EXHIBIT 4.4.5
FORM OF DEPOSIT TRUST AGREEMENT
(GRANTOR TRUST, FIXED RATE/INTEREST ONLY CERTIFICATES, MORTGAGE CERTIFICATES)
[FORM OF TRUST AGREEMENT]
between
GS Mortgage Securities Corp. ,
Depositor
and
[TRUSTEE NAME],
as Trustee
Dated as of [ ], 200[ ]
TABLE OF CONTENTS
Page
ARTICLE I Definitions and Usage...................................................................................1
SECTION 1.01 Defined Terms.............................................................................1
SECTION 1.02 Other Definitional Provisions and Rules of Construction...................................7
ARTICLE II Conveyance of the CRB Certificates; Original Issuance of Certificates..................................7
SECTION 2.01 Creation and Declaration of Trust; Conveyance of the CRB Certificates.....................7
SECTION 2.02 Acceptance by Trustee.....................................................................9
SECTION 2.03 Representations and Warranties of the Depositor...........................................9
SECTION 2.04 Agreement to Authenticate and Deliver Certificates.......................................10
ARTICLE III Administration of the Trust Property; Distributions and Reports to Certificateholders...............11
SECTION 3.01 Administration of the Trust Property.....................................................11
SECTION 3.02 Certificate Account......................................................................11
SECTION 3.03 Investment of Funds in the Certificate Account...........................................12
SECTION 3.04 Permitted Withdrawals from the Certificate Account.......................................12
SECTION 3.05 Distributions............................................................................12
SECTION 3.06 Compliance with Withholding Requirements.................................................13
SECTION 3.07 Statements to Certificateholders.........................................................13
SECTION 3.08 Reports of the Trustee; Certificate Account..............................................15
SECTION 3.09 Access to Certain Documentation and Information..........................................15
ARTICLE IV The Certificates......................................................................................15
SECTION 4.01 The Certificates.........................................................................15
SECTION 4.02 Registration of Transfer and Exchange of Certificates....................................16
SECTION 4.03 Mutilated, Destroyed, Lost or Stolen Certificates........................................16
SECTION 4.04 Persons Deemed Owners....................................................................17
SECTION 4.05 Maintenance of Office or Agency..........................................................17
SECTION 4.06 ERISA Considerations.....................................................................17
SECTION 4.07 Authenticating Agent.....................................................................17
SECTION 4.08 Book-Entry Certificates..................................................................18
SECTION 4.09 Notices to Clearing Agency...............................................................19
SECTION 4.10 Definitive Certificates..................................................................19
ARTICLE V The Trustee 20
SECTION 5.01 Duties of the Trustee....................................................................20
SECTION 5.02 Certain Matters Affecting the Trustee....................................................22
SECTION 5.03 Trustee Not Liable for Certificates......................................................23
SECTION 5.04 Trustee May Own Certificates.............................................................23
SECTION 5.05 Trustee's Fees and Expenses..............................................................23
SECTION 5.06 Eligibility Requirements for Trustee.....................................................24
SECTION 5.07 Resignation and Removal of the Trustee...................................................24
SECTION 5.08 Successor Trustee........................................................................25
SECTION 5.09 Merger or Consolidation of Trustee.......................................................25
SECTION 5.10 Appointment of Co-Trustee or Separate Trustee............................................26
SECTION 5.11 Tax Returns..............................................................................26
SECTION 5.12 Representations and Warranties of Trustee................................................27
SECTION 5.13 Limitation of Powers and Duties..........................................................28
ARTICLE VI The Depositor.........................................................................................28
SECTION 6.01 Liability of the Depositor...............................................................28
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor.....................................28
SECTION 6.03 Limitation on Liability of the Depositor and Others......................................29
ARTICLE VII Termination; Optional Purchase of CRB Certificates...................................................29
SECTION 7.01 Termination..............................................................................29
SECTION 7.02 Optional Purchase of CRB Certificates....................................................30
ARTICLE VIII Miscellaneous.......................................................................................30
SECTION 8.01 Amendment; Waiver........................................................................30
SECTION 8.02 Limitation on Rights of Certificateholders...............................................31
SECTION 8.03 Governing Law............................................................................32
SECTION 8.04 Notices..................................................................................32
SECTION 8.05 Severability of Provisions...............................................................33
SECTION 8.06 Notice to Each Rating Agency.............................................................33
SECTION 8.07 No Petition..............................................................................33
TRUST AGREEMENT dated as of [ ], 200[ ], between GS
Mortgage Securities Corp. , as depositor (the "Depositor"), and [TRUSTEE
NAME], not in its individual capacity but solely as trustee (the "Trustee")
In consideration of the mutual agreements herein
contained, the Depositor and the Trustee agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
SECTION 1.01 Defined Terms. Whenever used in this
Agreement, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
"Affiliate" means, as to any specified Person, (i) any
other Person, directly or indirectly, controlling, controlled by or under
common control with such specified Person and (ii) any officer, director or
partner of such specified Person. The term "control", with respect to any
Person, means possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities or by contract or otherwise.
"Aggregate Collateral Balance" means as of any date of
determination, the aggregate of the outstanding principal amounts of all of
the CRB Certificates. As of the Cutoff Date, the Aggregate Collateral
Balance shall be $[ ].
"Agreement" means this Trust Agreement and all amendments
hereof and supplements hereto.
"Available Funds" means, as of any date of
determinateion, the aggregate amount payab then on deposit in the
Certificate Account, net of any portion thereof which represents amounts
payable pursuant to clauses (ii) and (iii) of Section 3.04.
"Benefit Plan" has the meaning specified in Section
4.02(d).
"Book-Entry Certificates" means a beneficial interest in
the Certificates, ownership and transfers of which shall be made through
book entries by a Clearing Agency as described in Section 4.08.
"Business Day" means any day other than a Saturday or a
Sunday or a day on which banking institutions in New York, New York, or in
the city in which the Corporate Trust Office of the Trustee is located, are
authorized or obligated by law, regulation or executive order to be closed.
"Certificate" means any one of the certificates executed
and authenticated by theTrustee substantially in the forms attached thereto
as Exhibits A and B.
"Certificate Account" means the segregated,
noninterest-bearing trust account or accounts, which shall at all times be
Eligible Accounts, created and maintained by the Trustee pursuant to
Section 3.02. Funds deposited in the Certificate Account shall be held in
trust for the Certificateholders for the uses and purposes set forth in
this Agreement.
"Certificate Register" means the register maintained
pursuant to Section 4.02.
"Certificateholder" or "Holder" means the Person in whose
name a Certificateholder is registered in the Certificate Register, except
that, solely for the purpose of giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor shall be
deemed not to be Outstanding and the Percentage Interest evidenced thereby
shall not be taken into account in determining whether the requisite amount
of Percentage Interests necessary to effect such consent has been obtained;
provided, however, that if any such Person owns 100% of the Percentage
Interests evidenced by a Class of Certificates, all such Certificates shall
be deemed to be Outstanding.
"Class" means all Certificates bearing the same
designation as set forth in Section 4.01.
"[Class [A]] Certificate" means any one of the
certificates issued by the Trust and executed and authenticated by the
Trustee substantially in the form attached hereto as Exhibit A.
"[Class [A]] Interest Amount" means, as to any
Distribution Date, an amount equal to the sum of (i) the amount of interest
accrued at the [Class [A]] Certificate Rate for the related Collection
Period on the [Class [A]] Certificate Principal Balance on the immediately
preceding Distribution Date, (or, in the case of the first Distribution
Date, on the Closing Date), after giving effect to all distributions on
such"[Class [A]] Certificate Rate" means [[ ]% per annum] [insert Class [A]
interest formula]. prior Distribution Date, and (ii) any unpaid [Class [A]]
Interest Amounts from prior Distribution Dates, together with interest
thereon, to the extent permitted by law, at the [Class [A]] Certificate
Rate.
"[Class [B]] Certificate" means any one of the
certificates issued by the Trust and executed and authenticated by the
Trustee substantially in the form attached hereto as Exhibit B.
"[Class [B]] Certificate Principal Balance" means, with
respect to the [Class [B]] Certificates as of any date of determination,
the Initial Certificate Principal Balance thereof less all payments made
with respect to the Certificates of such Class in accordance with Section
3.05(a)(iii) on previous Distribution Dates.
"[Class [B]] Certificate Rate" means [[ ]% per annum]
[insert Class [B] interest formula].
"[Class [B]] Interest Amount" means, as to any
Distribution Date, an amount equal to the sum of (i) the amount of interest
accrued at the [Class [B]] Certificate Rate for the related Collection
Period on the [Class [B]] Certificate Principal Balance on the immediately
preceding Distribution Date, (or, in the case of the first Distribution
Date, on the Closing Date), after giving effect to all distributions on
such prior Distribution Date, and (ii) any unpaid [Class [B]] Interest
Amounts from prior Distribution Dates, together with interest thereon, to
the extent permitted by law, at the [Class [B]] Certificate Rate.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended.
"Clearing Agency Participant" means a broker, dealer,
bank, other financial institution or other Person for whom from time to
time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
"Closing Date" means [ ] 200[ ].
"Code" means the Internal Revenue Code of 1986, as
amended, and Treasury Regulations promulgated thereunder.
"CRB Certificate" means any one of the [ ] issue issued
by [ ] and transferred to the Trustee by the Depositor pursuant to Section
2.01, as from time to time are held as a part of the Trust Property and as
are more fully described in the CRB Certificate Schedule attached hereto as
Exhibit C.
"CRB Certificate Schedule" means the schedule attached as
Exhibit C hereto identifying the CRB Certificates and setting forth the
following information as to each CRB Certificate: (i) the original
principal amount as of the date the CRB Certificates were originally issued
and, if different, the current principal amount as of the Cutoff Date; and
(ii) the fractional undivided interest evidenced thereby as compared to the
Aggregate Collateral Balance as of such dates.
"CRB Certificate Statement" means the servicing report or
other statement setting forth the amount of interest and, if applicable,
principal payable on each Payment Date with respect to the CRB Certificates
that is required to be furnished to each holder of CRB Certificates with
respect to each Payment Date pursuant to the related Pooling and Servicing
Agreement.
"Collateral Holder" means the registered holder of any
CRB Certificate, which following the execution and delivery of this
Agreement by the parties hereto shall be the Trustee.
"Corporate Trust Office" means the principal corporate
trust office of the Trustee in the State of New York at which at any
particular time its corporate trust business with respect to this Agreement
and the Trust shall be administered, which office at the date of the
execution of this Agreement is located at Four Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
"Cutoff Date" means [ ], 200[ ].
"Definitive Certificates" has the meaning specified in
Section 4.08.
"Depositor" means GS Mortgage Securities Corp. , a
Delaware corporation.
"Depository Agreement" means the Depository Agreement
dated as of the Closing Date among the Trust, the Trustee and DTC, as the
initial Clearing Agency, substantially in the form attached hereto as
Exhibit E.
"Determination Date" has the meaning specified in Section
3.07.
"Distribution Date" means the [second] [third] Business
Day following each Payment Date, commencing on [ ], 200[ ].
"Distribution Date Statement" has the meaning specified
in Section 3.07.
"DTC" means The Depositary Trust Company, as the initial
Clearing Agency.
