Exhibit 4.9
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CITIBANK CREDIT CARD ISSUANCE TRUST
TRUST AGREEMENT
dated as of September 12, 2000
among
CITIBANK (NEVADA), NATIONAL ASSOCIATION,
and
CITIBANK (SOUTH DAKOTA), N.A.,
as Beneficiaries,
and
THE BANK OF NEW YORK (DELAWARE),
as Trustee
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TABLE OF CONTENTS
ARTICLE I
Definitions
Page
SECTION 1.01. Definitions .................................................... 1
SECTION 1.02. Generic Terms .................................................. 3
ARTICLE II
Organization;
Declaration of Trust by the Trustee
SECTION 2.01. Formation of Trust; Name ....................................... 4
SECTION 2.02. Transfer of Property to Trust; Initial Capital
Contribution of Trust Estate ................................... 4
SECTION 2.03. Purposes and Powers; Trust To Operate as a Single Purpose Entity 4
SECTION 2.04. Appointment of Trustee; Declaration of Trust by the Trustee .... 7
SECTION 2.05. Title to Trust Estate .......................................... 7
SECTION 2.06. Nature of Interest in the Trust Estate ......................... 7
SECTION 2.07. Business Trust; Principal Office of Trustee .................... 7
SECTION 2.08. Tax Matters .................................................... 7
SECTION 2.09. Fiscal Year .................................................... 8
ARTICLE III
Representations and Warranties of the Beneficiaries
SECTION 3.01. Representations and Warranties of the Beneficiaries ............ 8
ARTICLE IV
Distributions of Funds
SECTION 4.01. Distribution of Funds .......................................... 9
Page
SECTION 4.02. Payments from Trust Estate Only ........................... 9
SECTION 4.03. Method of Payment ......................................... 9
SECTION 4.04. Establishment of Account .................................. 10
ARTICLE V
Duties of the Trustee
SECTION 5.01. Action Upon Instructions .................................. 10
SECTION 5.02. No Duty to Act Under Certain Circumstances ................ 11
SECTION 5.03. No Duties Except Under Specified Agreements or Instructions 11
SECTION 5.04. Trust Operation ........................................... 12
SECTION 5.05. Execution of Documents .................................... 12
SECTION 5.06. Nonpetition Covenants ..................................... 13
ARTICLE VI
Concerning the Trustee Bank
SECTION 6.01. Acceptance of Trust and Duties ............................ 13
SECTION 6.02. Furnishing of Documents ................................... 14
SECTION 6.03. Representations and Warranties as to the Trust Estate ..... 14
SECTION 6.04. Signature of Returns ...................................... 14
SECTION 6.05. Reliance; Advice of Counsel ............................... 14
SECTION 6.06. Not Acting in Individual Capacity ......................... 15
SECTION 6.07. Representations and Warranties ............................ 15
ARTICLE VII
Termination of Trust Agreement
SECTION 7.01. Termination ............................................... 16
SECTION 7.02. Certificate of Cancelation ................................ 16
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ARTICLE VIII
Successor Trustees, Co-Trustees
and Separate Trustees
Page
SECTION 8.01. Resignation and Removal of the Trustee; Appointment of Successors 16
SECTION 8.02. Transfer Procedures 17
SECTION 8.03. Qualification of Trustee ........................................ 17
SECTION 8.04. Co-trustees and Separate Trustees ............................... 17
ARTICLE IX
Amendments
SECTION 9.01. Amendments ...................................................... 17
ARTICLE X
Ownership Interests and Certificates
SECTION 10.01. Issuance of Trust Certificates ................................. 18
SECTION 10.02. Beneficial Interest; Prohibitions on Transfer .................. 18
SECTION 10.03. Lost or Destroyed Trust Certificate ............................ 19
ARTICLE XI
Compensation of Trustee and Indemnification
SECTION 11.01. Trustee's Fees and Expenses .................................... 19
SECTION 11.02. Indemnification ................................................ 20
ARTICLE XII
Miscellaneous
SECTION 12.01. Conveyance by the Trustee is Binding ........................... 20
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Page
SECTION 12.02. Instructions; Notices .......................................... 21
SECTION 12.03. Severability ................................................... 22
SECTION 12.04. Limitation of Liability ........................................ 22
SECTION 12.05. Separate Counterparts .......................................... 22
SECTION 12.06. Successors and Assigns ......................................... 22
SECTION 12.07. Headings ....................................................... 23
SECTION 12.08. Governing Law .................................................. 23
Exhibits
Exhibit A Form of Trust Certificate
iv
TRUST AGREEMENT dated as of September 12, 2000, among
CITIBANK (NEVADA), NATIONAL ASSOCIATION ("Citibank (Nevada)"),
CITIBANK (SOUTH DAKOTA), N.A. ("Citibank (South Dakota)"), and
THE BANK OF NEW YORK (DELAWARE), a Delaware banking corporation,
as owner trustee (the "Trustee").
In consideration of the mutual agreements herein contained and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. (a) Capitalized terms used herein and not
defined herein have the meaning assigned to them in the Series 2000 Supplement.
For purposes of this Agreement, the following terms have the following meanings:
"Agreement" means this Trust Agreement.
"Beneficiaries" means Citibank (Nevada), Citibank (South Dakota) and each
Permitted Transferee and other transferee under Section 10.02.
"Beneficiary Percentage" of a Beneficiary means the percentage of the
Ownership Interest of that Beneficiary in the Trust, which initially will be
53.4192119421% with respect to Citibank (Nevada), and 46.5807880579% with
respect to Citibank (South Dakota), as such percentages may be adjusted from
time to time upon notice by the Managing Beneficiary to the Trustee of such
adjustment.
"Beneficiary Trust Account" means the account established by the Trustee on
behalf of the Trust in accordance with Section 4.04.
"Citibank (Nevada)" is defined in the preamble to this Agreement.
"Citibank (South Dakota)" is defined in the preamble to this Agreement.
"Code" means the Internal Revenue Code of 1986, as it may be amended from
time to time.
"Deliveries" is defined in Section 12.02.
"Disqualification Event" with respect to the Trustee means (a) the
bankruptcy, insolvency or dissolution of the Trustee, (b) the occurrence of the
date of resignation of the Trustee, as set forth in a notice of resignation
given pursuant to Section 8.01, or (c) the delivery to the Trustee of the
instrument or instruments of removal referred to in Section 8.01 (or, if such
instruments specify a later effective date of removal, the occurrence of such
later date), or (d) failure of the Trustee to qualify under the requirements of
Section 8.03.
"Governmental Authority" means the United States of America, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Indemnified Person" is defined in Section 11.02.
"Indenture" means the Indenture, between the Trust and the Indenture
Trustee, which by its terms is identified as being the Indenture referred to
herein, as amended, restated, supplemented or otherwise modified from time to
time.
"Indenture Trustee" means Bankers Trust Company as trustee under the
Indenture, and each successor trustee under the Indenture.
"Managing Beneficiary" means the Beneficiary selected by the Beneficiaries
holding a majority of the Beneficiary Percentages. Initially, Citibank (South
Dakota) will be the Managing Beneficiary.
