hereof other than the State of Delaware becoming payable by the Trustee
Bank; or (iii) subject the Trustee Bank to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising
from acts unrelated to the consummation of the transactions by the Trustee
Bank or the Trustee, as the case may be, contemplated hereby.
SECTION 5.03. No Duties Except Under Specified Agreements or
Instructions. (a) The Trustee will not have any duty or obligation to manage,
control, use, make any payment in respect of, register, record, insure,
inspect, sell, dispose of, create, maintain or perfect any security interest
or title in or otherwise deal with any part of the Trust Estate, prepare, file
or record any document or report (including any tax related filing for any
holder of Notes), or to otherwise take or refrain from taking any action
under, or in connection with, this Agreement, the Trust or any document
contemplated hereby to which the Trust or the Trustee is a party, except as
expressly provided by the terms of this Agreement or in written instructions
from the Managing Beneficiary received pursuant to Section 5.01; and no
implied duties or obligations will be read into this Agreement against the
Trustee. Unless otherwise directed by the Managing Beneficiary in accordance
with Section 5.01(a), the Trustee shall have no obligation or duty to take any
action the Trust is authorized and empowered to take pursuant to Section
2.03(a). The Trustee Bank nevertheless agrees that it will, in its individual
capacity and at its own cost and expense, promptly take all action as may be
necessary to discharge any lien, pledge, security interest or other
encumbrance on any part of the Trust Estate which results from actions by or
claims against the Trustee Bank not related to the ownership of any part of
the Trust Estate.
(b) The Trustee agrees that it will not manage, control, use, lease,
sell, dispose of or otherwise deal with any part of the Trust Estate except
(i) in accordance with the powers granted
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to, or the authority conferred upon, the Trustee pursuant to this Trust
Agreement, or (ii) in accordance with the express terms hereof or with written
instructions from the Managing Beneficiary pursuant to Section 5.01. Unless
otherwise directed by the Managing Beneficiary in accordance with Section
5.01(a), the Trustee shall not be required to perform any obligations or
duties of the Trust under the Indenture, which duties and obligations shall be
the sole responsibility of the Managing Beneficiary.
SECTION 5.04. Trust Operation. The operations of the Trust will be
conducted in accordance with the following standards:
(a) the Trust will act solely in its own name through the
Trustee or the Managing Beneficiary;
(b) the Trust will not incur any indebtedness for money
borrowed or incur any obligations except in connection with the
purposes set forth in Section 2.03 of this Agreement;
(c) the Trust's funds and assets will at all times be
maintained separately from those of the Beneficiaries and their
affiliates;
(d) the Trust will take all reasonable steps to continue its
identity as a separate legal entity and to make it apparent to third
persons that it is an entity with assets and liability distinct from
those of the Beneficiaries, the Beneficiaries' affiliates or any
other third person, and will use stationery and other business forms
of the Trustee or the Trust and not that of the Beneficiaries or any
of their affiliates, and will use its best efforts to avoid the
appearance (i) of conducting business on behalf of the Beneficiaries
or any affiliates thereof, or (ii) that the assets of the Trust are
available to pay the creditors of the Beneficiaries or any
affiliates thereof;
(e) the Trust will not hold itself out as being liable for the
debts of the Beneficiaries or any affiliates thereof;
(f) the Trust will not engage in any transaction with the
Beneficiaries or any affiliates thereof, except as required, or
specifically permitted, by this Agreement or unless such transaction
is otherwise on terms neither more favorable nor less favorable than
the terms and conditions available at the time to the Trust for
comparable transactions with other Persons; and
(g) the Trust will not enter into any voluntary bankruptcy or
insolvency proceeding without a finding that the Trust's liabilities
exceeds its assets or that the Trust is unable to pay its debts in a
timely manner as they become due.
SECTION 5.05. Execution of Documents. The Trustee will, at the
written direction of the Managing Beneficiary, execute and deliver on behalf
of the Trust such instruments, agreements and certificates contemplated hereby
to which the Trust is a party (such direction to
12
be conclusively evidenced by the Trustee's execution and delivery of such
documents to, and acceptance by, the Managing Beneficiary or its counsel).