"Eligible Account" means either (i) an account maintained
with a Federal or state chartered depository institution or trust company
the unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the unsecured debt obligations of such holding company) are rated
by the Rating Agency in one of its generic rating categories which
signifies investment grade at the time any amounts are held in deposit
therein, (ii) an account the deposits in which are insured by the FDIC to
the limits established by such corporation, provided that any such deposits
not so insured shall be otherwise maintained such that (as evidenced by an
Opinion of Counsel delivered to the Trustee and to each Rating Agency) the
Certificateholders have a claim with respect to the funds in such account
or a perfected first priority security interest against any collateral
(which shall be limited to Eligible Investments) fully securing such funds
that is superior to claims of any other depositors or creditors of the
depository institution or trust company with which such account is
maintained, or (iii) a trust account maintained with a Federal or state
chartered depository institution or trust company acting in its fiduciary
capacity or (iv) such other account that will not cause each Rating Agency
to downgrade or withdraw the rating of the Certificates as evidenced by a
letter from each Rating Agency to such effect delivered to the Trustee.
"Eligible Investments" means any one or more of the
following (any of which may be obligations of, or may be purchased from the
Depositor or the Trustee if the indicated requirements are met):
(i) direct obligations of, or obligations fully
guaranteed as to principal and interest by, the United States of
America or any agency or instrumentality thereof, provided such
obligations are backed by the full faith and credit of the United
States;
(ii) repurchase obligations (the collateral for
which is held by a third party or the Trustee) with respect to any
security described in clause (i) above, provided that the
long-term unsecured obligations of the party agreeing to
repurchase such obligations are at the time rated by each Rating
Agency in its highest long-term rating category;
(iii) certificates of deposit, time deposits,
demand deposits and bankers' acceptances of any bank or trust
company incorporated under the laws of the United States or of any
state thereof or the District of Columbia, including the Trustee
and any Affiliate thereof, provided that the long-term debt
obligations of such bank or trust company (or, in the case of the
principal depository institution in a depository institution
holding company, the long-term unsecured debt obligations of the
depository institution holding company) at the date of acquisition
thereof have been rated by each Rating Agency in its highest
long-term rating category or the short-term unsecured debt
obligations of which are rated "A1" or the equivalent.
(iv) commercial paper of any corporation
incorporated under the laws of the United States or any state
thereof or the District of Columbia which on the date of
investment or contractual commitment to invest has been rated by
each Rating Agency in its highest short-term rating category;
(v) investment in money market funds having a
rating from each Rating Agency in the highest investments category
granted thereby (including funds for which the Trustee or the
Depositor or any of their respective Affiliates is investment
manager or advisor); and
(vi) any other obligation or security acceptable
to each Rating Agency (as certified by a letter from each Rating
Agency to the Trustee).
"ERISA" has the meaning specified in Section 4.06.
"FDIC" means the Federal Deposit Insurance Corporation.
"Initial [Class [A]] Certificate Principal Balance" means
With respect to the [Class [A]] Certificates, the aggregate principal
balance of the [Class [A]] Certificates on the Closing Date as set forth in
Section 4.01.
"Initial [Class [B]] Certificate Principal Balance" means
With respect to the [Class [B]] Certificates, the aggregate principal
balance of the [Class [B]] Certificates on the Closing Date as set forth in
Section 4.01.
"Interest Distribution Amount" means, as to any
Distribution Date, an amount equal to (i) the aggregate amount actually
distributed on the CRB Certificates on the immediately preceding Payment
Date and identified as allocable to interest in the related CRB Certificate
Statement plus (ii) the interest portion of the purchase price paid by the
Depositor in connection with the repurchase of any CRB Certificates
pursuant to Section 2.03 since the preceding Distribution Date.
"Majority in Interest" means the Holders of Certificates
evidencing, in the aggregate, at least 51% of the Percentage Interests
evidenced by all Certificates.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President, any Vice President, the Treasurer,
the Secretary, or one of the Assistant Treasurers or Assistant Secretaries
of the Depositor, as required by this Agreement.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for the Depositor, which opinion is reasonably
acceptable to the Trustee.
"Outstanding" means, with respect to the Certificates as
of any date of determination, all Certificates theretofore executed and
authenticated under this Agreement but excluding:
(i) Certificates theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered pursuant to this
Agreement unless proof satisfactory to the Trustee is presented
that any such Certificates are held by a holder in due course.
"Payment Date" means the dates on which payments are due
in respect of the CRB Certificates, as specified in the related Pooling and
Servicing Agreement.
"Percentage Interest" means, with respect to any
Certificate, the undivided beneficial ownership interest in the Trust
Property evidenced by Certificates of the same Class as such Certificate or
by all Certificates, in either case as specified more fully herein.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government, or any agency or political subdivision thereof.
"Plan Assets Regulation" means the plan assets regulation
adopted by the Department of Labor under ERISA and codified at 29 C.F.R.
(S) 2510.3-101.
"Pooling and Servicing Agreement" means the Pooling and
Servicing Agreement dated as of [ ], among [ ], as seller, [ ], as
servicer, and [ ], as trustee, pursuant to which the CRB Certificates were
issued, attached hereto as Exhibit D.
"Principal Distribution Amount" means, as to any
Distribution Date, an amount equal to (i) the aggregate amount, if any,
actually distributed on the CRB Certificates on the immediately preceding
Payment Date and identified as allocable to principal in the related CRB
Certificate Statement plus (ii) the principal portion of the purchase price
paid by the Depositor in connection with the repurchase of any of the CRB
Certificates pursuant to Section 2.03 since the preceding Distribution
Date.
"Rating Agency" means each of [S&P and Moody's].
References herein to the highest rating categories of any Rating Agency
shall mean such ratings without any modifiers.
"Record Date" means, with respect to any Distribution
Date, the close of business on the last day immediately preceding such
Distribution Date (or, in the case of Definitive Certificates, the last day
of the month preceding the month in which such Distribution Date occurs).
"Responsible Officer", when used with respect to the
Trustee, means the Chairman or Vice Chairman of the Board of Directors or
Trustees, the Chairman or Vice Chairman of the Executive or Standing
Committee of the Board of Directors or Trustees, the President, the
Chairman of the Committee on Trust Matters, any Vice President, any
Assistant Vice President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, any Trust Officer or Assistant Trust
Officer, the Controller and any Assistant Controller or any other officer
of the Trustee customarily performing functions similar to those performed
by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"S&P" means Standard & Poor's Corporation.
"Treasury Regulations" means regulations, including
proposed or temporary regulations, promulgated under the Code. References
in any document or instrument to specific provisions of proposed or
temporary regulations shall include analogous provisions of final Treasury
Regulations or other successor Treasury Regulations.
"Trust" means the trust created by this Agreement and
denominated as Card Account Trust, Series 200[ ]-[ ].
"Trust Property" means the corpus of the Trust, which
shall consist of: (i) the CRB Certificates described in the CRB Certificate
Schedule; (ii) all distributions thereon on and after the Cutoff Date; and
(iii) the Certificate Account and such assets that are deposited therein
from time to time and any investments thereof, together with any and all
income, proceeds and payments with respect thereto.
"Trustee" means [ ], a New York banking corporation, not
in its individual capacity but solely as Trustee hereunder.
SECTION 1.02 Other Definitional Provisions and Rules of Construction. (a)
All terms defined in this Agreement shall have the defined meanings when
used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) the words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement as a whole and not to
any particular provision of this Agreement; Article, Section and Exhibit
references contained in this Agreement are references to Articles, Sections
and Exhibits in or to this Agreement unless otherwise specified; and the
term "including" shall mean "including without limitation".
(c) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
(d) Any agreement, instrument or statute defined or referred to herein or
in any agreement or instrument that is referred to herein means such
agreement, instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by
waiver or consent and (in the case of statutes) by succession of comparable
successor statutes and references to all attachments thereto and
instruments incorporated therein. References to a Person are also to its
permitted successors and assigns.
ARTICLE II
CONVEYANCE OF THE CRB CERTIFICATES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Creation and Declaration of Trust;
Conveyance of the CRB Certificates. (a) The Depositor, concurrently with
the execution and delivery of this Agreement, does hereby sell, transfer,
assign, set over and otherwise convey to the Trustee, in trust, for the use
and benefit of the Certificateholders, without recourse, all the right,
title and interest of the Depositor including any security interest
therein, in, to and under the CRB Certificates, all payments and all
proceeds therefrom, and all other assets constituting the Trust Property.
(b) In connection with such transfer and assignment, the
Depositor does hereby deliver to, and deposit with, the Trustee the
following:
(i) confirmation of DTC of the sale by the
Depositor of the CRB Certificates to the Trustee and of the making
by DTC of entries on its records identifying the CRB Certificates
as belonging to the Trustee; and
(ii) a copy of the Pooling and Servicing
Agreement together with all exhibits and amendments thereto.
(c) It is intended that the conveyance of the Depositor's
right, title and interest in and to the CRB Certificates and all other
assets constituting the Trust Property pursuant to this Agreement shall
constitute, and be construed as, an absolute sale of the CRB Certificates
by the Depositor to the Trustee for the benefit of the Certificateholders.
Furthermore, it is not intended that such conveyance be deemed a pledge of
the CRB Certificates and the other assets constituting the Trust Property
by the Depositor to the Trustee to secure a debt or other obligation of the
Depositor. However, in the event that, notwithstanding the aforementioned
intent of the parties, the CRB Certificates and the other assets
constituting the Trust Property are held to be the property of the
Depositor, or if for any other reason this Agreement is held or deemed to
create a security interest in the CRB Certificates and the other assets
constituting the Trust Property, then it is intended as follows: (a) this
Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the Uniform Commercial Code as in effect
from time to time in the State of New York; (b) the conveyance provided for
in this Section shall be deemed to be a grant by the Depositor to the
Trustee of a security interest in all the Depositor's right, title and
interest in and to the CRB Certificates and all amounts payable to the
holders of the CRB Certificates after the Closing Date in accordance with
the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts from time to time held
or invested in the Certificate Account, whether in the form of cash,
instruments, securities or other property, (c) the possession by the
Trustee or its agent of the CRB Certificates and such other items of
property as constitute instruments, money, negotiable documents or chattel
paper shall be deemed to be "possession by the secured party" for purposes
of perfecting the security interest pursuant to Section 9-305 of the
Uniform Commercial Code; and (d) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the
purpose of perfecting such security interest under applicable law.
Notwithstanding the foregoing, the parties to this Agreement intend the
transfer pursuant to this section to be a true, absolute and unconditional
sale of the CRB Certificates and all such other assets constituting the
Trust Property by the Depositor to the Trustee.
(d) If the CRB Certificates are reissued as definitive
certificates as provided in the Pooling and Servicing Agreement, the
Trustee shall cause such definitive certificates to be issued in its name
as Trustee on behalf of the Trust and shall thereafter maintain possession
of such definitive certificates during the term of this Agreement unless
otherwise required to surrender such definitive certificates for final
payment as provided in the Pooling and Servicing Agreement.
SECTION 2.02 Acceptance by Trustee. The Trustee hereby
acknowledges the receipt by it of the CRB Certificates and the documents
referred to in Section 2.01(b)(ii) and declares that it holds and will hold
such CRB Certificates; such other documents and all other assets and
documents delivered to it pursuant to this Agreement, and that it will hold
all such assets and all such 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 this Agreement.
SECTION 2.03 Representations and Warranties of the
Depositor. The Depositor hereby represents and warrants to the Trustee that
as of the Closing Date:
(a) With respect to the CRB Certificates:
(i) the information set forth in the CRB
Certificate Schedule is true and correct in all material respects
as of the date or dates such information is furnished;
(ii) immediately prior to the sale and
assignment herein contemplated, the Depositor was the sole owner
of the CRB Certificates free and clear of any lien, pledge, charge
or encumbrance of any kind;
(iii) the Depositor acquired its ownership in
the CRB Certificates in good faith without notice of any adverse
claim; and
(iv) the Depository has not assigned any
interest in the CRB Certificates or any distributions thereon,
except as contemplated herein.
