Trust Agreement between Credit And Asset Repackaging Vehicle Corporation and Wells Fargo Bank Minnesota, N.A. (March 7, 2002)

Summary

This agreement establishes a trust between Credit And Asset Repackaging Vehicle Corporation (the Depositor) and Wells Fargo Bank Minnesota, National Association (the Trustee). The trust is created to hold certain securities, enter into a swap agreement, and issue certificates representing fractional interests in the trust. The Trustee manages the trust assets for the benefit of certificateholders and handles required regulatory filings. The agreement specifies that the trust will be treated as a grantor trust for tax purposes and outlines the rights and obligations of both parties. The agreement is governed by New York law.

EX-4.1 4 sc145975.txt EXHIBIT 4.1: TRUST AGREEMENT Execution Copy TRUST AGREEMENT TRUST AGREEMENT made as of the 7th day of March, 2002, by and between Credit And Asset Repackaging Vehicle Corporation, as depositor (the "Depositor"), and Wells Fargo Bank Minnesota, National Association, as trustee (the "Trustee"), consisting of this agreement and Schedules I, II and III attached hereto, which Schedules are made a part hereof and are hereinafter referred to collectively as the "Terms Schedule". The terms of the Standard Terms for Trust Agreements, dated September 5, 2001 (the "Standard Terms"), agreed between the Depositor and the Trustee are, except to the extent otherwise expressly specified herein, hereby incorporated by reference herein in their entirety with the same force and effect as though set forth herein. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Standard Terms. The words "herein", "hereof", "hereunder", "this Trust Agreement" and other words of similar import refer to this agreement including the Terms Schedule and the Standard Terms so incorporated by reference. WHEREAS, the Depositor and the Trustee desire to establish the trust identified in Schedule I attached hereto (the "Trust") for the primary purposes of (i) holding the Securities, (ii) entering into the Swap Agreement with the Swap Counterparty, and (iii) issuing the Certificates; WHEREAS, the Depositor desires that the beneficial interests in the Trust be divided into transferable fractional shares, such shares to be represented by the Certificates; WHEREAS, the Depositor desires to appoint the Trustee as trustee of the Trust and the Trustee desires to accept such appointment; WHEREAS, the Depositor desires to transfer to the Trust, without recourse, and the Trust desires to acquire, all of the Depositor's right, title and interest in, to and under the Securities (excluding the Retained Interest) and other property, all as identified in Schedule II to the Trust Agreement (the "Trust Property"); and WHEREAS, the Trust desires to acquire the Trust Property specified herein in consideration for issuing Certificates having an initial Principal Balance (or Notional Amount, as applicable) identified in Schedule I attached hereto, subject to the terms and conditions specified in the Trust Agreement; NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby agree as follows: 1. The Depositor hereby appoints the Trustee as trustee of the Trust and requests the Trustee to receive (i) the Securities (excluding the Retained Interest) and any related documents, (ii) the Swap Agreement, (iii) the Swap Guarantee and (iv) the documents specified in the Swap Agreement (in Part 3 of the Schedule to the ISDA Master Agreement). 2. The Trustee hereby accepts the appointment referred to in Section 1 and declares that it will hold the assets referred to in Section 1 and all other assets comprising the Trust Property in trust, for the exclusive use and benefit of all present and future Certificateholders and for the purposes and subject to the terms and conditions set forth in the Trust Agreement. 3. The Trustee hereby agrees, as agent for and on behalf of the Depositor, to prepare, deliver to the Depositor for signature, and file after receiving such signature, each of the Exchange Act Reports referred to in Section 6.04(a) (other than the current report or reports on Form 8-K to be filed in connection with the execution and delivery of the Trust Agreement, the Swap Agreement, the Swap Guarantee), within such time periods (and, if applicable, in such circumstances) prescribed therefor by the Commission under the Exchange Act. In this connection, the Depositor agrees to furnish the Trustee with such information not otherwise available to the Trustee as may be required to prepare, deliver or file any of the Exchange Act Reports in accordance with the immediately preceding sentence. 