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CITIBANK CREDIT CARD ISSUANCE TRUST
TRUST AGREEMENT
dated as of [ ], [ ]
among
CITIBANK (NEVADA), NATIONAL ASSOCIATION,
and
CITIBANK (SOUTH DAKOTA), N.A.,
as Beneficiaries,
and
[NAME OF TRUSTEE],
as Trustee
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Definitions.................................................1
SECTION 1.02. Generic Terms...............................................4
ARTICLE II
Organization;
Declaration of Trust by the Trustee
SECTION 2.01. Formation of Trust; Name.....................................5
SECTION 2.02. Transfer of Property to Trust; Initial Capital
Contribution of Trust Estate...............................5
SECTION 2.03. Purposes and Powers; Trust To Operate as a
Single Purpose Entity......................................5
SECTION 2.04. Declaration of Trust by the Trustee..........................8
SECTION 2.05. Title to Trust Estate........................................8
SECTION 2.06. Nature of Interest in the Trust Estate.......................9
SECTION 2.07. Situs of Trust...............................................9
SECTION 2.08. Tax Matters..................................................9
SECTION 2.09. Fiscal Year..................................................9
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ARTICLE III
Invested Amount,
Representations and Warranties of the Beneficiaries
SECTION 3.01. Invested Amount of Series [ ] Certificate..............9
SECTION 3.02. Representations and Warranties of the Beneficiaries........10
ARTICLE IV
Distributions of Funds
SECTION 4.01. Distribution of Funds......................................12
SECTION 4.02. Payments from Trust Estate Only............................12
SECTION 4.03. Method of Payment .........................................12
ARTICLE V
Duties of the Trustee
SECTION 5.01. Action Upon Instructions...................................12
SECTION 5.02. No Duty to Act Under Certain Circumstances.................14
SECTION 5.03. No Duties Except Under Specified Agreements or
Instructions.............................................14
SECTION 5.04. Trust Operation............................................14
SECTION 5.05. Execution of Documents.....................................15
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ARTICLE VI
Concerning the Trustee Bank
SECTION 6.01. Acceptance of Trust and Duties.............................16
SECTION 6.02. Furnishing of Documents....................................17
SECTION 6.03. Representations and Warranties as to the Trust Estate......17
SECTION 6.04. Signature of Returns.......................................18
SECTION 6.05. Reliance; Advice of Counsel................................18
SECTION 6.06. Not Acting in Individual Capacity..........................18
SECTION 6.07. Representations and Warranties.............................18
ARTICLE VII
Termination of Trust Agreement
SECTION 7.01. Termination................................................19
SECTION 7.02. Certificate of Cancelation.................................20
ARTICLE VIII
Successor Trustees, Co-Trustees
and Separate Trustees
SECTION 8.01. Resignation and Removal of the Trustee;
Appointment of Successors................................20
SECTION 8.02. Transfer Procedures........................................20
SECTION 8.03. Qualification of Trustee...................................21
SECTION 8.04. Co-trustees and Separate Trustees..........................21
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ARTICLE IX
Amendments
SECTION 9.01. Amendments.................................................21
ARTICLE X
Ownership Interests and Certificates
SECTION 10.01. Issuance of Trust Certificates............................22
SECTION 10.02. Beneficial Interest; Prohibitions on Transfer.............22
SECTION 10.03. Lost or Destroyed Trust Certificate.......................23
ARTICLE XI
Compensation of Trustee and Indemnification
SECTION 11.01. Trustee's Fees and Expenses...............................24
SECTION 11.02. Indemnification .........................................24
ARTICLE XII
Miscellaneous
SECTION 12.01. Conveyance by the Trustee is Binding......................25
SECTION 12.02. Instructions; Notices.....................................25
SECTION 12.03. Severability .........................................27
SECTION 12.04. Limitation of Liability...................................27
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SECTION 12.05. Separate Counterparts.....................................28
SECTION 12.06. Successors and Assigns....................................28
SECTION 12.07. Headings..................................................28
SECTION 12.08. Governing Law.............................................28
SECTION 12.09. No Recourse...............................................28
Exhibits
Exhibit A -- Form of Trust Certificate
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TRUST AGREEMENT dated as of [ ], [ ], among
CITIBANK (NEVADA), NATIONAL ASSOCIATION ("Citibank
(Nevada)"), CITIBANK (SOUTH DAKOTA), N.A. ("Citibank
(South Dakota)"), and together with Citibank (Nevada),
and any of their respective successors and assigns the
"Beneficiaries"), and [NAME OF TRUSTEE], a Delaware
banking corporation, as owner trustee (the "Trustee").
In consideration of the mutual agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. (a) Capitalized terms used herein and not
defined herein have the meaning assigned to them in the Series [ ]
Supplement. For purposes of this Agreement, the following terms have the
following meanings:
"Agreement" means this Trust Agreement.
"Beneficiaries" is defined above in the preamble to this Agreement.
"Beneficiary Percentage" means, (a) with respect to Citibank (Nevada),
[ ]%, and (b) with respect to Citibank (South Dakota), [ ]%; provided,
however, that (i) such percentages may be adjusted from time to time upon
notice by the Managing Beneficiary to the Trustee of such adjustment, and
(ii) the sum of the Beneficiary Percentages will always be 100%.
"Citibank (Nevada)" is defined above in the preamble to this
Agreement.
"Citibank (South Dakota)" is defined above in the preamble to this
Agreement.
"Code" means the Internal Revenue Code of 1986, as it may be amended
from time to time.
"Deliveries" is defined in Section 12.02.
"Disqualification Event" with respect to the Trustee means (a) the
bankruptcy, insolvency or dissolution of the Trustee, (b) the occurrence of
the date of resignation of the Trustee, as set forth in a notice of
resignation given pursuant to Section 8.01, or (c) the delivery to the
Trustee of the instrument or instruments of removal referred to in Section
8.01 (or, if such instruments specify a later effective date of removal,
the occurrence of such later date), or (d) failure of the Trustee to
qualify under the requirements of Section 8.03.
"Governmental Authority" means the United States of America, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Indemnified Person" is defined in Section 11.02.
"Indenture" means the Indenture, dated as of [ ], [ ] (as amended and
supplemented from time to time), between the Trustee, on behalf of the
Trust, and the Indenture Trustee.
"Indenture Trustee" means Bankers Trust Company as trustee under the
Indenture, and each successor trustee under the Indenture.
"Managing Beneficiary" means the Beneficiary selected by the
Beneficiaries holding a majority of the Beneficiary Percentages, and if not
selected by the Beneficiaries, then by the Trustee. Initially, Citibank
(South Dakota) will be the Managing Beneficiary.
"Master Trust" means Citibank Credit Card Master Trust I.