The representations and warranties set forth in this
Section 2.03(a) shall survive the transfer and assignment of the CRB
Certificates. Upon discovery by the Depositor or the Trustee of a breach of
any of the foregoing representations and warranties which materially and
adversely affects the interests of the Certificateholders in the CRB
Certificates, the Depositor or the Trustee shall give prompt written notice
to the other, to the Certificateholders and to each Rating Agency. Within
90 days of its discovery or its receipt of notice of any such breach, the
Depositor shall cure such breach in all material respects or, if such
breach cannot be cured, the Depositor shall repurchase the affected CRB
Certificates from the Trustee if the Depositor is so directed by a Majority
in Interest of the Certificateholders. Any such repurchase of a CRB
Certificate by the Depositor shall be accomplished prior to the
Distribution Date next following the receipt of such direction by a
Majority in Interest of the Certificateholders at a price equal to the sum
of (i) the outstanding principal amount of such CRB Certificate as of the
date of such repurchase and (ii) all unpaid accrued interest on such CRB
Certificate to the date of such repurchase at [ ] per annum (the "Purchase
Price"). The payment of the Purchase Price in connection with repurchased
CRB Certificates shall be considered a prepayment in full of such CRB
Certificates and shall be delivered to the Trustee for deposit in the
Certificate Account in accordance with the provisions of Section 3.02. Upon
such deposit into the Certificate Account, such CRB Certificates shall be
released to the Depositor, and the Trustee shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as
shall be reasonably requested and provided by the Depositor to vest in the
Depositor, or its designee or assignee, title to the CRB Certificates
repurchased pursuant hereto. The Depositor shall be entitled to all amounts
received by the Trustee in respect of any repurchased CRB Certificate to
the extent the distribution of such amounts would not make the total amount
distributed in respect of any such repurchased CRB Certificate greater than
the Purchase Price therefor. The obligation of the Depositor to cure or
repurchase the CRB Certificates as to which a breach specified in this
Section 2.03(a) has occurred and is continuing shall constitute the sole
remedy respecting such breach against the Depositor available to
Certificateholders or the Trustee on behalf of Certificateholders.
(b) With respect to the Depositor:
(i) the Depositor is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware with full power and authority to execute,
deliver and perform this Agreement;
(ii) the Certificates will be free and clear of
any right, charge, security interest, or lien or claim in favor of
the Depositor;
(iii) this Agreement has been duly authorized,
executed and delivered by the Depositor and assuming due
authorization, execution and delivery by the Trustee, constitutes
the valid, legal and binding obligation of the Depositor,
enforceable against it in accordance with its terms, except as
enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to or affecting creditors' rights generally or
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iv) neither the execution nor the delivery of
this Agreement nor the issuance, delivery and sale of the
Certificates, nor the consummation of any other of the
transactions contemplated herein nor the performance of its
obligations under this Agreement or the Certificates will result
in the breach of any term or provision of the certificate of
incorporation or bylaws of the Depositor or conflict with, result
in a breach, violation or acceleration of, or constitute a default
(or an event which, with notice or lapse of time or both, would
constitute a default) under, the terms of any material contract,
indenture or other agreement or instrument to which the Depositor
is a party or by which it is bound or any of its assets is bound,
or any statute, order or regulation applicable to the Depositor of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Depositor; and
(v) there are no actions or proceedings against,
or investigations of, the Depositor pending, or, to the knowledge
of the Depositor, threatened, before any court, administrative
agency or other tribunal (A) asserting the invalidity of this
Agreement or the Certificates, (B) seeking to prevent the issuance
of the Certificates or the consummation of any of the transactions
contemplated by this Agreement or (C) which might materially and
adversely affect the validity or enforceability of this Agreement
or the Certificates.
SECTION 2.04 Agreement to Authenticate and Deliver
Certificates. The Trustee acknowledges the transfer, delivery and
assignment to it of the Trust Property, and concurrently with such transfer
and delivery, the Trustee has executed, authenticated and delivered, to or
upon the order of the Depositor, the Certificates duly executed and
authenticated by the Trustee in authorized denominations evidencing
ownership of the entire Trust Property and registered in such names as the
Depositor shall direct in writing, all in accordance with the terms and
subject to the conditions hereof.
ARTICLE III
ADMINISTRATION OF THE TRUST PROPERTY;
DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS
SECTION 3.01 Administration of the Trust Property. The
Trustee shall administer the Trust Property for the benefit of the
Certificateholders. The Trustee shall make reasonable effort to collect all
payments required to be made pursuant to the terms of the CRB Certificates
and the Pooling and Servicing Agreement in a manner consistent with the
terms of the Pooling and Servicing Agreement and such CRB Certificates. In
connection with its receipts of any funds distributed in respect of a CRB
Certificate on any Payment Date, the Trustee shall review the related CRB
Certificate Statement and shall confirm that the principal and interest
payments received on such Payment Date are equal to the distribution amount
shown on the related CRB Certificate Statement. If (i) the amount of any
distribution on a CRB Certificate varies from the amount reported to the
Trustee on the applicable CRB Certificate Statement for such distribution,
(ii) the Trustee shall not have received a distribution on any CRB
Certificate by the close of business on the date on which such distribution
was to be received by the Trustee of (iii) the Trustee shall gain actual
knowledge of any other default or event of default under the Pooling and
Servicing Agreement, the Trustee shall promptly notify the Depositor and
the Certificateholders and shall proceed in accordance with the provisions
hereof, including Section 5.01(c), (d) and (e).
SECTION 3.02 Certificate Account. (a) The Trustee, for
the benefit of the Certificateholders, shall establish and maintain one or
more non-interest bearing Eligible Accounts (collectively, the "Certificate
Account"), entitled [ ], as Trustee, in trust for the registered holders of
Certificates in Card Account Trust, Series, 200[ ]-[ ]. The Trustee, on
behalf of the Certificateholders, shall possess all right, title and
interest in all funds deposited from time to time n the Certificate Account
and in all proceeds thereof. The Trustee shall upon receipt deposit in the
Certificate Account all amounts collected and payments received in respect
of the CRB Certificates, including:
(i) all distributions received on the CRB
Certificates subsequent to the Cutoff Date; and
(ii) any amount required to be deposited in the
Certificate Account pursuant to Section 2.03(a) in connection with
the repurchase of a CRB Certificate by the Depositor.
If, at any time, the Certificate Account ceases to be an
Eligible Account, the Trustee shall within five Business Days establish a
new Certificate Account meeting the conditions specified above and transfer
any cash and any investments on deposit in the Certificate Account to such
new Certificate Account, and from the date such new Certificate Account is
established, it shall be the Certificate Account.
(b) The Trustee shall give written notice to the
Depositor and each Rating Agency of the location of each Eligible Account
constituting the Certificate Account upon establishment thereof and prior
to any change thereof.
SECTION 3.03 Investment of Funds in the Certificate
Account. The Depositor, on behalf of the Trust, may direct in writing any
depository institution maintaining the Certificate Account to invest the
funds in such Certificate Account in one or more Eligible Investments,
which shall mature not later than the Business Day immediately preceding
the next Distribution Date (or, if the Trustee in its commercial capacity
is the obligor of such Eligible Investments and the Certificate Account is
maintained by the Trustee, such Eligible Investments shall mature not later
than the next Distribution Date) and shall not be sold or disposed of prior
to their respective maturities; provided, however, that if the Depositor
fails to select any such Eligible Investment, the Trustee shall direct such
institution to invest such funds in demand deposits meeting the
requirements described in item (iii) of the definition of Eligible
Investments. All such Eligible Investments shall be made in the name of the
Trustee, in trust for the Holders of the Certificates, or its nominee. All
proceeds of any such investment shall be deposited in the Certificate
Account, may not be reinvested and may only be withdrawn an applied for the
purposes set forth herein.
SECTION 3.04 Permitted Withdrawals from the Certificate
Account. The Trustee, may from time to time withdraw funds from the
Certificate Account for the following purposes:
(i) to make payments to Certificateholders in
the amounts and in the manner provided for in Section 3.05;
(ii) to reimburse the Trustee, to the extent of
the net proceeds recovered on any defaulted CRB Certificates,
prior to the distribution of such proceeds to Certificateholders,
for any unreimbursed expenses incurred with respect to the
exercise of remedies in respect of such CRB Certificates pursuant
to Section 5.01;
(iii) to reimburse the Depositor for expenses
incurred by and reimbursable to the Depositor pursuant to Section
6.03;
(iv) to clear and terminate the Certificate
Account upon the termination of this Agreement.
SECTION 3.05 Distributions. (a) On each Distribution
Date, the Trustee shall withdraw from the Certificate Account all Available
Funds then on deposit and shall distribute such Available Funds (in each
case to the extent of the remaining Available Funds) for the following
purposes and in the following order of priority:
(i) to pay to the Holders of the [Class [A]]
Certificates the [Class [A]] Interest Amount for such Distribution
Date and to pay to the Holders of the [Class [B]] Certificates the
[Class [B]] Interest Amount for such Distribution Date, without
preference or priority one over the other;
(ii) to pay to the Trustee a pro rata portion of
the Trustee's annual fee for services;
(iii) to pay to the Holders of the [Class [A]]
Certificates the [Class [A]] Principal Distribution Amount for
such Distribution Date and to pay to the Holders of the [Class
[B]] Certificates the [Class [B]] Principal Distribution Amount
for such Distribution Date, without preference or priority one
over the other; and
(iv) to pay to the Trustee any unreimbursed
expenses incurred by the Trustee but not covered by the Trustee's
annual fee.
(b) All distributions made with respect to each Class on
each Distribution Date shall be allocated pro rata among the Outstanding
Certificates of such Class based upon their respective Percentage Interests
in respect of such Class. Payments to the Certificateholders of each Class
on each Distribution Date will be made to the Certificateholders of record
on the related Record Date (other than as provided in Section 7.01 with
respect to the final distribution). Distributions to any Certificateholder
on any Distribution Date shall be made by wire transfer of immediately
available funds, at the expense of the Certificateholder requesting such
wire transfer by deducting a wire transfer fee from the related transfer,
to the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five Business Days prior to the
related Record Date and such Certificateholder at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall
have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold
Certificates with an aggregate Certificate Principal Balance as of the
Closing Date of at least $1,000,000 or in such other manner as shall be
agreed to by the Trustee and such Certificateholder, or otherwise by check
mailed by first class mail to the address of such Certificateholder
appearing in the Certificate Register. Final distribution on each
Certificate will be made in like manner, but only upon present and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
SECTION 3.06 Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement to the contrary, the
Trustee shall comply with all Federal income tax withholding requirements
respecting distributions to, or receipts of amounts on behalf of,
Certificateholders that the Trustee reasonably believes are applicable
under the Code. The consent of Certificateholders shall not be required for
such withholding. In the event the Trustee does withhold any amount from
interest or principal distribution thereof to any Certificateholder
pursuant to federal withholding requirements, the Trustee shall indicate in
the statement required pursuant to Section 3.07 the amount so withheld.
