FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported):
November 26,1997
Guaranteed Trade Trusts
(Issuers of the Certificates)
Citicorp North America, Inc.
(Depositor)
(Exact name of registrant as specified in its governing instrument)
Delaware 6712 13-2938684
(State of incorporation) (Primary Standard Industrial (I.R.S. Employer
Classification Code Number) Identification Number)
CITICORP NORTH AMERICA, INC. MARK A. RHODES, ESQ.
399 PARK AVENUE VICE PRESIDENT & COUNSEL
NEW YORK, NEW YORK 10043 CITIBANK, N.A.
(212) 559 1000 399 PARK AVENUE
(Principal executive offices) NEW YORK, NEW YORK 10043
(212) 559 1944
(Name and address of agent for
service)
COPIES TO:
F. EUGENE HIIGEL
SKADDEN ARPS SLATE MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 735 2618
Item 1. Changes in Control of Registrant
Not applicable
Item 2. Acquisition or Disposition of Assets
The Registrant registered issuance of $152,182,846 principal
amount of Guaranteed Trade Certificates pursuant to the Securities Act of
1933, as amended (the "Act"), by a Registration Statement on Form S-3
(Registration File No. 333-28935) (as amended, the "Registration
Statement"). Pursuant to the Registration Statement, $147,882,628.00 in
aggregate principal amount of 6.104% Guaranteed Trade Certificates (the
"Certificates") were issued on November 26, 1997. This Current Report on
Form 8-K is being filed in order to file a copy of the following agreements
executed in connection with the issuance of the Certificates:
(i) Declaration of Trust (a form of which was filed as Exhibit 4.1
to the Registration Statement),
(ii) Supplement to the Declaration of Trust (a form of which was
filed as Exhibit 4.1 to the Registration Statement),
(iii) Liquidity Reimbursement Agreement (a form of which was filed
as Exhibit 10.4 to the Registration Statement), and
(iv) Underwriting Agreement (a form of which was filed as Exhibit
1.1 to the Registration Statement).
Each of these agreements is defined below.
The Certificates were issued pursuant to a Declaration of
Trust attached hereto as Exhibit 1 and a Supplement to the Declaration of
Trust attached hereto as Exhibit 2, among Citibank, N.A., as trustee and
Citicorp North America, Inc., as Depositor and both were dated as of
November 26, 1997, (together, the "Trust Agreement"). A liquidity facility
was provided to Guaranteed Trade Trust 1997-A (the "Trust") under the
Liquidity Reimbursement Agreement attached hereto as Exhibit 3, dated as of
November 26, 1997 among Citibank, N.A. acting through its Nassau branch, as
liquidity provider, and Citibank, N.A., as trustee. The Underwriting
Agreement dated as of November 21, 1997 among Citicorp North America, Inc.,
as Depositor, Empresa Colombiana de Petroleos, as borrower and Citicorp
Securities, Inc., as underwriter, and related to the Certificates is
attached hereto as Exhibit 4.
Description of the Certificates and the Note
The Certificates evidence, in the aggregate, a 100% undivided ownership
interest in a Trust Fund, consisting primarily of a promissory note (less
certain retained amounts) of Empresa Colombiana de Petroleos, the Liquidity
Facility (defined in the Liquidity Reimbursement Agreement above) and the
Eximbank Guarantee (as provided under the Guarantee Agreement, a form of
which was filed as Exhibit 10.2 to the Registration Statement) or,
following the occurrence of an Eximbank Payment Event, an Eximbank Payment
Certificate (as such terms are defined in the Guarantee Agreement).
Interest on the Certificates is to accrue from November 26, 1997. The Trust
Agreement provides that principal and interest on the promissory note are
to be distributed to the Certificateholders on each January 15 and July 15,
commencing January 15, 1998. The final maturity of the promissory note, and
therefore the final distribution on the Certificates, is to be July 15,
2003.
As of the Closing Date, the Certificates possessed the
characteristics set forth in the Prospectus, filed November 6, 1997 and in
the Prospectus Supplement filed November 21, 1997.
Item 3. Bankruptcy or Receivership
Not applicable
Item 4. Changes in Registrant's Certifying Accountant
Not applicable
Item 5. Other Events
Not applicable
Item 6. Resignation of Registrant's Directors
Not applicable
Item 7. Financial Statements and Exhibits
(a) Not applicable
(b) Not applicable
(c) Exhibits
1 Underwriting Agreement dated as of November 21, 1997 among Citicorp
North America, Inc., as Depositor, Empresa Colombiana de Petroleos, as
borrower and Citicorp Securities, Inc., as underwriter.
99.1 Declaration of Trust among Citibank, N.A., as trustee and Citicorp North
America, Inc. as Depositor, dated as of November 26, 1997.
99.2 Supplement to the Declaration of Trust among Citibank, N.A., as trustee
and Citicorp North America, Inc. as Depositor, dated as of November 26,
1997.
99.3 Liquidity Reimbursement Agreement, dated as of November 26, 1997 among
Citibank, N.A. acting through its Nassau branch, as liquidity provider,
and Citibank, N.A. as trustee.
Item 8. Change in Fiscal Year
Not applicable
Item 9. Sales of Equity Securities Pursuant to Regulation S.
Not applicable
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GUARANTEED TRADE TRUSTS
By: Citicorp North America, Inc.
(Depositor)
/s/ AeKyong Chung
-------------------------------
Date: December 11, 1997 Name: AeKyong Chung
Title: Vice President
EXHIBIT INDEX
Exhibit No. Description
1 Underwriting Agreement
99.1 Declaration of Trust
99.2 Supplement to Declaration of Trust
99.3 Liquidity Reimbursement Agreement
EXHIBIT 1
GUARANTEED TRADE TRUST 1997-A
US$147,882,628
6.104% Guaranteed Trade Certificates
Series 1997-A
UNDERWRITING AGREEMENT
November 21, 1997
Citicorp Securities, Inc.
399 Park Avenue
New York, New York 10043
Ladies and Gentlemen:
Citicorp North America, Inc. (the "Depositor") proposes to
sell and assign a Promissory Note in the outstanding principal amount of
US$147,882,628.79 (the "Promissory Note") to be issued by Empresa
Colombiana de Petroleos, a wholly-owned industrial and commercial
enterprise of the State of National Order created under the laws of the
Republic of Colombia (the "Borrower"), having the guarantee legend (the
"Guarantee Legend") evidencing the guarantee (the "Guarantee") of the
Export- Import Bank of the United States ("Eximbank") endorsed thereon,
to Guaranteed Trade Trust 1997-A (the "Trust") and to deliver to you (the
"Underwriter") US$147,882,628 aggregate principal amount of 6.104%
Guaranteed Trade Certificates, Series 1997-A (the "Certificates") evidenc
ing interests in the Trust.
The Promissory Note will be delivered to Citibank, N.A.,
acting through its Nassau Branch (the "Lender") pursuant to a Credit
Agreement, dated as of April 1, 1996, as it shall be amended prior to or
on the Closing Date (the "Credit Agreement"), among the Borrow er,
Eximbank and the Lender. The Guarantee Legend will be endorsed on the
Promissory Note pursuant to a Guaran tee Agreement, dated as of April 1,
1996, as it shall be amended prior to or on the Closing Date (the
"Eximbank Guarantee Agreement"), between Eximbank and the Lender. The
Promissory Note, together with the related rights under the Credit
Agreement and the Eximbank Guarantee Agreement but less all rights to
receive penalty interest thereon, will be purchased by the Depositor from
the Lender pursuant to a Transfer Agreement, to be dated November 26,
1997 (the "Transfer Agreement") and in turn sold and assigned to the
Trust by the Depositor pursuant to a Declaration of Trust (the
"Declaration"), comprised of the Master Terms of Trust dated as of
November 26, 1997 and the Supplement to the Declaration of Trust, to be
dated as of November 26, 1997 (the "Supplement"), each between the
Depositor and Citibank, N.A., as trustee (the "Trustee").
Simultaneously with the sale and assignment of the Promissory
Note, pursuant to the Declaration (i) the Trust will be established by
the Trustee and the Depositor and (ii) the Certificates will be issued
to the Depositor. The Certificates will represent undivided interests in
the assets of the Trust and will be sold pursuant to this Agreement.
In order to provide for the timely payment of principal of
and interest on the Certificates, the Depositor will deliver to the
Trust a Liquidity Reimbursement Agreement dated as of November 26, 1997
(the "Liquidity Reimbursement Agreement"), between Citibank, N.A., acting
through its Nassau Branch (the "Provider") and the Trustee, pursuant to
which the Provider will agree to make liquidity advances to the Trust. In
order to evidence the obligation of the Borrower to repay any advances
made by the Provider under the Liquidity Reimbursement Agreement, the
Borrower will enter into a Letter Agreement, dated November 26, 1997 (the
"Letter Agreement") with the Provider and deliver to the Provider a
Reimbursement Promissory Note dated November 26, 1997 (the "Reimburse
ment Promissory Note") pursuant to the Letter Agreement.
Capitalized terms used herein without definition shall have
the meanings set forth in the Prospectus (as hereinafter defined).
SECTION 1. Representations and Warranties of
the Depositor and the Borrower. (a) The Depositor
represents and warrants to, and agrees with, the Under
writer that:
(i) A registration statement on Form S-3 (No.
333-28935) including a prospectus and such amendments thereto as
may have been required to the date hereof, relating to the
Certificates and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as
amended (the "Act"), has been filed with the Securities and
Exchange Commission (the "Commission") and such registration
statement as amended has become effective. No stop order suspending
the effectiveness of such registration statement has been issued,
and no proceeding for that purpose has been initiat ed or
threatened by the Commission. Such regis tration statement as
amended and any preliminary prospectus relating to the Certificates
included in such registration statement or filed with the Com
mission pursuant to Rule 424(a) under the Act and the prospectus
relating to the sale of Certificates by the Depositor constituting
a part thereof as from time to time amended or supplemented
(including any prospectus filed with the Commission pursuant to
Rule 424(b) or (c) of the rules and regulations of the Commission
under the Act (the "Rules and Regula tions") or any prospectus
which pursuant to Rule 429 of the Rules and Regulations relates to
Certificates registered under more than one registration statement
including the Registration Statement), includ ing all documents
incorporated therein by reference, are respectively referred to
herein as the "Registration Statement", the "Preliminary
Prospectus" and the "Prospectus"; provided, however, only the
supplement to the Prospectus prepared pursuant to Sec tion 5(i)
hereof shall be deemed to have supplemented the Prospectus. The
conditions to the use of a registration statement on Form S-3 under
the Act, as set forth in the General Instructions to Form S-3
(subject to satisfaction of the security rating requirement set
forth in Transaction Requirement B.2 thereof), and the conditions
to Rule 415 under the Act, have been satisfied with respect to the
Deposi tor and the Registration Statement.
(ii) On the effective date of the Registration
Statement, the Registration Statement and the Prospectus conformed
in all respects to the requirements of the Act and the Rules and
Regulations, and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and on the Closing Date, the Registration Statement and the
Prospectus will conform in all respects to the requirements of the
Act and the Rules and Regul tions, and neither of such documents
will include any untrue statement of a material fact or omit to
state any material fact required to be stated there in or necessary
to make the statements therein not misleading. Each of the
documents incorporated into the Registration Statement or the
Prospectus by reference to such document as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
at the time it was or will be filed with the Commission under the
Exchange Act, complied and will comply in all material respects
with the provisions of the Exchange Act and, when read together
with the other information in the Registration Statement and the
Prospectus, does not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading. The foregoing provisions of this paragraph (ii) do not
apply to statements or omissions made in the Registration Statement
or any amendment thereto or the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written
information furnished to the Depositor by or on behalf of the
Borrower or the Underwriter specifically for use therein.