"Note" is defined in the Indenture.
"Ownership Interest" means the Ownership Interests issued by the Trust
hereunder with the rights and privileges set forth in Section 10.01.
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"Person" means any legal person, including any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, governmental entity or other entity of
similar nature.
"Periodic Filing" means any filing or submission that the Trust is
required to make with any federal, state or local authority or regulatory
agency.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement, dated as of May 29, 1991 (as amended and supplemented), among
the Citibank (Nevada) and Citibank (South Dakota) as Sellers, Citibank
(South Dakota) as Servicer, and Bankers Trust Company as Trustee, as
supplemented by the Series [ ] Supplement.
"Requirement of Law" means any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, whether Federal,
state or local, and, when used with respect to any Person, the certificate
of incorporation and by-laws or other charter or governing documents of
such Person.
"Securities Act" means the Securities Act of 1933, as amended.
"Sellers' Interest" is defined in the Pooling and Servicing Agreement.
"Series [ ] Certificate" is defined in the Series [ ] Supplement.
"Series [ ] Supplement" means the Series [ ] Supplement, dated as of
[...................], [....], relating to the Pooling and Servicing Agreement
as it may be amended or supplemented from time to time.
"Trust" means the trust established by this Agreement.
"Trust Certificate" is defined in Section 10.01.
"Trust Estate" is defined in Section 2.04.
"Trustee" means [Name of Trustee], a Delaware banking corporation, in
its capacity as owner trustee hereunder, and each successor trustee under
Article VIII, in its capacity as owner
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trustee hereunder, and each co-trustee under and to the extent provided in
Section 8.04, in its capacity as owner trustee hereunder.
"Trustee Bank" means [Name of Trustee] in its individual capacity,
each bank appointed as successor Trustee under Article VIII in its
individual capacity and each bank appointed as co-trustee under and to the
extent provided in Section 8.04 in its individual capacity.
SECTION 1.02. Generic Terms. (a) The terms "hereby", "hereof",
"hereto", "herein", "hereunder" and any similar terms will refer to this
Agreement.
(b) Unless otherwise indicated in context, the terms "Article",
"Section", "Exhibit" or "Schedule" will refer to an Article or Section of,
or an Exhibit or Schedule to, this Agreement.
(c) Words of the masculine, feminine or neuter gender mean and include
the correlative words of other genders, and words importing the singular
number mean and include the plural number and vice versa.
(d) The terms "include", "including" and similar terms will be
construed as if followed by the phrase "without limitation".
(e) All terms defined in this Agreement will have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto or in connection herewith unless otherwise defined therein.
(f) Any agreement, instrument or statute defined or referred to herein
or in any certificate or other document made or delivered pursuant hereto
or in connection herewith means such agreement, instrument or statute as
from time to time amended, modified or supplemented and includes (in the
case of agreements or instruments) references to all attachments thereto
and instruments incorporated therein; references to a Person are also to
its permitted successors and assigns.
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ARTICLE II
Organization;
Declaration of Trust by the Trustee
SECTION 2.01. Formation of Trust; Name. The Trust is hereby formed, to
be named "Citibank Credit Card Issuance Trust ", under which name the
Trustee may conduct any activities contemplated hereby.
SECTION 2.02. Transfer of Property to Trust; Initial Capital
Contribution of Trust Estate. Each Beneficiary hereby sells, assigns,
grants and transfers, over to the Trustee, as of the date hereof, $1.00.
The Trustee hereby acknowledges receipt in trust from the Beneficiaries, as
of the date hereof, of the foregoing contribution, which shall constitute
the initial Trust Estate.
SECTION 2.03. Purposes and Powers; Trust To Operate as a Single
Purpose Entity. (a) The purpose of the Trust is to engage solely in a
program of acquiring interests in the Master Trust and issuing Notes under
the Indenture and related activities. Without limiting the generality of
the foregoing, the Trust may:
(i) acquire from Citibank (Nevada) and Citibank (South Dakota)
the Series [ ] Certificate of the Master Trust;
(ii) from time to time, cause the Invested Amount of the Series
[ ] Certificate to be increased and decreased as provided in the Series
[ ] Supplement;
(iii) from time to time, grant a security interest in the Series
[ ] Certificate, including the pledge of any portion of the Invested
Amount of the Series [ ] Certificate, and grant a security interest in
accounts established for the benefit of indebtedness of the Trust, all
to secure indebtedness of the Trust, or make any permitted transfer of
interests in any portion of the Invested Amount of the Series [ ]
Certificate directly or beneficially to any third party;
(iv) from time to time authorize and approve the issuance of
Notes pursuant to the Indenture and, in connection therewith,
determine the terms and provisions of such Notes and of the issuance
and sale thereof, including the following:
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(A) determining the principal amount of the Notes,
(B) determining the maturity date of the Notes,
(C) determining the rate of interest, if any, to be paid on
the Notes,
(D) determining the price at which such Notes will be sold
by the Trust,
(E) determining the provisions, if any, for the redemption
of such Notes,
(F) determining the form, terms and provisions of the
indentures, fiscal agency agreements or other instruments under
which the Notes may be issued and the banks or trust companies to
act as trustees, fiscal agents and paying agents thereunder,
(G) preparing and filing all documents necessary or
appropriate in connection with the registration of the Notes
under the Securities Act of 1933, the qualification of indentures
under the Trust Indenture Act of 1939 and the qualification under
any other applicable federal, foreign, state, local or other
governmental requirements,
(H) preparing any offering memorandum or other descriptive
material relating to the issuance of the Notes,
(I) listing the Notes on any United States or non-United
States stock exchange,
(J) entering into one or more interest rate or currency
swaps, caps, collars guaranteed investment contracts or other
derivative agreements with counterparties (which may include,
without limitation, Citibank (South Dakota), Citibank (Nevada) or
any of their affiliates) to manage interest rate or currency risk
relating to the Notes;
(K) appointing a paying agent or agents for purposes of
payments on the Notes and coupons; and
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(L) arranging for the underwriting, subscription, purchase
or placement of the Notes and selecting underwriters, managers
and purchasers or agents for that purpose;
(v) from time to time receive payments and proceeds with respect
to the Series [ ] Certificate and the Indenture and either invest or
distribute those payments and proceeds,
(vi) from time to time make deposits to and withdrawals from
accounts established under the Indenture;
(vii) from time to time make and receive payments pursuant to
derivative agreements;
(viii) from time to time make payments on the Notes; and
(ix) from time to time perform such obligations and exercise and
enforce such rights and pursue such remedies as may be appropriate by
virtue of the Trust being party to any of the agreements contemplated
in clauses (i) through (viii) above;
In connection with any of the foregoing, the Trust may (x) execute and
deliver, and/or accept, such instruments, agreements, certificates, Uniform
Commercial Code financing statements and other documents, and create such
security interests, as may be necessary or desirable in connection therewith,
and (y) subject to the terms of this Agreement, take such other action as may
be necessary or incidental to the foregoing.