"Master Trust" means Citibank Credit Card Master Trust I.
"Note" is defined in the Indenture.
"Ownership Interest" means the Ownership Interests issued by the Trust
hereunder with the rights and privileges set forth in Section 10.01.
"Person" means any legal person, including any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, governmental entity or other entity of similar
nature.
"Periodic Filing" means any filing or submission that the Trust is required
to make with any federal, state or local authority or regulatory agency.
"Permitted Transferee" is defined in Section 10.02.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement, dated as of May 29, 1991, among Citibank (Nevada) and Citibank (South
Dakota) as Sellers, Citibank (South Dakota) as Servicer, and Bankers Trust
Company as Trustee, as amended, restated, supplemented or otherwise modified
from time to time, including as supplemented by the Series 2000 Supplement.
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"Rating Agency" is defined in the Indenture.
"Requirement of Law" means any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, whether Federal, state
or local, and, when used with respect to any Person, the certificate of
incorporation and by-laws or other charter or governing documents of such
Person.
"Securities Act" means the Securities Act of 1933, as amended.
"Sellers' Interest" is defined in the Pooling and Servicing Agreement.
"Series 2000 Certificate" is defined in the Series 2000 Supplement.
"Series 2000 Supplement" means the Series 2000 Supplement relating to the
Pooling and Servicing Agreement, which by its terms is identified as being the
Series 2000 Supplement referred to herein, as amended, restated, supplemented or
otherwise modified from time to time.
"Trust" means the trust established by this Agreement.
"Trust Certificate" is defined in Section 10.01.
"Trust Estate" is defined in Section 2.04.
"Trustee" means The Bank of New York (Delaware), a Delaware banking
corporation not in its individual capacity but solely in its capacity as owner
trustee hereunder, and each successor trustee under Article VIII, in its
capacity as owner trustee hereunder, and each co-trustee under and to the extent
provided in Section 8.04, in its capacity as owner trustee hereunder.
"Trustee Bank" means The Bank of New York (Delaware) in its individual
capacity, each bank appointed as successor Trustee under Article VIII in its
individual capacity and each bank appointed as co-trustee under and to the
extent provided in Section 8.04 in its individual capacity.
SECTION 1.02. Generic Terms. (a) The terms "hereby", "hereof", "hereto",
"herein", "hereunder" and any similar terms will refer to this Agreement.
(b) Unless otherwise indicated in context, the terms "Article", "Section",
"Exhibit" or "Schedule" will refer to an Article or Section of, or an Exhibit or
Schedule to, this Agreement.
(c) Words of the masculine, feminine or neuter gender mean and include the
correlative words of other genders, and words importing the singular number mean
and include the plural number and vice versa.
(d) The terms "include", "including" and similar terms will be construed as
if followed by the phrase "without limitation".
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(e) All terms defined in this Agreement will have the defined meanings when
used in any certificate or other document made or delivered pursuant hereto or
in connection herewith unless otherwise defined therein.
(f) Any agreement, instrument or statute defined or referred to herein or
in any certificate or other document made or delivered pursuant hereto or in
connection herewith means such agreement, instrument or statute as from time to
time amended, modified or supplemented and includes (in the case of agreements
or instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II
Organization;
Declaration of Trust by the Trustee
SECTION 2.01. Formation of Trust; Name. The Trust is hereby formed, to be
named "Citibank Credit Card Issuance Trust ", under which name the Trustee may
conduct any activities and business of the Trust contemplated hereby, execute
contracts and other instruments on behalf of the Trust and sue and be sued on
behalf of the Trust.
SECTION 2.02. Transfer of Property to Trust; Initial Capital Contribution
of Trust Estate. Each Beneficiary hereby sells, assigns, grants and transfers,
over to the Trustee, as of the date hereof, $1.00. The Trustee hereby
acknowledges receipt in trust from the Beneficiaries, as of the date hereof, of
the foregoing contribution, which will constitute the initial Trust Estate.
SECTION 2.03. Purposes and Powers; Trust To Operate as a Single Purpose
Entity. (a) The purpose of the Trust is to engage solely in a program of
acquiring interests in the Master Trust and issuing Notes under the Indenture
and related activities. Without limiting the generality of the foregoing, the
Trust may and has the power and authority to:
(i) acquire from Citibank (Nevada) and Citibank (South Dakota) the
Series 2000 Certificate, and other certificates of beneficial interest, of
the Master Trust;
(ii) from time to time, grant a security interest in the Series 2000
Certificate or other beneficial interests in the Master Trust, including
the pledge of any portion of the Invested Amount of the Series 2000
Certificate, and grant a security interest in accounts established for the
benefit of indebtedness of the Trust;
(iii) from time to time authorize and approve the issuance of Notes
pursuant to the Indenture without limitation to aggregate amounts and, in
connection therewith, determine the terms and provisions of such Notes and
of the issuance and sale thereof, including the following:
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(A) determining the principal amount of the Notes,
(B) determining the maturity date of the Notes,
(C) determining the rate of interest, if any, to be paid on the
Notes,
(D) determining the price or prices at which such Notes will be
sold by the Trust,
(E) determining the provisions, if any, for the redemption of
such Notes,
(F) determining the form, terms and provisions of the indentures,
fiscal agency agreements or other instruments under which the Notes
may be issued and the banks or trust companies to act as trustees,
fiscal agents and paying agents thereunder,
(G) preparing and filing all documents necessary or appropriate
in connection with the registration of the Notes under the Securities
Act, the qualification of indentures under the Trust Indenture Act of
1939 and the qualification under any other applicable federal,
foreign, state, local or other governmental requirements,
(H) preparing any offering memorandum or other descriptive
material relating to the issuance of the Notes,
(I) listing the Notes on any United States or non-United States
stock exchange,
(J) entering into one or more interest rate or currency swaps,
caps, collars guaranteed investment contracts or other derivative
agreements with counterparties (which may include, without limitation,
Citibank (South Dakota), Citibank (Nevada) or any of their affiliates)
to manage interest rate or currency risk relating to the Notes;
(K) appointing a paying agent or agents for purposes of payments
on the Notes; and
(L) arranging for the underwriting, subscription, purchase or
placement of the Notes and selecting underwriters, managers and
purchasers or agents for that purpose;
(iv) from time to time receive payments and proceeds with respect to
the Series 2000 Certificate and other certificates of beneficial interest
in the Master Trust and the Indenture and either invest or distribute those
payments and proceeds,
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(v) from time to time make deposits to and withdrawals from accounts
established under the Indenture;
(vi) from time to time make and receive payments pursuant to
derivative agreements;
(vii) from time to time make payments on the Notes; and
(viii) from time to time perform such obligations and exercise and
enforce such rights and pursue such remedies as may be appropriate by
virtue of the Trust being party to any of the agreements contemplated in
clauses (i) through (vii) above;
In connection with any of the foregoing, the Trust may (x) execute and deliver,
and/or accept, such instruments, agreements, certificates, Uniform Commercial
Code financing statements and other documents, and create such security
interests, as may be necessary or desirable in connection therewith, and (y)
subject to the terms of this Agreement, take such other action as may be
necessary or incidental to the foregoing.