4. It is intended that the Trust be classified as a grantor trust for U.S. federal income tax purposes and the Trustee hereby agrees, and each Certificateholder by acquiring one or more Certificates agrees, to take no action or reporting position that is inconsistent with such classification. Furthermore, the Trustee hereby agrees, and each initial Certificateholder by acquiring one or more Certificates agrees (i) that, as of the Closing Date, the Trustee shall make an election (an "Integration Election"), as agent for and on behalf of such Certificateholder, pursuant to U.S. Treasury Regulations Section 1.1275-6 to integrate the Securities with the Swap Agreement for all U.S. federal income tax purposes and (ii) to treat each Certificate purchased by an initial Certificateholder as subject to the Integration Election for all U.S. tax purposes. 5. This Trust Agreement and each Certificate issued hereunder shall be governed by, and construed in accordance with, the laws of the State of New York. The Federal and State courts in the Borough of Manhattan in The City of New York shall have non-exclusive jurisdiction in respect of any Proceeding arising out of or relating to this Trust Agreement or any Certificate. 6. This Trust Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed to be an original, and all of which together shall constitute but one and the same instrument. -2- IN WITNESS WHEREOF, each of the Depositor and the Trustee has caused this instrument to be executed by its duly authorized officer as of the date first written above. CREDIT AND ASSET REPACKAGING VEHICLE CORPORATION, as Depositor By: /s/ Sarah Leah Whitson --------------------------------- Name: Sarah Leah Whitson Title: Secretary and Vice President WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee on behalf of the Trust identified in Schedule I hereto, and not in its individual capacity By: /s/ Frank McDonald ------------------------------------ Name: Frank McDonald Title: Vice President Attachments: Terms Schedule (consisting of Schedules I, II and III) -3- SCHEDULE I (Terms of Trust and Certificates) Trust: Public Credit and Repackaged Securities(SM) (PCARS)(SM) Trust Series 2002-1 Date of Trust Agreement: March 7, 2002 Trustee: Wells Fargo Bank Minnesota, National Association Notional Amount: $29,571,825 Issue Price: 100% Par Value; Minimum Denomination: $25 Closing Date: March 7, 2002 Business Day: Each day on which commercial banks are open for business in The City of New York Interest Rate: 7.5% per annum If any payment of interest payable hereunder is deferred, interest will accrue on such deferred payment at a rate of 7.5% per annum, compounded semi-annually. Payments of interest on the Certificates will be calculated on the basis of a 360-day year consisting of twelve 30-day months. No adjustment will be made with respect to interest payable on the Certificates for Distribution Dates that occur on a date other than the scheduled date therefor. Calculation Agent: Swap Calculation Agent Rating: "A3" by Moody's and "BBB" by S&P Rating Agencies: Moody's and S&P Method of Distribution: Firm commitment underwriting I-1 Distribution Dates: The first day of each June and December, commencing on June 1, 2002, subject to deferral if and for as long as distributions on the Securities are deferred in accordance with the terms thereof. If any payment with respect to the Securities is not received by the Trustee by 12 noon (New York City time) on a Distribution Date, the corresponding distribution on the Certificates will not occur until the next Business Day that the Trust is in receipt of such payment by 12 noon (New York City time), with no adjustment to the amount distributed. Record Dates: With respect to any Distribution Date, the 15th day of the month immediately preceding such Distribution Date, regardless of whether such day is a Business Day and notwithstanding any adjustment to the related Distribution Date due to such Distribution Date falling on a day other than a Business Day. Scheduled Final Distribution Date: December 1, 2026 Form of Certificate: Global, Registered Alternative ERISA Restrictions: Do Not Apply Deemed Representations: Apply Trigger Amount: $25,000 Maximum Reimbursable Amount: $150,000 Exchangeable Series Terms: Not applicable Depositor Optional Exchange: Not applicable Retained Interest: The Depositor's right to receive the aggregate amount of all distributions on the Securities in respect of the period from and including December 1, 2001 to but excluding March 7, 2002. These accumulated distributions will be paid to the Depositor, or upon its direction, on the first Distribution Date for the Certificates, from the first distribution payment made in respect of the I-2 Securities after the Closing Date. Callable Series: No (but