SECTION 5.06. Nonpetition Covenants. Notwithstanding any prior
termination of the Trust or this Agreement, each of the Trustee and the
Beneficiaries covenants and agrees that it shall not at any time with respect
to the Trust or the Master Trust acquiesce, petition or otherwise invoke or
cause the Trust or the Master Trust to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case
against the Trust or the Master Trust under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, conservator, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Trust or the Master Trust or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of the Trust or the Master Trust;
provided, however, that this Section 5.06 shall not operate to preclude any
remedy described in Article VII of the Indenture.
ARTICLE VI
Concerning the Trustee Bank
SECTION 6.01. Acceptance of Trust and Duties. The Trustee Bank
accepts the trust hereby created and agrees to perform the same but only upon
the terms of this Agreement. The Trustee Bank also agrees to disburse all
moneys actually received by it constituting part of the Trust Estate in
accordance with the terms of this Agreement. The Trustee Bank will not be
answerable or accountable under any circumstances in its individual capacity,
except (i) for its own willful misconduct or gross negligence, (ii) in the
case of the inaccuracy of any representation or warranty contained in Section
6.07, (iii) for the failure by the Trustee to perform obligations expressly
undertaken by it in the last sentence of Section 5.03(a), or (iv) for taxes,
fees or other charges on, based on or measured by, any fees, commissions or
other compensation earned by the Trustee Bank for acting as trustee hereunder.
In particular, but not by way of limitation:
(a) The Trustee Bank will not be personally liable for any error of
judgment made in good faith by an authorized officer of the Trustee so
long as the same will not constitute gross negligence or willful
misconduct;
(b) The Trustee Bank will not be personally liable with respect to
any action taken or omitted to be taken by the Trustee in good faith in
accordance with the instructions of the Managing Beneficiary;
(c) No provision of this Agreement will require the Trustee Bank to
expend or risk its personal funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder, if
the Trustee Bank will have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it, including such
advances as the Trustee Bank may reasonably request;
13
(d) Under no circumstance will the Trustee Bank be personally liable
for the accuracy or performance of any representation, warranty,
covenant, agreement or other obligation, including any indebtedness, of
the Trust;
(e) The Trustee Bank will not be personally responsible or liable
for or in respect of the validity or sufficiency of this Agreement or for
the due execution hereof by the Beneficiaries or with respect to any
agreement entered into by the Trust.
(f) Under no circumstances will the Trustee Bank be responsible or
liable for the action or inaction of the Managing Beneficiary, nor will
the Trustee Bank be responsible for monitoring the performance of the
Managing Beneficiary's duties hereunder or of any other Person acting for
or on behalf of the Trust.
(g) In no event shall the Trustee Bank be personally liable (i) for
special, consequential or punitive damages unless such damages result
from its willful misconduct or gross negligence, (ii) for the acts or
omissions of its nominees, correspondents, clearing agencies or
securities depositories, (iii) for the acts or omissions of brokers or
dealers, and (iv) for any losses due to forces beyond the control of the
Trustee Bank, including strikes, work stoppages, acts of war or
terrorism, insurrection, revolution, nuclear or natural catastrophes or
acts of God and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services. The Trustee
Bank shall have no responsibility for the accuracy of any information
provided to the Beneficiaries or any other Person that has been obtained
from, or provided to the Trustee Bank by, any other Person.
SECTION 6.02. Furnishing of Documents. The Trustee will furnish to
the Managing Beneficiary, within a reasonable time under the circumstances
after receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments
furnished to the Trustee with respect to the Trust or the Trust Estate.
SECTION 6.03. Representations and Warranties as to the Trust Estate.
The Trustee makes no representation or warranty as to, and shall not be liable
for, the title, value, condition, design, operation, merchantability or
fitness for use of the Trust Estate (or any part thereof) or any other
representation or warranty, express or implied, whatsoever with respect to the
Trust Estate (or any part thereof) except that the Trustee, in its individual
capacity, hereby represents and warrants to the Beneficiaries that it will
comply with the last sentence of Section 5.03(a).
SECTION 6.04. Signature of Returns. At the written direction of the
Managing Beneficiary, the Trustee will sign on behalf of the Trust any
Periodic Filings of the Trust or other documents relating to the Trust
prepared by, or on behalf of, the Managing Beneficiary.