(b) The Trust and the Managing Beneficiary, on behalf of the Trust, are
authorized and have the power to execute and deliver from time to time loan
agreements, underwriting agreements, selling agent agreements, purchase
agreements, swap and other derivative agreements, including performance
agreements, indentures, notes, security agreements, and other agreements and
instruments as are consistent with the purposes of the Trust. Without limiting
the generality of the foregoing, the Managing Beneficiary, on behalf of the
Trust, is specifically authorized to execute and deliver, without any further
act, vote or approval, and notwithstanding any other provision of this
Agreement, the Delaware Business Trust Act or other applicable law, rule or
regulation, agreements, documents or securities relating to the purposes of the
Trust including:
(i) the Indenture and each Issuer's Certificate and supplemental
indenture relating to the Indenture;
(ii) the Notes;
(iii) each interest rate or currency swap, cap, collar, guaranteed
investment contract or other derivative agreement, including agreements
related thereto, between the Trust and a counterparty (which may include,
without limitation, Citibank (Nevada), Citibank (South Dakota) or any of
their affiliates) to manage interest rate or currency risk relating to the
Notes; and
(iv) any other document necessary or desirable in connection with the
fulfillment of the purposes of the Trust described in, and pursuant to,
Section 2.03(a).
The authorization set forth in the preceding sentence will not be deemed a
restriction on the power and authority of the Managing Beneficiary, on behalf of
the Trust, to execute and deliver
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other agreements, documents instruments and securities or to take other actions
on behalf of the Trust in connection with the fulfillment of the purposes of the
Trust described in, and pursuant to, Section 2.03(a).
(c) The Trustee and the Managing Beneficiary will at all times maintain
the books, records and accounts of the Trust separate and apart from those of
any other Person, and will cause the Trust to hold itself out as being a Person
separate and apart from any other Person.
(d) The Trust will not engage in any business or own any assets unrelated
to the purposes of the Trust.
SECTION 2.04. Appointment of Trustee; Declaration of Trust by the Trustee.
The Beneficiaries hereby appoint The Bank of New York (Delaware) as Trustee of
the Trust effective as of the date hereof, to have all the rights, powers and
duties set forth herein and the Delaware Business Trust Act. The Trustee hereby
declares that it will hold the initial Trust Estate, the Series 2000 Certificate
and the other documents and assets described in Section 2.03, together with any
payments, proceeds or income of any kind from such documents or assets or any
other source and any other property held under this Agreement (collectively, the
"Trust Estate"), upon the trust set forth herein and for the sole use and
benefit of the Beneficiaries.
SECTION 2.05. Title to Trust Estate. Title to all of the Trust Estate will
be vested in the Trust until this Agreement terminates pursuant to Article VII;
provided, however, that if the laws of any jurisdiction require that title to
any part of the Trust Estate be vested in the trustees of a trust, then title to
that part of the Trust Estate will be deemed to be vested in the Trustee or any
co-trustee or separate trustee, as the case may be, appointed pursuant to
Article VIII.
SECTION 2.06. Nature of Interest in the Trust Estate. The Beneficiaries
will not have any legal title to or right to possession of any part of the Trust
Estate.
SECTION 2.07. Business Trust; Principal Office of Trustee. It is the
intention of the parties hereto that the Trust constitute a business trust under
Title 12, Chapter 38 of the Delaware Code and that this Agreement constitute the
governing instrument of the Trust. The Trustee will file a certificate of trust
relating to the Trust with the Secretary of State of the State of Delaware and
maintain the Trustee's principal office in the State of Delaware.
SECTION 2.08. Tax Matters. The parties hereto intend that the Trust will
not be treated as a partnership, agency, sole proprietorship or association for
Federal income tax purposes but instead will be treated as a custodial
arrangement for the Beneficiaries, and the parties hereto will file all their
tax returns in a manner consistent with that intent unless otherwise required by
a taxing authority. Except as otherwise expressly provided herein, any tax
elections required or permitted to be made by the Trust under the Code or
otherwise will be made in such manner as may be determined by the Managing
Beneficiary to be in the best interests of the Beneficiaries. The Trust will not
elect to be treated as a corporation for any tax purpose.
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SECTION 2.09. Fiscal Year. The fiscal year of the Trust will end on the
last day of December of each year.
ARTICLE III
Representations and Warranties of the Beneficiaries
SECTION 3.01. Representations and Warranties of the Beneficiaries. Each
Beneficiary hereby represents and warrants to the Trustee as of the date of this
Agreement and as of the date of each increase in the Invested Amount of the
Series 2000 Certificate that:
(a) Such Beneficiary is a national banking association validly existing
under the laws of the United States and has, in all material respects, full
power and authority to own its properties and conduct its business as presently
owned and conducted, and to execute, deliver and perform its obligations under
this Agreement.
(b) Such Beneficiary has been duly organized as an association licensed as
a national banking association and is validly existing and in good standing
under the laws of the United States, is duly qualified to do business and is in
good standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or conducts material
business, and has full power and authority to enter into and perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby.
(c) The execution and delivery of this Agreement by such Beneficiary and
the consummation of the transactions provided for in this Agreement have been
duly authorized by such Beneficiary by all necessary corporate action on the
part of such Beneficiary.
(d) The execution and delivery by such Beneficiary of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof applicable to such Beneficiary will not conflict
with or violate any Requirements of Law applicable to such Beneficiary or
conflict with, result in any breach of any of the material terms and provisions
of, or constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of trust or
other instrument to which such Beneficiary is a party or by which it or its
properties are bound.
(e) There are no proceedings or investigations pending or, to the best
knowledge of such Beneficiary, threatened against such Beneficiary before any
Governmental Authority (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement, (iii) seeking any determination or ruling that, in the
reasonable judgment of such Beneficiary, would materially and adversely affect
the performance by such Beneficiary of its obligations under this Agreement or
(iv) seeking any determination or ruling that would materially and adversely
affect the validity or enforceability of this Agreement.
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(f) All authorizations, consents, orders or approvals of or registrations
or declarations with any Governmental Authority required to be obtained,
effected or given by such Beneficiary in connection with the execution and
delivery by such Beneficiary of this Agreement and the performance of the
transactions contemplated by this Agreement have been duly obtained, effected or
given and are in full force and effect.
(g) This Agreement constitutes a legal, valid and binding obligation of
such Beneficiary enforceable against such Beneficiary in accordance with its
terms, except (i) as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in general,
and (ii) as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(h) The Beneficiaries transferred all of their right, title and interest
in and to the Trust Estate to the Trust free and clear of all claims, liens and
other encumbrances.
ARTICLE IV
Distributions of Funds
SECTION 4.01. Distribution of Funds. All funds received by the Trust to the
extent not encumbered by the Indenture and otherwise available for distribution
(or if encumbered by the Indenture, which have been released by the relevant
parties benefitting from such encumbrance) will be applied in the following
order of priority:
(i) First, to pay any amounts owing to the Trustee pursuant to
Sections 11.01 and 11.02; and
(ii) Second, to be distributed to the Beneficiaries.