SECTION 3.07 Statements to Certificateholders. On the
second Business Day preceding each Distribution Date (each, a
"Determination Date"), the Depositor (or its designee) shall prepare and
forward a statement (a "Distribution Date Statement") to the Trustee, who
in turn shall forward such statement by mail to each Rating Agency and each
Certificateholder. Each such Distribution Date Statement shall set forth
the following information:
(i) the Available Funds for such Distribution
Date;
(ii) the Interest Distribution Amount for such
Distribution Date;
(iii) the Principal Distribution Amount, if any,
for such Distribution Date;
(iv) with respect to such Distribution Date, the
[Class [A]] Interest Amount, the [Class [A]] Principal
Distribution Amount and the aggregate amount of distributions made
to the [Class [A]] Certificateholders on such Distribution Date in
respect of each such item pursuant to Section 3.05;
(v) with respect to such Distribution Date, the
[Class [B]] Interest Amount, the [Class [B]] Principal
Distribution Amount and the aggregate amount of distributions made
to the [Class [B]] Certificateholders on such Distribution Date in
respect of each such item pursuant to Section 3.05;
(vi) the [Class [A]] Certificate Principal
Balance and the [Class [B]] Certificate Principal Balance, after
giving effect to distributions of principal of such Certificates
on such Distribution Date; and
(vii) the amount of any withdrawals made from
the Certificate Account since the immediately preceding
Distribution Date pursuant to clauses (ii) through (iv) of Section
3.04, together with a general description of the purpose of each
such withdrawal.
In the case of the information furnished pursuant to
clauses (i), (iv) and (v) above, the foregoing amounts shall also be stated
as a dollar amount per $1,000 principal amount of the applicable Class.
In addition, the Trustee promptly shall furnish to
Certificateholders copies of any notices, statements, reports or other
communications received by the Trustee as the Collateral Holder.
On or before January 31 of each calendar year, beginning
with calendar year 200[ ], the Trustee shall furnish by first class mail to
each Person who at any time during the previous calendar year was a
Certificateholder of record a statement containing the information required
to be contained in the regular report to Certificateholders, as set forth
in clauses (iv) and (v) above, aggregated for such calendar year or the
applicable portion thereof during which such Person was a Certificateholder
which statement shall contain sufficient information to allow
Certificateholders to calculate their United States federal income tax
liability with respect to the Certificates. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code.
The Trustee shall furnish to each Certificateholder
during the term of this Agreement such periodic, special or other reports
or information, whether or not provided for herein, as shall be necessary,
reasonable or appropriate with respect to the Certificateholder or
otherwise with respect to the purposes of this Agreement, all such reports
or information to be provided by and in accordance with such applicable
instructions and directions as the Certificateholder may reasonably require
and at the expense of such Certificateholder.
SECTION 3.08 Reports of the Trustee; Certificate Account.
Upon request of a Certificateholder, the Trustee shall make available to
Certificateholders a statement setting forth the status of the Certificate
Account as of the close of business on the Distribution Date immediately
preceding such request, and showing, for the period covered by such
statement, the aggregate of deposits into and withdrawals from the
Certificate Account.
SECTION 3.09 Access to Certain Documentation and
Information. (a) The Trustee shall provide the Certificateholders with
access to a copy of each report received by it as Collateral Holder under
the Pooling and Servicing Agreement with respect to the CRB Certificates.
The Trustee shall also provide the Depositor with access to each such
report and to all written reports, documents and records required to be
maintained by the Trustee in respect of its duties hereunder. The Trustee
shall keep a certified copy or duplicate original of this Agreement on file
at its Corporate Trust Office for inspection by any Certificateholder. The
Trustee shall provide, at the written request of three or more
Certificateholders or one or more Certificateholders evidencing Percentage
Interests of not less than 25% of the Certificates, access to the current
list of the names and addresses of all Certificateholders for the purpose
of communicating with other Certificateholders with respect to their rights
under this Agreement or under the Certificates. Such access shall be
afforded without charge but only upon reasonable request evidenced by prior
written notice to the Trustee and during normal business hours at offices
designated by the Trustee.
ARTICLE IV
THE CERTIFICATES
SECTION 4.01 The Certificates. (a) The [Class [A]]
Certificates and the [Class [B]] Certificates shall be substantially in the
respective forms set forth in Exhibits A and B hereto. The Certificates
shall, on original issue, be executed and authenticated by the Trustee and
delivered by the Trustee to or upon the order of the Depositor upon receipt
by the Trustee of the CRB Certificates and any other documents specified in
Section 2.01.
(b) The Certificates shall be issuable in fully
registered form only, in the minimum original principal amounts of $1,000
and integral multiples thereof.
(c) The Certificates shall be executed by manual
Signature on behalf of the Trustee in its capacity as trustee hereunder by
a Responsible Officer. Certificates bearing the manual signatures of
individuals who were at any time the proper officers of the Trustee shall
bind the Trustee, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Certificates or did not hold such offices at the date of such
Certificate. No Certificates shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates issued on the Closing Date shall be dated the
Closing Date. All Certificates issued thereafter shall be dated the date of
their authentication.
SECTION 4.02 Registration of Transfer and Exchange of
Certificates. (a) The Trustee shall keep at one of the offices or agencies
to be maintained by the Trustee in accordance with Section 4.05 a
Certificate Register in which, subject to such reasonable regulations as it
may prescribe, the Trustee shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein
provided.
(b) Upon surrender for registration of transfer of any
Certificate at the Corporate Trust Office, the Trustee shall execute and
deliver, in the name of the designated transferee or transferees, one or
more new Certificates in authorized denominations and of the same Class and
aggregate Percentage Interest.
(c) At the option of the Certificateholders, each
Certificate may be exchanged for a Certificate of like aggregate original
principal amount, series, class, original issue date and maturity, in
different authorized denominations upon surrender of the Certificates to be
exchanged at the office maintained by the Trustee pursuant to Section 4.05.
Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute, authenticate and deliver the Certificates that the
Certificateholder making the exchange is entitled to receive. Each
Certificate presented or surrendered for registration of transfer or
exchange shall (if so required by the Trustee) be duly endorsed by, or be
accompanied by a written instrument of transfer in the form satisfactory to
the Trustee, duly executed by the Holder thereof or his attorney duly
authorized in writing.
(d) Certificates delivered upon any exchange will
evidence the same obligations, and will be entitled to the same rights and
privileges, as the Certificates surrendered.
(e) No service charge shall be imposed for any
registration of transfer or exchange of Certificates of any Class, but the
Trustee may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
(f) All Certificates surrendered for registration of
transfer and exchange shall be cancelled and destroyed by the Trustee in
accordance with its standard procedures without liability on its part.
SECTION 4.03 Mutilated, Destroyed, Lost or Stolen
Certificates. If (a)(i) any mutilated Certificate is surrendered to the
Trustee or (ii) the Depositor and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate and of
the ownership thereof and (b) there is delivered to the Trustee and the
Depositor such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of receipt by either the
Trustee or the Depositor of written notice that such Certificate has been
acquired by a bona fide purchaser, the Trustee shall execute and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor, form, terms and principal
amount, as applicable, bearing a number not contemporaneously Outstanding,
so that neither gain nor loss in interest shall result from such exchange
or substitution.
Upon the issuance of any new Certificate under this
Section 4.03, the Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Any duplicate Certificate issued pursuant to this Section
4.03 shall constitute complete and indefeasible evidence of the rights of a
Holder of the originally issued Certificate as if such duplicate
Certificate was originally issued, whether or not the lost, stolen or
destroyed Certificate shall be, at any time, enforceable by anyone and
shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Certificates of the respective
Class, if any, duly issued hereunder. All Certificates surrendered to he
Trustee under the terms of this Section 4.03 shall be cancelled and
destroyed by the Trustee in accordance with its standard procedures without
liability on its part. The provisions of this Section 4.03 are exclusive
and shall preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Certificates.
SECTION 4.04 Persons Deemed Owners. The Trustee and the
Depositor and any agent of either of them may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 3.05 and for all
other purposes whatsoever, and neither the Trustee, the Depositor nor any
such agent shall be affected by notice to the contrary.
SECTION 4.05 Maintenance of Office or Agency. The Trustee
will maintain at its expense in the Borough of Manhattan, The City of New
York, State of New York, an office or agency where Certificates may be
surrendered for registration of transfer or exchange and presented for
final distribution and where notices and demands to or upon the Trust
Property in respect of the Certificates and this Agreement may be served.
Such office or agency shall initially be maintained at [ ]. The Trustee
will give prompt written notice to the Certificateholders and the Depositor
of any change in the location of any such office or agency.
SECTION 4.06 ERISA Considerations. No Certificate may be
acquired by an employee benefit plan, as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that
is subject to the provisions of Title I of ERISA, a plan described in
Section 4975(e)(i) of the Code or any entity whose underlying assets
include plan assets by reason of a plan's investment in the entity (each, a
"Benefit Plan"). Each Certificateholder, by virtue of the acquisition and
holding of a Certificate, will be deemed to have represented and warranted
to the Depositor and the Trustee that such Certificateholder is not a
Benefit Plan.
SECTION 4.07 Authenticating Agent. (a) The Trustee may
appoint one or more authenticating agents with respect to the Certificates
which shall be authorized to act on behalf of the Trustee in authenticating
the Certificates in connection with the issuance, delivery, registration of
transfer, exchange or repayment of the Certificates.
Whenever reference is made in this Agreement to the
authentications of Certificates by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include authentication
on behalf of the Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Trustee by an authenticating
agent. Each authenticating agent must be acceptable to the Depositor.
(b) Any institution succeeding to the corporate agency
business of any authenticating agent shall continue to be an authenticating
agent without the execution or filing of any power or any further act on
the part of the Trustee or such authenticating agent. An authenticating
agent may at any time resign by giving notice of resignation to the Trustee
and to the Depositor. The Trustee may at any time terminate the agency of
an authenticating agent by giving notice of termination to such
authenticating agent and to the Depositor. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time an
authenticating agent shall cease to be acceptable to the Trustee or the
Depositor, the Trustee promptly may appoint a successor authenticating
agent. Any successor authenticating agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally
named as an authenticating agent. No successor authenticating agent shall
be appointed unless acceptable to the Trustee and the Depositor. The
Depositor agrees to pay to each authenticating agent from time to time
reasonable compensation for its services under this Section. In the event
the Trustee acts as authenticating agent hereunder, the provisions of
Article V shall be applicable to the Trustee in such other capacity as
authenticating agent.
(c) Pursuant to an appointment made under this Section,
the Certificates may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication
in substantially the following form:
This is one of the [Class [A]] [Class [B]] Certificates
described in the Trust Agreement referred to herein.
____________________________
as Authenticating Agent
for the Trustee,
By _________________________
Authorized Officer
SECTION 4.08 Book-Entry Certificates. The Certificates,
upon original issuance, shall be issued in the form of one or more
typewritten Certificates for each Class representing the Book-Entry
Certificates, to be delivered to DTC, the initial Clearing Agency, by, or
on behalf of, the Trust. The Certificates shall initially be registered on
the certificate Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Certificateholder will receive a Definitive
Certificate (as defined below) representing such Certificateholder's
interest in the Certificates, except as provided in Section 4.10. Unless
and until definitive, fully registered Certificates ("Definitive
Certificates") have been issued to the applicable Certificateholder
pursuant to Section 4.10.:
(a) the provisions of this Section shall be in full force
and effect;
(b) the Depositor and the Trustee may deal with the
Clearing Agency and the Clearing Agency Participant for all
purposes (including the making of distributions in respect of the
Certificates) as the authorized representatives of the respective
Certificateholders;
(c) to the extent that the provisions of this Section
conflict with any other provisions of this Agreement, the
provisions of this Section shall control;
(d) the rights of the respective Certificateholders shall
be exercised only through the Clearing Agency and the Clearing
Agency participants and shall be limited to those established by
law and agreements between such Certificateholders and the
Clearing Agency and/or the Clearing Agency Participants pursuant
to the Depository Agreement. Unless and until Definitive
Certificates are issued pursuant to Section 4.10, the initial
Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit distributions of
principle and interest and any other amounts on the related
Certificates to such Clearing Agency Participants; and
(e) whenever this agreement requires or permits actions
to be taken with the consent of, or at the direction of,
Certificateholders evidencing a specified percentage of the
aggregate principal amount or notional amount, as the case may be,
of Outstanding Certificates of any Class, the Clearing Agency
shall be deemed to represent such percentage only to the extent
that is has received instructions to such effect from
Certificateholders and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the
beneficial interest in the principal amount or notional amount, as
the case may be, of the applicable Class of Certificates and has
delivered instructions to the Trustee.
