Exhibit 4.4.4
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FORM OF TRUST AGREEMENT
between
ACE SECURITIES CORP.
as Depositor
and
[OWNER TRUSTEE NAME],
as Owner Trustee
CARD ACCOUNT TRUST, SERIES [ ]
Dated as of [ ]
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TABLE OF CONTENTS
PAGE
ARTICLE I Definitions and Usage...........................................3
Section 1.01. Defined Terms...............................................3
Section 1.02. Other Definitional Provisions and Rules of Construction....11
ARTICLE II Conveyance of the CRB Securities; Original Issuance of
Certificates................................................12
Section 2.01. Creation and Declaration of Trust; Conveyance of
the CRB Securities......................................12
Section 2.02. Acceptance by Owner Trustee................................13
Section 2.03. Representations and Warranties of the Depositor............13
Section 2.04. Agreement to Authenticate and Deliver Certificates.........15
Section 2.05. Federal Income Tax Allocations.............................16
ARTICLE III Administration of the Trust Property; Distributions and
Reports to Certificateholders..........................16
Section 3.01. Administration of the Trust Property.......................16
Section 3.02. CRB Collection Account, Certificate Account and
Note Account............................................16
Section 3.03. Investment of Funds in the CRB Collection Account,
Certificate Account and Note Account....................18
Section 3.04. Permitted Withdrawals from the CRB Collection Account......18
Section 3.05. Distributions..............................................19
Section 3.06. Compliance with Withholding Requirements...................20
Section 3.07. Statements to Certificateholders...........................20
Section 3.08. Reports of the Owner Trustee; [CRB Collection]
[Certificate] Account...................................21
Section 3.09. Access to Certain Documentation and Information............21
ARTICLE IV The Certificates..............................................21
Section 4.01. The Certificates...........................................22
Section 4.02. Registration of Transfer and Exchange of Certificates......22
Section 4.03. Mutilated, Destroyed, Lost or Stolen Certificates..........23
Section 4.04. Persons Deemed Owners......................................23
Section 4.05. Maintenance of Office or Agency............................24
Section 4.06. ERISA Considerations.......................................24
Section 4.07. Authenticating Agent.......................................24
Section 4.08. Book-Entry Certificates....................................25
Section 4.09. Notices to Clearing Agency.................................26
Section 4.10. Definitive Certificates....................................26
ARTICLE V The Owner Trustee.............................................27
Section 5.01. Duties of the Owner Trustee................................27
Section 5.02. Certain Matters Affecting the Owner Trustee................29
Section 5.03. Owner Trustee Not Liable for Certificates..................30
Section 5.04. Owner Trustee May Own Certificates.........................30
Section 5.05. Owner Trustee's Fees and Expenses..........................30
Section 5.06. Eligibility Requirements for Owner Trustee.................31
Section 5.07. Resignation and Removal of the Owner Trustee...............31
Section 5.08. Successor Owner Trustee....................................32
Section 5.09. Merger or Consolidation of Owner Trustee...................33
Section 5.10. Appointment of Co-Owner Trustee or Separate Owner Trustee..33
Section 5.11. Accounting and Reports to the Holders, the Internal
Revenue Service and Others.............................34
Section 5.12. Signature on Returns; Tax Matters Partner..................34
Section 5.13. Representations and Warranties of Owner Trustee............35
Section 5.14. Limitation of Powers and Duties............................36
ARTICLE VI The Depositor.................................................36
Section 6.01. Liability of the Depositor.................................36
Section 6.02. Merger, Consolidation or Conversion of the Depositor.......36
Section 6.03. Limitation on Liability of the Depositor and Others........37
ARTICLE VII Termination; Optional Purchase of CRB Securities.............37
Section 7.01. Termination................................................37
Section 7.02 Optional Purchase of CRB Securities........................38
ARTICLE VIII.................................................................39
Section 8.01 Amendment; Waiver..........................................39
Section 8.02 Limitation on Rights of Certificateholders.................40
Section 8.03 Governing Law..............................................41
Section 8.04 Notices....................................................41
Section 8.05 Severability of Provisions.................................41
Section 8.06 Notice.....................................................42
Section 8.07 No Petition................................................42
Section 8.08 No Recourse................................................42
Section 8.09 Grant of Security Interest.................................42
Section 8.10 Successors and Assigns.....................................43
Section 8.11 Article and Section Headings...............................44
Section 8.12 Certificates Nonassessable and Fully Paid..................44
TRUST AGREEMENT dated as of [ ], between ACE SECURITIES CORP., as
depositor (the "Depositor"), and [OWNER TRUSTEE NAME], not in its individual
capacity but solely as trustee (the "Owner Trustee").
In consideration of the mutual agreements herein contained, the
Depositor and the Owner 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 the CRB Securities. As
of the Cutoff Date, the Aggregate Collateral Balance shall be $[__].
"AGREEMENT" means this Trust Agreement and all amendments hereof and
supplements hereto.
"ANCILLARY ARRANGEMENT" means the [Ancillary Arrangement] dated as of
[ ] between [_____] and [_____].
"AVAILABLE FUNDS" means, as of any date of determination, the
aggregate amount then on deposit in the CRB Collection Account, net of any
portion thereof which represents amounts payable pursuant to clauses (iii) and
(iv) of Section 3.04.
"BASIC DOCUMENTS" means the Indenture, the Note Depository Agreement,
the Certificate Depository Agreement and the other documents and certificates
delivered in connection therewith.
"BENEFIT PLAN" has the meaning specified in Section 4.06.
"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 Owner Trustee is located, are authorized or
obligated by law, regulation or executive order to be closed.
"CERTIFICATE" means any one of the certificates issued by the Trust
and executed and authenticated by the Owner Trustee substantially in the form
attached hereto as Exhibit A.
"CERTIFICATE ACCOUNT" means the segregated, non-interest-bearing trust
account or accounts, which shall at all times be Eligible Accounts, created and
maintained by the Owner Trustee pursuant to Section 3.02(b). 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 AVAILABLE FUNDS" means, as of any date of determination,
an amount equal to (i) the amount of Available Funds, less (ii) the Note
Interest Distributable Amount, less (iii) the Note Principal Distributable
Amount.
["CERTIFICATE INTEREST AMOUNT" means, as to any Distribution Date, an
amount equal to the sum of (i) the amount of interest accrued at the Certificate
Rate for the related Collection Period on the 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 Interest
Amounts from prior Distribution Dates, together with interest thereon, to the
extent permitted by law, at the Certificate Rate.]
"CERTIFICATE INTEREST DISTRIBUTABLE AMOUNT" means [the Certificate
Interest Amount] [insert Certificate Interest Distributable Amount formula].
"CERTIFICATE PRINCIPAL BALANCE" means, as of any date of
determination, the Initial Certificate Principal Balance, less all payments made
with respect to the Certificates in accordance with Section 3.05(a)(iii) on
previous Distribution Dates.
"CERTIFICATE RATE" means [[_____]% per annum] [the sum of (i) the
Group 1 Certificate Percentage of the Group 1 CRB Interest Rate and (ii) the
Group 2 Certificate Percentage of the Group 2 CRB Interest Rate] [insert
interest formula].