SECTION 4.02. Payments from Trust Estate Only. All payments to be made by
the Trustee under this Agreement will be made only from the income and the
capital proceeds derived from the Trust Estate and only to the extent that the
Trustee will have received income or capital proceeds from the Trust Estate.
Each Beneficiary agrees that it will look solely to the income and capital
proceeds derived from the Trust Estate (to the extent available for payment as
herein provided) and that, except as specifically provided herein, the Trustee
will not be subject to any liability in its individual capacity under this
Agreement to such Beneficiary or to any other Person.
SECTION 4.03. Method of Payment. All amounts payable to the Beneficiaries
pursuant to this Agreement will be paid by the Trustee to the applicable
Beneficiary or a nominee therefor in such manner as such Beneficiary may from
time to time designate in written instructions to the Trustee. All funds
received by the Trustee on behalf of the Trust not later than 2:00 p.m. (New
9
York City time) on a Business Day will be applied by the Trustee on that
Business Day. Funds received after that time will be applied on the next
following Business Day.
SECTION 4.04. Establishment of Account. The Beneficiaries hereby authorize
the Trustee to establish and maintain an account on behalf of the Trust into
which all funds received by the Trustee on behalf of the Trust will be
deposited. Such account will be designated the Beneficiary Trust Account.
ARTICLE V
Duties of the Trustee
SECTION 5.01. Action Upon Instructions. (a) It is the intention of the
Beneficiaries that the powers and duties of the Trustee are to be purely
ministerial only, and that the Managing Beneficiary will have the power to
direct the Trustee as to all nonministerial matters concerning the
administration of the Trust (to the extent such matters are within the powers of
the Managing Beneficiary). Accordingly, subject to Sections 5.01(b), 5.01(c),
and Article XII, the Managing Beneficiary will direct the Trustee in the
management of the Trust and the Trust Estate. Such direction will be exercised
at any time only by written instruction of the Managing Beneficiary delivered to
the Trustee pursuant to this Article V.
(b) The Trustee will take such action or actions as may be specified in any
instructions delivered in accordance with Section 5.01(a); provided, however,
that the Trustee will not be required to take any such action if the Trustee
Bank will have been advised by counsel, that such action (i) is contrary to the
terms hereof or of any document contemplated hereby to which the Trustee is a
party or is otherwise contrary to law, or (ii) is likely to result in liability
on the part of the Trustee Bank, unless the Trustee Bank will have received
additional indemnification or security satisfactory to the Trustee Bank from the
Managing Beneficiary against all costs, expenses and liabilities arising from
the Trustee's taking such action.
(c) The Managing Beneficiary will not direct the Trustee to take or refrain
from taking any action contrary to this Agreement, nor will the Trustee be
obligated to follow any such direction.
(d) In the event that the Trustee is unsure as to the application of any
provision of this Agreement, or such provision is ambiguous as to its
application, or is, or appears to be, in conflict with any other applicable
provision, or this Agreement permits any determination by the Trustee or is
silent or is incomplete as to the course of action to be adopted, the Trustee
will promptly give notice to the Managing Beneficiary requesting written
instructions as to the course of action to be adopted and, to the extent the
Trustee acts in good faith in accordance with such written instructions received
from the Managing Beneficiary, the Trustee will not be liable on account of such
action to any Person. If the Trustee will not have received appropriate written
instructions within 30 days of such notice (or within such shorter period of
time as reasonably may be specified in such notice) it may, but will be under no
duty to, take or refrain from taking such
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action, not inconsistent with this Agreement, as it deems to be in the best
interests of the Beneficiaries, and will have no liability to any Person for
such action or inaction.
(e) The Trustee will, subject to this Section 5.01, act in accordance with
the instructions given to it by the Managing Beneficiary pursuant to Section
5.01(a), and to the extent the Trustee acts in good faith in accordance with
such instructions, the Trustee will not be liable on account of such action to
any Person.
SECTION 5.02. No Duty to Act Under Certain Circumstances. Notwithstanding
anything contained herein to the contrary, neither the Trustee Bank nor the
Trustee, except a Trustee Bank authorized as co-trustee, will be required to
take any action in any jurisdiction other than in the State of Delaware if the
taking of such action would (i) require the consent or approval or authorization
or order of or the giving of notice to, or the registration with or taking of
any action in respect of, any state or other governmental authority or agency of
any jurisdiction other than the State of Delaware; (ii) result in any fee, tax
or governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the State of
Delaware becoming payable by the Trustee Bank; or (iii) subject the Trustee Bank
to personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by the Trustee Bank or the Trustee, as the case may be,
contemplated hereby.
SECTION 5.03. No Duties Except Under Specified Agreements or Instructions.
(a) The Trustee will not have any duty or obligation to manage, control, use,
make any payment in respect of, register, record, insure, inspect, sell, dispose
of, create, maintain or perfect any security interest or title in or otherwise
deal with any part of the Trust Estate, prepare, file or record any document or
report (including any tax related filing for any holder of Notes), or to
otherwise take or refrain from taking any action under, or in connection with,
this Agreement, the Trust or any document contemplated hereby to which the Trust
or the Trustee is a party, except as expressly provided by the terms of this
Agreement or in written instructions from the Managing Beneficiary received
pursuant to Section 5.01; and no implied duties or obligations will be read into
this Agreement against the Trustee. Unless otherwise directed by the Managing
Beneficiary in accordance with Section 5.01(a), the Trustee will have no
obligation or duty to take any action the Trust is authorized and empowered to
take pursuant to Section 2.03(a). The Trustee Bank nevertheless agrees that it
will, in its individual capacity and at its own cost and expense, promptly take
all action as may be necessary to discharge any lien, pledge, security interest
or other encumbrance on any part of the Trust Estate which results from actions
by or claims against the Trustee Bank not related to the ownership of any part
of the Trust Estate.
(b) The Trustee agrees that it will not manage, control, use, lease, sell,
dispose of or otherwise deal with any part of the Trust Estate except (i) in
accordance with the powers granted to, or the authority conferred upon, the
Trustee pursuant to this Trust Agreement, or (ii) in accordance with the express
terms hereof or with written instructions from the Managing Beneficiary pursuant
to Section 5.01. Unless otherwise directed by the Managing Beneficiary in
accordance with Section 5.01(a), the Trustee will not be required to perform any
obligations or
11
duties of the Trust under the Indenture, which duties and obligations will be
the sole responsibility of the Managing Beneficiary.