(iii) The Depositor is a corporation duly organized and
validly existing and in good standing under the laws of the State
of Delaware, and has all requisite corporate power and authority to
own its properties and conduct its business as presently conducted
and to execute, deliver and perform this Agreement, the Declaration
and the Transfer Agree ment, to purchase the Promissory Note from
the Lender, to deposit the Promissory Note with the Guarantee
Legend endorsed thereon in the Trust, to assign all its rights in
the Promissory Note, the Credit Agreement and the Eximbank
Guarantee Agreement to the Trust, and to consummate the
transactions contemplated hereby and thereby.
(iv) The execution, delivery and performance by the
Depositor of this Agreement, the Transfer Agreement and the
Declaration and the consummation of the transactions contemplated
hereby and thereby have been duly and validly authorized by all
necessary corporate action or proceedings.
(v) This Agreement has been and, as of the Closing
Date, the Declaration and the Transfer Agreement will have been,
duly executed and delivered by the Depositor. On the Closing Date
the Declaration and the Transfer Agreement will constitute valid
and binding obligations of the Depositor, enforceable against the
Depositor in accordance with their respective terms.
(vi) The Depositor has authorized the sale of the
Promissory Note with the Guarantee Legend endorsed thereon to the
Trust, and, on the Closing Date, the Promissory Note with the
Guarantee Legend endorsed thereon and all the Depositor's rights in
the Credit Agreement, the Guarantee and the Eximbank Guarantee
Agreement will have been conveyed to the Trust.
(vii) On the Closing Date, the Trust will have good
title to the Promissory Note with the Guarantee Legend endorsed
thereon, and will have ac quired all the Depositor's rights in the
Credit Agreement, the Guarantee and the Eximbank Guarantee
Agreement, in each case free and clear of all prior liens, charges
and encumbrances.
(viii) Any taxes, fees and other governmental charges
in connection with the execution, delivery and performance of this
Agreement, the Declaration and the Transfer Agreement by the
Depositor shall have been paid or will be paid by the Depositor on
or prior to the Closing Date to the extent then due.
(ix) On the Closing Date, the Certificates will
conform in all material respects to the description thereof
contained in the Prospectus.
(x) The Depositor has received no notice from Eximbank
to the effect that the guarantee of Eximbank has been or will be
revoked, rescinded, modified or suspended.
(xi) Neither the execution, delivery or performance by
the Depositor of this Agreement, the Declaration or the Transfer
Agreement, nor the ful fillment by the Depositor of the terms
hereof or thereof, violates any provision of the federal laws of
the United States or violates any order of any court of the United
States which violation would reasonably be likely to have a
material adverse effect on the Depositor's ability to perform its
obligations hereunder or thereunder.
(xii) There is no action, suit or pro ceeding pending,
or, to the knowledge of the Deposi tor, threatened against the
Depositor, and no other action, suit, or proceeding known to the
Depositor is pending before any court or administrative agen cy,
challenging the validity or enforceability of this Agreement, the
Declaration, the Transfer Agree ment, the Credit Agreement, the
Guarantee or the Eximbank Guarantee Agreement, or the transactions
contemplated hereby or thereby, or which would reasonably be likely
to have a material adverse effect on the Depositor's ability to
perform its obligations hereunder or thereunder.
(b) The Borrower represents and warrants to, and agrees with,
the Underwriter that:
(i) The Borrower is duly organized and existing in good
standing under the laws of the Republic of Colombia with all
requisite power and authority to execute, deliver and perform this
Agreement, the Credit Agreement and the Letter Agreement, to
deliver the Promissory Note to the Lender and the Reimbursement
Promissory Note to the Provider, and to consummate the transactions
contem plated hereby and thereby.
(ii) The execution, delivery and performance by the
Borrower of this Agreement, the Promissory Note, the Credit
Agreement, the Letter Agreement and the Reimbursement Promissory
Note and the consummation of the transactions contemplated hereby
and thereby have been duly and validly authorized by all necessary
action or proceedings.
(iii) This Agreement has been duly executed and
delivered by the Borrower.
(iv) The Credit Agreement has been duly executed and
delivered by the Borrower and constitutes a valid and binding
obligation of the Borrower, enforceable against the Borrower in
accordance with its terms.
(v) On the Closing Date, the Letter Agreement will have
been duly executed and delivered by the Borrower and will
constitute a valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms.
(vi) On the Closing Date, the Promissory Note will have
been duly executed and delivered by the Borrower and will
constitute a valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms and
the Prom issory Note will be entitled to the benefits of the Credit
Agreement.
(vii) On the Closing Date, the Reimburse ment
Promissory Note will have been duly executed and delivered by the
Borrower and will constitute a valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its
terms and the Reimbursement Promissory Note will be entitled to the
benefits of the Letter Agreement.
(viii) Any taxes, fees and other governmental charges
in connection with the execution, delivery and performance of this
Agreement, the Promissory Note, the Credit Agreement, the Letter
Agreement and the Reimbursement Promissory Note by the Borrower
shall have been paid or will be paid by the Borrower at or prior to
the Closing Date to the extent then due.
(ix) On the Closing Date, when validly executed, issued
and delivered in accordance with the Credit Agreement and conveyed
to the Lender and when the Guarantee Legend is endorsed thereon by
Eximbank, the Promissory Note will conform in all material respects
to the description thereof contained in the Prospectus.
(x) The Credit Agreement and the Letter Agreement
conform in all material respects to the descriptions thereof
contained in the Prospectus.
(xi) The Borrower has received no notice from Eximbank
to the effect that the Guarantee, the Eximbank Guarantee Agreement
or the Guarantee Legend on the Promissory Note has been or will be
revoked, rescinded, modified or suspended.
(xii) On the date when the Prospectus or any amendment
or supplement thereto is filed with the Commission pursuant to Rule
424(b), on the date when the Prospectus is otherwise amended or
supplemented and on the Closing Date, the Prospectus, as amended
or supplemented at any such time, (A) contained or will contain
all statements with respect to the Borrower required to be stated
therein in accordance with the Act and the respective rules and
regulations of the Commission thereunder and (B) did not or will
not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein with respect to the Borrower, in the light of the
circumstances under which they were made, not misleading.
(xiii) Neither the execution, delivery or performance
by the Borrower of this Agreement, the Promissory Note, the Credit
Agreement, the Letter Agreement or the Reimbursement Promissory
Note, nor the fulfillment by the Borrower of the terms hereof or
thereof, violates any provision of the laws of the United States or
the Republic of Colombia or violates any order of any court of the
United States or the Republic of Colombia which violation would
reasonably be likely to have a material adverse effect on the
Borrower's ability to perform its obligations hereunder or
thereunder.
(xiv) There is no action, suit or proceeding pending,
or, to the knowledge of the Borrow er, threatened against the
Borrower, and no other action, suit, or proceeding known to the
Borrower is pending before any court or administrative agency,
challenging the validity or enforceability of this Agreement, the
Promissory Note, the Credit Agree ment, the Letter Agreement or the
Reimbursement Promissory Note, or the transactions contemplated
hereby or thereby, or which action, suit or proceed ing would
reasonably be likely to have a material adverse effect on the
Borrower's ability to perform its obligations hereunder or
thereunder.
SECTION 2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties of
the Depositor and the Borrower herein set forth, the Depositor agrees to
sell to the Underwriter, and the Underwriter agrees to purchase from the
Depositor, at a purchase price of 100% of the aggregate initial
Principal Amount of the Certificates, all of the Certificates.
SECTION 3. Delivery and Payment. Delivery of and payment for
the Certificates shall be made at 10:00 a.m., New York City time, on
November 26, 1997, or at such later date and time as the Underwriter
shall establish in consultation with the Depositor and the Borrower and
counsel to the Borrower (such date and time of delivery and payment for
the Certificates being herein called the "Closing Date"). Delivery of one
or more global certificates representing the Certificates shall be made
to the Underwriter against payment by the Underwriter of the purchase
price therefor, to or upon the order of the Depositor by one or more wire
transfers or certified or official bank check or checks payable in
immediately available (same day) funds. Delivery of the global cer
tificate(s) representing the Certificates shall be made at such location
as the Underwriter shall reasonably designate at least two business days
in advance of the Closing Date. Payment for the Certificates shall be
made at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 919
Third Avenue, New York, New York. The global certificate(s) representing
the Certificates shall be registered in the name of Cede & Co., as
nominee for the Depository Trust Company ("DTC").
The global certificate(s) shall be available for inspection
and checking by the Underwriter in New York, New York, not later than
1:00 P.M. on the business day prior to the Closing Date.
Simultaneously with the receipt by the Depositor of the
purchase price for the Certificates from the Underwriter, the Depositor
shall, against receipt of the Promissory Note from the Borrower pursuant
to the Credit Agreement, by one or more wire transfers or certified or
official bank check or checks payable in immediately available (same day)
funds pay to the Underwriter its underwriting commission of
US$443,648.00.
SECTION 4. Offering by Underwriter. It is understood that the
Underwriter proposes to offer the Certificates for sale to the public as
set forth in the Prospectus.
SECTION 5. Covenants of the Depositor. The Depositor
covenants and agrees with the Underwriter and the Borrower that:
(i) Immediately following the execution of this
Agreement, the Depositor will prepare a prospectus supplement
setting forth the principal amount of Certificates covered thereby,
the interest rate to be borne by the Certificates, the identity of
the Borrower, and such other terms not otherwise specified in the
base prospectus included in the Registration Statement as in effect
with respect to the Certificates, the price at which the
Certificates are to be purchased by the Underwriter from the
Depositor, either the initial public offering price or the method
by which will be determined the price at which the Certificates are
to be sold, the selling concession and reallowance, if any, any
delayed delivery arrangements, and such other infor mation as the
Underwriter, the Borrower and the Depositor deem appropriate in
connection with the offering of the Certificates, but the Depositor
will not file any amendments to the Registration State ment as in
effect with respect to the Certificates, or any amendments or
supplements to the Prospectus, of which the Borrower and the
Underwriter shall not previously have been advised and furnished
with a copy for a reasonable period of time prior to the proposed
filing and as to which filing the Borrower and the Underwriter
shall not have given their consent (which consent shall not
unreasonably be withheld). The Depositor will notify the Borrower
and the Underwriter and their respective counsel immediately (and
confirm such notice in writing) (i) when notice is received from
the Commission that any post-effective amendment to the
Registration Statement has become or will become effective, (ii) of
the receipt of any comments (whether written or oral) from the
Commission, and (iii) of any order or communication suspending or
preventing, or threaten ing to suspend or prevent, the offer and
sale of the Certificates, or of any proceedings or examinations
that may lead to such an order or communication, whether by or of
the Commission or any authority administering any state securities
or Blue Sky law, as soon as the Depositor is advised thereof, and
will use its best efforts to prevent the issuance of any such order
or communication and to obtain as soon as possible its lifting, if
issued. At least five days in advance of their filing, the
Depositor will deliver to you copies of any documents which will be
incorporated into the Registration Statement or Prospectus by
reference.