SECTION 6.05. Reliance; Advice of Counsel. The Trustee will incur no
liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or
other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Trustee may accept a certified copy
14
of a resolution of the board of directors or other governing body of any
entity as conclusive evidence that such resolution has been duly adopted by
such body and that the same is in full force and effect. As to any fact or
matter the manner of ascertainment of which is not specifically prescribed
herein, the Trustee may for all purposes rely on an officer's certificate of
the relevant party, as to such fact or matter, and such officer's certificate
will constitute full protection to the Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon. In the administration of
the Trust, the Trustee may, at the expense of the Trust (i) execute the trust
or any of the powers hereof and perform its powers and duties hereunder
directly or through agents or attorneys, and the Trustee will not be liable
for the default or misconduct of any agent or attorney appointed by it in good
faith; and (ii) consult with counsel, accountants and other skilled persons to
be selected and employed by it, and the Trustee will not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
advice or opinion of any such counsel, accountants or other skilled persons.
SECTION 6.06. Not Acting in Individual Capacity. Except as provided
in this Article VI, in accepting the trust hereby created the Trustee Bank
acts solely as Trustee hereunder and not in its individual capacity; and all
Persons having any claim against the Trust or the Trustee, whether by reason
of the transactions contemplated by this Agreement or otherwise, will look
only to the Trust Estate (or a part thereof, as the case may be) for payment
or satisfaction thereof, except as specifically provided in this Article VI.
SECTION 6.07. Representations and Warranties. The Trustee Bank,
other than a Trustee Bank appointed as a co-trustee, hereby represents and
warrants to the Beneficiaries that:
(a) The Trustee Bank is a Delaware banking corporation
organized, validly existing and in good standing under the laws of
the State of Delaware and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required under the laws of the State of Delaware to carry on its
trust business as now conducted.
(b) The execution, delivery and performance by the Trustee
Bank, in its individual capacity, of this Agreement are within the
corporate power of the Trustee Bank, have been duly authorized by
all necessary corporate action on the part of the Trustee Bank (no
action by its shareholders being required) and do not (i) violate or
contravene any judgment, injunction, order or decree binding on the
Trustee Bank or (ii) violate, contravene or constitute a default
under any provision of the articles of incorporation or bylaws of
the Trustee Bank or (iii) result in the creation or imposition of
any lien attributable to the Trustee Bank, in its individual
capacity, on the Trust Estate. This Agreement constitutes the legal,
valid and binding agreement of the Trustee Bank, enforceable against
the Trustee Bank in accordance with its terms except to the extent
that the enforceability thereof is subject to (i) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium,
receivership and other similar laws now or hereafter in effect
related to creditors' rights generally and (ii) general principles
of equity, regardless of whether such enforceability is considered
in a proceeding in equity or at law.
15
(c) No consent, approval, authorization or order of, or filing
with, any court or regulatory, supervisory or governmental agency or
body of the State of Delaware is required by the Trustee Bank under
current Delaware law in connection with the execution, delivery or
performance by the Trustee Bank, in its individual capacity, of this
Agreement.
(d) The Trustee Bank complies with all of the requirements of
Chapter 38, Title 12 of the Delaware Code relating to the
qualification of a trustee of a Delaware business trust.
ARTICLE VII
Termination of Trust Agreement
SECTION 7.01. Termination. This Agreement and the Trust created
hereby will automatically terminate, and this Agreement will be of no further
force or effect, upon the sale or other final disposition by the Trust of all
property constituting part of the Trust Estate and the final distribution by
the Managing Beneficiary of all moneys or other property or proceeds
constituting part of the Trust Estate in accordance with the terms of Article
IV.
SECTION 7.02. Certificate of Cancelation. Upon the termination of
the Trust and written instruction from the Managing Beneficiary, the Trustee
will file a certificate of cancelation with the Secretary of State of the
State of Delaware.
ARTICLE VIII
Successor Trustees, Co-Trustees
and Separate Trustees
SECTION 8.01. Resignation and Removal of the Trustee; Appointment of
Successors. Upon the occurrence of a Disqualification Event with respect to
the Trustee, the Beneficiaries may appoint a successor Trustee by an
instrument signed by the Beneficiaries. If a successor Trustee has not been
appointed within 30 days after the giving of written notice of such
resignation or the delivery of the written instrument with respect to such
removal, the Trustee or the Beneficiaries may apply to any court of competent
jurisdiction to appoint a successor Trustee to act until such time, if any, as
a successor Trustee has been appointed as above provided. Any successor
Trustee so appointed by such court will immediately and without further act be
superseded by any successor Trustee appointed as above provided within one
year from the date of the appointment by such court. The Trustee may resign at
any time without cause by giving at least 30 days' prior written notice to the
Beneficiaries. In addition, the Beneficiaries may at any time remove the
Trustee without cause by an instrument in writing delivered to the Trustee. No
such removal or resignation shall become effective until a successor Trustee,
however appointed, becomes vested as Trustee hereunder pursuant to Section
8.02. The Managing Beneficiary will
16
notify the Rating Agencies promptly after the resignation or removal of the
Trustee and promptly after the appointment of a successor Trustee.