SECTION 5.04. Trust Operation. The operations of the Trust will be
conducted in accordance with the following standards:
(a) the Trust will act solely in its own name through the Trustee or
the Managing Beneficiary;
(b) the Trust will not incur any indebtedness for money borrowed or
incur any obligations except in connection with the purposes set forth in
Section 2.03 of this Agreement;
(c) the Trust's funds and assets will at all times be maintained
separately from those of the Beneficiaries and their affiliates;
(d) the Trust will take all reasonable steps to continue its identity
as a separate legal entity and to make it apparent to third persons that it
is an entity with assets and liability distinct from those of the
Beneficiaries, the Beneficiaries' affiliates or any other third person, and
will use stationery and other business forms of the Trustee or the Trust
and not that of the Beneficiaries or any of their affiliates, and will use
its best efforts to avoid the appearance (i) of conducting business on
behalf of the Beneficiaries or any affiliates thereof, or (ii) that the
assets of the Trust are available to pay the creditors of the Beneficiaries
or any affiliates thereof;
(e) the Trust will not hold itself out as being liable for the debts
of the Beneficiaries or any affiliates thereof;
(f) the Trust will not engage in any transaction with the
Beneficiaries or any affiliates thereof, except as required, or
specifically permitted, by this Agreement or unless such transaction is
otherwise on terms neither more favorable nor less favorable than the terms
and conditions available at the time to the Trust for comparable
transactions with other Persons; and
(g) the Trust will not enter into any voluntary bankruptcy or
insolvency proceeding without a finding that the Trust's liabilities
exceeds its assets or that the Trust is unable to pay its debts in a timely
manner as they become due.
SECTION 5.05. Execution of Documents. The Trustee will, at the written
direction of the Managing Beneficiary, execute and deliver on behalf of the
Trust such instruments, agreements and certificates contemplated hereby to which
the Trust is a party (such direction to be conclusively evidenced by the
Trustee's execution and delivery of such documents to, and acceptance by, the
Managing Beneficiary or its counsel).
12
SECTION 5.06. Nonpetition Covenants. Notwithstanding any prior termination
of the Trust or this Agreement, each of the Trustee and the Beneficiaries
covenants and agrees that it will not at any time with respect to the Trust or
the Master Trust acquiesce, petition or otherwise invoke or cause the Trust or
the Master Trust to invoke the process of any court or government authority for
the purpose of commencing or sustaining a case against the Trust or the Master
Trust under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, conservator, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust or the Master Trust or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Trust or the Master Trust; provided, however, that this
Section 5.06 will not preclude any remedy described in Article VII of the
Indenture.
ARTICLE VI
Concerning the Trustee Bank
SECTION 6.01. Acceptance of Trust and Duties. The Trustee Bank accepts the
trust hereby created and agrees to perform the same but only upon the terms of
this Agreement. The Trustee Bank also agrees to disburse all moneys actually
received by it constituting part of the Trust Estate in accordance with the
terms of this Agreement. The Trustee Bank will not be answerable or accountable
under any circumstances in its individual capacity, except (i) for its own
willful misconduct or gross negligence, (ii) in the case of the inaccuracy of
any representation or warranty contained in Section 6.07, (iii) for the failure
by the Trustee to perform obligations expressly undertaken by it in the last
sentence of Section 5.03(a), or (iv) for taxes, fees or other charges on, based
on or measured by, any fees, commissions or other compensation earned by the
Trustee Bank for acting as trustee hereunder. In particular, but not by way of
limitation:
(a) The Trustee Bank will not be personally liable for any error of
judgment made in good faith by an authorized officer of the Trustee so long
as the same will not constitute gross negligence or willful misconduct;
(b) The Trustee Bank will not be personally liable with respect to
any action taken or omitted to be taken by the Trustee in good faith in
accordance with the instructions of the Managing Beneficiary;
(c) No provision of this Agreement will require the Trustee Bank to
expend or risk its personal funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder, if
the Trustee Bank will have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it, including such advances as the
Trustee Bank may reasonably request;
(d) Under no circumstance will the Trustee Bank be personally liable
for the accuracy or performance of any representation, warranty, covenant,
agreement or other obligation, including any indebtedness, of the Trust;
13
(e) The Trustee Bank will not be personally responsible or liable for
or in respect of the validity or sufficiency of this Agreement or for the
due execution hereof by the Beneficiaries or with respect to any agreement
entered into by the Trust.
(f) Under no circumstances will the Trustee Bank be responsible or
liable for the action or inaction of the Managing Beneficiary, nor will the
Trustee Bank be responsible for monitoring the performance of the Managing
Beneficiary's duties hereunder or of any other Person acting for or on
behalf of the Trust.
(g) In no event will the Trustee Bank be personally liable (i) for
special, consequential or punitive damages unless such damages result from
its willful misconduct or gross negligence, (ii) for the acts or omissions
of its nominees, correspondents, clearing agencies or securities
depositories, (iii) for the acts or omissions of brokers or dealers, and
(iv) for any losses due to forces beyond the control of the Trustee Bank,
including strikes, work stoppages, acts of war or terrorism, insurrection,
revolution, nuclear or natural catastrophes or acts of God and
interruptions, loss or malfunctions of utilities, communications or
computer (software and hardware) services. The Trustee Bank will have no
responsibility for the accuracy of any information provided to the
Beneficiaries or any other Person that has been obtained from, or provided
to the Trustee Bank by, any other Person.
SECTION 6.02. Furnishing of Documents. The Trustee will furnish to the
Managing Beneficiary, within a reasonable time under the circumstances after
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Trustee with respect to the Trust or the Trust Estate.
SECTION 6.03. Representations and Warranties as to the Trust Estate. The
Trustee makes no representation or warranty as to, and will not be liable for,
the title, value, condition, design, operation, merchantability or fitness for
use of the Trust Estate (or any part thereof) or any other representation or
warranty, express or implied, whatsoever with respect to the Trust Estate (or
any part thereof) except that the Trustee, in its individual capacity, hereby
represents and warrants to the Beneficiaries that it will comply with the last
sentence of Section 5.03(a).
SECTION 6.04. Signature of Returns. At the written direction of the
Managing Beneficiary, the Trustee will sign on behalf of the Trust any Periodic
Filings of the Trust or other documents relating to the Trust prepared by, or on
behalf of, the Managing Beneficiary.
SECTION 6.05. Reliance; Advice of Counsel. The Trustee will incur no
liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties. The Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any entity as
conclusive evidence that such resolution has been duly adopted by such body and
that the same is in full force and effect. As to any fact or matter the manner
of ascertainment of which is not specifically prescribed herein, the Trustee may
for all purposes rely on an officer's certificate of the relevant
14
party, as to such fact or matter, and such officer's certificate will constitute
full protection to the Trustee for any action taken or omitted to be taken by it
in good faith in reliance thereon. In the administration of the Trust, the
Trustee may, at the expense of the Trust (i) execute the trust or any of the
powers hereof and perform its powers and duties hereunder directly or through
agents or attorneys, and the Trustee will not be liable for the default or
misconduct of any agent or attorney appointed by it in good faith; and (ii)
consult with counsel, accountants and other skilled persons to be selected and
employed by it, and the Trustee will not be liable for anything done, suffered
or omitted in good faith by it in accordance with the advice or opinion of any
such counsel, accountants or other skilled persons.