(ii) The Depositor will advise the Under writer, the
Borrower and their respective counsel promptly after receiving
notice, or obtaining knowl edge thereof (and if requested by the
Underwriter or the Borrower will confirm such advice in writing),
of (A) when the Prospectus, and any supplement thereto, shall have
been filed with the Commission pursuant to Rule 424(b), (B) the
issuance by the Commission of any stop order suspending the effec
tiveness of the Registration Statement or any post-effective
amendment thereto or any order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto or the institution, threatening or contem
plation of any proceedings for any such purpose, (C) the suspension
of the qualification or exemption from qualification of the
Certificates for offering or sale in any jurisdiction or the
institution, threatening or contemplation of any proceedings for
any such purpose, or (D) any request made by the Commission for
amending the Registration Statement, for amending or supplementing
any Preliminary Prospectus or the Prospectus or for additional
informa tion. The Depositor will use its reasonable efforts to
prevent the issuance of any such stop order and, if any such stop
order is issued, to obtain the withdrawal thereof as promptly as
possible.
(iii) The Depositor will arrange for the registration
or qualification of the Certificates for offering and sale and the
determination of their eligibility for investment under the
securities or blue sky laws of such jurisdictions as the
Underwriter may designate and will continue such qualifications in
effect for as long as may be necessary to complete the distribution
of the Certificates, provided, however, that in connection
therewith the Depositor shall not be required to qualify to do
business as a foreign corporation or as a broker-dealer or to
execute a general consent to service of process in any
jurisdiction.
(iv) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act, any event
occurs as a result of which the Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or if for any other reason it is
necessary at any time to amend or supplement the Prospectus to
comply with the Act or the rules or regulations of the Commission
thereun der or any other law, the Depositor, on behalf of the
Trust, subject to Section 5(i) hereof, will prepare and file with
the Commission an amendment to the Registration Statement or an
amendment or supplement to the Prospectus that corrects such statement
or omission or effects such compliance; provided that the
Depositor shall not file any such amend ment or supplement of which
the Borrower, the Underwriter and their respective counsel shall
not previously have been advised and furnished with a copy for a
reasonable time prior to the proposed filing and as to which filing
the Borrower or the Underwri ter shall not have given their consent
(which con sent shall not unreasonably be withheld).
(v) The Depositor will provide to the Borrower, to the
Underwriter and their respective counsel, without charge, a
conformed copy of the registration statement originally filed with
respect to the Certificates and each amendment thereto, including
any post-effective amendment thereto (in each case including any
financial statements and schedules and exhibits thereto and
documents incor porated by reference therein (including exhibits
incorporated therein by reference to the extent not previously
furnished to the Underwriter)).
(vi) So long as a prospectus relating to the
Certificates is required to be delivered under the Act, the
Depositor will provide, or cause to be provided, as many copies of
each Preliminary Pro spectus or the Prospectus or any amendment or
sup plement thereto as the Underwriter may reasonably request. The
Depositor consents to the use of the Preliminary Prospectus and the
Prospectus and any amendment or supplement thereto by the
Underwriter and by all dealers to whom the Certificates may be
sold, both in connection with the offering or sale of the
Certificates contemplated herein and for such period of time
thereafter as delivery of a prospec tus relating to the
Certificates is required under the Act. The Depositor will provide
or cause to be provided to the Underwriter, the Borrower and their
respective counsel, a copy of any Report on Form SR filed by the
Depositor as required by Rule 463 under the Act.
(vii) The Depositor will cause the Trust, as soon as
practicable, to make generally available to its Certificateholders
and to the Underwriter a statement or statements of the Trust that
satisfies the provisions of Section 11(a) of the Act and Rule 158
promulgated thereunder.
(viii) The Depositor will cause the Trust to apply the
net proceeds from the sale of the Certificates as set forth under
"Use of Proceeds" in the Prospectus.
SECTION 6. Expenses.
(a) Subject to the limitations set forth in the letter
agreement dated April 16, 1997 (the "Commit ment Letter"), between the
Borrower and the Underwriter, the Depositor will pay all costs and
expenses incident to the performance of its obligations under this
Agreement, whether or not the transactions contemplated herein are
consummated or this Agreement is terminated pursuant to Section 10
hereof, including, but not limited to, all costs and expenses of (i) the
printing or other produc tion of documents (including word processing and
duplication) with respect to such transactions, including any costs of
printing any amendment to the Registration Statement filed with respect
to the Certificates and any amendment thereto, any Preliminary Prospectus
and the Prospectus and any amendment or supplement thereto, the
Declaration, this Agreement, any dealer agreement and such other
agreements related to the distribution of the Certificates and any Blue
Sky or legal investment memorandum (which shall include the reasonable
disbursements of counsel for the Underwriter in respect thereof), (ii)
all arrangements relating to the delivery to the Underwriter and to the
dealers to whom the Certificates may be sold of copies of the foregoing
documents, (iii) the fees and disbursements of the counsel and any other
experts or advisers retained by the Depositor, (iv) preparation, issuance
and delivery to the Underwriter of any certifi cates evidencing the
Certificates, (v) the qualification of the Certificates and determination
of their eligibility for investment under state securities and Blue Sky
laws, including filing fees, and fees and disbursements of counsel for
the Underwriter relating thereto, (vi) the fees and, if required by the
Trustee, disbursements of the Trustee, (vii) the filing fees of the
Commission relating to the Certificates, (viii) any fees charged by
investment rating agencies for the rating of the Certificates, (ix) the
fees and expenses of Skadden, Arps, Slate, Meagher & Flom LLP or other
counsel for the Under writer.
(b) If the sale of the Certificates provided for herein is
not consummated because any condition to the obligations of the
Underwriter set forth in Section 7 hereof is not satisfied, because this
Agreement is terminated pursuant to Section 10 hereof or because of any
failure, refusal or inability on the part of the Borrower to perform all
obligations and satisfy all conditions on its part to be performed or
satisfied hereunder other than by reason of a default by the Underwriter,
subject to the limitations set forth in the Commitment Letter, the
Borrower will reimburse the Underwriter promptly upon demand for all
out-of-pocket expenses (including reason able fees and disbursements of
counsel) that shall have been incurred by it in connection with the
proposed purchase and sale of the Certificates. The Borrower shall not in
any event be liable to the Underwriter for the loss of anticipated
profits from the transactions covered by this Agreement.
SECTION 7. Conditions of Underwriter's Obligation. The
obligations of the Underwriter to purchase and pay for the Certificates
shall be subject, in the Under writer's sole discretion, to the accuracy
of the representations and warranties of the Depositor and the Borrower
contained herein as of the date hereof and as of the Closing Date, to the
accuracy of the statements of the Depositor and the Borrower made in any
certificates delivered pursuant to the provisions hereof, to the
performance by the Depositor and the Borrower of their obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement or any amendment thereto
filed prior to the Closing Date has not been declared effective as of the
time of execution hereof, the Registration Statement or such amendment
shall have been declared effective not later than 11 A.M., New York City
time, on the date on which the amendment to the registration statement
originally filed with respect to the Certificates or to the Registration
Statement, as the case may be, containing information regard ing the
initial public offering price of the Certificates has been filed with the
Commission, or such later time and date as shall have been consented to
by the Underwriter; if required, the Prospectus and any amendment or
supplement thereto shall have been filed with the Commis sion in the
manner and within the time period required by Rule 424(b) under the Act;
no stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment thereto shall have been issued, and no
proceedings for that purpose shall have been instituted or threatened
or, to the knowledge of the Depositor or the Underwriter, shall be
contemplated by the Commission; and the Depositor shall have complied
with any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise).
(b) The Underwriter shall have received an opinion dated the
Closing Date of Herney Torrente, Colombian counsel to the Borrower, to
the effect that:
(i) The Borrower is duly organized and existing in good
standing under the laws of the Republic of Colombia and has full
power, authority and legal right to incur the indebtedness and
obligations provided for in the Credit Agreement, the Promissory
Note, this Agreement, the Letter Agree ment and the Reimbursement
Promissory Note, and has taken all legal and other action necessary
to autho rize it to execute and deliver this Agreement, the
Promissory Note, the Credit Agreement, the Letter Agreement and the
Reimbursement Promissory Note and perform and observe the terms and
conditions of this Agreement, the Promissory Note, the Credit
Agreement, the Letter Agreement and the Reimbursement Promissory
Note.
(ii) All authorizations, registrations and approvals
(including any foreign exchange ap proval with respect to the
availability and transfer of Dollars necessary to make all required
payments under the Promissory Note, the Credit Agreement, the
Letter Agreement and the Reimbursement Promissory Note) of, or
filings or registrations with the Republic of Colombia, or of any
governmental agency thereof or therein, together with any
third-party consents, which are necessary or advisable for the
execution, delivery and performance of this Agreement, the
Promissory Note, the Credit Agreement, the Letter Agreement and the
Reimbursement Promissory Note or for the validity, binding effect
and enforceability hereof or thereof have been obtained and are
binding and enforceable and in full force and effect.
(iii) No constitutional provision, law, ordinance,
decree or regulation of the Government of Colombia, or any agency,
department or instrumental ity thereof, no provision of any
charter, by-law or similar instrument of the Borrower and no
provision of any agreement or other instrument binding on the
Borrower or to which it or its properties or revenues may be
subject is or will be contravened by its execution and delivery of
this Agreement, the Promissory Note, the Credit Agreement, the
Letter Agree ment or the Reimbursement Promissory Note or its
performance and observance of terms and conditions of this
Agreement, the Promissory Note, the Credit Agreement, the Letter
Agreement or the Reimbursement Promissory Note.
(iv) There is no pending or, to the best of the
knowledge of such counsel, threatened action or proceeding
affecting the Borrower before any court, governmental agency,
international organiza tion or arbitrator, which (i) questions or
could affect the legality, validity, binding effect or
enforceability of this Agreement, the Promissory Note, the Credit
Agreement, the Letter Agreement or the Reimbursement Promissory
Note, (ii) might re strain or enjoin or have the effect of
restraining or enjoining its performance or observance of the terms
and the conditions of this Agreement, the Promissory Note, the
Credit Agreement, the Letter Agreement or the Reimbursement
Promissory Note or (iii) may individually or in the aggregate
material ly and adversely affect the financial condition or
operations of the Borrower.
(v) The submission to jurisdiction and waiver of
sovereign immunity by the Borrower set forth in Sections 14 and 15
of this Agreement, respectively, are both effective and
irrevocably binding on the Borrower.
(vi) No consent, license, approval or authorization of,
or registration, recording or filing with, the Government of
Colombia or any court, agency, department or other administrative
authority or instrumentality of the Government of Colombia or any
local or other governmental authority within Colombia is required
for the execution, delivery or performance of this Agreement, the
Promissory Note, the Credit Agreement, the Letter Agreement or the
Reimbursement Promissory Note by the Borrower or for the validity,
enforceability, priority or admissibility hereof and thereof.
(vii) The waiver of immunity by the Borrower, the
appointment of the Process Agent for service of process, the
consent by the Borrower to the jurisdiction of the courts specified
and the provision that the law of the State of New York shall
govern this Agreement, the Promissory Note, the Credit Agreement,
the Letter Agreement and the Reimbursement Promissory Note, all as
provided in this Agreement, the Credit Agreement and the Letter
Agreement, are irrevocably binding on the Borrower and are valid
under the laws of the Republic of Colombia.
(viii) This Agreement, the Credit Agreement and the
Letter Agreement are, and the Promissory Note and the
Reimbursement Promissory Note, when delivered by the Borrower under
the Credit Agreement and the Letter Agreement, respectively, will
be, in proper legal form under the laws of the Republic of Colombia
for the most expeditious enforcement there of against the Borrower
in the courts of the Republic of Colombia and any judgment
obtained in the courts of New York will be recognized and enforced.
(ix) The Depositor and the Underwriter are not
prevented from entering into this Agreement by reason of any of the
prohibitions and incompatibilities mentioned in Law 80 of 1993 of
the Republic of Colombia.