(b) The Trust and the Managing Beneficiary, on behalf of the Trust,
will be authorized to execute and deliver from time to time loan
agreements, purchase agreements, swap and other derivative agreements,
indentures, notes, security agreements, and other agreements and
instruments as are consistent with the purposes of the Trust. Without
limiting the generality of the foregoing, the Managing Beneficiary, on
behalf of the Trust, is specifically authorized to
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execute and deliver without any further act, vote or approval, and
notwithstanding any other provision of this Agreement, the Delaware
Business Trust Act or other applicable law, rule or regulation, agreements,
documents or securities relating to the purposes of the Trust including:
(i) the Indenture and each Issuer's Certificate and supplemental
indenture relating to the Indenture;
(ii) the Notes; and
(iii) each interest rate or currency swap, cap, collar,
guaranteed investment contract or other derivative agreement between
the Trust and a counterparty (which may include, without limitation,
Citibank (Nevada), Citibank (South Dakota) or any of their affiliates)
to manage interest rate or currency risk relating to the Notes.
The authorization set forth in the preceding sentence will not be deemed a
restriction on the power and authority of the Managing Beneficiary, on
behalf of the Trust, to execute and deliver other agreements, documents
instruments and securities.
(c) The Trustee and the Managing Beneficiary will at all times
maintain the books, records and accounts of the Trust separate and apart
from those of any other Person, and will cause the Trust to hold itself out
as being a Person separate and apart from any other Person.
(d) The Trust will not engage in any business or own any assets
unrelated to the purposes of the Trust.
SECTION 2.04. Declaration of Trust by the Trustee. The Trustee hereby
declares that it will hold the initial Trust Estate, the Series [ ]
Certificate and the other documents and assets described in Section 2.03,
together with any payments, proceeds or income of any kind from such
documents or assets or any other source and any other property held under
this Agreement (collectively, the "Trust Estate"), upon the trust set forth
herein and for the sole use and benefit of the Beneficiaries.
SECTION 2.05. Title to Trust Estate. Title to all of the Trust Estate
will be vested in the Trust until this Agreement terminates pursuant to
Article VII; provided, however, that if the laws of any jurisdiction
require that title to any part of the Trust Estate be vested in the
trustees
8
trust, then title to that part of the Trust Estate will be deemed to be
vested in the Trustee or any co-trustee or separate trustee, as the case
may be, appointed pursuant to Article VIII.
SECTION 2.06. Nature of Interest in the Trust Estate. The
Beneficiaries will not have any legal title to or right to possession of
any part of the Trust Estate.
SECTION 2.07. Situs of Trust. It is the intention of the parties
hereto that the Trust constitute a business trust under Title 12, Chapter
38 of the Delaware Code and that this Agreement constitute the governing
instrument of the Trust. The Trustee will file a certificate of trust
relating to the Trust with the Secretary of State of the State of Delaware.
The office of the Trust will be maintained by the Trustee at [ ],
Wilmington, Delaware [ZIP], or at such other location as the Trustee may
designate by written notice to the Beneficiaries.
SECTION 2.08. Tax Matters. The parties hereto intend that the Trust
will not be treated as a partnership, agency, sole proprietorship or
association for Federal income tax purposes but instead will be treated as
a custodial arrangement for the Beneficiaries, and the parties hereto will
file all their tax returns in a manner consistent with that intent unless
otherwise required by a taxing authority. Except as otherwise expressly
provided herein, any tax elections required or permitted to be made by the
Trust under the Code or otherwise will be made in such manner as may be
determined by the Managing Beneficiary to be in the best interests of the
Beneficiaries. The Trust will not elect to be treated as a corporation for
any tax purpose.
SECTION 2.09. Fiscal Year. The fiscal year of the Trust will end on
the last day of December of each year.
ARTICLE III
Invested Amount,
Representations and Warranties of the Beneficiaries
SECTION 3.01. Invested Amount of Series [ ] Certificate. (a) The
Managing Beneficiary, on behalf of the Trust, may request that the Series [
] Invested Amount and the
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Series Adjusted Invested Amount with respect to the Series [ ] Certificate
be increased as provided in Section 5.01(a)(i) and 5.01(b)(i) of the Series
[ ] Supplement if the following conditions precedent are satisfied:
(i) the representations and warranties set forth in Section 3.02
will be true and correct in all material respects; and
(ii) all of the conditions set forth in Section 5.01(c) of the
Series [ ] Supplement will have been satisfied.
(b) The Managing Beneficiary, on behalf of the Trust, may request that
the Series [ ] Invested Amount and the Series Adjusted Invested Amount with
respect to the Series [ ] Certificate will be increased or decreased as
provided in Section 5.01(a)(ii)-(vii) and 5.01(b)(ii)-(viii) of the Series
[ ] Supplement.
SECTION 3.02. Representations and Warranties of the Beneficiaries.
Each Beneficiary hereby represents and warrants to the Trustee as of the
date of this Agreement and as of the date of each increase in the Invested
Amount of the Series [ ] Certificate that:
(a) Such Beneficiary is a national banking association validly
existing under the laws of the United States and has, in all material
respects, full power and authority to own its properties and conduct its
business as presently owned and conducted, and to execute, deliver and
perform its obligations under this Agreement.
(b) Such Beneficiary has been duly organized as an association
licensed as a national banking association and is validly existing and in
good standing under the laws of the United States, is duly qualified to do
business and is in good standing under the laws of each jurisdiction which
requires such qualification wherein it owns or leases material properties
or conducts material business, and has full power and authority to enter
into and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.
(c) The execution and delivery of this Agreement by such Beneficiary
and the consummation of the transactions provided for in this Agreement
have been duly authorized by such Beneficiary by all necessary corporate
action on the part of such Beneficiary.
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(d) The execution and delivery by such Beneficiary of this Agreement,
the performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof applicable to such Beneficiary will not
conflict with or violate any Requirements of Law applicable to such
Beneficiary or conflict with, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of
time or both) a material default under, any indenture, contract, agreement,
mortgage, deed of trust or other instrument to which such Beneficiary is a
party or by which it or its properties are bound.
(e) There are no proceedings or investigations, pending or, to the
best knowledge of such Beneficiary, threatened against such Beneficiary
before any Governmental Authority (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, (iii) seeking any
determination or ruling that, in the reasonable judgment of such
Beneficiary, would materially and adversely affect the performance by such
Beneficiary of its obligations under this Agreement or (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement.