SECTION 8.02. Transfer Procedures. Any successor Trustee, however
appointed, will execute and deliver to the predecessor Trustee an instrument
accepting such appointment, and such other documents of transfer as may be
necessary, and thereupon such successor Trustee, without further act, will
become vested with all the estates, properties, rights, powers, duties and
trust of the predecessor Trustee in the trust hereunder with like effect as if
originally named a Trustee herein and the predecessor Trustee will be fully
discharged of its duties and obligations to serve as Trustee hereunder.
SECTION 8.03. Qualification of Trustee. Any Trustee will at all
times (i) be a trust company or a banking corporation under the laws of its
state of incorporation or a national banking association, having all corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on a trust business in the State of Delaware, (ii)
comply with Section 3807 (and any other applicable Section) of the Delaware
Code relating to the treatment of Delaware Business Trusts (Title 00, Xxxxxxx
00), (xxx) have a combined capital and surplus of not less than $50,000,000
(or have its obligations and liabilities irrevocably and unconditionally
guaranteed by an affiliated Person having a combined capital and surplus of at
least $50,000,000) and (iv) be rated at least BBB- by Standard & Poor's.
SECTION 8.04. Co-trustees and Separate Trustees. Whenever the
Trustee or the Managing Beneficiary will deem it necessary or prudent in order
either to conform to any law of any jurisdiction in which all or any part of
the Trust Estate will be situated or to make any claim or bring any suit with
respect to the Trust Estate, or whenever the Trustee or the Beneficiaries will
be advised by counsel satisfactory to them that such action is necessary or
prudent, the Trustee and the Beneficiaries will execute and deliver an
agreement supplemental hereto and all other instruments and agreements, and
will take all other actions, necessary or proper to appoint one or more
Persons either as co-trustee or co-trustees jointly with the Trustee of all or
any part of the Trust Estate, or as a separate trustee or separate trustees of
all or any part of the Trust Estate, and to vest in such Persons, in such
capacity, such title to the Trust Estate or any part thereof, and such rights
or duties, as may be necessary or desirable, all for such period and under
such terms and conditions as are satisfactory to the Trustee and the
Beneficiaries. In case a Disqualification Event will occur with respect to any
such co-trustee or separate trustee, the title to the Trust Estate and all
rights and duties of such co-trustee or separate trustee will, so far as
permitted by law, vest in and be exercised by the Trustee, without the
appointment of a successor to such co-trustee or separate trustee.
ARTICLE IX
Amendments
SECTION 9.01. Amendments. (a) This Agreement may be amended only by
a written instrument executed by the Trustee, at the written direction of the
Managing Beneficiary, and
17
the Beneficiaries, upon issuance of a Master Trust Tax Opinion and an Issuer
Tax Opinion (each as defined in the Indenture), which shall not be expenses of
the Trustee or Trustee Bank, and in compliance with Article X of the
Indenture.
(b) No such amendment shall increase the duties or obligations of
the Trustee under this Agreement or decrease its rights or benefits hereunder,
without the consent of the Trustee, which consent shall be evidenced by the
Trustee's execution of such amendment. If in the opinion of the Trustee any
instrument required to be executed adversely affects any right, duty or
liability of, or immunity or indemnify in favor of, the Trustee or the Trustee
Bank under this Agreement or any of the documents contemplated hereby, or
would cause or result in any conflict with or breach of any terms, conditions
or provisions of, or default under, the charter documents or by-laws of the
Trustee Bank, the Trustee may in its good faith discretion decline to execute
such instrument.
ARTICLE X
Ownership Interests and Certificates
SECTION 10.01. Issuance of Trust Certificates. (a) Promptly
following the execution and delivery of this Agreement, the Trustee will issue
and deliver to each Beneficiary a certificate of beneficial ownership of the
Trust Estate substantially in the form of Exhibit A hereto (each, a "Trust
Certificate") evidencing such Beneficiary's respective ownership interests
(the "Ownership Interests") in the Trust.