SECTION 6.06. Not Acting in Individual Capacity. Except as provided in this
Article VI, in accepting the trust hereby created the Trustee Bank acts solely
as Trustee hereunder and not in its individual capacity; and all Persons having
any claim against the Trust or the Trustee, whether by reason of the
transactions contemplated by this Agreement or otherwise, will look only to the
Trust Estate (or a part thereof, as the case may be) for payment or satisfaction
thereof, except as specifically provided in this Article VI.
SECTION 6.07. Representations and Warranties. The Trustee Bank, other than
a Trustee Bank appointed as a co-trustee, hereby represents and warrants to the
Beneficiaries that:
(a) The Trustee Bank is a Delaware banking corporation organized,
validly existing and in good standing under the laws of the State of
Delaware and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required under the laws of
the State of Delaware to carry on its trust business as now conducted.
(b) The execution, delivery and performance by the Trustee Bank, in
its individual capacity, of this Agreement are within the corporate power
of the Trustee Bank, have been duly authorized by all necessary corporate
action on the part of the Trustee Bank (no action by its shareholders being
required) and do not (i) violate or contravene any judgment, injunction,
order or decree binding on the Trustee Bank or (ii) violate, contravene or
constitute a default under any provision of the articles of incorporation
or bylaws of the Trustee Bank or (iii) result in the creation or imposition
of any lien attributable to the Trustee Bank, in its individual capacity,
on the Trust Estate. This Agreement constitutes the legal, valid and
binding agreement of the Trustee Bank, enforceable against the Trustee Bank
in accordance with its terms except to the extent that the enforceability
thereof is subject to (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, receivership and other similar laws now or
hereafter in effect related to creditors' rights generally and (ii) general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(c) No consent, approval, authorization or order of, or filing with,
any court or regulatory, supervisory or governmental agency or body of the
State of Delaware is required by the Trustee Bank under current Delaware
law in connection with the
15
execution, delivery or performance by the Trustee Bank, in its individual
capacity, of this Agreement.
(d) The Trustee Bank complies with all of the requirements of Chapter
38, Title 12 of the Delaware Code relating to the qualification of a
trustee of a Delaware business trust.
ARTICLE VII
Termination of Trust Agreement
SECTION 7.01. Termination. This Agreement and the Trust created hereby will
automatically terminate, and this Agreement will be of no further force or
effect, upon the sale or other final disposition by the Trust of all property
constituting part of the Trust Estate and the final distribution by the Managing
Beneficiary of all moneys or other property or proceeds constituting part of the
Trust Estate in accordance with the terms of Article IV.
SECTION 7.02. Certificate of Cancelation. Upon the termination of the Trust
and written instruction from the Managing Beneficiary, the Trustee will file a
certificate of cancelation with the Secretary of State of the State of Delaware.
ARTICLE VIII
Successor Trustees, Co-Trustees
and Separate Trustees
SECTION 8.01. Resignation and Removal of the Trustee; Appointment of
Successors. Upon the occurrence of a Disqualification Event with respect to the
Trustee, the Beneficiaries may appoint a successor Trustee by an instrument
signed by the Beneficiaries. If a successor Trustee has not been appointed
within 30 days after the giving of written notice of such resignation or the
delivery of the written instrument with respect to such removal, the Trustee or
the Beneficiaries may apply to any court of competent jurisdiction to appoint a
successor Trustee to act until such time, if any, as a successor Trustee has
been appointed as above provided. Any successor Trustee so appointed by such
court will immediately and without further act be superseded by any successor
Trustee appointed as above provided within one year from the date of the
appointment by such court. The Trustee may resign at any time without cause by
giving at least 30 days' prior written notice to the Beneficiaries. In addition,
the Beneficiaries may at any time remove the Trustee without cause by an
instrument in writing delivered to the Trustee. No such removal or resignation
will become effective until a successor Trustee, however appointed, becomes
vested as Trustee hereunder pursuant to Section 8.02. The Managing Beneficiary
will notify the Rating Agencies promptly after the resignation or removal of the
Trustee and promptly after the appointment of a successor Trustee.
16
SECTION 8.02. Transfer Procedures. Any successor Trustee, however
appointed, will execute and deliver to the predecessor Trustee an instrument
accepting such appointment, and such other documents of transfer as may be
necessary, and thereupon such successor Trustee, without further act, will
become vested with all the estates, properties, rights, powers, duties and trust
of the predecessor Trustee in the trust hereunder with like effect as if
originally named a Trustee herein and the predecessor Trustee will be fully
discharged of its duties and obligations to serve as Trustee hereunder.
SECTION 8.03. Qualification of Trustee. Any Trustee will at all times (i)
be a trust company or a banking corporation under the laws of its state of
incorporation or a national banking association, having all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on a trust business in the State of Delaware, (ii) comply with
Section 3807 (and any other applicable Section) of the Delaware Code relating to
the treatment of Delaware Business Trusts (Title 12, Chapter 38), (iii) have a
combined capital and surplus of not less than $50,000,000 (or have its
obligations and liabilities irrevocably and unconditionally guaranteed by an
affiliated Person having a combined capital and surplus of at least $50,000,000)
and (iv) be rated at least BBB- by Standard & Poor's.
SECTION 8.04. Co-trustees and Separate Trustees. Whenever the Trustee or
the Managing Beneficiary will deem it necessary or prudent in order either to
conform to any law of any jurisdiction in which all or any part of the Trust
Estate will be situated or to make any claim or bring any suit with respect to
the Trust Estate, or whenever the Trustee or the Beneficiaries will be advised
by counsel satisfactory to them that such action is necessary or prudent, the
Trustee and the Beneficiaries will execute and deliver an agreement supplemental
hereto and all other instruments and agreements, and will take all other
actions, necessary or proper to appoint one or more Persons either as co-trustee
or co-trustees jointly with the Trustee of all or any part of the Trust Estate,
or as a separate trustee or separate trustees of all or any part of the Trust
Estate, and to vest in such Persons, in such capacity, such title to the Trust
Estate or any part thereof, and such rights or duties, as may be necessary or
desirable, all for such period and under such terms and conditions as are
satisfactory to the Trustee and the Beneficiaries. In case a Disqualification
Event will occur with respect to any such co-trustee or separate trustee, the
title to the Trust Estate and all rights and duties of such co-trustee or
separate trustee will, so far as permitted by law, vest in and be exercised by
the Trustee, without the appointment of a successor to such co-trustee or
separate trustee.
ARTICLE IX
Amendments
SECTION 9.01. Amendments. (a) This Agreement may be amended only by a
written instrument executed by the Trustee, at the written direction of the
Managing Beneficiary, and the Beneficiaries, upon issuance of a Master Trust Tax
Opinion and an Issuer Tax Opinion (each as defined in the Indenture), which will
not be expenses of the Trustee or Trustee Bank, and in compliance with Article X
of the Indenture.
17
(b) No such amendment will increase the duties or obligations of the
Trustee under this Agreement or decrease its rights or benefits hereunder,
without the consent of the Trustee, which consent will be evidenced by the
Trustee's execution of such amendment. If in the opinion of the Trustee any
instrument required to be executed adversely affects any right, duty or
liability of, or immunity or indemnify in favor of, the Trustee or the Trustee
Bank under this Agreement or any of the documents contemplated hereby, or would
cause or result in any conflict with or breach of any terms, conditions or
provisions of, or default under, the charter documents or by-laws of the Trustee
Bank, the Trustee may in its good faith discretion decline to execute such
instrument.