"CERTIFICATE REGISTER" means the register maintained pursuant to
Section 4.02.
"CERTIFICATEHOLDER" or "Holder" means the Person in whose name a
Certificate 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 such Certificates, all
such Certificates shall be deemed to be Outstanding.
"CLASS [A-1] NOTES" means the Class [A-1] [Adjustable Rate] [Variable
Rate] [Floating Rate] [ %] Asset Backed Notes, issued pursuant to the Indenture
and substantially in the form of Exhibit A of the Indenture.
"CLASS [A-2] NOTES" means the Class [A-2] [Adjustable Rate] [Variable
Rate] [Floating Rate] [ %] Asset Backed Notes, issued pursuant to the Indenture
and substantially in the form of Exhibit B of the Indenture.
"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 [ ].
"CODE" means the Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"COLLATERAL HOLDER" means the registered holder of any CRB Security,
which, following the execution and delivery of this Agreement by the parties
hereto, shall be the Owner Trustee.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Owner 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 [----------].
"CRB SECURITY" or "Card Receivables Backed Security" means any one of
the credit card receivables backed certificates issued by [_____] and
transferred to the Owner 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 Security Schedule attached hereto as Exhibit B.
"CRB SECURITY SCHEDULE" means the schedule attached as Exhibit B
hereto identifying the CRB Securities and setting forth the following
information as to each CRB Security: (i) the original principal amount as of the
date the CRB Securities 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 SECURITY STATEMENT" means the servicing report or other statement
setting forth the amount of interest and, if applicable, principal payable on
each CRB Security Payment Date with respect to the CRB Securities that is
required to be furnished to each holder of CRB Securities with respect to each
CRB Security Payment Date pursuant to the related Pooling and Servicing
Agreement.
"CRB COLLECTION ACCOUNT" means the segregated, non-interest-bearing
trust account or accounts, which shall at all times be Eligible Accounts,
created and maintained by the Owner Trustee pursuant to Section 3.02(a). Funds
deposited in the CRB Collection Account shall be held in trust for the
Certificateholders (subject to the rights of the Noteholders pursuant to the
Indenture and the Notes) for the uses and purposes set forth in this Agreement.
"CRB SECURITY AMORTIZATION EVENT" means a Rapid Amortization Event,
Early Amortization Event, Payout Event or Economic Payout Event as such terms
are defined in the Pooling and Servicing Agreements.
"CRB SECURITY PAYMENT DATE" means the dates on which payments are due
in respect of the CRB Securities, as specified in the related Pooling and
Servicing Agreement.
"CUTOFF DATE" means [ ].
"DEFINITIVE CERTIFICATES" has the meaning specified in Section 4.08.
"DEPOSITOR" means ACE Securities Corp., a Delaware corporation.
"DEPOSITORY AGREEMENT" means the Depository Agreement dated as of the
Closing Date among the Trust, the Owner Trustee and DTC, as the initial Clearing
Agency, substantially in the form attached hereto as Exhibit D.
"DETERMINATION DATE" has the meaning specified in Section 3.07.
"DISTRIBUTION DATE" means the [second] [third] Business Day following
each CRB Security Payment Date, commencing on [ ].
"DISTRIBUTION DATE STATEMENT" has the meaning specified in Section
3.07.
"DTC" means The Depository 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 which 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
Owner 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 Owner 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 Owner
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 party or the Owner 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 Owner 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 Owner 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
Owner Trustee).
"ERISA" has the meaning specified in Section 4.06.
"FDIC" means the Federal Deposit Insurance Corporation.
"[GROUP 1] CERTIFICATE PERCENTAGE" means a fraction, expressed as a
percentage, (i) the numerator of which is the [Group 1] CRB Security Collateral
Balance [as of the Cutoff Date] and (ii) the denominator of which is the sum of
the [Group 1] CRB Security Collateral Balance [as of the Cutoff Date] and the
[Group 2] CRB Security Collateral Balance [as of the Cutoff Date].
"[GROUP 1] CRB INTEREST AMOUNT" means, with respect to any
Distribution Date, an amount equal to (i) the aggregate amount actually
distributed in respect of the [Group 1] CRB Securities on the immediately
preceding CRB Security Payment Date and identified as allocable to interest in
the related CRB Security Statement, plus (ii) the interest portion of the
purchase price paid by the Depositor in connection with the repurchase of any
[Group 1] CRB Securities pursuant to Section 2.03 since the preceding
Distribution Date.
"[GROUP 1] CRB INTEREST RATE" means [ %] [insert [Group 1] Interest
Rate formula].
"[GROUP 1] CRB PRINCIPAL AMOUNT" means, with respect to any
Distribution Date, an amount equal to (i) the aggregate amount actually
distributed in respect of the [Group 1] CRB Securities on the immediately
preceding CRB Security Payment Date and identified as allocable to principal in
the related CRB Security Statement, plus (ii) the principal portion of the
purchase price paid by the Depositor in connection with the repurchase of any
[Group 1] CRB Securities pursuant to Section 2.03 since the preceding
Distribution Date.
"[GROUP 1] CRB SECURITIES" means the CRB Securities identified as a
[Group 1] CRB Security in the CRB Security Schedule attached hereto as Exhibit
C.
"[GROUP 1] CRB SECURITY COLLATERAL BALANCE" means, as of any date of
determination, the aggregate of the outstanding principal amounts of all the
[Group 1] CRB Securities. As of the Cutoff Date, the [Group 1] CRB Security
Collateral Balance shall be $[_____].
"[GROUP 2] CERTIFICATE PERCENTAGE" means a fraction, expressed as a
percentage, (i) the numerator of which is the [Group 2] CRB Security Collateral
Balance [as of the Cutoff Date] and (ii) the denominator of which is the sum of
the [Group 1] CRB Security Collateral Balance [as of the Cutoff Date] and the
[Group 2] CRB Security Collateral Balance [as of the Cutoff Date].
"[GROUP 2] CRB INTEREST AMOUNT" means, as to any Distribution Date, an
amount equal to (i) the aggregate amount actually distributed in respect of the
[Group 2] CRB Securities on the immediately preceding CRB Security Payment Date
and identified as allocable to interest in the related CRB Security Statement,
plus (ii) the interest portion of the purchase price paid by the Depositor in
connection with the repurchase of any [Group 2] CRB Securities pursuant to
Section 2.03 since the preceding Distribution Date.
"[GROUP 1] CRB INTEREST RATE" means [ %] [insert [Group 1] Interest
Rate formula].
"[GROUP 2] CRB PRINCIPAL AMOUNT" means, as to any Distribution Date,
an amount equal to (i) the aggregate amount actually distributed in respect of
the [Group 2] CRB Securities on the immediately preceding CRB Security Payment
Date and identified as allocable to principal in the related CRB Security
Statement, plus (ii) the principal portion of the purchase price paid by the
Depositor in connection with the repurchase of any [Group 2] CRB Securities
pursuant to Section 2.03 since the preceding Distribution Date.