(f) All authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required to
be obtained, effected or given by such Beneficiary in connection with the
execution and delivery by such Beneficiary of this Agreement and the
performance of the transactions contemplated by this Agreement have been
duly obtained, effected or given and are in full force and effect.
(g) This Agreement constitutes a legal, valid and binding obligation
of such Beneficiary enforceable against such Beneficiary in accordance with
its terms, except (i) as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect affecting the enforcement of creditors' rights
in general, and (ii) as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity).
(h) The Beneficiaries transferred all of their right, title and
interest in and to the Trust Estate to the Trust free and clear of all
claims, liens and other encumbrances.
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ARTICLE IV
Distributions of Funds
SECTION 4.01. Distribution of Funds. All funds received by the Trust
to the extent not encumbered by the Indenture and otherwise available for
distribution (or if encumbered by the Indenture, which have been released
by the relevant parties benefitting from such encumbrance) will be applied
in the following order of priority:
(i) First, to pay any amounts owing to the Trustee pursuant to
Sections 11.01 and 11.02; and
(ii) Second, to be distributed to the Beneficiaries.
SECTION 4.02. Payments from Trust Estate Only. All payments to be made
by the Trustee under this Agreement will be made only from the income and
the capital proceeds derived from the Trust Estate and only to the extent
that the Trustee will have received income or capital proceeds from the
Trust Estate. Each Beneficiary agrees that it will look solely to the
income and capital proceeds derived from the Trust Estate (to the extent
available for payment as herein provided) and that, except as specifically
provided herein, the Trustee will not be subject to any liability in its
individual capacity under this Agreement to such Beneficiary or to any
other Person.
SECTION 4.03. Method of Payment. All amounts payable to the
Beneficiaries pursuant to this Agreement will be paid by the Trustee to the
applicable Beneficiary or a nominee therefor in such manner as such
Beneficiary may from time to time designate in written instructions to the
Trustee.
ARTICLE V
Duties of the Trustee
SECTION 5.01. Action Upon Instructions. (a) It is the intention of the
Beneficiaries that the powers and duties of the Trustee are to be purely
ministerial only, and that the Managing Beneficiary will have the power to
direct the Trustee as to all nonministerial matters concerning
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the administration of the Trust (to the extent such matters are within the
powers of the Managing Beneficiary). Accordingly, subject to Sections
5.01(b), 5.01(c), and Article XII, the Managing Beneficiary will direct the
Trustee in the management of the Trust and the Trust Estate. Such direction
may be exercised at any time by written instruction of the Managing
Beneficiary pursuant to this Article V.
(b) The Trustee will take such action or actions as may be specified
in any instructions delivered in accordance with Section 5.01(a); provided,
however, that the Trustee will not be required to take any such action if
the Trustee Bank will have been advised by counsel, that such action (i) is
contrary to the terms hereof or of any document contemplated hereby to
which the Trustee is a party or is otherwise contrary to law, or (ii) is
likely to result in liability on the part of the Trustee Bank, unless the
Trustee Bank will have received additional indemnification or security
satisfactory to the Trustee Bank from the Managing Beneficiary against all
costs, expenses and liabilities arising from the Trustee's taking such
action.
(c) The Managing Beneficiary will not direct the Trustee to take or
refrain from taking any action contrary to this Agreement, nor will the
Trustee be obligated to follow any such direction.
(d) In the event that the Trustee is unsure as to the application of
any provision of this Agreement, or such provision is ambiguous as to its
application, or is, or appears to be, in conflict with any other applicable
provision, or this Agreement permits any determination by the Trustee or is
silent or is incomplete as to the course of action to be adopted, the
Trustee will promptly give notice to the Managing Beneficiary requesting
written instructions as to the course of action to be adopted and, to the
extent the Trustee acts in good faith in accordance with such written
instructions received from the Managing Beneficiary, the Trustee will not
be liable on account of such action to any Person. If the Trustee will not
have received appropriate written instructions within 30 days of such
notice (or within such shorter period of time as reasonably may be
specified in such notice) it may, but shall be under no duty to, take or
refrain from taking such action, not inconsistent with this Agreement, as
it deems to be in the best interests of the Beneficiaries, and will have no
liability to any Person for such action or inaction.
(e) The Trustee will, subject to this Section 5.01, act in accordance
with the instructions given to it by the Managing Beneficiary, and to the
extent the Trustee acts in good faith in accordance with such instructions,
the Trustee will not be liable on account of such action to any Person.
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SECTION 5.02. No Duty to Act Under Certain Circumstances.
Notwithstanding anything contained herein to the contrary, neither the
Trustee Bank nor the Trustee, except a Trustee Bank authorized as
co-trustee, will be required to take any action in any jurisdiction other
than in the State of Delaware if the taking of such action would (i)
require the consent or approval or authorization or order of or the giving
of notice to, or the registration with or taking of any action in respect
of, any state or other governmental authority or agency of any jurisdiction
other than the State of Delaware; (ii) result in any fee, tax or
governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the State
of Delaware becoming payable by the Trustee Bank; or (iii) subject the
Trustee Bank to personal jurisdiction in any jurisdiction other than the
State of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by the Trustee Bank or the Trustee, as the
case may be, contemplated hereby.
SECTION 5.03. No Duties Except Under Specified Agreements or
Instructions. (a) The Trustee will not have any duty or obligation to
manage, control, use, make any payment in respect of, register, record,
insure, inspect, sell, dispose of, create, maintain or perfect any security
interest or title in or otherwise deal with any part of the Trust Estate,
prepare, file or record any document or report, or to otherwise take or
refrain from taking any action under, or in connection with, this
Agreement, the Trust or any document contemplated hereby to which the Trust
or the Trustee is a party, except as expressly provided by the terms of
this Agreement or in written instructions from the Managing Beneficiary
received pursuant to Section 5.01; and no implied duties or obligations
will be read into this Agreement against the Trustee. The Trustee
nevertheless agrees that it will, in its individual capacity and at its own
cost and expense, promptly take all action as may be necessary to discharge
any lien, pledge, security interest or other encumbrance on any part of the
Trust Estate which results from actions by or claims against the Trustee or
the Trustee Bank not related to the ownership of any part of the Trust
Estate.
(b) The Trustee agrees that it will not manage, control, use, lease,
sell, dispose of or otherwise deal with any part of the Trust Estate except
(i) in accordance with the powers granted to, or the authority conferred
upon, the Trustee pursuant to this Trust Agreement, or (ii) in accordance
with the express terms hereof or with written instructions from the
Managing Beneficiary pursuant to Section 5.01.