In rendering the opinions set forth above, such counsel may
assume and state that he has not independently verified (i) the
authenticity of all documents submitted to him as originals and the
conformity to the origi nals of all documents submitted to him as copies,
(ii) that the execution and delivery of the Credit Agreement and the
Letter Agreement have been duly authorized by each of the parties thereto
(other than the Borrower) and that each of the parties thereto (other
than the Borrower) has full power, authority and legal right to enter
into each such agreement and to perform its obligations thereunder, and
(iii) that the Credit Agreement and the Letter Agreement have been duly
executed and delivered by each of the parties thereto (other than the
Borrower). Such counsel may also assume that the Credit Agreement, the
Promissory Note, the Letter Agreement and the Reimbursement Promissory
Note are legal, valid, binding and enforceable under New York law.
In rendering such opinions, such counsel may limit his
opinions to matters governed by the laws of the Republic of Colombia.
(c) The Underwriter shall have received an opinion, dated the
Closing Date, of Cleary, Gottlieb, Steen & Hamilton, special New York
counsel to the Borrow er, to the effect that:
(i) The Credit Agreement, the Promissory Note, the
Letter Agreement and the Reimbursement Promissory Note are the
valid and binding obliga tions of the Borrower, enforceable against
the Borrower in accordance with their respective terms, the
Promissory Note is entitled to the benefits of the Credit Agreement
and the Reimbursement Promisso ry Note is entitled to the benefits
of the Letter Agreement.
(ii) The execution and delivery of the Credit
Agreement, this Agreement, the Promissory Note, the Letter
Agreement and the Reimbursement Promissory Note by the Borrower and
the performance by the Borrower of its obligations therein and
herein contemplated do not require the consent, approval,
authorization, registration or qualifica tion of or with any
federal or New York State governmental authority, except such as
have been obtained or effected (except as to any consent, ap
proval, authorization, registration or qualification that may be
required under United States securities laws and state securities
or Blue Sky laws, as to which such counsel need express no
opinion).
In addition, such counsel shall state that, based on inquiry
of lawyers currently with such law firm who, according to the records of
such law firm, have performed legal services for the Borrower since
January 1, 1997, such counsel know of no legal or governmental
proceedings pending to which the Borrower is a party or threatened
against the Borrower, (A) asserting the inval idity of this Agreement,
the Promissory Note, the Credit Agreement, the Letter Agreement or the
Reimbursement Promissory Note or (B) seeking to prevent the performance
of any of the transactions contemplated by this Agreement, the
Promissory Note, the Credit Agreement, the Letter Agreement or the
Reimbursement Promissory Note; provided that such counsel may regard any
legal or governmental proceedings not to be threatened unless the
potential litigant or governmental authority has manifested to such
counsel a present intention to initiate such proceedings.
In rendering the opinions expressed above, such counsel may
assume (i) the authenticity of all documents submitted to them as
originals and the conformity to originals of all documents submitted to
them as copies, (ii) that the signatures on all documents that they have
examined are genuine, (iii) each party (including the Borrower) to this
Agreement, the Credit Agreement, the Promissory Note, the Letter
Agreement and the Reimburse ment Promissory Note has satisfied those
legal require ments that are applicable to it to the extent necessary to
make such agreement or obligation enforceable against it (except that no
such assumption is made as to the Borrower regarding matters of the
federal law of the United States of America or the law of the State of
New York), and (iv) the accuracy as to factual matters of each document
we have reviewed (including, without limitation, the accuracy of the
representations and warranties of Ecopetrol in the Credit Agreement,
this Agreement and the Letter Agreement.
In addition, such counsel may state that (i) the opinion
expressed in paragraph (i) above is subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, to general principles of
equity and to judicial application of foreign laws or governmental
actions affecting creditors' rights, (ii) the enforceability of the
obligations of the Borrower under the Credit Agreement, the Promissory
Note, the Letter Agreement and the Reimbursement Promissory Note are
subject to general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law), (iii) the
enforceability in the United States of the waiver by the Company of its
immunities from court jurisdiction and from legal process, as set forth
in the Letter Agreement and the Credit Agreement, is subject to the
limitations imposed by the United States Foreign Sovereign Immunities Act
of 1976 and (iv) the enforceability of the indemnification provisions set
forth in the Letter Agreement may be subject to considerations of public
policy.
In rendering such opinions, such counsel may state that they
(i) express on opinion as to Section 14 of this Agreement as to the
subject matter jurisdiction base of any United States federal court to
adjudicate any action relating to such agreement where jurisdiction based
on diversity of citizenship under 20 U.S.C. ss. 1332 does not exist, (ii)
note that the designation in such Section 14 of the federal courts of the
United States for the Southern District of New York as one of the venues
for legal actions or proceedings relating to this Agreement is
(notwithstanding the waiver in Section 14 of this Agreement) subject to
the power of such courts to trans fer actions pursuant to U.S.C.
ss.1404(a) or to dismiss such actions or proceedings on the grounds that
such a federal court is an inconvenient forum for such action or
proceeding, and (iii) express no opinion as to Section 9.11 of the Credit
Agreement relating to the continuing validity and enforceability of
provisions in the Credit Agreement notwithstanding the ineffectiveness of
other provisions.
In rendering such opinions, such counsel may limit their
opinions to the federal law of the United States of America and the law
of the State of New York.
(d) The Underwriter shall have received an opinion, dated the
Closing Date, of Skadden, Arps, Slate, Meagher & Flom LLP, special
counsel to the Trust and the Depositor, to the effect that:
(i) The Depositor is a corporation duly incorporated
and validly existing under the laws of the State of Delaware with
all requisite corporate power and authority to execute, deliver and
perform its obligations under the Transfer Agreement, this
Agreement and the Declaration.
(ii) The Declaration is a valid and binding agreement
of the Depositor, enforceable against the Depositor in accordance
with its terms, except to the extent that enforcement thereof may
be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights gener ally, and (b) general
principles of equity (regard less of whether enforceability is
considered in a proceeding at law or in equity).
(iii) The Certificates, when duly and validly executed
and authenticated by the Trustee in the manner contemplated by the
Declaration and delivered to and paid for by the Underwriter pursuant
to this Agreement, will be validly issued and outstanding and
entitled to the benefits of the Declaration.
(iv) The statements contained in the Prospectus under
the captions "The Eximbank Guaran tees", "The Promissory Note",
"The Promissory Notes", "The Credit Agreements", "Description of
the Certificates", "The Liquidity Facility" and "The Liquidity
Facilities", insofar as such statements constitute a summary of the
documents referred to therein, fairly present the information
called for with respect to such documents.
(v) The Registration Statement, as of its effective
date, and the Prospectus, as of its date, appeared on their face to
be appropriately responsive in all material respects to the
requirements of the Act and the rules and regulations thereunder,
except that in each case such counsel need express no opinion as to
financial statements, schedules and other financial data included
therein or excluded therefrom or the exhibits to the Registration
Statement, and such counsel need assume no responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus except to the extent
set forth in Sections 7(d)(iv) and (viii) hereof.
(vi) The Declaration is not required to be qualified
under the Trust Indenture Act of 1939, as amended.
(vii) The Trust is not an "investment company" or under
the "control" of an "investment company" as such terms are defined
under the Invest ment Company Act of 1940, as amended.
(viii) The statements contained in the Prospectus under
the captions "The Eximbank Guaran tees", "Certain United States
Federal Tax Consequences" and "ERISA Considerations," to the
extent that they constitute matters of law or legal conclusions
with respect thereto, have been prepared or reviewed by such
counsel and are correct in all material respects.
(ix) Assuming the due authorization, execution and
delivery thereof by Eximbank, the Eximbank Guarantee Agreement and
the Guarantee Legend endorsed on the Promissory Note are enforce
able against Eximbank in the United States Court of Claims, subject
as to enforceability to general principles of equity (regardless of
whether such en forcement is sought in a proceeding in equity or at
law).
Such counsel shall state that they are advised by the
Commission that the Registration Statement was declared effective under
the Act (specifying the time and date of such declaration), and, to the
best of the knowledge of such counsel, no stop order suspending its
effectiveness has been issued and no proceedings for that purpose have
been instituted or are pending or threatened by the Commission.
In addition, such counsel shall state that they have
participated in conferences with officers and other representatives of
the Depositor, the Borrower, Eximbank and the Underwriter at which the
contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel need not pass upon or
assume responsibility for, the accuracy, com pleteness or fairness of the
statements contained in the Registration Statement and the Prospectus and
need not have made an independent check or verification thereof except
for those made under the captions "The Eximbank Guarantees", "The
Promissory Note", "The Promissory Notes", "The Credit Agreements",
"Description of the Certificates", "The Liquidity Facility" and "The
Liquidi ty Facilities" in the Prospectus insofar as they relate to
provisions of the documents therein described and under the captions "The
Eximbank Guarantees", "Certain United States Federal Tax Consequences"
and "ERISA Considerations" in the Prospectus to the extent that they
constitute matters of law or legal conclusions with respect thereto, such
counsel shall state that, on the basis of the foregoing, no facts have
come to the atten tion of such counsel that have led such counsel to be
lieve that the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading or that the Prospectus, as of its
date, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.
Such counsel need express no opinion or belief with respect to the
financial statements, schedules and other financial information included
in or excluded from the Registration Statement or the Prospectus or the
exhibits to the Registration Statement.
In rendering the opinions expressed above, such counsel may
assume (i) the authenticity of all documents submitted to them as
originals and the conformity to originals of all documents submitted to
them as copies, (ii) that the signatures on all documents that they have
examined are genuine, (iii) that the Declaration and the Credit Agreement
constitute the legal, valid, binding and enforceable obligations of each
party thereto other than the Depositor, and (iv) that the Eximbank
Guarantee Agreement constitutes the legal, valid, binding and en
forceable obligation of each party thereto other than Eximbank.
In rendering the opinions set forth above, such counsel may
limit their opinions to matters governed by the laws of the States of New
York and the General Corporation Law of the State of Delaware and the
United States of America to the extent specifically referred to there in.
(e) The General Counsel of Eximbank, shall have delivered to
the Trustee and the Underwriter an opinion, dated the Closing Date, to
the effect that:
(i) Eximbank is a validly organized body corporate and
agency of the United States of America for the purposes of this
transaction with power and authority set forth in the Export-Import
Bank Act of 1945, as amended, to enter into the Eximbank Guarantee
Agreement in its capacity as guarantor of the principal of and
interest on the Promissory Note, to endorse the Guarantee Legend on
the Promissory Note and to issue Eximbank Payment Certificates with
respect to the Promissory Note;
(ii) The Eximbank Guarantee Agreement has been duly and
validly authorized, executed and delivered by Eximbank and
constitutes a legal, valid and binding agreement of Eximbank;
(iii) The endorsement of the Guarantee Legend on the
Promissory Note has been duly and validly authorized by Eximbank
and such Guarantee Legend has been endorsed on the Promissory Note
issued by the Borrower and Eximbank's Guarantee of payment of the
principal of and interest on such Promissory Note will be a legal,
valid and binding undertaking of Eximbank in accordance with the
terms of the Eximbank Guarantee Agreement, and such Guarantee will
be backed by the full faith and credit of the United States of
America; and
(iv) The issuance of an Eximbank Payment Certificate
with respect to the Promissory Note has been duly and validly
authorized by Eximbank and, when such Eximbank Payment Certificate
is issued by Eximbank pursuant to the terms of the Eximbank
Guarantee Agreement, Eximbank's payment obligation on such Eximbank
Payment Certificate will be a legal, valid and binding undertaking
of Eximbank in accordance with its terms, and such payment obligation
will be backed by the full faith and credit of the United
States of America.