"[GROUP 2] CRB SECURITIES" means the CRB Securities identified as a
[Group 2] CRB Security in the CRB Security Schedule attached hereto as Exhibit
C.
"[GROUP 2] CRB SECURITY COLLATERAL BALANCE" means, as of any date of
determination, the aggregate of the outstanding principal amounts of all the
[Group 2] CRB Securities. As of the Cutoff Date, the [Group 2] CRB Security
Collateral Balance shall be $[_____].
"INDENTURE" means the Indenture dated as of [ ], between the Trust and
[Indenture Trustee Name], as Indenture Trustee.
"INDENTURE TRUSTEE" means [Indenture Trustee Name], a [_____] banking
corporation, not in its individual capacity, but solely as Indenture Trustee
pursuant to the Indenture and any successor Indenture Trustee thereunder.
"INITIAL CERTIFICATE PRINCIPAL BALANCE" means the aggregate principal
balance of the Certificates on the Closing Date.
"INTEREST DISTRIBUTION AMOUNT" means, as to any Distribution Date, an
amount equal to (i) the aggregate amount actually distributed in respect of the
CRB Securities on the immediately preceding CRB Security Payment Date and
identified as allocable to interest in the related CRB Security Statement plus
(ii) the interest portion of the purchase price paid by the Depositor in
connection with the repurchase of any CRB Securities pursuant to Section 2.03
since the preceding Distribution Date.
"LIEN OF THE INDENTURE" means all right, title and interest of the
Indenture Trustee in and to the Trust Property granted by the Owner Trustee to
the Indenture Trustee pursuant to the Indenture for the benefit of the
Noteholders.
"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 Moody's Investors Service, Inc.
"NOTE" means a Class [A-1] Note or a Class [A-2] Note.
"NOTE ACCOUNT" means the segregated, non-interest-bearing trust
account or accounts, which shall at all times be Eligible Accounts, created and
maintained by the Owner Trustee pursuant to the Indenture and Section 3.02(c)
hereof.
"NOTE DISTRIBUTABLE AMOUNT" means, with respect to any Distribution
Date, the sum of the Note Principal Distributable Amount and the Note Interest
Distributable Amount for such Distribution Date.
"NOTE INTEREST DISTRIBUTABLE AMOUNT" has the meaning specified in the
Indenture.
"NOTE PRINCIPAL DISTRIBUTABLE AMOUNT" has the meaning specified in the
Indenture.
"NOTEHOLDER" means a Person in whose name a Note is registered.
"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 Owner
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 canceled by the Owner Trustee or
delivered to the Owner 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 Owner Trustee is presented
that any such Certificates are held by a holder in due course.
"OWNER TRUST ACCOUNTS" means any or all of the CRB Collection Account,
the Certificate Account or the Note Account, as applicable.
"OWNER TRUST ESTATE" means all right, title and interest of the Owner
Trustee, as trustee, in and to the Trust property and rights assigned to the
Trust pursuant to Article II, and all funds on deposit from time to time in the
Owner Trust Accounts.
"OWNER TRUSTEE" means [Owner Trustee Name], a [_____] banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"PERCENTAGE INTEREST" means, with respect to any Certificate, the
undivided beneficial ownership interest in the Trust Property evidenced by such
Certificate.
"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. ss. 2510.3-101.
"POOLING AND SERVICING AGREEMENT[S]" means the Pooling and Servicing
Agreement[s] pursuant to which the CRB Securities were issued, attached hereto
as Exhibit C.
"PRINCIPAL DISTRIBUTION AMOUNT" means, as to any Distribution Date, an
amount equal to (i) the aggregate amount, if any, actually distributed in
respect of the CRB Securities on the immediately preceding CRB Security Payment
Date and identified as allocable to principal in the related CRB Security
Statement, plus (ii) the principal portion of the purchase price paid by the
Depositor in connection with the repurchase of any of the CRB Securities
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 Owner Trustee,
means the Chairman or Vice Chairman of the Board of Directors or Owner Trustees,
the Chairman or Vice Chairman of the Executive or Standing Committee of the
Board of Directors or Owner 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 Owner 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 Ratings Group, a division of
McGraw-Hill, Inc.
"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 [ ].
"TRUST PROPERTY" means the corpus of the Trust, which shall consist
of: (i) the CRB Securities described in the CRB Security Schedule; (ii) all
distributions thereon on and after the Cutoff Date; and (iii) the CRB Collection
Account, the Certificate Account, the Note 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.
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 SECURITIES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. CREATION AND DECLARATION OF TRUST; CONVEYANCE OF THE CRB
SECURITIES. (a) The Depositor, concurrently with the execution and delivery of
this Agreement, does hereby sell, transfer, assign, set over and otherwise
convey to the Owner 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
Securities, 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 Owner Trustee the following:
(i) confirmation of DTC of the sale by the Depositor of the CRB
Securities to the Owner Trustee and of the making by DTC of entries on
its records identifying the CRB Securities as belonging to the Owner
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 Securities and all other assets constituting the
Trust Property pursuant to this Agreement shall constitute, and be construed as,
an absolute sale of the CRB Securities by the Depositor to the Owner Trustee for
the benefit of the Certificateholders, subject to the rights of the Noteholders
pursuant to the Indenture and the Notes. Furthermore, it is not intended that
such conveyance be deemed a pledge of the CRB Securities and the other assets
constituting the Trust Property by the Depositor to the Owner 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 Securities 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 Securities 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 Owner Trustee of a security
interest in all the Depositor's right, title and interest in and to the CRB
Securities and all amounts payable to the holders of the CRB Securities 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 Owner
Trustee or its agent of the CRB Securities 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 Owner 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 Securities and all such other assets
constituting the Trust Property by the Depositor to the Owner Trustee.
(d) If the CRB Securities are reissued as definitive certificates as
provided in the Pooling and Servicing Agreement, the Owner Trustee shall cause
such definitive certificates to be issued in its name as Owner 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 OWNER TRUSTEE. The Owner Trustee hereby
acknowledges the receipt by it of the CRB Securities and the documents referred
to in Section 2.01(b)(ii) and declares that it holds and will hold such CRB
Securities, 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, subject to the Lien of
the Indenture and the rights of all present and future Noteholders pursuant to
the Indenture and the Notes, 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 Owner Trustee that as of the
Closing Date:
(a) With respect to the CRB Securities:
(i) the information set forth in the CRB Security 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 Securities
free and clear of any lien, pledge, charge or encumbrance of any kind;
(iii) the Depositor acquired its ownership in the CRB Securities
in good faith without notice of any adverse claim; and
(iv) the Depositor has not assigned any interest in the CRB
Securities 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 Securities. Upon discovery
by the Depositor or the Owner Trustee of a breach of any of the foregoing
representations and warranties which materially and adversely affects the Lien
of the Indenture or the interests of the Certificateholders or the Noteholders
in the CRB Securities, the Depositor or the Owner 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
Securities from the Owner Trustee if the Depositor is so directed by a Majority
in Interest of the Certificateholders. Any such repurchase of a CRB Security 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 Security as of the date of such repurchase and (ii) all
unpaid accrued interest on such CRB Security to the date of such repurchase at [
] per annum (the "Purchase Price"). The payment of the Purchase Price in
connection with repurchased CRB Securities shall be considered a prepayment in
full of such CRB Securities and shall be delivered to the Owner Trustee for
deposit in the Certificate Account in accordance with the provisions of Section
3.02. Upon such deposit into the CRB Collection Account, such CRB Securities
shall be released to the Depositor, and the Owner 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 Securities
repurchased pursuant hereto. The Depositor shall be entitled to all amounts
received by the Owner Trustee in respect of any repurchased CRB Security to the
extent the distribution of such amounts would not make the total amount
distributed in respect of any such repurchased CRB Security greater than the
Purchase Price therefor. The obligation of the Depositor to cure or repurchase
the CRB Securities 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 Owner
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 Owner 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
Owner Trustee acknowledges the transfer, delivery and assignment to it of the
Trust Property, and concurrently with such transfer and delivery, the Owner
Trustee has executed, authenticated and delivered, to or upon the order of the
Depositor, the Certificates duly executed and authenticated by the Owner 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.