SECTION 5.04. Trust Operation. The operations of the Trust will be
conducted in accordance with the following standards:
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(a) the Trust will act solely in its own name through the Trustee
or the Managing Beneficiary;
(b) the Trust will not incur any indebtedness for money borrowed
or incur any obligations except in connection with the purposes set
forth in Section 2.03 of this Agreement;
(c) the Trust's funds and assets will at all times be maintained
separately from those of the Beneficiaries and their affiliates;
(d) the Trust will take all reasonable steps to continue its
identity as a separate legal entity and to make it apparent to third
persons that it is an entity with assets and liability distinct from
those of the Beneficiaries, the Beneficiaries' affiliates or any other
third person, and will use stationery and other business forms of the
Trustee or the Trust and not that of the Beneficiaries or any of their
affiliates, and will use its best efforts to avoid the appearance (i)
of conducting business on behalf of the Beneficiaries or any
affiliates thereof, or (ii) that the assets of the Trust are available
to pay the creditors of the Beneficiaries or any affiliates thereof;
(e) the Trust will not hold itself out as being liable for the
debts of the Beneficiaries or any affiliates thereof;
(f) the Trust will not engage in any transaction with the
Beneficiaries or any affiliates thereof, except as required, or
specifically permitted, by this Agreement or unless such transaction
is otherwise on terms neither more favorable nor less favorable than
the terms and conditions available at the time to the Trust for
comparable transactions with other Persons; and
(g) the Trust will not enter into any voluntary bankruptcy or
insolvency proceeding without a finding by the Trustee that the
Trust's liabilities exceeds its assets or that the Trust is unable to
pay its debts in a timely manner as they become due.
SECTION 5.05. Execution of Documents. The Trustee will, at the
direction of the Managing Beneficiary, execute and deliver on behalf of the
Trust such instruments, agreements and certificates contemplated hereby to
which the Trust is a party (such direction to be
15
conclusively evidenced by the Trustee's execution and delivery of such
documents in the presence of the Managing Beneficiary or its counsel).
SECTION 5.06. Nonpetition Covenants. Notwithstanding any prior
termination of the Trust or this Agreement, each of the Trustee and the
Beneficiaries covenants and agrees that it shall not at any time with
respect to the Trust or the Master Trust acquiesce, petition or otherwise
invoke or cause the Trust or the Master Trust to invoke the process of any
court or government authority for the purpose of commencing or sustaining a
case against the Trust or the Master Trust under any Federal or state
bankruptcy, insolvency or similar law or appointing a receiver,
conservator, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Trust or the Master Trust or any substantial
part of its property, or ordering the winding up or liquidation of the
affairs of the Trust or the Master Trust; provided, however, that this
Section 5.06 shall not operate to preclude any remedy described in Article
VII of the Indenture.
ARTICLE VI
Concerning the Trustee Bank
SECTION 6.01. Acceptance of Trust and Duties. The Trustee Bank accepts
the trust hereby created and agrees to perform the same but only upon the
terms of this Agreement. The Trustee Bank also agrees to disburse all
moneys actually received by it constituting part of the Trust Estate in
accordance with the terms of this Agreement. The Trustee Bank will not be
answerable or accountable under any circumstances in its individual
capacity, except (i) for its own willful misconduct or gross negligence,
(ii) in the case of the inaccuracy of any representation or warranty
contained in Section 6.03 or Section 6.07, (iii) for the failure by the
Trustee to perform obligations expressly undertaken by it in the last
sentence of Section 5.03(a), or (iv) for taxes, fees or other charges on,
based on or measured by, any fees, commissions or other compensation earned
by the Trustee Bank for acting as trustee hereunder. In particular, but not
by way of limitation:
(a) The Trustee Bank will not be personally liable for any error
of judgment made in good faith by an authorized officer of the Trustee
so long as the same will not constitute gross negligence or willful
misconduct;
16
(b) The Trustee Bank will not be personally liable with respect
to any action taken or omitted to be taken by the Trustee in good
faith in accordance with the instructions of the Managing Beneficiary;
(c) No provision of this Agreement will require the Trustee Bank
to expend or risk its personal funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder,
if the Trustee Bank will have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it, including such
advances as the Trustee Bank may reasonably request;
(d) Under no circumstance will the Trustee Bank be personally
liable for the accuracy or performance of any representation,
warranty, covenant, agreement or other obligation, including any
indebtedness, of the Trust;
(e) The Trustee Bank will not be personally responsible for or in
respect of the validity or sufficiency of this Agreement or for the
due execution hereof by the Beneficiaries or with respect to any
agreement entered into by the Trust.
(f) Under no circumstances will the Trustee Bank be responsible
for the action or inaction of the Managing Beneficiary, nor will the
Trustee Bank be responsible for monitoring the performance of the
Managing Beneficiary's duties hereunder.
SECTION 6.02. Furnishing of Documents. The Trustee will furnish to the
Managing Beneficiary, promptly upon receipt thereof, duplicates or copies
of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Trustee with respect
to the Trust or the Trust Estate.
SECTION 6.03. Representations and Warranties as to the Trust Estate.
The Trustee makes no representation or warranty as to the title, value,
condition, design, operation, merchantability or fitness for use of the
Trust Estate (or any part thereof) or any other representation or warranty,
express or implied, whatsoever with respect to the Trust Estate (or any
part thereof) except that the Trustee, in its individual capacity, hereby
represents and warrants to the Beneficiaries that it will comply with the
last sentence of Section 5.03(a).
17
SECTION 6.04. Signature of Returns. At the request of the Managing
Beneficiary, the Trustee will sign on behalf of the Trust any Periodic
Filings of the Trust or other documents relating to the Trust.
SECTION 6.05. Reliance; Advice of Counsel. The Trustee will incur no
liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or
other document or paper believed by it to be genuine and believed by it to
be signed by the proper party or parties. The Trustee may accept a
certified copy of a resolution of the board of directors or other governing
body of any entity as conclusive evidence that such resolution has been
duly adopted by such body and that the same is in full force and effect. As
to any fact or matter the manner of ascertainment of which is not
specifically prescribed herein, the Trustee may for all purposes rely on an
officer's certificate of the relevant party, as to such fact or matter, and
such officer's certificate will constitute full protection to the Trustee
for any action taken or omitted to be taken by it in good faith in reliance
thereon. In the administration of the Trust, the Trustee may, at the
expense of the Trust (i) execute the trust or any of the powers hereof and
perform its powers and duties hereunder directly or through agents or
attorneys, and the Trustee will not be liable for the default or misconduct
of any agent or attorney appointed by it in good faith; and (ii) consult
with counsel, accountants and other skilled persons to be selected and
employed by it, and the Trustee will not be liable for anything done,
suffered or omitted in good faith by it in accordance with the advice or
opinion of any such counsel, accountants or other skilled persons.