(f) The Underwriter shall have received an opinion, dated the
Closing Date, of Seward & Kissel, special counsel for the Trustee, to the
effect that:
(i) The Trustee is a national banking association
validly existing under the laws of the United States, and has the
requisite power and authority to deliver, and to perform all of
its obli gations under, the Declaration and the Liquidity
Reimbursement Agreement.
(ii) The Declaration has been duly authorized,
executed and delivered by the Trustee and constitutes a legal,
valid and binding agreement of the Trustee, enforceable against the
Trustee in accordance with its terms, except as such enforce ability
may be limited by bankruptcy, insolvency, receivership, conservatorship,
liquidation, reorganization, moratorium or other similar laws
affecting the enforcement of rights of creditors of national
banking associations generally, and the application of general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(iii) The Liquidity Reimbursement Agree ment has been
duly authorized, executed and deliv ered by the Trustee and
constitutes a legal, valid and binding agreement of the Trustee,
enforceable against the Trustee in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, receivership, conservator ship, liquidation,
reorganization, moratorium or other similar laws affecting the
enforcement of rights of creditors of national banking associations
generally, and the application of general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iv) The Certificates have been duly executed,
authenticated and delivered by the Trust ee.
In rendering the opinions set forth above, such counsel may
limit their opinions to matters governed by the laws of the States of New
York and the United States of America.
(g) The Underwriter shall have received an opinion, dated the
Closing Date, of Skadden, Arps, Slate, Meagher & Flom LLP, special United
States counsel for the Lender, to the effect that:
(i) The Lender is validly existing as a banking
association organized under the laws of the United States, and has
the power and authority (cor porate and other) to enter into, and
to take all action required of it under the Transfer Agreement.
(ii) The Transfer Agreement has been duly authorized,
executed and delivered by the Lender and constitute a valid and
binding agreement of the Lender, enforceable against the Lender in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, receivership, conservatorship,
liquidation, reorganization, mora torium or other similar laws
affecting the enforcement of rights of creditors of national banking
associations generally, and the application of general principles
of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
In rendering the opinions set forth above, such counsel may
limit their opinions to matters governed by the laws of the States of New
York and the United States of America to the extent specifically referred
to there in.
(h) The Underwriter shall have received an opinion, dated the
Closing Date, of Skadden, Arps, Slate, Meagher & Flom LLP, special United
States counsel for the Liquidity Provider, to the effect that:
(i) The Liquidity Provider is validly existing as a
national banking association organized under the laws of the United
States, and has the power and authority (corporate and other) to
enter into, and to take all action required of it under, the Letter
Agreement and the Liquidity Reimbursement Agreement.
(ii) The Liquidity Reimbursement Agree ment has been
duly authorized, executed and delivered by the Liquidity Provider
and constitutes a valid and binding agreement of the Liquidity
Provid er, enforceable against the Liquidity Provider in accordance
with its terms, except to the extent that enforcement thereof may
be limited by (a) bankruptcy, insolvency, receivership,
conservatorship, reorganization, moratorium or other similar laws
now or hereafter in effect relating to rights of credi tors' of
national banking associations generally, and (b) general principles
of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
(iii) The execution, delivery and performance by the
Liquidity Provider of the Liquidity Reimbursement Agreement do not
contravene the articles of association or by-laws of the Liquidity
Provider.
In rendering the opinions set forth above, such counsel may
limit their opinions to matters governed by the laws of the States of New
York and the United States of America to the extent specifically referred
to there in.
(i) The Underwriter shall have received an opinion, dated the
Closing Date, of Higgs & Johnson, spe cial Bahamas counsel for the
Liquidity Provider, to the effect that:
(i) Citibank, N.A. (the "Bank") is duly li censed by the
appropriate governmental authority of the Bahamas to maintain a
branch office in Nassau, Bahamas and is validly existing as a
foreign banking organization under the laws of the Bahamas and has
all the powers of a foreign branch as specified under the
applicable banking law of the Bahamas (including, without
limitation, the power to enter into and perform under liquidity
facilities such as the Liquidity Reimbursement Agreement), and is
autho rized to transact business in the Bahamas.
(ii) To the best of the knowledge of such counsel, no
authorization, consent or approval of or by Bahamian governmental
authority is necessary for the execution, delivery and performance
by the Bank of the Liquidity Reimbursement Agreement, except such
authorizations, consents and approvals as are in full force and
effect.
In rendering the opinions set forth above, such counsel may
limit their opinions to matters governed by the laws of the Bahamas.
(j) The Underwriter shall have received an opinion, dated the
Closing Date, of Skadden, Arps, Slate, Meagher & Flom LLP, special
counsel for the Underwriter, with respect to the issuance and sale of the
Certificates, the Registration Statement, the Prospectus, the
Declaration, the Eximbank Guarantee Agreement and such other related
matters as the Underwriter may reasonably require, and the Depositor
shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass on such
matters.
(k) If any counsel specified above are re quired to deliver
an opinion to Moody's Investors Ser vice, Inc. ("Moodys") or Standard &
Poor's Ratings Group ("S&P") in connection with their rating of the
Certificates, the Underwriter shall have received letters, dated the
Closing Date, from such counsel stating that the Underwriter and the
Borrower are authorized to rely on such opinions as though they were
addressed to the Under writer and the Borrower.
(l) The Certificates shall be rated "Aaa" by Moody's and
"AAA" by S&P, and neither Moody's nor S&P shall have placed the
Certificates under review with possible negative implications.
(m) Subsequent to the date hereof or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive
of any amendment thereto) and the Prospectus (exclusive of any supplement
thereto), there shall not have been any change, or any development
involving a prospective change, in or affect ing the business or
properties of the Trust or the Bor rower the effect of which, in any case
referred to above, is, in the sole judgment of the Underwriter, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or the delivery of the Certificates as contemplated by
the Registration Statement (exclusive of any amendment thereto) and the
Prospectus (exclusive of any supplement thereto).
(n) The Depositor shall have furnished to the Underwriter a
certificate of the Depositor, signed by its principal executive,
financial or accounting officer, dated the Closing Date, to the effect
that the signer of such certificate has carefully examined the
Registration Statement, the Prospectus, any supplement to the Prospec tus
and this Agreement and that:
(i) the representations and warranties of the Depositor
in this Agreement are true and correct on and as of the Closing
Date with the same effect as if made on the Closing Date (except to
the extent they expressly relate to an earlier date) and the
Depositor has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior
to the Closing Date; and
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the best of the Depositor's
knowledge, threatened.
(o) The Borrower shall have furnished to the Underwriter and
the Depositor a certificate signed by its principal executive, financial
or accounting officer, dated the Closing Date, to the effect that the
signer of such certificate has carefully examined this Agreement and the
representations and warranties of the Borrower in this Agreement are true
and correct on and as of the Closing Date with the same effect as if made
on the Closing Date (except to the extent they expressly relate to an
earlier date) and the Borrower has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at
or prior to the Closing Date.
(p) On or before the Closing Date, the Under writer and the
special counsel for the Underwriter shall have received such further
certificates, documents or other information as they may have reasonably
requested from the Borrower.
If any of the conditions specified in this Section 7 shall
not have been fulfilled in all material respects when and as provided in
this Agreement, or if any of the opinions or certificates mentioned above
or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Underwriter and
special counsel for the Underwriter, this Agreement and all obligations
of the Underwriter hereunder may be canceled at, or at any time prior to,
the Closing Date by the Underwriter. Notice of such can cellation shall
be given to the Trust, the Depositor and the Borrower in writing or by
telephone, facsimile trans mission or telegraph confirmed in writing. The
Depositor shall furnish to the Underwriter such conformed copies of such
opinions, certificates, letters and documents in such quantities as the
Underwriter and special counsel for the Underwriter shall reasonably
request.
SECTION 8. Indemnification and Contribution.
(a) The Borrower agrees to indemnify and hold harmless the
Underwriter, the Depositor, each of the directors of the Depositor, each
of the officers of the Depositor who signed the Registration Statement
and each person, if any, who controls the Underwriter or the Depositor
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter, the Depositor, such director, officer or such
controlling person may become subject under the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act") or otherwise,
insofar as such losses, claims, damages or liabilities (or actions, suits
or proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in any registration statement filed with the Commission with
respect to the Certificates or any amendment thereto or any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto or
the omission or alleged omission to state in such registration statement
or any amendment thereto, any Preliminary Prospectus or the Prospectus or
any amendment or supplement thereto, a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and will reimburse, as incurred, the Underwriter, the
Depositor, each such director and officer and each such controlling
person for any legal or other expenses reasonably incurred by the
Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection
with any such loss, claim, damage, liability or action in respect
thereof, provided, however, that the Borrower will be liable in any such
case to the extent, and only to the extent, that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto (a)
under the captions entitled "The Promissory Note", the second paragraph
of "Use of Proceeds", "The Liquidity Facility", "The Borrower", "Certain
Foreign Taxes", "The Promissory Notes", "The Credit Agreements" or
"The Liquidity Facilities", or the corre sponding portions of any
prospectus summary, or (b) in reliance upon and in conformity with
written information furnished to the Depositor or the Underwriter by the
Borrower specifically for use therein, and provided, fur ther, that the
Borrower will not be liable to the Underwriter, any director, officer,
employee or agent of the Underwriter or any person controlling the
Underwriter with respect to any such untrue statement or omission made in
any Preliminary Prospectus if the person asserting any such loss, claim,
damage or liability purchased Certificates from such Underwriter but was
not sent or given a copy of the Prospectus (as amended or supplemented),
other than the documents incorporated by reference therein, at or prior
to the written confirmation of the sale of such Certificates to such
person in any case where such delivery of the Prospectus (as amended or
supplemented) is required by the Act and the untrue statement or alleged
untrue statement of a material fact, or the omission or alleged omission
to state a material fact, that is found to be or is alleged to be the
basis of liability in such Preliminary Prospectus was corrected in the
Prospectus as amended or supplemented. This indemnity agreement will be
in addition to any liability which the Borrower may otherwise have. The
Borrower will not, without the prior written consent of the Underwriter
and the Depositor, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification may be sought hereunder (whether or
not such Underwriter, the Depositor, any director, officer of the
Depositor or any person who controls such Underwriter or the Depositor
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release of
such Underwriter, the Depositor, each such director, officer, employee
and agent of such Underwriter and the Depositor, and each such
controlling person from all liability arising from such claim, action,
suit or proceeding.
(b) The Underwriter will indemnify and hold harmless the
Depositor, each of its directors and each of its officers who signed the
Registration Statement, the Borrower and each person, if any, who
controls the Depositor or the Borrower within the meaning of Section 15
of the Act or Section 20 of the Exchange Act against any losses, claims,
damages or liabilities to which either of the Depositor or the Borrower
or any such director, officer or controlling person may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions, suits or proceedings in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue state ment of any material fact contained in any
registration statement filed with the Commission with respect to the
Certificates or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supple ment thereto, or the omission or
the alleged omission to state therein a material fact required to be
stated in such registration statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or necessary to make the state ments therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information
furnished to the Depositor or the Borrower by the Underwriter
specifically for use therein; and, sub ject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal
or other expenses reasonably incurred by the Depositor or the Borrower or
any such director, officer or controlling person in connection with
investigating or defending or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or any action in
respect thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party (i) will
not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or
(b) above. In case any such action is brought against any indemnified
party, and it notifies the indem nifying party of the commencement
thereof, the indemnify ing party will be entitled to participate therein
and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be one or more legal defenses available to it
and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, the indemnifying party
shall not have the right to direct the defense of such action on behalf
of such indemnified party or par ties and such indemnified party or
parties shall have the right to select separate counsel to defend such
action on behalf of such indemnified party or parties. After notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of
counsel ap pointed to defend such action, the indemnifying party will not
be liable to such indemnified party under this Section 8 for any legal or
other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that in connection with such
action the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to local counsel) in any one
action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or
circumstances, designated by the Underwriter in the case of paragraph (a)
of this Section 8, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party. After such
notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the
consent of the indemnifying party (which consent shall not, in light of
such action and the defenses available to the indemnified party, be
unreasonably withheld), unless such indemnified party waived its rights
under this Section 8 in which case the indemnified party may effect such
a settlement without such consent.