(b) Each Trust Certificate will be executed by manual signature on
behalf of the Trustee by an authorized officer. A Trust Certificate bearing
the manual signature of an individual who was, at the time when such signature
was affixed, an authorized officer will bind the Trust, notwithstanding that
such individual has ceased to be so authorized prior to the delivery of such
Trust Certificate. Each Trust Certificate will be dated the date of its
execution.
(c) The Beneficiaries will be entitled to all rights provided to
them under this Agreement and in the Trust Certificates and will be subject to
the terms and conditions contained in this Agreement and in the Trust
Certificates.
(d) The Trustee will maintain at its office referred to in Section
2.07, or at the office of any agent appointed by it and approved in writing by
the Managing Beneficiary, a register for the registration and transfer of the
Trust Certificates. Such register will show the name and address of each
holder of a Trust Certificate, and the Trustee will treat such register as
definitive and binding for all purposes hereunder.
SECTION 10.02. Beneficial Interest; Prohibitions on Transfer. (a)
The Ownership Interests will initially be beneficially owned by Citibank
(South Dakota) and Citibank (Nevada). Transfers of the Ownership Interests and
the Trust Certificates may be made between Citibank (South Dakota) and
Citibank (Nevada) or to any other Person who is an
18
Affiliate of Citibank (South Dakota) or Citibank (Nevada) (a "Permitted
Transferee"). No Beneficiary may transfer,assign, exchange or otherwise pledge
or convey all or any part of its right, title and interest in and to a Trust
Certificate or its Ownership Interest to any other Person, except (i) to any
Permitted Transferee, or (ii) to the extent a corresponding transfer of the
Series 2000 Certificate would be permitted by the Pooling and Servicing
Agreement. Any purported transfer by a Beneficiary of all or any part of its
right, title and interest in and to a Trust Certificate or Ownership Interest
by a Beneficiary to any Person, which is not in compliance with the terms of
this Section 10.02, will be null and void.
(b) Each Trust Certificate will bear a legend setting forth the
restriction on the transferability of Ownership Interests substantially as
follows:
"THIS CERTIFICATE OF BENEFICIAL INTEREST MAY NOT BE TRANSFERRED,
ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN
COMPLIANCE WITH THE TERMS OF THE TRUST AGREEMENT REFERRED TO BELOW.
IN ADDITION, THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") OR ANY STATE SECURITIES LAWS AND
MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE
DISPOSED OF BY THE HOLDER HEREOF UNLESS SUCH TRANSACTION IS EXEMPT
FROM REGISTRATION UNDER THE ACT, THE INVESTMENT COMPANY ACT OF 1940
AND APPLICABLE STATE SECURITIES LAWS."
SECTION 10.03. Lost or Destroyed Trust Certificate. If any Trust
Certificate will become mutilated, destroyed, lost or stolen, the Trustee
will, upon the written request of the holder of such Trust Certificate, and
compliance with all applicable terms of this paragraph, execute and deliver to
such holder in replacement thereof a new Trust Certificate dated the same date
as on the Trust Certificate so mutilated, destroyed, lost or stolen. If the
Trust Certificate being replaced has been mutilated, destroyed, lost or
stolen, the holder of such Trust Certificate will furnish to the Trustee such
security or indemnity as may be required by the Trustee to save the Trustee
harmless from any damage, loss or liability in connection with such Trust
Certificate, and the Trustee may require from the party requesting such new
Trust Certificate payment of a sum to reimburse the Trustee for, or to provide
funds for, the payment of any costs, fees and expenses and any tax or other
governmental charge in connection therewith and any charges paid or payable by
the Trustee.
ARTICLE XI
Compensation of Trustee and Indemnification
SECTION 11.01. Trustee's Fees and Expenses. To the extent funds are
available pursuant to Section 4.01, the Trust will (i) pay to the Trustee Bank
all fees and other charges described in a separate fee agreement dated as of
the date hereof between the Trust and
19
the Trustee Bank promptly when due thereunder and (ii) reimburse the Trustee
Bank for all otherreasonable out-of-pocket costs and expenses (including
reasonable fees and expenses of counsel) incurred by it in connection with its
acting as Trustee of the Trust.