SECTION 6.06. Not Acting in Individual Capacity. Except as provided in
this Article VI, in accepting the trust hereby created the Trustee Bank
acts solely as Trustee hereunder and not in its individual capacity; and
all Persons having any claim against the Trust or the Trustee, whether by
reason of the transactions contemplated by this Agreement or otherwise,
will look only to the Trust Estate (or a part thereof, as the case may be)
for payment or satisfaction thereof, except as specifically provided in
this Article VI.
SECTION 6.07. Representations and Warranties. The Trustee Bank, other
than a Trustee Bank appointed as a co-trustee, hereby represents and
warrants to the Beneficiaries that:
(a) The Trustee Bank is a Delaware banking corporation organized,
validly existing and in good standing under the laws of the State of
Delaware and has all corporate powers and all material governmental
licenses, authorizations, consents and
18
approvals required under the laws of the State of Delaware to carry on its
trust business as now conducted.
(b) The execution, delivery and performance by the Trustee Bank,
in its individual capacity, of this Agreement are within the corporate
power of the Trustee Bank, have been duly authorized by all necessary
corporate action on the part of the Trustee Bank (no action by its
shareholders being required) and do not (i) violate or contravene any
judgment, injunction, order or decree binding on the Trustee Bank or
(ii) violate, contravene or constitute a default under any provision
of the articles of incorporation or bylaws of the Trustee Bank or
(iii) result in the creation or imposition of any lien attributable to
the Trustee Bank, in its individual capacity, on the Trust Estate.
This Agreement constitutes the legal, valid and binding agreement of
the Trustee Bank, enforceable against the Trustee Bank in accordance
with its terms except to the extent that the enforceability thereof is
subject to (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, receivership and other similar laws now or
hereafter in effect related to creditors' rights generally and (ii)
general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(c) No consent, approval, authorization or order of, or filing
with, any court or regulatory, supervisory or governmental agency or
body of the State of Delaware is required by the Trustee Bank under
current Delaware law in connection with the execution, delivery or
performance by the Trustee Bank, in its individual capacity, of this
Agreement.
(d) The Trustee Bank complies with all of the requirements of
Chapter 38, Title 12 of the Delaware Code relating to the
qualification of a trustee of a Delaware business trust.
ARTICLE VII
Termination of Trust Agreement
SECTION 7.01. Termination. This Agreement and the Trust created
hereby will automatically terminate, and this Agreement will be of no
further force or effect, upon the sale or other final disposition by
the Trustee of all property constituting part of the Trust Estate and
the
19
final distribution by the Managing Beneficiary of all moneys or other
property or proceeds constituting part of the Trust Estate in accordance
with the terms of Article IV.
SECTION 7.02. Certificate of Cancelation. Upon the termination of the
Trust, the Trustee will file a certificate of cancelation with the
Secretary of State of the State of Delaware.
ARTICLE VIII
Successor Trustees, Co-Trustees
and Separate Trustees
SECTION 8.01. Resignation and Removal of the Trustee; Appointment of
Successors. Upon the occurrence of a Disqualification Event with respect to
the Trustee, the Beneficiaries may appoint a successor Trustee by an
instrument signed by the Beneficiaries. If a successor Trustee will not
have been appointed within 30 days after the giving of written notice of
such resignation or the delivery of the written instrument with respect to
such removal, the Trustee or the Beneficiaries may apply to any court of
competent jurisdiction to appoint a successor Trustee to act until such
time, if any, as a successor will have been appointed as above provided.
Any successor Trustee so appointed by such court will immediately and
without further act be superseded by any successor Trustee appointed as
above provided within one year from the date of the appointment by such
court. The Trustee may resign at any time without cause by giving at least
30 days' prior written notice to the Beneficiaries. In addition, the
Beneficiaries may at any time remove the Trustee without cause by an
instrument in writing delivered to the Trustee. No such removal or
resignation shall become effective until a successor Trustee, however
appointed, becomes vested as Trustee hereunder pursuant to Section 8.02.
SECTION 8.02. Transfer Procedures. Any successor Trustee, however
appointed, will execute and deliver to the predecessor Trustee an
instrument accepting such appointment, and such other documents of transfer
as may be necessary, and thereupon such successor Trustee, without further
act, will become vested with all the estates, properties, rights, powers,
duties and trust of the predecessor Trustee in the trust hereunder with
like effect as if originally named a Trustee herein and the predecessor
Trustee will be fully discharged of its duties and obligations to serve as
Trustee hereunder.
20
SECTION 8.03. Qualification of Trustee. Any Trustee will at all times
be (i) a trust company or a banking corporation under the laws of its state
of incorporation or a national banking association, having all corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on a trust business in the State of Delaware,
(ii) comply with Section 3807 (and any other applicable Section) of the
Delaware Code relating to the treatment of Delaware Business Trusts (Title
12, Chapter 38) and (iii) have a combined capital and surplus of not less
than $50,000,000 (or have its obligations and liabilities irrevocably and
unconditionally guaranteed by an affiliated Person having a combined
capital and surplus of at least $50,000,000).
SECTION 8.04. Co-trustees and Separate Trustees. Whenever the Trustee
or the Managing Beneficiary will deem it necessary or prudent in order
either to conform to any law of any jurisdiction in which all or any part
of the Trust Estate will be situated or to make any claim or bring any suit
with respect to the Trust Estate, or whenever the Trustee or the
Beneficiaries will be advised by counsel satisfactory to them that such
action is necessary or prudent, the Trustee and the Beneficiaries will
execute and deliver an agreement supplemental hereto and all other
instruments and agreements, and will take all other actions, necessary or
proper to appoint one or more Persons either as co-trustee or co-trustees
jointly with the Trustee of all or any part of the Trust Estate, or as a
separate trustee or separate trustees of all or any part of the Trust
Estate, and to vest in such Persons, in such capacity, such title to the
Trust Estate or any part thereof, and such rights or duties, as may be
necessary or desirable, all for such period and under such terms and
conditions as are satisfactory to the Trustee and the Beneficiaries. In
case a Disqualification Event will occur with respect to any such
co-trustee or separate trustee, the title to the Trust Estate and all
rights and duties of such co-trustee or separate trustee will, so far as
permitted by law, vest in and be exercised by the Trustee, without the
appointment of a successor to such co-trustee or separate trustee.
ARTICLE IX
Amendments
SECTION 9.01. Amendments. This Agreement may be amended only by a
written instrument executed by the Trustee and the Beneficiaries upon
issuance of a Master Trust Tax Opinion, an Issuer Tax Opinion and in
compliance with Sections 1009 and 1010 of the Indenture.
21
ARTICLE X
Ownership Interests and Certificates
SECTION 10.01. Issuance of Trust Certificates. (a) Promptly following
the execution and delivery of this Agreement, the Trustee will issue and
deliver to each Beneficiary a certificate of beneficial ownership of the
Trust Estate substantially in the form of Exhibit A hereto (each, a "Trust
Certificate") evidencing such Beneficiary's respective ownership interests
(the "Ownership Interests") in the Trust.