Section 2.05. FEDERAL INCOME TAX ALLOCATIONS. Net income of the Trust
for any month as determined for federal income tax purposes (and each item of
income, gain, loss and deduction entering into the computation thereof) shall be
allocated:
(a) among the Holders as of the first day following the end of such
month, in proportion to their ownership of principal amount of Certificates on
such date, net income in an amount up to the sum of [insert amounts
distributable to and Holders] the portion of the market discount on the CRB
Securities accrued during such month that is allocable to the excess, if any, of
the initial aggregate principal amount of the Certificates over their initial
aggregate issue price, such sum to be reduced by an amortization by the Trust of
premium on CRB Securities that corresponds to any excess of the issue price of
Certificates over their principal amount; and
(b) to the Depositor, to the extent of any remaining net income. The
net income of the Trust for any month is insufficient for the allocations
described in clause (a) above, subsequent net income shall first be allocated to
make up such shortfall before being allocated as provided in the preceding
sentence.
ARTICLE III
ADMINISTRATION OF THE TRUST PROPERTY;
DISTRIBUTIONS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01. ADMINISTRATION OF THE TRUST PROPERTY. The Owner Trustee
shall administer the Trust Property for the benefit of the Certificateholders,
subject to the rights of the Noteholders pursuant to the Notes and the
Indenture. The Owner Trustee shall make reasonable effort to collect all
payments required to be made pursuant to the terms of the CRB Securities and the
Pooling and Servicing Agreement in a manner consistent with the terms of the
Pooling and Servicing Agreements and such CRB Securities. In connection with its
receipts of any funds distributed in respect of a CRB Security on any CRB
Security Payment Date, the Owner Trustee shall review the related CRB Security
Statement and shall confirm that the principal and interest payments received on
such CRB Security Payment Date are equal to the distribution amount shown on the
related CRB Security Statement. If (i) the amount of any distribution on a CRB
Security varies from the amount reported to the Owner Trustee on the applicable
CRB Security Statement for such distribution, (ii) the Owner Trustee shall not
have received a distribution on any CRB Security by the close of business on the
date on which such distribution was to be received by the Owner Trustee or (iii)
the Owner Trustee shall gain actual knowledge of any other default or event of
default under the Pooling and Servicing Agreement, then the Owner 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. CRB COLLECTION ACCOUNT, CERTIFICATE ACCOUNT AND NOTE
ACCOUNT.
(a) CRB Collection Account. The Owner Trustee, for the benefit of the
Certificateholders subject to the rights of the Noteholders pursuant to the
Notes and the Indenture, shall establish and maintain one or more non-interest
bearing Eligible Accounts (collectively, the "CRB Collection Account"), entitled
[ ], as Owner Trustee, in trust for the registered holders of Certificates in
Card Account Trust, Series [ ]. The Owner Trustee, on behalf of the
Certificateholders, shall possess all right, title and interest (subject to the
Lien of the Indenture) in all funds deposited from time to time in the CRB
Collection Account and in all proceeds thereof. The Owner Trustee shall upon
receipt deposit in the CRB Collection Account all amounts collected and payments
received in respect of the CRB Securities, including:
(i) all distributions received on the CRB Securities subsequent
to the Cutoff Date; and
(ii) any amount required to be deposited in the CRB Collection
Account pursuant to Section 2.03(a) in connection with the repurchase
of a CRB Security by the Depositor.
If, at any time, the CRB Collection Account ceases to be an Eligible
Account, the Owner Trustee shall within five Business Days establish a new CRB
Collection Account meeting the conditions specified above and transfer any cash
and any investments on deposit in the CRB Collection Account to such new CRB
Collection Account, and from the date such new CRB Collection Account is
established, it shall be the CRB Collection Account.
(b) Certificate Account. The Owner 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
Owner Trustee, in trust for the registered holders of Certificates in Card
Account Trust, Series [ ]. The Owner Trustee, on behalf of the
Certificateholders, shall possess all right, title and interest in all funds
deposited from time to time in the Certificate Account and in all proceeds
thereof. The Owner Trustee shall transfer from the CRB Collection Account to the
Certificate Account certain amounts on deposit therein after [payment to the
Indenture Trustee] [withdrawal therefrom and deposit in the Note Account]
certain amounts for the benefit of the Noteholders, pursuant to clause (i) of
Section 3.04 and clauses (i) and (iv) of Section 3.05 and the terms of the
Indenture.
If, at any time, the Certificate Account ceases to be an Eligible
Account, the Owner 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.
(c) Note Account. The Owner Trustee, for the benefit of the
Noteholders shall establish and maintain one or more non-interest bearing
Eligible Accounts (collectively, the "Note Account"), entitled [ ], as Owner
Trustee. The Owner Trustee shall transfer from the CRB Collection Account to the
Note Account certain amounts on deposit therein in accordance with clause (i) of
Section 3.04 and clauses (i) and (iv) of Section 3.05 and the terms of the
Indenture.
If, at any time, the Note Account ceases to be an Eligible Account,
the Owner Trustee shall within five Business Days establish a new Note Account
meeting the conditions specified above and transfer any cash and any investments
on deposit in the Note Account to such new Note Account, and from the date such
new Note Account is established, it shall be the Note Account.
(d) The Owner Trustee shall give written notice to the Depositor and
each Rating Agency of the location of each Eligible Account constituting the CRB
Collection Account, the Certificate Account and the Note Account upon
establishment thereof and prior to any change thereof.
Section 3.03. INVESTMENT OF FUNDS IN THE CRB COLLECTION ACCOUNT,
CERTIFICATE ACCOUNT AND NOTE Account. The Depositor, on behalf of the Trust, may
direct in writing any depository institution maintaining the Owner Trust
Accounts to invest the funds in such Owner Trust Accounts in one or more
Eligible Investments, which shall mature not later than the Business Day
immediately preceding the next Distribution Date (or, if the Owner Trustee in
its commercial capacity is the obligor of such Eligible Investments and the
Owner Trust Accounts is maintained by the Owner 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
Owner 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 Owner
Trustee, in trust for the Holders of the Certificates, or its nominee. All
proceeds of any such investment shall be deposited in the Owner Trust Accounts
may not be reinvested and may only be withdrawn and applied for the purposes set
forth herein.