SECTION 11.02. Indemnification. To the extent funds are available
pursuant to Section 4.01, the Trust hereby agrees, whether or not any of the
transactions contemplated by this Agreement will be consummated, to assume
liability for, and hereby indemnifies, protects, saves and keeps harmless the
Trustee Bank and its officers, directors, successors, assigns, legal
representatives, agents and servants (each an "Indemnified Person"), from and
against any and all liabilities, obligations, losses, damages, penalties,
taxes, claims, actions, investigations, proceedings, costs, expenses or
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever which may be imposed on, incurred by or asserted at any time
against an Indemnified Person (whether or not also indemnified against by any
other person) in any way relating to or arising out of (i) this Agreement or
any other related documents or the enforcement of any of the terms of any
thereof, the administration of the Trust Estate or the action or inaction of
the Trustee, or the Trustee Bank under this Agreement, and (ii) the
manufacture, purchase, acceptance, nonacceptance, rejection, ownership,
delivery, lease, possession, use, operation, condition, sale, return or other
disposition of any property (including any strict liability, any liability
without fault and any latent and other defects, whether or not discoverable),
except, in any such case, to the extent that any such liabilities,
obligations, losses, damages, penalties, taxes, claims, actions,
investigations, proceedings, costs, expenses and disbursements are the result
of any of the matters described in the third sentence of Section 6.01 hereof.
In case any such action, investigation or proceeding will be brought
involving an Indemnified Person, the Trust will assume the defense thereof,
including the employment of counsel and the payment of all expenses. The
Trustee Bank will have the right to employ separate counsel in any such
action, investigation or proceeding and to participate in the defense thereof
and reasonable counsel fees and expenses of such counsel will be paid by the
Trust.
The indemnification set forth herein will survive the termination of
this Agreement.
ARTICLE XII
Miscellaneous
SECTION 12.01. Conveyance by the Trustee is Binding. Any sale or
other conveyance of any part of the Trust Estate by the Trustee made pursuant
to the terms of this Agreement will bind the Beneficiaries and will be
effective to transfer or convey all beneficial interest of the Trustee and
Beneficiaries in and to such part of the Trust Estate, as the case may be. No
purchaser or other grantee will be required to inquire as to the
authorization, necessity, expediency or regularity of such sale or conveyance
or as to the application of any sale or other proceeds with respect thereto by
the Trustee or the officers.
20
SECTION 12.02. Instructions; Notices. All instructions, notices,
requests or other communications ("Deliveries") desired or required to be
given under this Agreement will be in writing and will be sent by (a)
certified or registered mail, return receipt requested, postage prepaid, (b)
national prepaid overnight delivery service, (c) telecopy or other facsimile
transmission or (d) personal delivery, with receipt acknowledged in writing,
to the following addresses:
(i) if to Citibank (South Dakota):
000 Xxxx 00xx Xxxxxx, Xxxxx
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
Attention: Chief Financial Officer
with a copy to:
000 Xxxx 00xx Xxxxxx, Xxxxx
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
Attention: General Counsel
(ii) if to Citibank (Nevada):
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: Chief Financial Officer
with a copy to:
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: General Counsel
(iii) if to the Trustee:
The Bank of New York (Delaware)
Xxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
with a copy to:
00
Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
All Deliveries will be deemed given when actually received or
refused by the party to whom the same is directed (except to the extent sent
by certified or registered mail, return receipt requested, postage prepaid, in
which event such Deliveries will be deemed given three days after the date of
mailing and except to the extent sent by telecopy or other facsimile
transmission, in which event such Deliveries will be deemed given when answer
back is received). Either party may designate a change of address or
supplemental address by notice to the other party, given at least 15 days
before such change of address is to become effective.
SECTION 12.03. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction will not invalidate
or render unenforceable any provision hereof in any other jurisdiction.
SECTION 12.04. Limitation of Liability. (a) Neither any Beneficiary
nor any officer, director, employee, agent, partner, shareholder, trustee or
principal of (i) the Beneficiaries, (ii) the Trust or (iii) any Person owning,
directly or indirectly, any legal or beneficial interest in either
Beneficiary, will have any liability or obligation with respect to the Trust
or the performance of this Agreement or any other agreement, document or
instrument executed by the Trust, and the creditors of the Trust and all other
Persons will look solely to the Trust Estate for the satisfaction of any
claims with respect thereto. The foregoing limitation of liability is subject
to Section 12.06 and is in addition to, and not exclusive of, any limitation
of liability applicable to the Persons referred to above by operation of law.