SECTION 4.09 Notices to Clearing Agency. Whenever any
notice or other communication is required to be given to Certificateholders
with respect to which Book-Entry Certificates have been issued, unless and
until Definitive Certificates shall have been issued to the related
Certificateholders, the Trustee shall give all such notices and
communications to the Clearing Agency.
SECTION 4.10 Definitive Certificates. If Book-Entry
Certificates have been issued with respect to any Class and (a) the
depositor advised the Trustee that DTC is no longer willing or able to
discharge properly its responsibilities under the Depository Agreement with
respect to such Class and the Trustee or the Depositor is unable to locate
a qualified successor, (b) the Depositor, at its option, advises the
Trustee that it elects to terminate the book-entry system with respect to
such Class through the Clearing Agency or (c) after the occurrence of a
payment default with respect to the CRB Certificates, Certificateholders
representing at least a majority of the outstanding principal amount of
Certificate of such Class advise the Clearing Agency (which shall then
notify the Trustee) in writing that the continuation of a book-entry system
with respect to the Certificates of such Class through the Clearing Agency
is no longer in the best interests of the holders of such Certificates,
then the Trustee shall cause the Clearing Agency to notify all holders of
such Certificates, through the Clearing Agency, of the occurrence of any
such event and of the availability of Definitive Certificates to holders of
such Certificates requesting the same. Upon surrender to the Trustee of any
such Certificates representing Book-Entry Certificates by the Clearing
Agency, accompanied by instructions for re-registration, the Trustee shall
execute authenticate and deliver such Certificates as Definitive
Certificates to such Certificateholders in accordance with the instructions
of the Clearing Agency. None of the Trust, the Depositor or the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of such Definitive Certificate, all
references herein to obligations imposed upon or to be performed by the
Clearing Agency shall be deemed to be imposed upon and performed by the
Trustee, to the extent applicable with respect to such Definitive
Certificates and the Trustee shall recognize the Holders of such Definitive
Certificates as Certificateholders hereunder.
Upon the issuance of Definitive Certificates,
distributions of amount in respect of such Definitive Certificates shall
thereafter be made by the Trustee on each Distribution Date in accordance
with the procedures set forth in Section 3.05 directly to holders of
Definitive Certificates in whose names the Definitive Certificates were
registered at the close of business on the related Record Date. Such
distributions shall be made by check mailed to the address of such holder
as it appears on the Certificate Register maintained by the Trustee (or, as
provided in Section 3.05, by wire transfer); provided, however, that the
final payment on any such Definitive Certificate shall be made only upon
presentation and surrender of such Definitive Certificate at the office or
agency specified in the notice of final distribution to Certificateholders.
ARTICLE V
THE TRUSTEE
SECTION 5.01 Duties of the Trustee. (a) The Trustee
undertakes to perform such duties and only such duties as are specifically
set forth in this Agreement. The Trustee shall have the authority to
exercise the rights and powers vested in it by this Agreement. Any
permissive right of the Trustee set forth in this Agreement shall not be
construed as a duty.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished to it pursuant to any provision of this Agreement or to it in its
capacity as Collateral Holder pursuant to the Pooling and Servicing
Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement or the pooling and Servicing Agreement. If
any such instrument is found not to conform to the requirements of this
Agreement or the Pooling and Servicing Agreement in a material manner, the
Trustee shall take such action as a Majority in Interest of
Certificateholders shall direct, and the Trustee will provide notice
thereof to the Depositor, the Certificateholders and each Rating Agency.
(c) In the event of a default in respect of the CRB
Certificates, the Trustee shall proceed to enforce its rights as a holder
of the CRB Certificates under the Pooling and Servicing Agreement, unless
otherwise directed by a Majority in Interest of each Class of Certificates
affected thereby. The Trustee may, in its discretion, and will, if so
directed by a Majority in Interest of each Class of Certificates affected
thereby, proceed to enforce any rights which it may have as a holder of CRB
Certificates. In addition, a Majority in Interest of each Class of
Certificates may together direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee as a holder of CRB
Certificates. Notwithstanding the foregoing, the Trustee shall in no event
exercise any of its rights as a Collateral Holder in an manner inconsistent
with the terms of paragraphs (d) and (e) of this Section 5.01.
(d) In the event that (i) the Trustee has the right to
vote or give consent in respect of the CRB Certificates or receives a
request from the trustee or the issuer of the CRB Certificates for its
consent to any amendment, modification or waiver under any document
relating to the CRB Certificates, or receives any other solicitation for
any action with respect to the CRB Certificates, (ii) the Depositor
notifies the Trustee of its determination that taking any such action is
primarily intended to maintain the initial value or credit rating of the
CRB Certificates, and any additional consequences that might arise as a
result of taking any such action are incidental, and (iii) either (A) the
CRB Certificate are in default, (B) the Depositor notifies the Trustee of
its determination that the CRB Certificates will probably have their credit
rating downgraded (or be in default) in the reasonably foreseeable future
absent such action or (C) the Depositor delivers to the Trustee an opinion
of tax counsel to the effect that the Trust will continue to qualify as a
grantor trust under the Code if any such action were to be taken, then, (x)
the Trustee shall mail a notice of such proposed action, including a
description thereof, to each Certificateholder of record as of such date,
(y) the Trustee shall request instructions from the Certificateholders as
to whether or not to take such action and (z) the Trustee shall vote, give
consent or otherwise act as Collateral Holder with respect to a particular
matter in the same proportion as the Certificates of the Trust were
actually voted with respect to such matter (or, if such a proportional
action is not permitted, in accordance with the instructions of Holders of
a Majority in Interest of the Certificates) as of a date determined by the
Trustee prior to the date on which such action is required, provided that
the Trustee shall have no liability for any failure to act resulting from
Certificateholders' late return of, or failure to return, directions
requested by the Trustee from the Certificateholders. If each of the
conditions set forth in clauses (ii) and (iii) of the next preceding
sentence are not satisfied, then the Trustee shall abstain from taking any
action with respect to any vote, consent or other action that is referred
to in clause (i) of the next preceding sentence.
(e) Notwithstanding anything to the contrary contained
herein, the Trustee shall be under no obligation to exercise or enforce any
of the rights or powers vested in it by this Agreement or as the Collateral
Holder, at the request, order or direction of any of the
Certificateholders, unless such Certificateholders have offered to the
Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Trustee in compliance
with such request, order or direction or if such request, order or
direction is in conflict with any rule of law or this Agreement. In the
event of any default under this Agreement by the Depositor or any default
under the CRB Certificates, subject to compliance with paragraph (d) above,
the Trustee may in its discretion proceed to protect and enforce the rights
of Certificateholders by any action, suit or proceeding deemed proper by
the Trustee which is not inconsistent with any request or direction by the
Holders of a Majority in Interest of the Certificates of each Class
affected thereby.
(f) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own misconduct or from liability for any
negligent action or any negligent failure to act in respect of the Trust
Property, the CRB Certificates or the Pooling and Servicing Agreement in
any capacity other than as Trustee; provided, however, that:
(i) the duties and obligations of the Trustee
shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall
be read into this Agreement against the Trustee and, in the
absence of bad faith or negligence on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates, opinions, documents and other statements furnished
to the Trustee that conform on their face to the requirements of
this Agreement;
(ii) the Trustee shall not be personally liable
for an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Trustee shall not be personally liable
with respect to any action taken, suffered or omitted to be taken
by it in good faith and believed by it to be authorized or within
its discretion or authority hereunder or in accordance with the
direction of the Holders of Certificates evidencing Percentage
Interests aggregating not less than 66- 2/3% of all the
Certificates relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under
this Agreement.
SECTION 5.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 5.01:
(i) the Trustee may request and rely upon and
shall be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or
document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and
any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) except for the duties and obligations of
the Trustee expressly created by this Agreement, the Trustee shall
be under no obligation to exercise any of the trusts or powers
vested in it by this Agreement or to make any investigation of
matters arising hereunder or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, or if such request or direction is
in conflict with any rule of law or this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing contained herein
shall, however, relieve the Trustee of the obligation, to use the
same degree of care and skill in its exercise of rights and
remedies hereunder on behalf of Certificateholders as a prudent
man would exercise or use under the circumstances in the conduct
of his own affairs;
(iv) the Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys;
(v) the Trustee shall not be personally liable
for any loss resulting from the investment of funds held in the
Certificate Account pursuant to Section 3.03; and
(vi) the Trustee shall not be deemed to have
notice or knowledge of any matter unless a Responsible Officer
assigned to and working in the Corporate Trust Office has actual
knowledge thereof or unless written notice thereof is received by
the Trustee at the Corporate Trust Office and such notice
references the Certificates generally or this Agreement.
SECTION 5.03 Trustee Not Liable for Certificates. The
recitals contained herein and in the Certificates, other than the signature
of the Trustee on the Certificates and the certificate of authentication,
shall be taken as the statements of the Depositor, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no
representations or warranties as to the validity or sufficiency of this
Agreement or of the Certificates or of the CRB Certificates or related
documents, other than the signature of the Trustee on the Certificates and
the certificate of authentication. The Trustee shall not be accountable
hereunder or under the Certificates, except (i) for its own bad faith or
negligence or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 5.12 expressly made by the Trustee.
SECTION 5.04 Trustee May Own Certificates. The Trustee in
its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Trustee;
provided, however, that in determining whether the Holders of the required
Percentage Interest shall have consented to any action hereunder requiring
such consent, the Trustee's interest shall be excluded.
SECTION 5.05 Trustee's Fees and Expenses. The Depositor
covenants and agrees to pay to the Trustee on the Closing Date, and the
Trustee shall be entitled to receive from time to time out of amounts
collected and payments received in respect of the CRB Certificates,
reasonable compensation (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) for all
services rendered by it in the execution of the trusts hereby created and
in the exercise and performance of any of the powers and duties hereunder
or of the Trustee, and the Depositor will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of
this Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its
employ), except any such expense, disbursement or advance as may arise from
the Trustee's willful misfeasance, negligence or bad faith. The Trustee and
any director, officer, employee or agent of the Trustee shall be
indemnified by the Depositor and held harmless against any loss, liability
or expense incurred in connection with any legal action relating to this
Agreement or the Certificates, or the performance of any of the Trustee's
duties hereunder, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and
duties hereunder; provided that (i) with respect to any such loss,
liability or expense, the Trustee shall have given to the Depositor written
notice thereof promptly after the Trustee shall have knowledge thereof and
(ii) while maintaining control over its own defense, the Trustee shall
cooperate and consult fully with the Depositor. Such indemnity shall
survive the termination or discharge of this Agreement and the resignation
or removal of the Trustee. Any payment hereunder made by the Depositor to
the Trustee shall be from the Depositor's own funds, without reimbursement
from the Trust Property therefor.
SECTION 5.06 Eligibility Requirements for Trustee. The
Trustee shall at all times be a corporation or a national banking
association organized and doing business under the laws of any state or the
United States of America or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and the long-term debt obligations of which
are rated in one of the four highest categories assigned long-term debt
obligations by one of the Rating Agencies, and is subject to supervision or
examination by federal or state authority. If such corporation or
association publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of conditions so published.