ARTICLE X
Ownership Interests and Certificates
SECTION 10.01. Issuance of Trust Certificates. (a) Promptly following the
execution and delivery of this Agreement, the Trustee will issue and deliver to
each Beneficiary a certificate of beneficial ownership of the Trust Estate
substantially in the form of Exhibit A hereto (each, a "Trust Certificate")
evidencing such Beneficiary's respective ownership interests (the "Ownership
Interests") in the Trust.
(b) Each Trust Certificate will be executed by manual signature on behalf
of the Trustee by an authorized officer. A Trust Certificate bearing the manual
signature of an individual who was, at the time when such signature was affixed,
an authorized officer will bind the Trust, notwithstanding that such individual
has ceased to be so authorized before the delivery of such Trust Certificate.
Each Trust Certificate will be dated the date of its execution.
(c) The Beneficiaries will be entitled to all rights provided to them under
this Agreement and in the Trust Certificates and will be subject to the terms
and conditions contained in this Agreement and in the Trust Certificates.
(d) The Trustee will maintain at its office referred to in Section 2.07, or
at the office of any agent appointed by it and approved in writing by the
Managing Beneficiary, a register for the registration and transfer of the Trust
Certificates. Such register will show the name and address of each holder of a
Trust Certificate, and the Trustee will treat such register as definitive and
binding for all purposes hereunder.
SECTION 10.02. Beneficial Interest; Prohibitions on Transfer. (a) The
Ownership Interests will initially be beneficially owned by Citibank (South
Dakota) and Citibank (Nevada). Transfers of the Ownership Interests and the
Trust Certificates may be made between Citibank (South Dakota) and Citibank
(Nevada) or to any other Person who is an Affiliate of Citibank (South Dakota)
or Citibank (Nevada) (a "Permitted Transferee"). No Beneficiary may transfer,
assign, exchange or otherwise pledge or convey all or any part of its right,
title and interest in and to a Trust Certificate or its Ownership Interest to
any other Person, except (i) to any Permitted Transferee, or (ii) to the extent
a corresponding transfer of the Series 2000 Certificate would be permitted by
the Pooling and Servicing Agreement. Any purported transfer by a Beneficiary of
all
18
or any part of its right, title and interest in and to a Trust Certificate or
Ownership Interest (1) to any Person (other than a transfer between Citibank
(Nevada) and Citibank (South Dakota)) will be effective only upon issuance of a
Master Trust Tax Opinion and an Issuer Tax Opinion (each as defined in the
Indenture), which will not be an expense of the Trustee or Trustee Bank, and (2)
not in compliance with the terms of this Section 10.02 will be null and void.
(b) Each Trust Certificate will bear a legend setting forth the
restriction on the transferability of Ownership Interests substantially as
follows:
"THIS CERTIFICATE OF BENEFICIAL INTEREST MAY NOT BE TRANSFERRED, ASSIGNED,
EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE
TERMS OF THE TRUST AGREEMENT REFERRED TO BELOW. IN ADDITION, THE
BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS CERTIFICATE HAS NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE DIRECTLY OR
INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF BY THE HOLDER HEREOF
UNLESS SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES
ACT, THE INVESTMENT COMPANY ACT OF 1940 AND APPLICABLE STATE SECURITIES
LAWS."
SECTION 10.03. Lost or Destroyed Trust Certificate. If any Trust
Certificate will become mutilated, destroyed, lost or stolen, the Trustee will,
upon the written request of the holder of such Trust Certificate, and compliance
with all applicable terms of this paragraph, execute and deliver to such holder
in replacement thereof a new Trust Certificate dated the same date as on the
Trust Certificate so mutilated, destroyed, lost or stolen. If the Trust
Certificate being replaced has been mutilated, destroyed, lost or stolen, the
holder of such Trust Certificate will furnish to the Trustee such security or
indemnity as may be required by the Trustee to save the Trustee harmless from
any damage, loss or liability in connection with such Trust Certificate, and the
Trustee may require from the party requesting such new Trust Certificate payment
of a sum to reimburse the Trustee for, or to provide funds for, the payment of
any costs, fees and expenses and any tax or other governmental charge in
connection therewith and any charges paid or payable by the Trustee.
ARTICLE XI
Compensation of Trustee and Indemnification
SECTION 11.01. Trustee's Fees and Expenses. To the extent funds are
available pursuant to Section 4.01, the Trust will (i) pay to the Trustee Bank
all fees and other charges described in a separate fee agreement dated as of the
date hereof between the Trust and the Trustee Bank promptly when due thereunder
and (ii) reimburse the Trustee Bank for all other reasonable out-of-pocket costs
and expenses (including reasonable fees and expenses of counsel) incurred by it
in connection with its acting as Trustee of the Trust.
19
SECTION 11.02. Indemnification. To the extent funds are available pursuant
to Section 4.01, the Trust hereby agrees, whether or not any of the transactions
contemplated by this Agreement will be consummated, to assume liability for, and
hereby indemnifies, protects, saves and keeps harmless the Trustee Bank and its
officers, directors, successors, assigns, legal representatives, agents and
servants (each an "Indemnified Person"), from and against any and all
liabilities, obligations, losses, damages, penalties, taxes, claims, actions,
investigations, proceedings, costs, expenses or disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever which may
be imposed on, incurred by or asserted at any time against an Indemnified Person
(whether or not also indemnified against by any other person) in any way
relating to or arising out of (i) this Agreement or any other related documents
or the enforcement of any of the terms of any thereof, the administration of the
Trust Estate or the action or inaction of the Trustee, or the Trustee Bank under
this Agreement, and (ii) the manufacture, purchase, acceptance, nonacceptance,
rejection, ownership, delivery, lease, possession, use, operation, condition,
sale, return or other disposition of any property (including any strict
liability, any liability without fault and any latent and other defects, whether
or not discoverable), except, in any such case, to the extent that any such
liabilities, obligations, losses, damages, penalties, taxes, claims, actions,
investigations, proceedings, costs, expenses and disbursements are the result of
any of the matters described in the third sentence of Section 6.01.
In case any such action, investigation or proceeding will be brought
involving an Indemnified Person, the Trust will assume the defense thereof,
including the employment of counsel and the payment of all expenses. The
Trustee Bank will have the right to employ separate counsel in any such action,
investigation or proceeding and to participate in the defense thereof and
reasonable counsel fees and expenses of such counsel will be paid by the Trust.
The indemnification set forth herein will survive the termination of this
Agreement.
ARTICLE XII
Miscellaneous
SECTION 12.01. Conveyance by the Trustee is Binding. Any sale or other
conveyance of any part of the Trust Estate by the Trustee made pursuant to the
terms of this Agreement will bind the Beneficiaries and will be effective to
transfer or convey all beneficial interest of the Trustee and Beneficiaries in
and to such part of the Trust Estate, as the case may be. No purchaser or other
grantee will be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance or as to the application of
any sale or other proceeds with respect thereto by the Trustee or the officers.