(b) All agreements entered into by the Trust under which the Trust
would have any material liability will contain an exculpatory provision
substantially to the following effect:
Neither any trustee nor any beneficiary of Citibank Credit Card
Issuance Trust nor any of their respective officers, directors,
employers or agents will have any liability with respect to
this agreement, and recourse may be had solely to the assets of
Citibank Credit Card Issuance Trust with respect thereto.
SECTION 12.05. Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered will be an original, but all such counterparts will together
constitute but one and the same instrument.
22
SECTION 12.06. Successors and Assigns. All covenants and agreements
contained herein will be binding upon, and inure to the benefit of, the
Trustee and its successors and assigns and the Beneficiaries and their
successors and assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by any Beneficiary
will bind the successors and assigns of such Beneficiary.
SECTION 12.07. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and will not define or
limit any of the terms or provisions herein.
SECTION 12.08. Governing Law. This Agreement will in all respects be
governed by, and construed in accordance with, the laws of the State of
Delaware without regard to conflicts of law principles of such State.
23
IN WITNESS WHEREOF, the parties hereto have each caused this
Agreement to be duly executed, all as of the day and year first above written.
THE BANK OF NEW YORK
(DELAWARE), as Trustee
by
---------------------------------------
Name:
Title:
CITIBANK (NEVADA), NATIONAL
ASSOCIATION, as Beneficiary
by
-----------------------------------------
Name:
Title:
CITIBANK (SOUTH DAKOTA), N.A., as
Beneficiary
by
----------------------------------------
Name:
Title:
24
EXHIBIT A
FORM OF TRUST CERTIFICATE
THIS CERTIFICATE OF BENEFICIAL INTEREST MAY NOT BE TRANSFERRED, ASSIGNED,
EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS
OF THE TRUST AGREEMENT REFERRED TO BELOW. IN ADDITION, THE BENEFICIAL INTEREST
IN THE TRUST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY STATE
SECURITIES LAWS AND MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR
OTHERWISE DISPOSED OF BY THE HOLDER HEREOF UNLESS SUCH TRANSACTION IS EXEMPT
FROM REGISTRATION UNDER THE ACT, THE INVESTMENT COMPANY ACT OF 1940 AND
APPLICABLE STATE SECURITIES LAWS.
CITIBANK CREDIT CARD ISSUANCE TRUST
CERTIFICATE OF BENEFICIAL INTEREST
UNDER TRUST AGREEMENT DATED AS OF
[ ], [ ]
Certificate No. [ ] [ ], [ ]
The Bank of New York (Delaware), a Delaware banking corporation, not
in its individual capacity but solely as trustee (the "Trustee") under a Trust
Agreement dated as of [ ], [ ] (the "Trust Agreement"), among Citibank
(Nevada), National Association ("Citibank (Nevada)"), and Citibank (South
Dakota), N.A. ("Citibank (South Dakota)") as Beneficiaries, and the Trustee,
hereby certifies on behalf of the Trust that [Citibank (Nevada)] [Citibank
(South
Dakota)] is the owner (the "Owner") of its Beneficiary Percentage of the
Ownership Interests in the Trustprovided for and created by the Trust
Agreement. This Certificate of Beneficial Interest is issued pursuant to and
is entitled to the benefits of the Trust Agreement, and the Owner hereof by
acceptance hereof agrees to be bound by the terms of the Trust Agreement.
Reference is hereby made to the Trust Agreement for a statement of the rights
and obligations of the Owner hereof. The Trustee may treat the Person in whose
name this Certificate of Beneficial Interest is registered on the register
maintained by the Trustee pursuant to Section 10.01(d) of the Trust Agreement
as the absolute Owner hereof for all purposes.
Capitalized terms used but not defined herein have the meanings
ascribed to them in or by reference to the Trust Agreement.
This Certificate of Beneficial Interest and the Trust Agreement will
in all respects be governed by, and construed in accordance with, the laws of
the State of Delaware, without regard to any conflict-of-law provisions.
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IN WITNESS WHEREOF, the Trustee, pursuant to the Trust Agreement,
has caused this Certificate of Beneficial Interest to be issued by the Trust
as of the date hereof.
CITIBANK CREDIT CARD ISSUANCE TRUST,
by THE BANK OF NEW YORK
(DELAWARE), as Trustee under the Trust
Agreement
by
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Name:
Title:
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