see "Redemption of Certificates" below) Redemption of Certificates: If there is a partial redemption of Securities, a pro rata share of the Principal Balance corresponding to the pro rata share of the Securities being redeemed shall be redeemed in accordance with the following provisions; provided that, if such pro rata share of the Principal Balance would otherwise be a number that is not evenly divisible by $25, such pro rata share shall be rounded down to the next number that is evenly divisible by $25. Promptly after receiving notice of such partial redemption of Securities, the Trustee shall allocate the number of Certificates to be redeemed ratably based on the aggregate Principal Balance of Certificates then held by each holder of Certificates, and shall notify each holder of the Principal Balance of Certificates to be redeemed from that holder. The selected Certificates shall become redeemable without any further action on the part of the Trustee or the Certificateholders upon receipt by the Trustee of the proceeds from the related partial redemption of Securities. In respect of the Certificates being redeemed, each holder shall receive, out of the redemption proceeds and any payment under the Swap Agreement (as defined in Schedule III), an amount equal to 100% of the aggregate Principal Balance of the Certificates held by it that are being redeemed, together with any accrued and unpaid interest on those Certificates. No premium shall be paid on any redeemed Certificates. Issuance of Additional Certificates: Not applicable Listing: The Certificates have been approved, subject to issuance, for listing on the New York Stock Exchange under the symbol "GRH". Other Provisions: The Trust Wind-Up Event specified in clause (e) of Section 9.01 of the Standard Terms shall not apply. I-3 SCHEDULE II (Terms of Trust Property) Concentrated Securities: KeyCorp Institutional Capital A 7.826% Capital Securities, representing preferred beneficial interests in KeyCorp Institutional Capital A, a statutory business trust formed under the laws of the State of Delaware for the purpose of, among other things, investing in 7.826% Junior Subordinated Deferrable Interest Debentures (the "Junior Subordinated Debentures") issued by the Security Guarantor Other Securities: None Security Issuer: KeyCorp Institutional Capital A Security Guarantor: The Security Issuer's obligations under the Securities are fully and unconditionally guaranteed, on a subordinated basis and subject to specified limitations, by KeyCorp. Liquidation Amount: $28,340,000 Security Rate: 7.826% Current Credit Ratings: "A3" by Moody's, "BBB" by S&P and "A-" by Fitch Ratings Listing: None Security Issuance Agreement: Amended and Restated Trust Agreement, dated as of December 4, 1996, among the Security Guarantor, as Depositor, Bankers Trust Company, as Property Trustee, Bankers Trust (Delaware), as Delaware Trustee and the holders, from time to time, of the undivided beneficiary interests in the assets of the Security Issuer. Form of Security: One or more registered global certificates Currency of Denomination: U.S. Dollars Acquisition Price by Trust: Certificates having an initial Principal Balance of $29,571,825. II-1 Security Payment Dates: Each June 1 and December 1 In the event of any election by the Security Guarantor to defer payment of interest on the Junior Subordinated Debentures, the Security Issuer will defer payment of distributions on the Securities for a period not exceeding 10 consecutive semi-annual periods, with respect to each deferral period, except that no such deferral period may extend beyond the Maturity Date (as defined below). Original Issue Date: On March 5, 1997 Maturity Date: December 1, 2026 Sinking Fund Terms: Not applicable Redemption Terms: On December 1, 2026, the stated maturity date of the Junior Subordinated Debentures. In addition: (i) at any time in whole but not in part, contemporaneously with the prepayment of the Junior Subordinated Debentures, upon the occurrence of certain events specified in the Security Issuance Agreement; and (ii) in whole at any time or in part from time to time on or after December 1, 2006 subject to payment of the applicable redemption price by the Security Guarantor. CUSIP No.: CUSIP No. 493265ac6 Security Trustee: Bankers Trust Company, as Property Trustee, and Bankers Trust (Delaware), as Delaware Trustee. Available Information Regarding the The Security Guarantor is subject to the Security Issuer: informational requirements of the Exchange Act, and in accordance therewith files, reports and other information with the Securities and Exchange Commission (the "Commission"). Such reports and other information can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the