SECTION 12.02. Instructions; Notices. All instructions, notices, requests
or other communications ("Deliveries") desired or required to be given under
this Agreement will be in writing and will be sent by (a) certified or
registered mail, return receipt requested, postage prepaid, (b) national prepaid
overnight delivery service, (c) telecopy or other facsimile
20
transmission or (d) personal delivery, with receipt acknowledged in writing, to
the following addresses:
(i) if to Citibank (South Dakota):
701 East 60th Street, North
Sioux Falls, South Dakota 57117
Attention: Chief Financial Officer
with a copy to:
701 East 60th Street, North
Sioux Falls, South Dakota 57117
Attention: General Counsel
(ii) if to Citibank (Nevada):
8725 West Sahara Avenue
Las Vegas, NV 89163
Attention: Chief Financial Officer
with a copy to:
8725 West Sahara Avenue
Las Vegas, NV 89163
Attention: General Counsel
(iii) if to the Trustee:
The Bank of New York (Delaware)
White Clay Center
Newark, Delaware 19711
Attention: Corporate Trust Administration
with a copy to:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Administration
All Deliveries will be deemed given when actually received or refused by
the party to whom the same is directed (except to the extent sent by certified
or registered mail, return receipt
21
requested, postage prepaid, in which event such Deliveries will be deemed given
three days after the date of mailing and except to the extent sent by telecopy
or other facsimile transmission, in which event such Deliveries will be deemed
given when answer back is received). Either party may designate a change of
address or supplemental address by notice to the other party, given at least 15
days before such change of address is to become effective.
SECTION 12.03. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction will, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or render unenforceable
any provision hereof in any other jurisdiction.
SECTION 12.04. Limitation of Liability. (a) Neither any Beneficiary nor any
officer, director, employee, agent, partner, shareholder, trustee or principal
of (i) the Beneficiaries, (ii) the Trust or (iii) any Person owning, directly or
indirectly, any legal or beneficial interest in either Beneficiary, will have
any liability or obligation with respect to the Trust or the performance of this
Agreement or any other agreement, document or instrument executed by the Trust,
and the creditors of the Trust and all other Persons will look solely to the
Trust Estate for the satisfaction of any claims with respect thereto. The
foregoing limitation of liability is subject to Section 12.06 and is in addition
to, and not exclusive of, any limitation of liability applicable to the Persons
referred to above by operation of law.
(b) All agreements entered into by the Trust under which the Trust would
have any material liability will contain an exculpatory provision substantially
to the following effect:
Neither any trustee nor any beneficiary of Citibank Credit Card
Issuance Trust nor any of their respective officers, directors,
employers or agents will have any liability with respect to this
agreement, and recourse may be had solely to the assets of Citibank
Credit Card Issuance Trust with respect thereto.
SECTION 12.05. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered will be an original, but all such counterparts will together
constitute but one and the same instrument.
SECTION 12.06. Successors and Assigns. All covenants and agreements
contained herein will be binding upon, and inure to the benefit of, the Trustee
and its successors and assigns and the Beneficiaries and their successors and
assigns, all as herein provided. Any request, notice, direction, consent, waiver
or other instrument or action by any Beneficiary will bind the successors and
assigns of such Beneficiary.
SECTION 12.07. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and will not define or limit any of
the terms or provisions herein.
22
SECTION 12.08. Governing Law. This Agreement will in all respects be
governed by, and construed in accordance with, the laws of the State of Delaware
without regard to conflicts of law principles of such State.
23
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to
be duly executed, all as of the day and year first above written.
THE BANK OF NEW YORK (DELAWARE), as Trustee
by /s/ William T. Lewis
-------------------------------
Name: William T. Lewis
Title: Senior Vice President
CITIBANK (NEVADA), NATIONAL
ASSOCIATION, as Beneficiary
by /s/ Robert D. Clark
-------------------------------
Name: Robert D. Clark
Title: Vice President
CITIBANK (SOUTH DAKOTA), N.A., as Beneficiary
by /s/ Douglas C. Morrison
-------------------------------
Name: Douglas C. Morrison
Title: Vice President
24
EXHIBIT A
FORM OF TRUST CERTIFICATE
THIS CERTIFICATE OF BENEFICIAL INTEREST (THIS "CERTIFICATE") MAY NOT BE
TRANSFERRED, ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN
COMPLIANCE WITH THE TERMS OF THE TRUST AGREEMENT REFERRED TO BELOW. IN
ADDITION, THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS CERTIFICATE
HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE DIRECTLY OR
INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF BY THE HOLDER HEREOF UNLESS
SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT, THE
INVESTMENT COMPANY ACT OF 1940 AND APPLICABLE STATE SECURITIES LAWS.
CITIBANK CREDIT CARD ISSUANCE TRUST
CERTIFICATE OF BENEFICIAL INTEREST
UNDER TRUST AGREEMENT DATED AS OF
SEPTEMBER 12, 2000
Certificate No. [ ] [ ], [ ]
The Bank of New York (Delaware), a Delaware banking corporation, not in its
individual capacity but solely as trustee (the "Trustee") under a Trust
Agreement dated as of September 12, 2000 (the "Trust Agreement"), among Citibank
(Nevada), National Association ("Citibank (Nevada)"), and Citibank (South
Dakota), N.A. ("Citibank (South Dakota)") as Beneficiaries, and the Trustee,
hereby certifies on behalf of the Trust that [Citibank (Nevada)] [Citibank
(South Dakota)] [ ] is the owner (the "Owner") of its
Beneficiary Percentage of the Ownership Interests in the Trust provided for and
created by the Trust Agreement. This Certificate of Beneficial Interest is
issued pursuant to and is entitled to the benefits of the Trust Agreement, and
the Owner hereof by acceptance hereof agrees to be bound by the terms of the
Trust Agreement. Reference is hereby made to the Trust Agreement for a
statement of the rights and obligations of the Owner hereof. The Trustee may
treat the Person in whose name this Certificate of Beneficial Interest is
registered on the register maintained by the Trustee pursuant to Section
10.01(d) of the Trust Agreement as the absolute Owner hereof for all purposes.
The holder of this Certificate, by accepting this Certificate, acknowledges
that this Certificate does not represent an interest in or obligation of the
Trustee Bank and no recourse may be had against the Trustee Bank or its
properties.
Capitalized terms used but not defined herein have the meanings ascribed to
them in or by reference to the Trust Agreement.
This Certificate and the Trust Agreement will in all respects be governed
by, and construed in accordance with, the laws of the State of Delaware, without
regard to any conflict-of-law provisions.
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IN WITNESS WHEREOF, the Trustee, pursuant to the Trust Agreement, has
caused this Certificate of Beneficial Interest to be issued by the Trust as of
the date hereof.
CITIBANK CREDIT CARD ISSUANCE TRUST,
by THE BANK OF NEW YORK (DELAWARE),
as Trustee under the Trust Agreement
by ________________________________________
Name:
Title:
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