In the event that any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 5.07.
The corporation or national banking association serving as Trustee may have
normal banking and trust relationships with the Depositor and its
Affiliates; provided, however, that such corporation shall not be an
Affiliate of the Depositor.
SECTION 5.07 Resignation and Removal of the Trustee.
(a) Subject to the last sentence of this subsection (a),
the Trustee may at any time resign and be discharged from the Trust hereby
created by giving notice thereof to the Depositor, the Certificateholders
and each Rating Agency. Upon receiving such notice of resignation, the
Depositor (with the consent of a Majority in Interest of
Certificateholders) shall as promptly as possible (and in any event within
30 days after the date of such notice of resignation) appoint a successor
trustee by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee and to the successor trustee. A copy of
such instrument shall be delivered to the Certificateholders and each
Rating Agency by the Depositor. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee for the
Certificates.
(b) If at any time the Trustee shall cease to be eligible
in accordance with the provisions of Section 5.06 and shall fail to resign
after written request therefor by the Depositor or a Majority in Interest
of the Certificateholders, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, reorganization,
conservation or liquidation, then the Depositor (with the consent of a
Majority in Interest of Certificateholders) may remove the Trustee and
appoint a successor trustee by written instrument, in duplicate, which
instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the
Certificateholders and each Rating Agency by the Depositor.
(c) The Holders of Certificates representing not less
than a Majority in Interest of Certificateholders may at any time remove
the Trustee and appoint a successor trustee upon 30 days' notice to the
Trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of
which instruments shall be delivered to the Depositor, one complete set to
the Trustee so removed and one complete set to the successor trustee so
appointed. A copy of such instrument shall be delivered to the
Certificateholders and each Rating Agency by the Depositor.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of the provisions of
this Section shall not become effective until acceptance of appointment by
the successor trustee as provided in Section 5.08.
SECTION 5.08 Successor Trustee. (a) Any successor trustee
appointed as provided in Section 5.07 shall execute, acknowledge and
deliver to each of the Depositor, the Certificateholders and its
predecessor trustee and each Rating Agency an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as Trustee herein.
The predecessor Trustee shall deliver to the successor trustee the CRB
Certificates and all related documents and statements held by it hereunder,
and the Depositor and the predecessor Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
more fully and certainly vesting and confirming in the successor trustee
all the rights, powers, duties and obligations of the Trustee under this
Agreement.
No successor trustee shall accept appointment as provided
in this Section unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 5.06.
(b) Upon acceptance of appointment by a successor trustee
as provided in this Section, the Depositor shall mail notice of the
succession of such trustee hereunder to all Holders of Certificates at
their addresses as shown in the Certificate Register.
SECTION 5.09 Merger or Consolidation of Trustee. Any
corporation into which the Trustee may be merged or converted or with which
it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be eligible under the provisions of Section
5.06, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding. The Trustee shall provide notice of any such merger to
each Rating Agency.
SECTION 5.10 Appointment of Co-Trustee or Separate
Trustee.
(a) Notwithstanding any other provisions hereof, at any
time, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust Property or property securing the same may
at the time be located, the Depositor and the Trustee acting jointly shall
have the power and shall execute and deliver all instruments to appoint one
or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Property, and to vest in such
Person or Persons, in such capacity, such title to the Trust Property, or
any part thereof, and subject to the other provisions of this Section 5.10,
such powers, duties, obligations, rights and trusts as the Depositor and
the Trustee may consider necessary or desirable. If the Depositor shall not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 5.06
hereunder and no notice to Holders of Certificates or Rating Agencies of
the appointment of co-trustee(s) or separate trustee(s) shall be required
under Section 5.08.
(b) In the case of any appointment of a co-trustee or
separate trustee pursuant to this Section 5.10, all rights, powers, duties
and obligations conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Property or any portion thereof in any
such jurisdiction) shall be exercised and performed by such separate
trustee or co-trustee at the direction of the Trustee. The Depositor and
the Trustee acting jointly may at any time accept the resignation or remove
any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article V. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the Depositor.
(d) Any separate trustee or co-trustee may, at any time,
constitute and appoint the Trustee as its agent or attorney-in-fact, with
full power and authority, to the extent not prohibited by law, to do any
lawful act under or in respect of this Agreement on its behalf and in its
name. If any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all its estates, properties, rights, remedies
and trusts shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
SECTION 5.11 Tax Returns. The Trustee will prepare or
cause to be prepared, sign and file or cause to be filed all tax or
informational returns required to be prepared and filed on behalf of the
Trust under any Federal, state or local income tax laws.
SECTION 5.12 Representations and Warranties of Trustee.
(a) The Trustee represents and warrants that:
(i) the Trustee is duly organized, validly
existing and in good standing under the laws of its jurisdiction
of incorporation or association;
(ii) the Trustee has full power, authority and
right to execute, deliver and perform its duties and obligations
under this Agreement and the Certificates and has taken all
necessary action to authorize the execution, delivery and
performance by it (or, with respect to the Certificates, by it and
an authenticating agent on its behalf, if applicable) of this
Agreement and the Certificates;
(iii) the execution and delivery of this
Agreement and the Certificates by the Trustee and its performance
of the compliance with the terms of this Agreement, and the
Certificates will not violate the Trustee's articles of
incorporation, association or other constitutive documents or
By-laws or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or
result in the breach or acceleration of, any material contract,
agreement or other instrument to which the Trustee is a party or
which may be applicable to the Trustee or any of its assets;
(iv) as of the Closing Date, each of this
Agreement and the Certificates have been duly executed and
delivered by the Trustee (and, with respect to the Certificates,
by anauthenticating agent on its behalf, if applicable) and this
Agreement constitutes the legal, valid and binding obligation of
the Trustee, enforceable in accordance with its terms, except as
enforcement may be limited by the applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the rights of creditors generally and general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(v) the Trustee is not in violation, and the
execution and delivery of this Agreement and the Certificates by
the Trustee and its performance and compliance with the respective
terms of this Agreement and the Certificates will not constitute a
violation, of any order or decree of any court or any order or
regulation of any federal, state, municipal or governmental agency
having jurisdiction over the Trustee or its properties, which
violation would reasonably be expected to have a material adverse
effect on the condition (financial or otherwise) or operations of
the Trustee or its properties or on the performance of its duties
thereunder);
(vi) there are no actions or proceedings
against, or investigations of, the Trustee pending, or, to the
knowledge of the Trustee, threatened, before any court,
administrative agency or other tribunal (A) that could reasonably
be expected to prohibit its entering into this Agreement or to
render the Certificates invalid, (B) seeking to prevent the
issuance of the Certificates or the consummation of any of the
transactions contemplated hereunder or (C) that could reasonably
be expected to prohibit or materially and adversely affect the
performance by the Trustee of its obligations under, or the
validity or enforceability of this Agreement or the Certificates;
and
(vii) no consent, approval, authorization or
order of any court or governmental agency or body is required for
the execution, delivery and performance by the Trustee of, or
compliance by the Trustee with, this Agreement or the
Certificates, or for consummation of the transactions contemplated
herein, except for such consents, approvals, authorizations and
orders, if any, as have been obtained prior to the Closing Date.
(b) Within 30 days of the earlier of discovery by the
Trustee or receipt by the Trustee of notice from the Depositor or any
Certificateholder of a breach of any representation or warranty of the
Trustee set forth in paragraph (a) above that materially and adversely
affects the interests of the Certificateholders, the Trustee shall promptly
cure such breach in all material respects.
SECTION 5.13 Limitation of Powers and Duties. The Trust
is constituted solely for the purposes of acquiring and holding the CRB
Certificates, issuing the Certificates, making distributions thereon and
other activities incidental thereto. The Trustee is not authorized to
acquire any other investments or engage in any activities not authorized
herein and, in particular, the Trustee is not authorized (i) to sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose of any of
the CRB Certificates or interests therein, including to Certificateholders
(except upon termination of the Trust in accordance with Article VII or in
accordance with Section 5.01), (ii) to do anything that would cause the
Trust to fail or cease to qualify as a "grantor trust" for Federal income
tax purposes or (iii) to do anything that would cause the assets of a Trust
to be treated as "plan assets" as determined pursuant to the Plan Assets
Regulation.
ARTICLE VI
THE DEPOSITOR
SECTION 6.01 Liability of the Depositor. The Depositor
shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the Depositor
herein.
SECTION 6.02 Merger, Consolidation or Conversion of the
Depositor. Subject to the following paragraph, the Depositor will keep in
full effect its existence, rights and franchises as a corporation under the
laws of the jurisdiction of its incorporation, and will obtain and preserve
its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement and the
Certificates and to perform its duties under this Agreement.
The Depositor may be merged or consolidated with or into
any Person, or transfer all or substantially all of its assets to any
Person, in which case any Person resulting from any merger or consolidation
to which the Depositor shall be a party, or any Person succeeding to the
business of the Depositor, shall be the successor of the Depositor
hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 6.03 Limitation on Liability of the Depositor and
Others. Neither the Depositor nor any of the directors, officers, employees
or agents of the Depositor shall be under any liability to the Trust, the
Trustee or the Certificateholders for any action taken or for refraining
from the taking of any action in good faith pursuant to this Agreement or
for errors in judgment; provided, however, that this provision shall not
protect the Depositor or any such person against any breach of warranties
or representations made herein, or against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence. The Depositor and any director, officer, employee or agent of
the Depositor may rely in good faith on any document of any kind which,
prima facie, is properly executed and submitted by any Person respecting
any matters arising hereunder. The Depositor and any director, officer,
employee or agent of the Depositor shall be indemnified and held harmless
by the Trust Property against any loss, liability or expense incurred in
connection with any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense incurred by reason
of any breach of warranties or representations made by it herein, or
willful misfeasance, bad faith or gross negligence. The Depositor shall not
be under any obligation to appear in, prosecute or defend any legal action
unless such action is related to its duties under this Agreement and which
in its opinion does not involve it in any expense or liability.
ARTICLE VII
TERMINATION; OPTIONAL PURCHASE
OF CRB CERTIFICATES
SECTION 7.01 Termination. (a) The respective obligations
and responsibilities of the Depositor and the Trustee created hereby with
respect to the Certificates (other than the obligation to make certain
payments and to send certain notices to Certificateholders as hereinafter
set forth) shall terminate immediately upon the occurrence of the last
action required to be taken by the Trustee on the Distribution Date
pursuant to this Article VII following the earlier to occur of (i) the
final distribution by the Trustee of all money or other property or
proceeds of the Trust Property in accordance with the terms hereof and (ii)
the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States
to the Court of St. Xxxxx, living on the date hereof.
(b) Notice of any termination, specifying the
Distribution Date upon which all Certificateholders may surrender their
Certificates to the Trustee for payment and cancellation, shall be given
promptly by the Trustee by letter to Certificateholders mailed no later
than the first day of the month of such final distribution specifying (i)
the Distribution Date upon which final payment of the Certificates will be
made upon presentation and surrender of Certificates at the office or
agency appointed by the Trustee for that purpose, (ii) the amount of any
such final payment and (iii) that the Record Date otherwise applicable to
such Distribution Date is not applicable and that payments shall be made
only upon presentation and surrender of the Certificates at the office or
agency of the Trustee therein specified. Upon presentation and surrender of
the Certificates, the Trustee shall cause to be distributed to
Certificateholders an amount equal to the amount otherwise distributable on
such Distribution Date.