Section 3.04. PERMITTED WITHDRAWALS FROM THE CRB COLLECTION ACCOUNT.
The Owner Trustee, may from time to time withdraw funds from the CRB Collection
Account for the following purposes:
(i) to make [payments to the Indenture Trustee] [deposits in the
Note Account] for the benefit of the Noteholders in the amounts and in
the manner provided for in the Indenture and pursuant to the terms of
the Notes;
(ii) to make [payments to Certificateholders] [deposits in the
Certificate Account for distribution to the Certificateholders] in the
amounts and in the manner provided for in Section 3.05;
(iii) to reimburse the Owner Trustee, to the extent of the net
proceeds recovered on any defaulted CRB Securities, 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 Securities pursuant to Section 5.01;
(iv) to reimburse the Depositor for expenses incurred by and
reimbursable to the Depositor pursuant to Section 6.03;
(v) to clear and terminate the CRB Collection Account upon the
termination of this Agreement.
Section 3.05. DISTRIBUTIONS. (a) On each Distribution Date, the Owner
Trustee shall withdraw from the CRB Collection Account all Available Funds then
on deposit therein and shall deposit such Available Funds (in each case to the
extent of the remaining Available Funds) in the Note Account or the Certificate
Account, as the case may be, for the following purposes and in the following
order of priority:
(i) to pay [into the Note Account] [the Indenture Trustee] for
the benefit of the Noteholders an amount equal to the Note Interest
Distributable Amount for such Distribution Date;
(ii) to pay into the Certificate Account for distribution to the
Holders of the Certificates the Certificate Interest Distributable
Amount for such Distribution Date;
(iii) to pay to the Owner Trustee a pro rata portion of the Owner
Trustee's annual fee for services;
(iv) to pay [into the Note Account] [to the Indenture Trustee]
for the benefit of the Noteholders an amount equal to the Note
Principal Distributable Amount for such Distribution Date;
(v) to pay into the Certificate Account for distribution to the
Holders of the Certificates the Certificate Principal Distributable
Amount for such Distribution Date; and
(vi) to pay to the Owner Trustee any unreimbursed expenses
incurred by the Owner Trustee but not covered by the Owner Trustee's
annual fee.
(b) All distributions from the Certificate Account made with respect
to the Certificates on each Distribution Date shall be allocated pro rata among
the Outstanding Certificates based upon their respective Percentage Interests in
respect of the aggregate Outstanding principal amount of the Certificates.
Payments to the Certificateholders 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 Owner 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 Owner 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 Owner
Trustee shall comply with all Federal income tax withholding requirements
respecting distributions to, or receipts of amounts on behalf of,
Certificateholders that the Owner Trustee reasonably believes are applicable
under the Code. The consent of Certificateholders shall not be required for such
withholding. In the event the Owner Trustee does withhold any amount from
interest or principal distribution thereof to any Certificateholder pursuant to
federal withholding requirements, the Owner 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 Owner 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 Certificate Available Funds for such Distribution Date;
(ii) the Certificate Interest Distributable Amount for such
Distribution Date;
(iii) the Certificate Principal Distributable Amount, if any, for
such Distribution Date;
(iv) the Certificate Principal Balance after giving effect to
distributions of principal of such Certificates on such Distribution
Date; and
(v) the amount of any withdrawals made from the CRB Collection
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) and
(iv) above, the foregoing amounts shall also be stated as a dollar amount per
$1,000 principal amount of the Certificates.
In addition, the Owner Trustee promptly shall furnish to
Certificateholders copies of any notices, statements, reports or other
communications received by the Owner Trustee as the Collateral Holder.
On or before January 31 of each calendar year, beginning with calendar
year [ ], the Owner 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 (ii) and (iii) 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
Owner Trustee shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Owner Trustee
pursuant to any requirements of the Code.
The Owner 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 OWNER TRUSTEE; [CRB COLLECTION]
[CERTIFICATE] ACCOUNT. Upon request of a Certificateholder, the Owner Trustee
shall make available to Certificateholders a statement setting forth the status
of the [CRB Collection] [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 [CRB Collection] [Certificate] Account.
Section 3.09. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION. The
Owner 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 Securities. The Owner 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 Owner Trustee in
respect of its duties hereunder. The Owner 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 Owner 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 Owner Trustee and
during normal business hours at offices designated by the Owner Trustee.
ARTICLE IV
THE CERTIFICATES
Section 4.01. THE CERTIFICATES. (a) The Certificates shall be
substantially in the respective forms set forth in Exhibits A hereto. The
Certificates shall, on original issue, be executed and authenticated by the
Owner Trustee and delivered by the Owner Trustee to or upon the order of the
Depositor upon receipt by the Owner Trustee of the CRB Securities 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 Owner 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 Owner Trustee shall bind the Owner 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 Owner 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 Owner Trustee shall keep at one of the offices or agencies to be
maintained by the Owner Trustee in accordance with Section 4.05 a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Owner 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 Owner 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 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 Owner Trustee pursuant to Section 4.05. Whenever any Certificates are so
surrendered for exchange, the Owner 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 Owner Trustee) be duly
endorsed by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Owner 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, but the Owner 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 canceled and destroyed by the Owner 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 Owner Trustee or (ii) the
Depositor and the Owner 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 Owner 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 Owner Trustee or the Depositor of written
notice that such Certificate has been acquired by a bona fide purchaser, the
Owner 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
Owner 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 Owner 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
duly issued hereunder. All Certificates surrendered to the Owner Trustee under
the terms of this Section 4.03 shall be canceled and destroyed by the Owner
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 Owner 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 Owner Trustee, the Depositor nor any such agent
shall be affected by notice to the contrary.
Section 4.05. MAINTENANCE OF OFFICE OR AGENCY. The Owner 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 Owner 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 Owner
Trustee that such Certificateholder is not a Benefit Plan.
Section 4.07. AUTHENTICATING AGENT. (a)The Owner Trustee may appoint
one or more authenticating agents with respect to the Certificates which shall
be authorized to act on behalf of the Owner 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 Owner Trustee or the Owner Trustee's certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Owner Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Owner 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 Owner
Trustee or such authenticating agent. An authenticating agent may at any time
resign by giving notice of resignation to the Owner Trustee and to the
Depositor. The Owner 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 Owner Trustee or the Depositor, the Owner 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 Owner 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 Owner Trustee acts as authenticating agent hereunder, the provisions
of Article V shall be applicable to the Owner 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 Owner Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
This is one of the Certificates described in the Trust Agreement
referred to herein.
-----------------------------------
-----------------------------------
as Authenticating Agent
for the Owner 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
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 Owner 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 of Outstanding
Certificates, the Clearing Agency shall be deemed to represent such percentage
only to the extent that it 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 of Certificates and has delivered instructions to the Owner
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 Owner
Trustee shall give all such notices and communications to the Clearing Agency.