Regional Office of the Commission, at Northwest Atrium Center, 500 West Madison Street, Chicago, Illinois 60661. Copies of such materials can be obtained from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, II-2 D.C. 20549 at prescribed rates. The Security Issuer is exempt from the informational requirements of the Exchange Act. Cut-Off Date: Not applicable Credit Support: None Credit Support Default: Not applicable Other Trust Property: None II-3 SCHEDULE III (Swap Agreement) Swap Agreement: A confirmation in the form of Exhibit A hereto, evidencing an obligation of the Swap Counterparty to pay a certain amount to the Trust in the case of a Trust Wind-Up Event or a redemption of the Securities (the "Swap Agreement"), as well as (i) any amendments to, or restatements of, such agreement and (ii) any additional swap agreements entered into in connection with any additional issuance of Certificates. Swap Counterparty: Goldman Sachs Capital Markets, L.P. Swap Guarantee: The Goldman Sachs Group, Inc. will guarantee the obligations of the Swap Counterparty under the Swap Agreement under a guarantee dated the date hereof. III-1 EXHIBIT A Execution Copy GOLDMAN SACHS CAPITAL MARKETS, L.P. | 85 BROAD STREET | NEW YORK, NEW YORK 10004 | TEL: 212 ###-###-#### - -------------------------------------------------------------------------------- CONFIRMATION DATE: March 7, 2002 TO: Public Credit and Repackaged Securities(SM) (PCARS)(SM) Trust Series 2002-1 FROM: Goldman Sachs Capital Markets, L.P. SUBJECT: Par Value Swap Transaction REF. NO.: NUUS202RA0 (860000000) The purpose of this communication is to set forth the terms and conditions of the above referenced transaction entered into on the Trade Date specified below (the "Transaction") between Goldman Sachs Capital Markets, L.P. ("Party A"), guaranteed by The Goldman Sachs Group, Inc., and Public Credit and Repackaged Securities(SM) (PCARS)(SM) Trust Series 2002-1 ("Party B" and, together with Party A, the "Parties"). Party B was formed pursuant to a Trust Agreement, dated as of the date hereof (the "Trust Agreement"), between Credit and Repackaging Vehicle Corporation, as depositor, and Wells Fargo Bank Minnesota, National Association, as trustee. This communication constitutes a "Confirmation" as referred to in the Swap Agreement specified below. 1. This Confirmation is subject to, and incorporates, the 2000 ISDA Definitions (the "Definitions"), published by the International Swaps and Derivatives Association, Inc. This Confirmation supplements, forms a part of and is subject to the ISDA Master Agreement dated as of the date hereof, as amended and supplemented from time to time (the "Swap Agreement") between Party A and Party B. All provisions contained in, or incorporated by reference into, the Swap Agreement shall govern this Confirmation except as expressly modified below. In the event of any inconsistency between this Confirmation, the Definitions or the Swap Agreement, as the case may be, this Confirmation will control for purposes of the Transactions to which this Confirmation relates. 2. The terms of the particular Transaction to which this Confirmation relates are as follows: Fixed Amount Payer A: Party A Fixed Amount Payer B: Party B Trade Date: February 21, 2002 Effective Date: March 7, 2002 Termination Date: December 1, 2026 Notional Amount: USD 1,231,825, as reduced from time to time by the aggregate amount of any Redemption Notional Amounts. Business Days: New York City Calculation Agent: Party A Party B Fixed Amount: Party B Fixed Amount: USD 258,386 Party B Payment Date: Effective Date Party A Fixed Amounts: Party A Fixed Amounts: Subject to the following two paragraphs, the Party A Fixed Amount payable on any Early Termination Date shall equal the Notional Amount, multiplied by a factor (i) the numerator of which is equal to the amount of the proceeds from the sale of the Securities then held by Party B pursuant to Section 9.03 of the Trust Agreement (if any) net of the aggregate amount of distributions on the Securities representing the Retained Interest (if any) and (ii) the denominator of which is equal to the aggregate liquidation amount of the Securities then held by Party B; provided that under no circumstances shall such factor be greater than one. The Party A Fixed Amount payable on the date of any Securities Redemption related to a "tax event" or "capital treatment event" under the Securities shall equal the Notional Amount. The Party A Fixed Amount payable on the date of any Securities Redemption unrelated to a "tax event" or "capital treatment event" under the Securities shall equal the Redemption Notional Amount minus the difference of (i) the amount paid by the