(d) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 8 is unavailable
or insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party
on the other from the offering of the Certificates or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative
fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in con nection with the statements or
omissions or alleged statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof).
The relative benefits received by the Borrower on the one hand and the
Underwriter on the other shall be deemed to be in the same proportion as
the total proceeds from the offering (net of underwriting commissions but
before deducting expenses) received by the Borrower in the form of the
loan evidenced by the Promissory Note bear to the total underwriting
discounts and commissions received by the Underwriter. There shall be no
deemed benefits received by the Depositor. The relative fault of the
parties shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omis sion to state a material fact relates to
information supplied by the Borrower or the Underwriter, the parties'
relative intents, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. Each of the Borrower
and the Underwriter agrees that it would not be equitable if the amount
of such contribution were determined by pro rata or per capita allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to in the first sentence of this
paragraph (d). Notwithstanding any other provision of this paragraph (d),
the Underwriter shall not be obligated to make contributions hereunder
that in the aggregate exceed the total offering price of the Certificates
purchased by the Underwriter under this Agreement, less the aggregate
amount of any damages that the Underwriter has otherwise been required to
pay in respect of the same or any substantially similar claim, and no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudu lent misrepresentation. For
purposes of this paragraph (d), each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the
Underwriter.
SECTION 9. Survival. The respective representations,
warranties, agreements, covenants, indemnities and other statements of
the Depositor, the directors and officers of the Depositor, the Borrower,
and the Underwriter set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on
behalf of either of the Depositor, the Borrower, the Underwriter, any of
direc tors or officers of the Depositor or any controlling person
referred to in Section 8 hereof, and (ii) delivery of and payment for the
Certificates. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6 and 8 hereof shall remain in full
force and effect, regardless of any termination or can cellation of this
Agreement.
SECTION 10. Termination.
(a) This Agreement may be terminated in the sole discretion
of the Underwriter by notice to the Depositor and the Borrower given
prior to the delivery and payment for the Certificates, if at or prior to
the delivery and payment for the Certificates:
(i) trading in securities generally on the New York
Stock Exchange shall have been suspended or minimum or maximum
prices shall have been established on such exchange;
(ii) a general banking moratorium shall have been
declared by New York or United States authorities; or
(iii) there shall have been an outbreak or escalation
of hostilities or any other calamity or crisis having an effect on
the financial markets or the market for the Certificates and other
similar securities that, in the sole judgment of the Under writer,
makes it impracticable to proceed with the offering or the delivery
of the Certificates as contemplated by the Registration Statement,
as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 10
shall be without liability of any party to any other party except as
provided in Section 9 here of.
SECTION 11. Information Supplied By Underwriter. The
statements set forth in the last paragraph on the front cover page, the
second paragraph on the inside cover page and the second, third and
fourth sentences of the first paragraph, the second sentence of the
second paragraph and the third, fifth and sixth paragraphs under the
heading "Underwriting" in any Preliminary Prospectus or the Prospectus
(to the extent such statements relate to the Underwriter) constitute the
only information fur nished by the Underwriter to the Depositor or the
Borrower for the purposes of Sections 1(a)(ii) and 8 hereof. The
Underwriter confirms that such statements under the heading
"Underwriting" in the Prospectus (to such extent) are correct.
SECTION 12. Notices. Notice given pursuant to any of the
provisions of this Agreement shall be in writing and shall be mailed or
delivered (a) to the Depositor at:
Citicorp North America, Inc.
399 Park Avenue
New York, New York 10043
Attention: Mark Rhodes, Esq.
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: F. Eugene Hiigel, Esq.
or (b) to the Borrower at:
Empresa Colombiana de Petroleos
Santa Fe de Bogota, Colombia
Attention: Felix Betancourt Aduen
with a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: Roger Thomas, Esq.
or (c) to the Underwriter at:
Citicorp Securities, Inc.
399 Park Avenue, 6th Floor
New York, New York 10043
Attention: Asset Securitization Unit
with a copy to:
Citibank, N.A.
399 Park Avenue
New York, New York 10043
Attention: Richard Sider, Esq.
Vice President
Any notice given hereunder may be made by telecopier,
telephone or telegraph, but if so made shall be subsequently confirmed in
writing.
SECTION 13. Successors. This Agreement shall inure to the
benefit of and shall be binding upon the Underwriter, the Depositor, the
Borrower and their respective successors and legal representatives, and
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the
indemnities of the Borrower contained in Section 8 of this Agreement
shall also be for the benefit of the directors of the Depositor and the
officers of the Depositor who have signed the Registration Statement and
any person or persons who control the Depositor or the Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and (ii) the indemnities of the Underwriter contained in Section 8 of
this Agreement shall also be for the benefit of the directors of the
Depositor and the officers of the Depositor who have signed the
Registration Statement and any person or persons who control the
Depositor or the Borrower within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act. No purchaser of Certificates from the
Underwriter shall be deemed a successor because of such purchase.
SECTION 14. Submission to Jurisdiction and Service of
Process. The Borrower irrevocably agrees that any legal action or
proceeding arising out of or relating to this Agreement, may be
instituted in the United States of America in any federal or State court
sitting in the State of New York and the Borrower, in respect of itself
and its properties and revenues, irrevocably submits to the non-exclusive
jurisdiction of these courts in any such action or proceeding. The
Borrower irrevocably waives any objection it may have now or hereafter to
the laying of venue of any such legal action or proceeding in any federal
or State court sitting in the Borough of Manhattan of The City and State
of New York and any claim that such legal action or proceeding has been
brought in an inconvenient forum. The Borrower irrevocably appoints CT
Corporation System,whose office is currently at 1633 Broadway, New York,
New York 10019, United States of America, as its agent to receive on
behalf of itself and its properties and revenues service of process in
these jurisdictions in any such action or proceeding. The Borrower also
irrevocably consents to such service upon it by the mailing of copies
thereof by U.S. air mail or courier to the Borrower at its address set
forth in Section 12 hereof. The foregoing provisions shall not limit the
rights of the Underwriter to bring any such action or proceedings or to
obtain execution on any judgment rendered in any such action or
proceeding in any other appropriate jurisdiction or in any other manner
provided by law. The Borrower agrees that final judgment against it in
any legal action or proceeding arising out of or relating to this
Agreement, the Promissory Note or the Credit Agreement shall be
conclusive and may be enforced in any other jurisdiction within or
outside the United States by suit on the judgment, a certified or
exemplified copy of which judgment shall be conclusive evidence thereof
and of the amount of its indebtedness, or by such other means provided by
law. The Borrower represents and warrants that the courts of the Republic
of Colombia would give effect to and enforce a judgment obtained outside
the Republic of Colombia through a procedural system provied for under
Colombian law known as "exequator" subject to the provisions of Article
693 of the Colombian Civil Procedure Code.
SECTION 15. Waiver of Sovereign Immunity. The Borrower
acknowledges and agrees that the activities contemplated by the
provisions of this Agreement are commercial in nature rather than
governmental or public, and therefore acknowledges and agrees that it is
not entitled to any right of immunity on the grounds of sovereignty or
otherwise with respect to such activities or in any legal action or
proceeding arising out of or relating to this Agreement, in respect of
itself and its properties and revenued, expressly and irrevocably waives
any such right of immunity which may now or hereafter exist (including
any immunity from any legal process, from the jurisdiction of any court
or from any execution or attachment in aid of execution prior to judgment
or otherwise) or claim thereto which may now or hereafter exist, and
agrees not to assert any such right or claim in any such action or
proceeding, whether in the United States of America or otherwise.
SECTION 16. APPLICABLE LAW. THIS AGREEMENT SHALL BE DEEMED TO
HAVE BEEN MADE IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION
OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS
OF LAWS, EXCEPT THAT ALL MATTERS CONCERNING THE EXECUTION AND DELIVERY BY
THE BORROWER OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF COLOMBIA.
SECTION 17. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Depositor and the Borrower a
counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the Underwriter, the
Depositor and the Borrower in accordance with its terms.
Very truly yours,
CITICORP NORTH AMERICA, INC.,
as Depositor
By:------------------------------------
Name:
Title:
EMPRESA COLOMBIANA DE PETROLEOS
By:------------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
CITICORP SECURITIES, INC.
By: _________________________________
Name:
Title:
EXHIBIT 99.1
GUARANTEED TRADE TRUSTS
---------------------------
MASTER TERMS OF TRUST
---------------------------
between
CITIBANK, N.A.,
as Trustee
and
CITICORP NORTH AMERICA, INC.,
as Depositor
Dated as of November 26, 1997
MASTER TERMS OF TRUST
GUARANTEED TRADE TRUSTS
MASTER TERMS OF TRUST dated as of November 26, 1997, between
Citibank, N.A., a national banking associa tion, as trustee (the
"Trustee"), and Citicorp North America, Inc., a Delaware corporation (the
"Depositor").
ARTICLE II
Definitions
Section 2.2 Definitions. As used in the Declaration of Trust
of which these Master Terms of Trust are a part, the following terms
shall, unless otherwise provided in the Supplement constituting a part of
the Declaration, have the following meanings:
"Advance" shall have the meaning assigned to such term in the
Liquidity Agreement, if any.
"Advance Rate" shall mean the rate of interest borne by
outstanding Advances made by the Liquidity Provider as set forth in any
applicable Liquidity Agree ment.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under
direct or indirect common control with, such specified Person. For the
purposes of this definition, "control," when used with respect to any
specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Assignment" shall mean the Assignment deliv ered by the
Trustee, on behalf of the Trust, to Eximbank as provided in Section 5.5,
in substantially the form attached to the Guarantee Agreement.
"Available Funds" shall have the meaning as signed in Section
5.3(a).
"Beneficiary" shall have the meaning assigned in Section
8.11.
"Book-Entry Certificates" shall mean Certificates in
book-entry form evidenced by a global Certificate registered in the name
of a nominee of DTC or a successor Depository.
"Borrower" shall have the meaning specified in the
Supplement.
"Borrower Payment Demand" shall mean any written demand,
delivered by the Trustee as provided herein, executed by a Responsible
Officer of the Trustee and ad dressed to the Borrower, for payment of
amounts due and unpaid under the Promissory Notes, in the form of Exhibit
B-1 to the Supplement.
"Borrower Payment Demand Date" shall mean the second Business
Day following each Note Payment Date.
"Business Day" shall mean any day except one on which the
Federal Reserve Bank of New York and banks in New York City are closed.
"Certificate" shall have the meaning specified in the
Supplement.
"Certificate Interest Rate" shall have the meaning specified
in the Supplement.
"Certificate Payment Date" shall have the meaning specified
in the Supplement.
"Certificate Register" shall mean the certificate register
maintained pursuant to Section 6.2.
"Certificate Registrar" shall have the meaning assigned in
Section 6.2.