Section 4.10. DEFINITIVE CERTIFICATES. If Book-Entry Certificates have
been issued and (a) the Depositor advised the Owner Trustee that DTC is no
longer willing or able to discharge properly its responsibilities under the
Depository Agreement with respect to the Certificates and the Owner Trustee or
the Depositor is unable to locate a qualified successor, (b) the Depositor, at
its option, advises the Owner Trustee that it elects to terminate the book-entry
system with respect to the Certificates through the Clearing Agency or (c) after
the occurrence of a payment default with respect to the CRB Securities,
Certificateholders representing at least a majority of the outstanding principal
amount of Certificates advise the Clearing Agency (which shall then notify the
Owner Trustee) in writing that the continuation of a book-entry system with
respect to the Certificates through the Clearing Agency is no longer in the best
interests of the holders of such Certificates, then the Owner Trustee shall
cause the Clearing Agency to notify all holders of Certificates, through the
Clearing Agency, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificateholders requesting the same. Upon
surrender to the Owner Trustee of any such Certificates representing Book-Entry
Certificates by the Clearing Agency, accompanied by instructions for
re-registration, the Owner 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 Owner 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 Owner Trustee, to
the extent applicable with respect to such Definitive Certificates and the Owner
Trustee shall recognize the Holders of such Definitive Certificates as
Certificateholders hereunder.
Upon the issuance of Definitive Certificates, distributions of amounts
in respect of such Definitive Certificates shall thereafter be made by the Owner
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 Owner
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 OWNER TRUSTEE
Section 5.01. Duties of the Owner Trustee. (a) The Owner Trustee
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. The Owner Trustee shall have the authority to exercise
the rights and powers vested in it by this Agreement. Any permissive right of
the Owner Trustee set forth in this Agreement shall not be construed as a duty.
(b) The Owner Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Owner 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 Owner Trustee shall take such action as a
Majority in Interest of Certificateholders shall direct, and the Owner 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 Securities, the
Owner Trustee shall proceed to enforce its rights as a holder of the CRB
Securities under the Pooling and Servicing Agreement, unless otherwise directed
by a Majority in Interest of Certificates affected thereby. The Owner Trustee
may, in its discretion, and will, if so directed by a Majority in Interest of
Certificates affected thereby, proceed to enforce any rights which it may have
as a holder of CRB Securities. In addition, a Majority in Interest of
Certificates may together direct the time, method and place of conducting any
proceeding for any remedy available to the Owner Trustee as a holder of CRB
Securities. Notwithstanding the foregoing, the Owner 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 Owner Trustee has the right to vote or give consent in
respect of the CRB Securities or receives a request from the trustee or
the issuer of the CRB Securities for its consent to any amendment,
modification or waiver under any document relating to the CRB
Securities, or receives any other solicitation for any action with
respect to the CRB Securities,
(ii) the Depositor notifies the Owner Trustee of its
determination that taking any such action is primarily intended to
maintain the initial value or credit rating of the CRB Securities, and
any additional consequences that might arise as a result of taking any
such action are incidental, and
(iii) either
(A) the CRB Security are in default,
(B) the Depositor notifies the Owner Trustee of its
determination that the CRB Securities 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 Owner 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 Owner Trustee shall mail a notice of such proposed action,
including a description thereof, to each Certificateholder of record as of such
date, (y) the Owner Trustee shall request instructions from the
Certificateholders as to whether or not to take such action and (z) the Owner
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 Owner Trustee prior to the date on which such action is required,
provided that the Owner Trustee shall have no liability for any failure to act
resulting from Certificateholders' late return of, or failure to return,
directions requested by the Owner 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 Owner 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
Owner 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 Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner 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 Securities, subject to compliance with
paragraph (d) above, the Owner Trustee may in its discretion proceed to protect
and enforce the rights of Certificateholders by any action, suit or proceeding
deemed proper by the Owner Trustee which is not inconsistent with any request or
direction by the Holders of a Majority in Interest of the Certificates affected
thereby.
(f) No provision of this Agreement shall be construed to relieve the
Owner 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
Securities or the Pooling and Servicing Agreement in any capacity other than as
Owner Trustee; provided, however, that:
(i) the duties and obligations of the Owner Trustee shall be
determined solely by the express provisions of this Agreement, the
Owner 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 Owner Trustee and, in the absence of bad faith
or negligence on the part of the Owner Trustee, the Owner 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 Owner
Trustee that conform on their face to the requirements of this
Agreement;
(ii) the Owner Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Owner Trustee, unless it shall be proved
that the Owner Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Owner 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 Owner Trustee, or exercising any trust or power
conferred upon the Owner Trustee, under this Agreement.
Section 5.02. CERTAIN MATTERS AFFECTING THE OWNER TRUSTEE. Except as
otherwise provided in Section 5.01:
(i) the Owner 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 Owner 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 Owner Trustee
expressly created by this Agreement, the Owner 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 Owner 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 Owner 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 Owner 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 Owner Trustee shall not be personally liable for any loss
resulting from the investment of funds held in the CRB Collection
Account pursuant to Section 3.03; and
(vi) the Owner 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 Owner Trustee at the
Corporate Trust Office and such notice references the Certificates
generally or this Agreement.
Section 5.03. Owner Trustee Not Liable for Certificates. The recitals
contained herein and in the Certificates, other than the signature of the Owner
Trustee on the Certificates and the certificate of authentication, shall be
taken as the statements of the Depositor, and the Owner Trustee assumes no
responsibility for their correctness. The Owner Trustee makes no representations
or warranties as to the validity or sufficiency of this Agreement or of the
Certificates or of the CRB Securities or related documents, other than the
signature of the Owner Trustee on the Certificates and the certificate of
authentication. The Owner 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 Owner Trustee.
Section 5.04. OWNER TRUSTEE MAY OWN CERTIFICATES. The Owner 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 Owner 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 Owner Trustee's interest shall be excluded.
Section 5.05. OWNER TRUSTEE'S FEES AND EXPENSES. The Depositor
covenants and agrees to pay to the Owner Trustee on the Closing Date, and the
Owner Trustee shall be entitled to receive from time to time out of amounts
collected and payments received in respect of the CRB Securities, 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 Owner Trustee,
and the Depositor will pay or reimburse the Owner Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Owner 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 Owner Trustee's willful
misfeasance, negligence or bad faith. The Owner Trustee and any director,
officer, employee or agent of the Owner 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 Owner 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 Owner Trustee shall have
given to the Depositor written notice thereof promptly after the Owner Trustee
shall have knowledge thereof and (ii) while maintaining control over its own
defense, the Owner 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 Owner Trustee. Any payment hereunder made by
the Depositor to the Owner Trustee shall be from the Depositor's own funds,
without reimbursement from the Trust Property therefor.
Section 5.06. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
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 Owner Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 5.07. The corporation or national banking association
serving as Owner 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 OWNER TRUSTEE.
(a) Subject to the last sentence of this subSection (a), the Owner
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 Owner 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 Owner Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee for the Certificates.