(c) Any funds not distributed on the final Distribution
Date because of the failure of any Certificateholders to tender their
Certificates shall be set aside and held in trust for the account of the
appropriate nontendering Certificateholders, whereupon the Trust Property
shall terminate. If any Certificates as to which notice of the termination
date has been given pursuant to this Section 7.01 shall not have been
surrendered for cancellation within six months after the time specified in
such notice, the Trustee shall mail a second notice to the remaining
Certificateholders, at their last addresses shown in the Certificate
Register, to surrender their Certificates for cancellation in order to
receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have
been surrendered for cancellation, the Trustee shall directly or through an
agent, take reasonable steps to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining such funds and of contacting Certificateholders shall be paid
out of the assets which remain held. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation,
the Trustee shall pay to the Depositor all amounts distributable to the
Holders thereof and the Depositor shall thereafter hold such amounts for
the benefit of such Holders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 7.01.
SECTION 7.02 Optional Purchase of CRB Certificates. As of
any Distribution Date as of which the then outstanding Aggregate Collateral
Balance is 5% or less of the Aggregate Collateral Balance as of the Cutoff
Date, the Depositor shall have the option to purchase the outstanding CRB
Certificates. To exercise such option, the Depositor shall deposit in the
Certificate Account an amount equal to the aggregate unpaid principal
balance of the then outstanding CRB Certificates together with any accrued
interest thereon through the related Payment Date, and shall succeed to all
interests of the Trust, the Trustee and the Certificateholders in and to
such CRB Certificates. The Trustee shall apply such funds deposited in the
Certificate Account by the Depositor pursuant to this Section 7.02 in order
to retire the Certificates as of such Distribution Date.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Amendment; Waiver. (a) This Agreement may be
amended from time to time by the Depositor and the Trustee without the
consent of any of the Certificateholders (i) to cure any ambiguity, (ii) to
correct or supplement any provisions herein which may be defective or
inconsistent with any other provisions herein, (iii) to add any other
provisions with respect to matters or questions arising under this
Agreement not inconsistent with the terms of this Agreement or (iv) if such
amendment, as evidenced by an Opinion of Counsel delivered to the Trustee,
is reasonably necessary to comply with any requirements imposed by the Code
or other written official announcement or interpretation relating to
federal income tax laws or any such proposed action which, if made
effective, would apply retroactively to the Trust Property at least from
the effective date of such amendment; provided that such action (except any
amendment described in (iv) above) shall not, as evidenced by an Opinion of
Counsel delivered to the Trustee, adversely affect in any material respect
the rights of any Certificateholder.
(b) Without limiting the generality of the foregoing,
this Agreement may also be amended from time to time by the Depositor and
the Trustee with the consent of the Holders of Certificates evidencing not
less than 66-2/3% of the then outstanding aggregate principal amount or
notional amount, as the case may be, of the Certificates of each Class
adversely affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the
Certificateholders of such Class; provided, however, that no such amendment
shall (i) reduce in any manner the amount of, or delay the timing of,
payments required to be distributed on any such Certificate without he
consent of the Holder of such Certificate, (ii) adversely affect in any
material respect the interests of the Holders of any Class of Certificates
in a manner other than as described in clause (i), without the consent of
the Holders of Certificates of such Class evidencing not less than 66-2/3%
of the then outstanding aggregate principal amount or notional amount, as
applicable, of such Class or (iii) change the aforesaid percentages of
Certificates the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all such Certificates then
outstanding of the given Class.
(c) Promptly after the execution of any such amendment,
the Trustee shall furnish a written statement describing the substance of
the amendment to each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of
Certificateholders under this Section 8.01 to approve the particular form
of any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable regulations as the Trustee may
prescribe.
(d) Notwithstanding the foregoing, no amendment or
modification to this Agreement shall be permitted unless the Trustee
receives an Opinion of Counsel that such amendment or modification will not
alter the status of the trust for United States federal income tax
purposes.
(e) The Holders of Certificates representing not less
than a Majority in Interest of Certificateholders may, on behalf of all
Certificateholders, waive in writing any default by the Depositor or the
Trustee in the performance of its obligations hereunder and any
consequences thereof, except a default by the Trustee in failing to
distribute amounts received in respect of the CRB Certificates and except a
default in respect of a covenant or provision the modification or amendment
of which would require the consent of the Holder of each Outstanding
Certificate affected thereby. Upon any such waiver of a past default, such
default shall cease to exist; provided, however, that no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereto.
SECTION 8.02 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Property, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting
or to take any action or proceeding in any court for a partition or winding
up of the Trust Property, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote
(except as expressly provided for herein) or in any manner otherwise
control the operation and management of the Trust Property, or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members
of any association; nor shall any Certificateholder be under any liability
to any third party by reason of any action taken by the parties to this
Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue
of any provision of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless (a) the Holders of Certificates evidencing Percentage
Interests aggregating not less than 25% of all the Certificates shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, (b) the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action,
suit or proceeding and (c) no direction inconsistent with such written
request shall have been given to the Trustee during such 60-day period by
the Holders of Certificates evidencing a majority of Percentage Interests
of all the Certificates. It is understood and agreed that the Trustee shall
be under no obligation to make any investigation of matters arising under
this Agreement or to institute conduct or defend any litigation hereunder
or in relation hereto at the request, order or direction of any
Certificateholders unless such Certificateholders have offered to the
Trustee the reasonable indemnity referred to above. It is further
understood and agreed, and expressly covenanted by each Certificateholder
with every other Certificateholder and the Trustee, that no one or more
Holders of Certificates shall have any right in any manner whatever by
virtue of any provision of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder, or to
enforce any right under this Agreement, except in the manner herein
provided. For the protection and enforcement of the provisions of this
Section, each and every Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION 8.03 Governing Law. This Agreement and the
Certificates shall be construed in accordance with the laws of the State of
New York without reference to such state's principles of conflicts of law
to the extent that the application of the laws of another jurisdiction
would be required thereby, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 8.04 Notices. All demands, notices and directions
hereunder shall be in writing and shall be deemed effective upon receipt if
personally delivered at or mailed by registered or first class mail,
postage prepaid, by express delivery service or by telecopy when confirmed
in writing, to:
(a) in the case of the Depositor,
[ ]
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [ ]; and
(b) in the case of the Trustee,
_______________________________
_______________________________
Attention: ___________________
or, in each case, such other address as may hereafter be furnished by any
party to the others. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at
the address of such Holder as shown in the Certificate Register. Any notice
so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 8.05 Severability of Provisions. If any one or
more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the
Holders thereof.
SECTION 8.06 Notice to Each Rating Agency. The Trustee
shall use its best efforts promptly to provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the resignation or termination of the Trustee;
(iii) the final payment to Holders of the Certificates;
and
(iv) any change in the location of the Certificate
Account.
In addition, the Trustee shall promptly furnish to each
Rating Agency copies of each report to Certificateholders described in
Section 3.07. Any such notice pursuant to this Section shall be in writing
and shall be deemed to have been duly given if personally delivered or
mailed by first class mail, postage prepaid, or by express delivery service
to each Rating Agency at the address provided to the Trustee from time to
time.
SECTION 8.07 No Petition. Each of the Trustee and the
Depositor, by entering into this Agreement, and each
Certificateholder, by accepting a Certificate, hereby covenant and
agree that they will not at any time institute against the Trust,
or join in any institution against the Trust of, any bankruptcy
proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the
Certificates, or this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed by their respective officers hereunto
duly authorized, as of the day and year first above written.
[ ], as Trustee
By:__________________________________________
Name:
Title:
GS Mortgage Securities Corp., as Depositor
By:__________________________________________
Name:
Title:
EXHIBIT A
NUMBER $ R-
CUSIP NO.
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL BALANCE OF THIS CERTIFICATE IS
DISTRIBUTABLE IN INSTALLMENTS AS SET FORTH IN THE TRUST AGREEMENT.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR
AN INTEREST IN, AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NONE OF THIS CERTIFICATE, THE CRB
CertificateS OR THE UNDERLYING ACCOUNTS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE
ACCOUNT OF A BENEFIT PLAN.
CARD ACCOUNT TRUST, SERIES 200[ ]-[ ]
[CLASS [A]] [ %] [FLOATING RATE] [ADJUSTABLE RATE] [VARIABLE RATE]
ASSET BACKED CERTIFICATE
evidencing a fractional undivided beneficial ownership interest in the
Trust, as defined below, the property of which included certain CRB
Certificates created pursuant to a Pooling and Servicing Agreement dated as
of [ ], among [ ], as seller, [ ], as servicer, and [ ], as trustee, and
distributions thereon, deposited in trust by [ ] (the "Depositor").
THIS CERTIFIES THAT [ ] is the registered owner of [ ] DOLLARS
nonassessable, fully-paid, fractional undivided interest in Card Account
Trust, Series 200[ ]-[ ] formed by the Depositor. The [Class [A]]
Certificates have a pass-through rate of [[ %] per annum] [insert interest
rate formula].
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [Class [A]] Certificates described in
the Trust Agreement referred to herein.
[TRUSTEE NAME], not in its. ________________________________________
individual capacity but solely ________________________________________
as Trustee, or as Authenticating Agent for the Trustee,
by____________________________ by____________________________________
Authorized Officer Authorized Officer
The Trust was created pursuant to a Trust Agreement dated
as of [ ], 200[ ] (the "Trust Agreement"), between the Depositor and [ ], a
New York banking corporation, not in its individual capacity but solely as
Trustee (the "Trustee"). Reference is hereby made to the Trust Agreement
for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties
and obligations of the Trustee with respect hereto. A copy of the Trust
Agreement may be obtained from the Trustee by written request sent to the
Corporate Trust Office. Capitalized terms used but not defined herein have
the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized
Certificates designated as "[Class [A]] [ %] [Floating Rate] [Adjustable
Rate] [Variable Rate] Asset Backed Certificates" (herein called the
"Certificates") pursuant to the Trust Agreement. The Trust is also issuing
[Class [B]] [ %] [Floating Rate] [Adjustable Rate] [Variable Rate] Asset
Backed Certificates (the "[Class [B]] Certificates"). This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Trust Agreement, to which the acceptance hereof assents and by which such
Holder is bound. The Trust Property consists of: (i) certain CRB
Certificates described in the Trust Agreement; (ii) all distributions
thereon on and after the Cutoff Date; and (iii) the Certificate Account and
such assets that are deposited therein from time to time and any
investments thereof, together with any and all income, proceeds and
payments with respect thereto.
Pursuant to the terms of the Trust Agreement,
distributions will be made on each Distribution Date, commencing on [ ],
200[ ], to the Person in whose name this Certificate is registered on the
applicable Record Date, in an amount equal to such Certificateholder's
fractional undivided interest in the amount required to be distributed to
the Holders of the [Class [A]] Certificates on such Distribution Date. The
Record Date applicable to any Distribution Date is the close of business on
the day immediately preceding such Distribution Date (or, in the event
Definitive Certificates are issued, the last day of the month preceding the
month in which such Distribution Date occurs).
Each Certificateholder, by its acceptance of a
Certificate, covenants and agrees that such Certificateholder will not at
any time institute against the Trust, or join in any institution against
the Trust of, any bankruptcy proceedings under any United States Federal or
state bankruptcy or similar law in connection with any obligations relating
to the Certificates or the Trust Agreement.
Distributions made on this Certificate will be made as
provided in the Trust Agreement by the Trustee by wire transfer in
immediately available funds, or check mailed to the Certificateholder of
record in the Certificate Register without the presentation or surrender of
this Certificate or the making of any notation hereon, except that with
respect to Certificates registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee shall be Cede &
Co.), payments will be made by wire transfer in immediately available funds
to the account designated by such nominee. Except as otherwise provided in
the Trust Agreement and notwithstanding the above, the final distribution
on this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of
this Certificate at the Corporate Trust Office or such other location as
may be specified in such notice.