(b) The Trust Certificate will be executed by manual signature on
behalf of the Trustee by an authorized officer. A Trust Certificate bearing
the manual signature of an individual who was, at the time when such
signature was affixed, an authorized officer will bind the Trust,
notwithstanding that such individual has ceased to be so authorized prior
to the delivery of such Trust Certificate. Each Trust Certificate will be
dated the date of its execution.
(c) The Beneficiaries will be entitled to all rights provided to them
under this Agreement and in the Trust Certificates and will be subject to
the terms and conditions contained in this Agreement and in the Trust
Certificates.
(d) The Trustee will maintain at its office referred to in Section
2.07, or at the office of any agent appointed by it and approved in writing
by the Managing Beneficiary, a register for the registration of the Trust
Certificates. Such register will show the name and address of each holder
of a Trust Certificate, and the Trustee will treat such register as
definitive and binding for all purposes hereunder.
SECTION 10.02. Beneficial Interest; Prohibitions on Transfer. (a) The
Ownership Interests will at all times be beneficially owned by Citibank
(South Dakota) and Citibank (Nevada). Transfers of the Ownership Interests
may be made between Beneficiaries, but neither Beneficiary may transfer,
assign, exchange or otherwise pledge or convey all or any part of its
right, title and interest in and to the Trust Certificate or its Ownership
Interest to any other Person, except to the extent a corresponding transfer
of the Sellers' Interest and the Collateral Certificate would be permitted
by the Pooling and Servicing Agreement. Any purported transfer by either
Beneficiary of all or any part of its right, title and interest in and to
this Agreement and the Trust Estate or any purported transfer of the Trust
Certificate or its Ownership Interest by the
22
Beneficiary to any Person, in whole or in part, which is not in compliance
with the terms of the Pooling and Servicing Agreement, will be null and
void.
(b) Each Trust Certificate will bear a legend setting forth the
restriction on the transferability of Ownership Interests substantially as
follows:
"THIS CERTIFICATE OF BENEFICIAL INTEREST MAY NOT BE TRANSFERRED,
ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN
COMPLIANCE WITH THE TERMS OF THE TRUST AGREEMENT REFERRED TO BELOW. IN
ADDITION, THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") OR ANY STATE SECURITIES LAWS AND
MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE
DISPOSED OF BY THE HOLDER HEREOF UNLESS SUCH TRANSACTION IS EXEMPT
FROM REGISTRATION UNDER THE ACT, THE INVESTMENT COMPANY ACT OF 1940
AND APPLICABLE STATE SECURITIES LAWS."
SECTION 10.03. Lost or Destroyed Trust Certificate. If any Trust
Certificate will become mutilated, destroyed, lost or stolen, the Trustee
will, upon the written request of the holder of such Trust Certificate, and
compliance with all applicable terms of this paragraph, execute and deliver
to such holder in replacement thereof a new Trust Certificate dated the
same date as on the Trust Certificate so mutilated, destroyed, lost or
stolen. If the Trust Certificate being replaced has been mutilated,
destroyed, lost or stolen, the holder of such Trust Certificate will
furnish to the Trustee such security or indemnity as may be required by the
Trustee to save the Trustee harmless from any damage, loss or liability in
connection with such Trust Certificate, and the Trustee may require from
the party requesting such new Trust Certificate payment of a sum to
reimburse the Trustee for, or to provide funds for, the payment of any
costs, fees and expenses and any tax or other governmental charge in
connection therewith and any charges paid or payable by the Trustee.
23
ARTICLE XI
Compensation of Trustee and Indemnification
SECTION 11.01. Trustee's Fees and Expenses. To the extent funds are
available pursuant to Section 4.01, the Trust will (i) pay to the Trustee
Bank all fees and other charges described in a separate fee agreement dated
as of the date hereof between the Trust and the Trustee Bank promptly when
due thereunder and (ii) reimburse the Trustee Bank for all other reasonable
out-of-pocket costs and expenses (including reasonable fees and expenses of
counsel) incurred by it in connection with its acting as Trustee of the
Trust.
SECTION 11.02. Indemnification. To the extent funds are available
pursuant to Section 4.01, the Trust hereby agrees, whether or not any of
the transactions contemplated by this Agreement will be consummated, to
assume liability for, and hereby indemnifies, protects, saves and keeps
harmless the Trustee Bank and its officers, directors, successors, assigns,
legal representatives, agents and servants (each an "Indemnified Person"),
from and against any and all liabilities, obligations, losses, damages,
penalties, taxes, claims, actions, investigations, proceedings, costs,
expenses or disbursements (including reasonable legal fees and expenses) of
any kind and nature whatsoever which may be imposed on, incurred by or
asserted at any time against an Indemnified Person (whether or not also
indemnified against by any other person) in any way relating to or arising
out of (i) this Agreement or any other related documents or the enforcement
of any of the terms of any thereof, the administration of the Trust Estate
or the action or inaction of the Trustee, or the Trustee Bank under this
Agreement, and (ii) the manufacture, purchase, acceptance, nonacceptance,
rejection, ownership, delivery, lease, possession, use, operation,
condition, sale, return or other disposition of any property (including any
strict liability, any liability without fault and any latent and other
defects, whether or not discoverable), except, in any such case, to the
extent that any such liabilities, obligations, losses, damages, penalties,
taxes, claims, actions, investigations, proceedings, costs, expenses and
disbursements are the result of any of the matters described in the third
sentence of Section 6.01 hereof.
In case any such action, investigation or proceeding will be brought
involving an Indemnified Person, the Trust will assume the defense thereof,
including the employment of counsel and the payment of all expenses. The
Trustee Bank will have the right to employ
24
separate counsel in any such action, investigation or proceeding and to
participate in the defense thereof, but the reasonable counsel fees and
expenses of such counsel will be paid by the Trust.
The indemnification set forth herein will survive the termination of
this Agreement.
ARTICLE XII
Miscellaneous
SECTION 12.01. Conveyance by the Trustee is Binding. Any sale or other
conveyance of any part of the Trust Estate by the Trustee made pursuant to
the terms of this Agreement will bind the Beneficiaries and will be
effective to transfer or convey all beneficial interest of the Trustee and
Beneficiaries in and to such part of the Trust Estate, as the case may be.
No purchaser or other grantee will be required to inquire as to the
authorization, necessity, expediency or regularity of such sale or
conveyance or as to the application of any sale or other proceeds with
respect thereto by the Trustee or the officers.