(b) If at any time the Owner 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 Owner Trustee shall become incapable
of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the
Owner Trustee or of its property shall be appointed, or any public officer shall
take charge or control of the Owner 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 Owner Trustee and appoint a successor trustee by written
instrument, in duplicate, which instrument shall be delivered to the Owner
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 Owner Trustee and
appoint a successor trustee upon 30 days' notice to the Owner 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 Owner 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 Owner 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 OWNER 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 Owner 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 Owner Trustee herein. The predecessor Owner Trustee shall deliver to
the successor trustee the CRB Securities and all related documents and
statements held by it hereunder, and the Depositor and the predecessor Owner
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
Owner 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 OWNER TRUSTEE. Any
corporation into which the Owner 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 Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Owner Trustee, shall be the successor of the Owner 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 Owner Trustee shall provide notice of any such merger to
each Rating Agency.
Section 5.10. APPOINTMENT OF CO-OWNER TRUSTEE OR SEPARATE OWNER
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 Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee or co-trustees, jointly with
the Owner 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 Owner 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 Owner 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 Owner Trustee shall be conferred or imposed upon
and exercised or performed by the Owner 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 Owner 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 Owner 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 Owner Trustee. The Depositor and the Owner 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 Owner 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 Owner
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 Owner Trustee. Every such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Depositor.
(d) Any separate trustee or co-trustee may, at any time, constitute
and appoint the Owner 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 Owner Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section 5.11. ACCOUNTING AND REPORTS TO THE HOLDERS, THE INTERNAL
REVENUE SERVICE AND OTHERS. The Owner Trustee shall (a) maintain (or cause to be
maintained) the books of the Trust on a calendar year basis and the accrual
method of accounting, (b) deliver to each Holder, as may be required by the Code
and applicable Treasury Regulations, such information as may be required
(including Schedule K-1) to enable each Holder to prepare its federal and state
income tax returns, (c) file such tax returns relating to the Trust (including a
partnership information return, IRS Form 1065) and make such elections as from
time to time may be required or appropriate under any applicable state or
federal statute or any rule or regulation thereunder so as to maintain the
Trust's characterization as a partnership for federal income tax purposes, (d)
cause such tax returns to be signed in the manner required by law and (e)
collect or cause to be collected any withholding tax required to be collected
under the Code and applicable Treasury Regulations as with respect to income or
distributions to Holders. The Owner Trustee shall elect under Section 1278 of
the Code to include in income currently any market discount that accrues with
respect to the CRB Securities. The Owner Trustee shall not make the election
provided under Section 754 of the Code.
Section 5.12. SIGNATURE ON RETURNS; TAX MATTERS PARTNER. (a) The Owner
Trustee shall sign on behalf of the Trust the tax returns of the Trust unless
applicable law requires a Holder to sign such documents, in which case such
documents shall be signed by the Depositor.
(b) The Depositor shall be designated the "tax matters partner" of the
Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
Section 5.13. REPRESENTATIONS AND WARRANTIES OF OWNER TRUSTEE. (a) The
Owner Trustee represents and warrants that:
(i) the Owner Trustee is duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
association;
(ii) the Owner 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 Owner Trustee and its performance of the
compliance with the terms of this Agreement, and the Certificates will
not violate the Owner 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 Owner
Trustee is a party or which may be applicable to the Owner 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 Owner
Trustee (and, with respect to the Certificates, by an authenticating
agent on its behalf, if applicable) and this Agreement constitutes the
legal, valid and binding obligation of the Owner 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 Owner Trustee is not in violation, and the execution and
delivery of this Agreement and the Certificates by the Owner 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 Owner 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 Owner Trustee
or its properties or on the performance of its duties thereunder);
(vi) there are no actions or proceedings against, or
investigations of, the Owner Trustee pending, or, to the knowledge of
the Owner 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 Owner 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 Owner Trustee of, or compliance by the Owner
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 Owner Trustee or
receipt by the Owner Trustee of notice from the Depositor or any
Certificateholder of a breach of any representation or warranty of the
OwnerTrustee set forth in paragraph (a) above that materially and adversely
affects the interests of the Certificateholders, the Owner Trustee shall
promptly cure such breach in all material respects.
Section 5.14. LIMITATION OF POWERS AND DUTIES. The Trust is
constituted solely for the purposes of acquiring and holding the CRB Securities,
issuing the Certificates and the Notes, making distributions thereon and other
activities incidental thereto. The Owner Trustee is not authorized to acquire
any other investments or engage in any activities not authorized herein and, in
particular, the Owner Trustee is not authorized (i) to sell, assign, transfer,
exchange, pledge, set-off or otherwise dispose of any of the CRB Securities or
interests therein, including to Certificateholders (except the creation of the
Lien of the Indenture and 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 Owner 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 SECURITIES
Section 7. 01. TERMINATION. (a) The respective obligations and
responsibilities of the Depositor and the Owner 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 Owner Trustee on the Distribution Date pursuant to this Article
VII following the earlier to occur of (i) the final distribution by the Owner
Trustee of all money or other property or proceeds of the Trust Property in
accordance with the terms hereof and the terms of the Indenture and the Notes,
and (ii) the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of St. James, living on the date hereof.
(b) Notice of any termination, specifying the Distribution Date upon
which all Certificateholders may surrender their Certificates to the Owner
Trustee for payment and cancellation, shall be given promptly by the Owner
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 Owner 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 Owner Trustee therein specified.
Upon presentation and surrender of the Certificates, the Owner 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 Owner 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 Owner 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
Owner 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 SECURITIES. 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 Securities. To
exercise such option, the Depositor shall deposit in the CRB Collection Account
an amount equal to the aggregate unpaid principal balance of the then
outstanding CRB Securities together with any accrued interest thereon through
the related CRB Security Payment Date, and shall succeed to all interests of the
Trust, the Owner Trustee and the Certificateholders in and to such CRB
Securities. The Owner Trustee shall apply such funds deposited in the CRB
Collection 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 Owner 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 Owner 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 Owner 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 Owner Trustee
with the consent of the Holders of Certificates evidencing not less than 66-2/3%
of the then outstanding aggregate principal amount of the Certificates 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; 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 Certificates in a manner other than as described in clause (i),
without the consent of the Holders of Certificates evidencing not less than
66-2/3% of the then outstanding aggregate principal amount 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.
(c) Promptly after the execution of any such amendment, the Owner
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 Owner Trustee may prescribe.
(d) Notwithstanding the foregoing, no amendment or modification to
this Agreement shall be permitted unless the Owner 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 Owner Trustee in the
performance of its obligations hereunder and any consequences thereof, except a
default by the Owner Trustee in failing to distribute amounts received in
respect of the CRB Securities 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 (i) the
Holders of Certificates evidencing Percentage Interests aggregating not less
than 25% of all the Certificates shall have made written request upon the Owner
Trustee to institute such action, suit or proceeding in its own name as Owner
Trustee hereunder and shall have offered to the Owner Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, (ii) the Owner 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 (iii) no direction
inconsistent with such written request shall have been given to the Owner
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 Owner 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 Owner 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 Owner 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 Owner 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,
ACE Securities Corp.
6525 Morrison Boulevard
Suite 318
Charlotte, North Carolina 28211
Attention: ________________________
(b) in the case of the Owner 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 Owner 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 Owner Trustee;
(iii) the final payment to Holders of the Certificates; and
(iv) any change in the location of the CRB Collection Account.