Reference is hereby made to the further provisions of
this Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the
Trust Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Trustee has caused this
Certificate to be duly executed as of the date set forth below.
CARD ACCOUNT TRUST,SERIES 200[ ]-[ ],
by [TRUSTEE NAME],
not in its individual capacity but
solely as Trustee
by: ______________________________
Authorized Officer
Dated:
(REVERSE OF TRUST CERTIFICATE)
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the CRB Certificates, all as
more specifically set forth herein and in the Trust Agreement. The
registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Property (to the extent of its rights therein) for
distributions hereunder. As provided in the Trust Agreement, withdrawals
from the Certificate Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including reimbursement of certain
expenses incurred with respect to the Trust Property.
The Trust Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights
and obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Trust Agreement at any time by the Depositor
and the Trustee with the consent of the Holders of Certificates evidencing
at least 66-2/3% of the then outstanding aggregate principal amount subject
to certain provisions set forth in the Trust Agreement. Any such consent by
the Holder of this Certificate (or any predecessor Certificate) shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent
is made upon this Certificate. The Trust Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
The [Class [A]] Certificates are issuable in fully
registered form only in minimum original principal amounts of $1,000 and
integral multiples thereof. As provided in the Trust Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for
new Certificates of the same principal amount, class, original issue date
and maturity, in authorized denominations as requested by the Holder
surrendering the same.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the offices or agencies of the Certificate
Registrar maintained by the Trustee in the Borough of Manhattan, the City
of New York, duly endorsed by or accompanied by an assignment in the form
below and by such other documents as required by the Trust Agreement, and
thereupon one or more new Certificates of the same class in authorized
denominations evidencing the same principal amount will be issued to the
designated transferee or transferees. The initial Certificate Registrar
appointed under the Trust Agreement is [ ], New York, New York.
No service charge will be made for any registration of
transfer or exchange, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Trustee, nor any such agent shall be affected by any
notice to the contrary.
The Trust and the obligations of the Depositor and the
Trustee created by the Trust Agreement with respect to the Certificates
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Trust Agreement
following the earlier to occur of (i) the final distribution by the Trustee
of all moneys or other property or proceeds of the Trust Property in
accordance with the terms of the Trust Agreement and (ii) the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx
X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
Xxxxx, living on the date hereof.
The Depositor may at its option purchase the outstanding
CRB Certificates at a price specified in the Trust Agreement, and such
purchase of the CRB Certificates will effect early retirement of the
Certificates; however, the Depositor may exercise such right of purchase
only as of a Distribution Date as of which the then outstanding Aggregate
Collateral Balance is [5%] or less of the Aggregate Collateral Balance as
of the Cutoff Date.
The Certificates may not be acquired by or for the
account of (i) an employee benefit plan (as defined in Section 3(3) of
ERISA) that is subject to the provisions of Title I of ERISA, (ii) a plan
described in Section 4975(e)(i) of the Code or (iii) any entity whose
underlying assets include plan assets by reason of a plan's investment in
the entity (each, a "Benefit Plan"). By acquiring and holding this
Certificate, the Holder hereof shall be deemed to have represented and
warranted that it is not a Benefit Plan.
ASSIGNMENT
FOR VALUE RECEIVED the Undersigned hereby sells, assigns
and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
_______________________________________________________________________________
Please print or type name and address, including postal zip code, or assignee)
_______________________________________________________________________________
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_______________________________________________________________________________
Attorney to transfer said Trust Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
_____________________________*
Signature Guaranteed:
_____________________________*
* NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Trust Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
EXHIBIT B
NUMBER $ R-
CUSIP NO.
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL BALANCE OF THIS CERTIFICATE IS
DISTRIBUTABLE IN INSTALLMENTS AS SET FORTH IN THE TRUST AGREEMENT.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR
AN INTEREST IN, AND IS NOT GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OF
ANY OF THEIR RESPECTIVE AFFILIATES. NONE OF THIS CERTIFICATE, THE CRB
CERTIFICATES OR THE UNDERLYING ACCOUNTS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE
ACCOUNT OF A BENEFIT PLAN.
CARD ACCOUNT TRUST, SERIES 200[ ]-[ ]
[CLASS [B]] [ %] [FLOATING RATE] [ADJUSTABLE RATE] [VARIABLE RATE]
ASSET BACKED CERTIFICATE
evidencing a fractional undivided beneficial ownership interest in the
Trust, as defined below, the property of which included certain CRB
Certificates created pursuant to a Pooling and Servicing Agreement dated as
of [ ], among [ ], as seller, [ ], as servicer, and [ ], as trustee, and
distributions thereon, deposited in trust by [ ] (the "Depositor").
THIS CERTIFIES THAT [ ] is the registered owner of [ ] DOLLARS
nonassessable, fully-paid, fractional undivided interest in Card Account
Trust, Series 200[ ]-[ ] formed by the Depositor. The [Class [A]]
Certificates have a pass-through rate of [[ %] per annum] [insert interest
rate formula].
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [Class [B]] Certificates described in
the Trust Agreement referred to herein.
[TRUSTEE NAME], not in its. _________________________________________
individual capacity but solely as _________________________________________
Trustee, or as Authenticating Agent for the Trustee,
by________________________ by____________________________________
Authorized Officer Authorized Officer
The Trust was created pursuant to a Trust Agreement dated
as of [ ], 200[ ] (the "Trust Agreement"), between the Depositor and [ ], a
New York banking corporation, not in its individual capacity but solely as
Trustee (the "Trustee"). Reference is hereby made to the Trust Agreement
for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties
and obligations of the Trustee with respect hereto. A copy of the Trust
Agreement may be obtained from the Trustee by written request sent to the
Corporate Trust Office. Capitalized terms used but not defined herein have
the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized
Certificates designated as "[Class [B]] [ %] [Floating Rate] [Adjustable
Rate] [Variable Rate] Asset Backed Certificates" (herein called the
"Certificates"). The Trust is also issuing [Class [A]] [ %] [Floating Rate]
[Adjustable Rate] [Variable Rate] Asset Backed Certificates (the "[Class
[A]] Certificate") pursuant to the Trust Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Trust Agreement, to which Trust Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
The Trust Property consists of: (i) certain CRB Certificates described in
the Trust Agreement; (ii) all distributions thereon on and after the Cutoff
Date; and (iii) the Certificate Account and such assets that are deposited
therein from time to time and any investments thereof, together with any
and all income, proceeds and payments with respect thereto.
Pursuant to the terms of the Trust Agreement,
distributions will be made on each Distribution Date, commencing on [ ],
200[ ], to the Person in whose name this Certificate is registered on the
applicable Record Date, in an amount equal to such Certificateholder's
fractional undivided interest in the amount required to be distributed to
the Holders of the [Class [B]] Certificates on such Distribution Date. The
Record Date applicable to any Distribution Date is the close of business on
the day immediately preceding such Distribution Date (or, in the event
Definitive Certificates are issued, the last day of the month preceding the
month in which such Distribution Date occurs).
Each Certificateholder, by its acceptance of a
Certificate, covenants and agrees that such Certificateholder will not at
any time institute against the Trust, or join in any institution against
the Trust of, any bankruptcy proceedings under any United States Federal or
state bankruptcy or similar law in connection with any obligations relating
to the Certificates or the Trust Agreement.
Distributions made on this Certificate will be made as
provided in the Trust Agreement by the Trustee by wire transfer in
immediately available funds, or check mailed to the Certificateholder of
record in the Certificate Register without the presentation or surrender of
this Certificate or the making of any notation hereon, except that with
respect to Certificates registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee shall be Cede &
Co.), payments will be made by wire transfer in immediately available funds
to the account designated by such nominee. Except as otherwise provided in
the Trust Agreement and notwithstanding the above, the final distribution
on this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of
this Certificate at the Corporate Trust Office or such other location as
may be specified in such notice.
Reference is hereby made to the further provisions of
this Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the
Trust Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Trustee has caused this
Certificate to be duly executed as of the date set forth below.
CARD ACCOUNT TRUST, SERIES
200[ ]-[ ],
by [TRUSTEE NAME], not in its individual
capacity but solely as Trustee,
by:__________________________________
Authorized Officer
Dated:
(REVERSE OF TRUST CERTIFICATE)
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the CRB Certificates, all as
more specifically set forth herein and in the Trust Agreement. The
registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Property (to the extent of its rights therein) for
distributions hereunder. As provided in the Trust Agreement, withdrawals
from the Certificate Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including reimbursement of certain
expenses incurred with respect to the Trust Property.
The Trust Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights
and obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Trust Agreement at any time by the Depositor
and the trustee with the consent of the Holders of Certificates evidencing
at least 66-2/3% of then outstanding aggregate notional amount subject to
certain provisions set forth in the Trust Agreement. Any such consent by
the Holder of this Certificate (or any predecessor Certificate) shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent
is made upon this Certificate. The Trust Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
The [Class [B]] Certificates are issuable in fully
registered form only in minimum original notional amounts of $1,000 and
integral multiples thereof. As provided in the Trust Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for
new Certificates of the same notional amount, class, original issue date
and maturity, in authorized denominations as requested by the Holder
surrendering the same.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the offices or agencies of the Certificate
Registrar maintained by the Trustee in the Borough of Manhattan, the City
of New York, duly endorsed by or accompanied by an assignment in the form
below and by such other documents as required by the Trust Agreement, and
thereupon one or more new Certificates of the same class in authorized
denominations evidencing the same notional amount will be issued to the
designated transferee or transferees. The initial Certificate Registrar
appointed under the Trust Agreement is [ ], New York, New York.
No service charge will be made for any registration of
transfer or exchange, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Trustee, nor any such agent shall be affected by any
notice to the contrary.
The Trust and the obligations of the Depositor and the
Trustee created by the Trust Agreement with respect to the Certificates
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Trust Agreement
following the earlier to occur of (i) the final distribution by the Trustee
of all moneys or other property or proceeds of the Trust Property in
accordance with the terms of the Trust Agreement and (ii) the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx
X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
Xxxxx, living on the date hereof.
The Depositor may at its option purchase the outstanding
CRB Certificates at a price specified in the Trust Agreement, and such
purchase of the CRB Certificates will effect early retirement of the
Certificates; however, the Depositor may exercise such right of purchase
only as of a Distribution Date as of which the then outstanding Aggregate
Collateral Balance is [5%] or less of the Aggregate Collateral Balance as
of the Cutoff Date.
The Certificates may not be acquired by or for the
account of (i) an employee benefit plan (as defined in Section 3(3) of
ERISA) that is subject to the provisions of Title I of ERISA, (ii) a plan
described in Section 4975(e)(i) of the Code or (iii) any entity whose
underlying assets include plan assets by reason of a plan's investment in
the entity (each, a "Benefit Plan"). By acquiring and holding this
Certificate, the Holder hereof shall be deemed to have represented and
warranted that it is not a Benefit Plan.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns
and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
_________________________________________________(Please print or type name and
address, including postal zip code, of assignee)
_____________________________________________ the within Trust Certificate, and
all rights thereunder, hereby irrevocably constituting and appointing
___________________________________________________________________ Attorney to
transfer said Trust Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
------------------------------*
Signature Guaranteed:
------------------------------*
* NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Trust Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
EXHIBIT C
CRB CERTIFICATE SCHEDULE
[To come]
EXHIBIT D
POOLING AND SERVICING AGREEMENT
[To come]
EXHIBIT E
FORM OF DEPOSITORY AGREEMENT
[To come]