SECTION 12.02. Instructions; Notices. All instructions, notices,
requests or other communications ("Deliveries") desired or required to be
given under this Agreement will be in writing and will be sent by (a)
certified or registered mail, return receipt requested, postage prepaid,
(b) national prepaid overnight delivery service, (c) telecopy or other
facsimile transmission or (d) personal delivery, with receipt acknowledged
in writing, to the following addresses:
(i) if to Citibank (South Dakota):
000 Xxxx 00xx Xxxxxx, Xxxxx
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
Attention: Chief Financial Officer
25
with a copy to:
000 Xxxx 00xx Xxxxxx, Xxxxx
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
Attention: General Counsel
(ii) if to Citibank (Nevada):
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: Chief Financial Officer
with a copy to:
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: General Counsel
(iii) if to the Trustee:
[Name of Trustee]
[Address]
Wilmington, Delaware [ZIP]
Telecopy: ( ) -
Attention: Corporate Trust Administration
26
with a copy to:
[ ]
[ ]
[ ]
[ ]
[ ]
Attention: [ ]
All Deliveries will be deemed given when actually received or refused by
the party to whom the same is directed (except to the extent sent by certified
or registered mail, return receipt requested, postage prepaid, in which event
such Deliveries will be deemed given three days after the date of mailing and
except to the extent sent by telecopy or other facsimile transmission, in
which event such Deliveries will be deemed given when answer back is
received). Either party may designate a change of address or supplemental
address by notice to the other party, given at least 15 days before such
change of address is to become effective.
SECTION 12.03. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction will not
invalidate or render unenforceable any provision hereof in any other
jurisdiction.
SECTION 12.04. Limitation of Liability. (a) Neither any Beneficiary
nor any officer, director, employee, agent, partner, shareholder, trustee
or principal of (i) the Beneficiaries, (ii) the Trust or (iii) any Person
owning, directly or indirectly, any legal or beneficial interest in either
Beneficiary, will have any liability or obligation with respect to the
Trust or the performance of this Agreement or any other agreement, document
or instrument executed by the Trust, and the creditors of the Trust and all
other Persons will look solely to the Trust Estate for the satisfaction of
any claims with respect thereto. The foregoing limitation of liability is
subject to Section 12.06 and is in addition to, and not exclusive of, any
limitation of liability applicable to the Persons referred to above by
operation of law.
(b) All agreements entered into by the Trust under which the Trust
would have any material liability will contain an exculpatory provision
substantially to the following effect:
27
Neither any trustee nor any beneficiary of Citibank
Credit Card Issuance Trust nor any of their respective
officers, directors, employers or agents will have any
liability with respect to this agreement, and recourse
may be had solely to the assets of Citibank Credit
Card Issuance Trust with respect thereto.
SECTION 12.05. Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so
executed and delivered will be an original, but all such counterparts will
together constitute but one and the same instrument.
SECTION 12.06. Successors and Assigns. All covenants and agreements
contained herein will be binding upon, and inure to the benefit of, the
Trustee and its successors and assigns and the Beneficiaries and their
successors and assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by any Beneficiary
will bind the successors and assigns of such Beneficiary.
SECTION 12.07. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and will not define
or limit any of the terms or provisions herein.
SECTION 12.08. Governing Law. This Agreement will in all respects be
governed by, and construed in accordance with, the laws of the State of
Delaware without regard to conflicts of law principles of such State.
SECTION 12.09. No Recourse. The Certificateholder by accepting the
Certificate acknowledges that the Certificate does not represent an
interest in or obligation of the
28
Beneficiaries, the Trustee (in its individual capacity), the Indenture Trustee
or any Affiliate thereof, and no recourse may be had against such parties or
their assets, or against the assets pledged under the Indenture.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to
be duly executed, all as of the day and year first above written.
[NAME OF TRUSTEE], as Trustee
and not in its individual
capacity
by
Name:
Title:
CITIBANK (NEVADA), NATIONAL
ASSOCIATION
by
Name:
Title:
00
XXXXXXXX (XXXXX XXXXXX), N.A.
by
Name:
Title:
30
EXHIBIT A
FORM OF TRUST CERTIFICATE
THIS CERTIFICATE OF BENEFICIAL INTEREST MAY NOT BE TRANSFERRED, ASSIGNED,
EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE
TERMS OF THE TRUST AGREEMENT REFERRED TO BELOW. IN ADDITION, THE BENEFICIAL
INTEREST IN THE TRUST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY STATE
SECURITIES LAWS AND MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR
OTHERWISE DISPOSED OF BY THE HOLDER HEREOF UNLESS SUCH TRANSACTION IS
EXEMPT FROM REGISTRATION UNDER THE ACT, THE INVESTMENT COMPANY ACT OF 1940
AND APPLICABLE STATE SECURITIES LAWS.
CITIBANK CREDIT CARD ISSUANCE TRUST
CERTIFICATE OF BENEFICIAL INTEREST
UNDER TRUST AGREEMENT DATED AS OF
[ ], [ ]
Certificate No. [ ] [ ], [ ]
[Name of Trustee], a Delaware banking corporation, not in its
individual capacity but solely as trustee (the "Trustee") under a Trust
Agreement dated as of [ ], [ ] (the "Trust Agreement"), among Citibank
(Nevada), National Association ("Citibank (Nevada)"), and Citibank (South
Dakota), N.A. ("Citibank (South Dakota)") as Beneficiaries, and the
Trustee, hereby certifies on behalf of the Trust that [Citibank (Nevada)]
[Citibank (South Dakota)] is the owner (the "Owner") of its Beneficiary
Percentage of the Ownership Interests in the Trust provided for and created
by the Trust Agreement. This Certificate of Beneficial Interest is issued
pursuant to and is entitled to the benefits of the Trust Agreement, and the
Owner hereof by acceptance hereof agrees to be bound by the terms of the
Trust Agreement. Reference is hereby made to the Trust Agreement for a
statement of the rights and obligations of the Owner
hereof. The Trustee may treat the Person in whose name this Certificate of
Beneficial Interest is registered on the note register maintained by the
Trustee pursuant to Section 10.01(d) of the Trust Agreement as the absolute
Owner hereof for all purposes.
Capitalized terms used but not defined herein have the meanings
ascribed to them in or by reference to the Trust Agreement.
This Certificate of Beneficial Interest and the Trust Agreement will
in all respects be governed by, and construed in accordance with, the laws
of the State of Delaware, without regard to any conflict-of-law provisions.
2
IN WITNESS WHEREOF, the Trustee, pursuant to the Trust Agreement, has
caused this Certificate of Beneficial Interest to be issued by the Trust as
of the date hereof.
CITIBANK CREDIT CARD ISSUANCE TRUST,
by NAME OF TRUSTEE], as Trustee under
Trust Agreement, and not in its
individual capacity
by
Name:
Title:
3