"Certificateholder" shall mean the Person in whose name a
Certificate is registered on the Certificate Register, except that,
solely for the purposes of giving any consent, waiver, request or demand
pursuant to the Declaration, any Certificate owned by the Borrower or any
of its Affiliates shall be deemed not to be outstanding and shall not be
taken into account in determining wheth er the requisite aggregate
Principal Amount necessary to effect any such consent, waiver, request or
demand has been obtained. In determining whether the Trustee shall be
protected in relying upon any consent, waiver, request or demand of
Certificateholders, only Certificates that are registered in the name of
the Borrower or any of its Affiliates or which a Responsible Officer of
the Trustee actually knows are so owned shall be deemed not outstand ing.
"Closing Date" shall have the meaning specified in the
Supplement.
"Code" shall mean the Internal Revenue Code of 1986, as in
effect from time to time.
"Credit Agreement" shall have the meaning specified in the
Supplement.
"Commission" shall mean the Securities and Exchange
Commission.
"Declaration" shall have the meaning specified in the
Supplement.
"Definitive Certificate" shall mean a Certificate in
definitive form.
"Depository" shall mean DTC (as hereinafter defined) or any
successor securities depository for the Book-Entry Certificates.
"DTC" means The Depository Trust Company, a limited-purpose
trust company organized under the laws of the State of New York, as
Depository.
"DTC Letter" means the letter of representations executed by
the Trustee and the Depositor, on behalf of the Trust, and acknowledged
by DTC in the form prescribed by DTC.
"Eligible Investments" shall mean non-callable non-prepayable
bonds, notes, bills or similar obligations (i) issued or guaranteed by
the United States of America or an agency or instrumentality thereof or a
corporation sponsored thereby (including, without limitation, the Federal
Home Loan Banks, the Federal National Mortgage Association and the
Federal Home Loan Mortgage Corporation); (ii) that are either (a) backed
by the full faith and credit of the United States of America, (b) rated
in the highest long-term debt rating category of each of the Rating
Agencies, or (c) rated in the highest short-term debt rating category of
each of the Rating Agencies; (iii) purchased from the issuer thereof as
principal; and (iv) that mature on or prior to the Business Day immediately
preceding the next succeeding Certificate Payment Date.
"Event of Default" shall have the meaning assigned in the
Credit Agreement.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Eximbank" shall mean the Export-Import Bank of the United
States, or any successor thereto.
"Eximbank Payment Account" shall mean the segregated,
non-interest-bearing trust account maintained by the Trustee in its trust
capacity in the name of the Trust at the Trustee's Principal Corporate
Trust Office for the benefit of the Certificateholders and the Liquidity
Provider, if any, in respect of any Advance made under the Liquidity
Agreement, in accordance with Section 3.6(a)(ii).
"Eximbank Payment Certificate" shall mean the certificate, in
substantially the form of Annex D to the Guarantee Agreement, issued by
Eximbank to the Trust in accordance with the Guarantee Agreement upon the
occur rence of the Eximbank Payment Event, pursuant to which Eximbank
agrees to make timely payments to the Trust of the Guaranteed Amounts due
on the Promissory Notes, on each Note Payment Date, until the scheduled
maturity thereof.
"Eximbank Payment Demand" shall mean any written demand,
delivered by the Trustee as provided herein, executed by a Responsible
Officer of the Trustee and ad dressed to Eximbank, for payment of amounts
due and unpaid under the Guarantee, in the form of Exhibit B-2 to the
Supplement.
"Eximbank Payment Demand Date" shall mean, with respect to
any Note Payment Date upon which the Borrower fails to pay an installment
of principal of or interest on any of the Promissory Notes, the first
Business Day occurring on or after the later of (i) the fifteenth (15th)
calendar day following the date upon which the Trustee delivered a
Borrower Payment Demand to the Borrower and the Guarantor, if any, in
accordance with Sections 3.3(a)(ii) and 5.2(a)(i) and (ii) the
thirty-first (31st) calendar day following such Note Payment Date.
"Eximbank Payment Event" shall have the meaning set forth in
Section 5.5.
"Guaranteed Amounts" shall have the meaning specified in the
Guarantee Agreement.
"Guarantee" shall mean the obligation of Eximbank to make
payment on the Promissory Notes as evidenced by the guarantee legend
endorsed on each of the Promissory Notes by Eximbank.
"Guarantee Agreement" shall have the meaning specified in the
Supplement.
"Guarantor" shall have the meaning, if any, specified in the
Supplement.
"Information Request" shall mean an information request from
a beneficial owner of a Certificate in substantially the form of Exhibit
E to a Supplement.
"Initial Amount" shall mean (i) for the Promissory Notes,
the initial aggregate principal amount of the Promissory Notes, and (ii)
for any Certificate, the denomination thereof upon original issuance,
which shall be $1,000 or any integral multiple of $1 in excess there of.
"Interest" shall mean, for any Certificate, an amount payable
to the Certificateholder for a six-month Interest Period calculated by
multiplying the Principal Balance of such Certificate during such
Interest Period by the Certificate Interest Rate and dividing the result
by two. Interest on a Certificate for a period of less than six months
(without giving effect to any Certificate Payment Date adjustments) shall
be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
"Interest Period" shall mean, for any Certifi cate, the
period from and including the most recent Certificate Payment Date (or,
with respect to the Initial Certificate Payment Date, from and including
the Closing Date) to but excluding the next succeeding Certificate
Payment Date.
"Interest Portion", on any Certificate Payment Date, shall
mean the remaining portion of the Available Funds which represents or is
attributable to payment of interest on the Promissory Notes after payment
of the Trustee Basic Fee, if any, pursuant to Sections 5.3 and 7.6.
"Investment Company Act" shall mean the Invest ment Company
Act of 1940, as amended.
"Investment Earnings" shall mean any amounts in the Trust
Account or Eximbank Payment Account, as the case may be, which represent
earnings on Eligible Investments.
"Investment Name" shall have the meaning specified in the
Supplement.
"Liquidity Agreement" shall have the meaning specified in the
Supplement.
"Liquidity Provider" shall have the meaning specified in the
Supplement.
"Master Terms of Trust" shall mean these Master Terms of
Trust.
"Note Interest Rate" shall mean, at any time, the then
applicable per annum interest rate borne by the Promissory Notes as
stated therein.
"Note Payment Date" shall have the meaning specified in the
Supplement.
"Notice of Drawing" shall have the meaning specified in the
Supplement.
"Opinion of Counsel" shall mean a written opinion of counsel
and complying with the requirements of Section 8.10.
"Paying Agent" shall have the meaning specified in Section
6.2(b).
"Payment Deficiency" shall mean, with respect to payments on
the Promissory Notes in respect of a Note Payment Date, the existence of
a positive amount when subtracting (x) all amounts paid by the Borrower
in respect of the Promissory Notes on such Note Payment Date from (y) all
amounts due on the Promissory Notes on such Note Payment Date.
"Payment Demand" shall mean a Borrower Payment Demand, an
Eximbank Payment Demand or a Preference Pay ment Demand.
"Percentage Interest" shall mean, with respect to any
Certificate, the percentage determined by dividing the Initial Amount of
such Certificate by the aggregate Initial Amounts of all Certificates and
multiplying such result by 100. The Percentage Interest of any Certificate
shall be rounded, if necessary, to the nearest one-hundred
thousandth of one percent.
"Person" shall mean any legal person, including any
individual, corporation, partnership, joint venture, association, joint
stock company, trust, unincorporated organization, or government or any
agency or political subdivision thereof.
"Place of Payment" shall mean the place or places designated
pursuant to Section 6.2(b) where the final distribution in respect of
each Certificate will be made upon presentation and surrender thereof.
"Preference Payment Demand" shall mean any written demand,
delivered by the Trustee as provided herein, executed by a Responsible
Officer of the Trustee and addressed to Eximbank, for payment of amounts
paid under the Promissory Notes, but rescinded or compelled to be
returned, in the form of Exhibit B-3 to the Supplement.
"Principal" shall mean, when used in reference to a
distribution made in respect of a Certificate on any Certificate Payment
Date, an amount calculated by multi plying the aggregate amount of
principal due and payable on the Promissory Notes on the Note Payment
Date immedi ately preceding such Certificate Payment Date by the
Percentage Interest represented by such Certificate.
"Principal Amount" shall mean, for any date with respect to
any Certificate, the Principal Balance thereof on such date.
"Principal Balance" shall mean, for any date, with respect to
the Promissory Notes, the Initial Amount of the Promissory Notes reduced
by all payments of principal on the Promissory Notes and, with respect
to any Certificate, the Initial Amount of such Certificate less all
distributions of Principal to the Certificateholder made prior to that
date.
"Principal Corporate Trust Office" shall mean the principal
office of the Trustee at which the Trustee administers its trust
activities, which office at the date of the making of the Declaration is
located at the address set forth in Section 8.4.
"Promissory Notes" shall have the meaning specified in the
Supplement.
"Rating Agencies" shall have the meaning speci fied in the
Supplement.
"Record Date" shall have the meaning specified in the
Supplement.
"Required Trustee Ratings" shall have the
meaning specified in the Supplement.
"Responsible Officer" shall mean, with respect to the
Trustee, any officer within the Principal Corporate Trust Office (or any
successor group) of the Trustee including any Vice President, any
Assistant Vice President, any Senior Trust Officer, any Trust Officer
and also means with respect to a particular matter, any other officer in
the Principal Corporate Trust Office to whom such matter is referred
because of such officer's knowl edge of, and familiarity with, the
particular matter.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Semi-annual Report" shall have the meaning assigned in
Section 4.1.
"Special Payment Amount" shall have the meaning assigned in
Section 3.7.
"Special Payment Date" shall have the meaning assigned in
Section 5.3(d).
"Special Record Date" shall have the meaning assigned in
Section 5.3(d).
"Special Trustee Payment Date" shall have the meaning
assigned in Section 3.7.
"Subsequent Amounts" shall have the meaning specified in
Section 5.3(b).
"Supplement" shall mean the supplement executed by the
Trustee and the Depositor, which supplement establishes a Trust and
incorporates these Master Terms of Trust.
"Trust" shall have the meaning specified in the Supplement.
"Trust Account" shall mean the segregated,
non-interest-bearing trust account maintained by the Trustee in its trust
capacity in the name of the Trust at the Trustee's Principal Corporate
Trust Office for the benefit of the Certificateholders and the Liquidity
Provider, if any, in respect of any Advance made under the Liquidity
Agreement, in accordance with Section 3.6(a)(i).
"Trust Property" shall mean the Promissory Notes and any
Eximbank Payment Certificate, all monies due or to become due with
respect to the Promissory Notes or the Eximbank Payment Certificates, all
amounts payable with respect to, and all rights under, the Guarantee and
the Guarantee Agreement and all monies due or to become due with respect
thereto.
"Trustee" shall mean Citibank, N.A., until any appointment of
a successor trustee pursuant to Section 7.8 or any succession described
in Section 7.10 and thereafter shall mean the trustee appointed pursuant
to Section 7.8 or the successor to the former trustee pursu ant to
Section 7.10, respectively.
"Trustee Basic Fee" shall have the meaning specified in the
Supplement.
"Trustee's Fees" shall mean the Trustee Basic Fee and the
Trustee Supplemental Fee.