issuer of the Securities to the Trust in connection with such Securities Redemption (net of any accumulated distributions on the Securities being redeemed) and (ii) the aggregate liquidation amount of the Securities then held by Party B that is subject to such Securities Redemption. Party A Payment Dates: (i) Any Early Termination Date, and (ii) the date or dates of any Securities Redemption that does not result in an Early Termination Date. Additional Amounts: On any Party A Payment Date other than the date of any Securities Redemption unrelated to a "tax event" or "capital treatment event" under the Securities, in consideration of the obligations of Party A hereunder, an amount (if positive) equal to (i) any amounts received by Party B as proceeds from the related sale or redemption (as applicable) of Securities then held by Party B net of the aggregate amount of distributions on the Securities representing the Retained Interest (if any), minus (ii) the aggregate liquidation amount of the Securities being sold or redeemed (as applicable), minus (iii) , in the case of a Securities Redemption, the 2 amount of any accumulated distributions on the Securities being redeemed (other than the aggregate amount of distributions on the Securities representing the Retained Interest, if any), shall be paid by Party B to Party A. Payments on Early Termination: Except as specified under "Party B Fixed Amount", "Party A Fixed Amounts" and "Additional Amounts" above, no payment shall be payable in respect of this Transaction by either Party in connection with the occurrence of an Early Termination Date. Additional Definitions: "Securities" means the securities held by Party B as trust property pursuant to the Trust Agreement. "Securities Redemption" means any redemption of the Securities in whole or in part by the issuer thereof, including the scheduled redemption on the Termination Date. "Redemption Notional Amount" means (i) in the event of a Securities Redemption with respect to all of the Securities then held by Party B, the Notional Amount and (ii) in the event of a Securities Redemption with respect to less than all of the Securities then held by Party B, an amount equal to the (A) the Notional Amount (without giving effect to any reductions after the date hereof), multiplied by (B) the aggregate liquidation amount of Securities then held by Party B that is subject to such Securities Redemption, divided by (C) USD 28,340,000. "Retained Interest" means the aggregate amount of all distributions on the Securities in respect of the period from and including December 1, 2001 to but excluding March 7, 2002. 3. Account Details: Payments to Party A: For the Account of: Goldman Sachs Capital Markets, L.P. Name of Bank: Citibank, N.A. New York Account No: 40670834 ABA No: 021000089 Inquiries Swap Operations Goldman Sachs Capital Markets, L.P. Telephone No.: 212 ###-###-#### Facsimile No.: 212 ###-###-#### Payments to Party B: In accordance with Party B's written instructions as set forth below or otherwise delivered to Party A. Party A shall make no payments 3 without having received (i) such written instructions and (ii) a fully executed facsimile copy of this Confirmation or other written acceptance of the terms hereof. For the Account of : Corporate Trust Services Name of Bank: Wells Fargo Bank, Minneapolis, MN Account No: 0001038377 ABA No.: 091000019 Attention: Joseph O'Donnell Ref.: PCARS/Keycorp Series 2002-1 (SEI#12308800) 4. Offices: (i) The Office of Party A for this Transaction is 85 Broad Street, New York, New York, 10004. (ii) The Office of Party B for this Transaction is Wells Fargo Bank Minnesota, N.A., 213 Court Street, Suite 902, Middletown, CT 06457. 4 5. Party B hereby agrees (i) to check this Confirmation (Reference No. NUUS202RA0 (860000000)) carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and (ii) to confirm that the foregoing correctly sets forth the terms of the agreement between Party A and Party B with respect to the particular Transaction to which this Confirmation relates, by manually signing this Confirmation and providing the other information requested herein and immediately returning an executed copy to Swap Administration, facsimile No. 212 ###-###-####. Very truly yours, GOLDMAN SACHS CAPITAL MARKETS, L.P. By: Goldman Sachs Capital Markets, L.L.C. General Partner By: /s/ Daniel A. Ruperto --------------------------------------- Name: Daniel A. Ruperto Title: Vice President Agreed and Accepted By: PUBLIC CREDIT AND REPACKAGED SECURITIES(SM) (PCARS)(SM) TRUST SERIES 2002-1 By: Wells Fargo Bank Minnesota, National Association, as Trustee By: /s/ Frank McDonald --------------------------------------- Name: Frank McDonald Title: Vice President 5