In addition, the Owner 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 Owner Trustee from time to time.
Section 8.07. NO PETITION. Each of the Owner 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. The Owner Trustee covenants and agrees that it
will have secured a written acknowledgment (which need not be a separate
document) from any Person proposing to provide any service by such Person, that
such Person 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 the
provision of such service.
Section 8.08. NO RECOURSE. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, the Owner Trustee, or any Affiliate, employee or
agent of the foregoing Persons and no recourse may be had against such Persons
or their respective assets, except as may be expressly set forth in this
Agreement or the Certificates.
Section 8.09. GRANT OF SECURITY INTEREST. It is the express intent of
the parties to this Agreement that the conveyance of the CRB Securities by the
Depositor to the Owner Trustee be, and be construed as, a sale of the CRB
Securities by the Depositor and not a pledge of any CRB Securities by the
Depositor to secure a debt or other obligation of the Depositor. However, in the
event that, notwithstanding the aforementioned intent of the parties, any CRB
Securities are held to be property of the Depositor, then, (a) it is the express
intent of the parties that such conveyance be deemed a pledge of such CRB
Securities by the Depositor to the Owner Trustee to secure a debt or other
obligation of the Depositor and (b)(1) 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; (2) the
conveyance provided for in Section 2.01 shall be deemed to be a grant by the
Depositor to the Owner Trustee of a security interest in all the Depositor's
right, title and interest in and to such CRB Securities and all amounts payable
to the holders of such CRB Securities 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 all amounts from time
to time held or invested in the CRB Collection Account, whether in the form of
cash, instruments, securities or other property; (3) the obligations secured by
such security agreement shall be deemed to be all the Depositor's obligations
under this Agreement, including the obligation to provide to the
Certificateholders the benefits of this Agreement; and (4) notifications to
persons holding such property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmation from, financial intermediaries,
bailees or agents (as applicable) of the Owner Trustee for the purpose of
perfecting such security interest under applicable law. Accordingly, the
Depositor hereby grants to the Owner Trustee a security interest in the CRB
Securities and all other property described in clause (2) of the immediately
preceding sentence for the purpose of securing to the Owner Trustee the
performance by the Depositor of the obligations described in clause (3) of the
immediately preceding sentence. Notwithstanding the foregoing, the parties to
this Agreement intend the transfer pursuant to Section 2.01 to be true, absolute
and unconditional sale of the CRB Securities and assets constituting the Trust
Property by the Depositor to the Owner Trustee. The depositor and the Owner
Trustee shall to the extent consistent with this Agreement take such actions as
may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the CRB Securities, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such for so long as any of the CRB Securities remain
outstanding. Without limiting the generality of the foregoing, the Owner Trustee
shall file, or shall cause to be filed, all filings necessary to maintain the
effectiveness of any original filings necessary under the Uniform Commercial
Code as in effect in any jurisdiction to perfect the Owner Trustee's security
interest in or lien on the CRB Securities, including (x) continuation statements
and (y) such other statements as may be occasioned by (A) any change of name of
the Depositor or the Owner Trustee, (B) any change of location of the place of
business or the chief executive office of the Depositor or (C) any transfer of
any interest of the Depositor in any CRB Security.
Section 8.10. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto, and all such provisions shall inure to the
benefit of the Certificate holders.
Section 8.11. ARTICLE AND SECTION HEADINGS. The article and Section
headings herein are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
Section 8.12. CERTIFICATES NONASSESSABLE AND FULLY PAID. It is the
intention of this Agreement that Certificateholders shall not be personally
liable for obligations of the Trust Property, that the beneficial ownership
interests represented by the Certificates shall be nonassessable for any losses
or expenses of the Trust Property or for any reason whatsoever, and that
Certificates, upon execution, authentication and delivery thereof by the Owner
Trustee pursuant to Section 2.04, are and shall be deemed fully paid.
IN WITNESS WHEREOF, the Depositor and the Owner Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
ACE SECURITIES CORP., as Depositor
by:____________________________
Name:
Title:
[OWNER TRUSTEE NAME], not in its
individual capacity but solely as Owner
Trustee
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 OWNER TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. NONE OF THIS CERTIFICATE, THE CRB SECURITIES 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 [ ]
[ %] [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 Securities created
pursuant to a Pooling and Servicing Agreement[s] dated as of [ ], among [_____],
as seller, [_____], as servicer, and [_____], as trustee, and distributions
thereon, deposited in trust by ACE Securities Corp. (the "Depositor").
THIS CERTIFIES THAT [_____], is the registered owner of [ ] DOLLARS
nonassessable, fully-paid, fractional undivided interest in Card Account Trust,
Series [ ] formed by the Depositor. The Certificates have a pass-through rate of
[[ %] per annum] [insert interest rate formula].
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates described in the Trust Agreement referred to
herein.
[OWNER TRUSTEE NAME], not in _____________________________________ its
individual capacity but solely as _____________________________________ Owner
Trustee, or as Authenticating Agent for the Owner
Trustee,
by by
- ----------------- ------------------
Authorized Officer Authorized Officer
The Trust was created pursuant to a Trust Agreement dated as of [ ] (the "Trust
Agreement"), between the Depositor and [_____], a New York banking corporation,
not in its individual capacity but solely as Owner Trustee (the "Owner
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 Owner Trustee
with respect hereto. A copy of the Trust Agreement may be obtained from the
Owner 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 "[ %]
[Floating Rate] [Adjustable Rate] [Variable Rate] Asset Backed Certificates"
(herein called the "Certificates") 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 the acceptance hereof assents and by
which such Holder is bound. The Trust Property consists of: (i) certain CRB
Securities described in the Trust Agreement; (ii) all distributions thereon on
and after the Cutoff Date; and (iii) the CRB Collection 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 [ ], 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 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 Owner 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
Owner 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 Owner 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 Owner Trustee has caused this Certificate to
be duly executed as of the date set forth below.
CARD ACCOUNT TRUST, SERIES [ ],
by [OWNER TRUSTEE NAME],
not in its individual capacity but solely
as Owner 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 Securities, 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 CRB Collection 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 Owner Trustee and the rights of the Certificateholders under
the Trust Agreement at any time by the Depositor and the Owner 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 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 Owner 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 Owner 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 Owner Trustee and any agent of the Depositor or
the Owner Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Owner Trustee, nor any such agent shall be affected by any notice to the
contrary.
The Trust and the obligations of the Depositor and the Owner 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 Owner 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 Owner 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof.
The Depositor may at its option purchase the outstanding CRB
Securities at a price specified in the Trust Agreement, and such purchase of the
CRB Securities 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
CRB SECURITY SCHEDULE
[To come]
Issuer
Servicer
Trustee
Designation
Principal Amount to be Sold to
Trust
(i) Original Principal Amount
as of date of Issuance
(ii) Fractional Undivided
interest was compared to
Aggregate Collateral
Balance
EXHIBIT C
POOLING AND SERVICING AGREEMENT
[To come]
EXHIBIT D
FORM OF DEPOSITORY AGREEMENT[S]
[To come]