"Trustee Supplemental Fee" shall mean (x) if no Liquidity
Agreement has been delivered, an amount payable to the Trustee on each
Certificate Payment Date equal to the remaining portion, after
distribution to Certificateholders of all amounts then due on the
Certificates, of the sum of (i) the amount of interest on any overdue
installment of principal or interest received by the Trustee from the
Borrower in accordance with the provisions of the Promissory Notes
accruing from such Note Payment Date to the date of payment thereof by
the Borrower and (ii) the amount of interest on any overdue installment
of principal or interest received by the Trustee from Eximbank pursuant
to the Guarantee accruing from such Note Payment Date to the related
Certificate Payment Date (it being agreed that until the Certificate
holders have been paid in full all amounts due on the Certificates on the
related Certificate Payment Date, all amounts of interest received from
the Borrower or Eximbank pursuant to clause (i) or (ii) of this
definition shall be for the benefit of and distributable to the
Certificateholders and it being further agreed that with respect to any
Certificate Payment Date with respect to which the Trustee has failed to
make on a timely basis any Payment Demand pursuant to Section 3.3 or
Section 5.2, the Trustee shall not be entitled to any Trustee
Supplemental Fee) and (y) if a Liquidity Agreement has been delivered,
$0.
"Trustee's Fees and Expenses" shall have the meaning assigned
in Section 7.6.
Certain additional capitalized terms shall have the meanings
assigned thereto in other provisions hereof. Any term defined both herein
and in the Supplement shall have the meaning specified in the Supplement.
All references herein to Articles or Sections shall be to the
Articles or Sections of these Master Terms unless such Article or Section
shall appear in the Supplement, in which event such reference shall be to
the Article or Section as it appears in the Supplement.
Section 1.2 Assumptions Regarding the Promis sory Notes. For
purposes of determining the Principal, Interest, Note Payment Dates,
Guaranteed Amounts, any amounts payable to the Certificateholders and the
Trustee and any other amounts calculated on the basis of the Promissory
Notes and the terms thereof, any such determination shall be made
without regard to any tender of the Promissory Notes to Eximbank pursuant
to Section 5.2(a)(ii), 5.2(b), 5.2(c) or 5.6 or any acceleration of the
Promissory Notes by Eximbank.
ARTICLE II
Delivery of the Promissory Notes
and the Other Trust Property
Section 2.1 Delivery of the Promissory Notes and the Other
Trust Property. On the Closing Date, but subject to satisfaction of the
conditions set forth in Section 2.2, the Depositor shall deliver the
Promissory Notes to the Trustee, and the Trustee, on behalf of the Trust,
shall take and hold the Promissory Notes in trust and the Trustee shall
on behalf of the Trust execute and deliver to the Depositor duly
authenticated Certificates in a principal amount equal in the aggregate
to the Initial Amount of the Promissory Notes and representing 100% of
the beneficial interest in the Trust. Such Certificates shall be in
authorized denominations. Except as expressly set forth in the
Declaration, the acquisition by the Trustee of the Promissory Notes, and
the declaration of the Trust under the Declaration, shall not constitute
and is not intended to result in an assumption by the Trustee, any
Certificateholder or any Liquidity Provider of any obligation of the
Borrower, Eximbank or any other Person in connection with the Promissory
Notes, the Credit Agreement, the Guarantee or the Guarantee Agreement, or
under any agreements or instruments relating to any of them.
Section 2.2 Conditions to Issuance of Certificates. (a) As a
condition to the issuance of the Certificates, the Trustee shall have
received, or shall receive simultaneously, with the issuance of the
Certificates, on the Closing Date, copies of all of the following legal
opinions, which opinions shall be addressed to the Trustee or delivered
to the Trustee with a letter stating that the Trustee shall be entitled
to rely on such accompanying opinions as if they were addressed to the
Trustee:
(i) the opinion of counsel for the Trustee, to the
effect set forth in an exhibit to the applicable Supplement;
(i1) the opinion of counsel to the Borrower, which
counsel shall be admitted to the practice of law in the country of
the Borrower, to the effect set forth in an exhibit to the
applicable Supplement;
(iii) the opinion of special U.S. counsel for the
Borrower, to the effect set forth in an exhibit to the applicable
Supple ment;
(iv) the opinion of Skadden, Arps, Slate, Meagher &
Flom LLP, special coun sel to the Trust, to the effect set forth in
an exhibit to the applicable Supplement;
(v) the opinion of the General Counsel of Eximbank, to
the effect set forth in an exhibit to the applicable Supplement;
and
(vi) if the applicable Supplemental requires that a
Liquidity Agreement be delivered, an opinion of counsel to the
Liquidity Provider to the effect set forth in the applicable
Supplement.
(b) As a further condition to the issu ance of the
Certificates, the following events shall have occurred prior to, or shall
occur simultaneously with, the issuance of the Certificates:
(i) delivery by the Depositor of the Promissory Notes,
with the Guarantee endorsed thereon, to the Trustee on behalf of
the Trust;
(ii) delivery by the Depositor of a fully executed copy
of the Guarantee Agreement and any amendments thereto to the
Trustee on behalf of the Trust;
(iii) delivery by the Depositor of a fully executed copy
of the Credit Agreement and any amendments thereto to the Trustee
on behalf of the Trust;
(iv) if the applicable Supplement requires that a
Liquidity Agreement be de livered, execution and delivery of such
Liquidity Agreement by the Liquidity Provider, the Borrower and
the Trustee, on behalf of the Trust; and
(v) letters from each of the Rating Agencies stating
that the Certificates have been rated in the highest rating
category of such Rating Agency.
(c) Subject to the satisfaction of the foregoing
conditions, the Trustee shall on the Closing Date deliver or cause to be
delivered to, or upon the written order of, the Depositor duly executed
and authen ticated Certificates in authorized denominations equal in the
aggregate to the Initial Amount of the Promissory Notes and representing
100% of the beneficial ownership interest in the Trust.
Section 2.3 Purposes of Trust. Notwithstanding anything to
the contrary contained herein, the Trust shall not engage in any activity
other than accepting the Promissory Notes and the other Trust Property in
accor dance with the Supplement, holding the Promissory Notes and the
other Trust Property or, in the event the Eximbank Payment Event occurs,
the Eximbank Payment Certificate (or any payments, proceeds or funds in
re spect of any thereof), issuing Certificates, agreeing to and accepting
the Liquidity Agreement, if any, performing its obligations under the
Declaration, the Guarantee Agreement and the Liquidity Agreement, if any,
and engaging in other activities related thereto and described or
contemplated herein or reasonably incident to any of the foregoing.
Section 2.4 No Transfer of the Promissory Notes and the Other
Trust Property by the Trustee. The Trustee shall not sell, assign, pledge
or otherwise transfer the Promissory Notes, the Credit Agreement, the
Guarantee, the Guarantee Agreement, the Eximbank Payment Certificate, if
any, the Liquidity Agreement, if any, or any interest of the Trust
therein, to any Person or Persons, except to Eximbank as provided in
Section 5.5 or to a successor trustee as provided in Section 7.8 or as
otherwise permitted in accordance with the Declaration, notwithstanding
any default under the Promissory Notes, the Guarantee or the Liquidity
Agreement, if any. This Section 2.4 shall not be construed to prohibit
transfers of the Certificates.
Section 2.5 Authority of Trustee. The Trustee is hereby
specifically authorized to do the following on behalf of the Trust: if so
provided in the applicable Supplement, to acknowledge and agree to the
Credit Agreement; if so provided in the applicable Sup plement, to
execute and deliver the Guarantee Agreement; to establish and maintain
the Trust Account and the Eximbank Payment Account hereunder; to accept
delivery of the Promissory Notes and the other Trust Property; if so
provided in the applicable Supplement, accept and agree to the Liquidity
Agreement, to execute and deliver cer tificates, documents and other
written instruments in connection with the creation of the Trust on the
Closing Date; to perform all other acts specifically provided for in the
Declaration. The Trustee is authorized to execute and deliver any
amendments to any of the documents rferred to or contemplated by the
preceding sentence; provided, however, the Trustee shall not agree to any
amendment of the Promissory Notes or the Credit Agreement, or consent to
any deviation from the respective provisions thereof, without the prior
written consent of Eximbank and the Liquidity Provider, if any; and
provided, further, after the initial issuance of the Certificates, the
Trustee shall not agree, without the prior written consent of the holders
of 100% of the Certificates, to any amendment of the Promissory Notes,
the Credit Agreement, the Guarantee or the Guarantee Agree ment if such
amendment would diminish, delay or adversely affect the distributions
which would otherwise be made to Certificateholders pursuant to the
Declaration (it being understood that, in determining whether any
proposed amendment would diminish, delay or adversely affect the
distributions which would otherwise be made to Certificateholders
pursuant to the Declaration that the Trustee may obtain and conclusively
rely upon an Opinion of Coun sel delivered (at the expense of the Person
requesting such amendment) pursuant to Section 7.2(c)) or, if such
amendment would, in and of itself, result in the reduc tion,
qualification or withdrawal of the rating then as signed to the
Certificates by either of the Rating Agen cies; and provided, further, no
such amendment, without the prior written consent of the holders of 100%
of the Certificates, as evidenced by an Opinion of Counsel (delivered at
the expense of the Person requesting such amendment), shall cause the
Trust to be treated other than as a grantor trust for federal income tax
purposes.
ARTICLE III
Additional Obligations of the Trustee
Section 3.1 General. From time to time hereafter, the
Trustee is hereby authorized to perform any acts which are described in
the Declaration as obligations of the Trustee, or which are necessary or
appropriate for the performance of such obligations, or which are
otherwise contemplated herein as acts required of the Trustee.
Section 3.2 Subsequent to the Closing Date. Following the
issuance of the Certificates, the Trustee will, in addition to any other
obligations or agreements of the Trustee contained in the Declaration, do
the following:
(i) prepare and file on behalf of the Depositor with
the Commission any information, documents or reports, if any,
required by the Exchange Act relating to the Trust and the
Depositor hereby appoints the Trustee as its attorney-in-fact for
the purpose of making such filings with respect to the Trust;
provid ed, however, that the Depositor shall file or cause to be
filed with the Commission a Current Report on Form 8-K in
connection with the initial issuance of the Certificates;
(ii) at the Depositor's written request, provide to the
Depositor any information, documents or reports as are in the
possession of the Trustee and are required by the Depositor for any
filing required to be made by the Depositor with the Commission or
applicable state authorities by the Securities Act, the Exchange
Act, the Investment Company Act, or any state Blue Sky laws,
relating to the Trust, the Credit Agreement, the Promissory Notes,
the Guarantee, the Guarantee Agreement, the Certificates, the
Liquidity Agreement, if any, or the Percentage Interests
represented by the Certif icates;
(iii) provide to Eximbank any information reasonably
requested by it in the possession of the Trustee concerning the
Trust, the Promissory Notes, the Credit Agreement, the Guarantee,
the Guarantee Agreement, the Eximbank Payment Certificate, the
Certificates, the Certificateholders or the compliance by the
Trustee with its obligations hereunder or under any of the other
documents referred to herein;
(iv) to the extent made available to the Trustee, make
generally available to the Certificateholders and to the
Representatives (as defined in the Underwriting Agreement) an
earning statement or statements of the Trust that satisfies the
provisions of Section 11(a) of the Securities Act of 1933, as amend
ed, and Rule 158 promulgated thereunder;
(v) comply with all obligations of a "Noteholder"
contained in the Credit Agreement and the Guarantee Agreement; and
(vi) provide to the Depositor copies of filings made by
the Trustee pursuant to clause (i) of this Section 3.2 and any
correspondence with the Commission with respect thereto.
The Depositor shall provide to the Trustee a copy of the
no-action request made to the Commission on June 21, 1995 seeking relief
for the Trusts from certain reporting requirements under the Exchange Act
and a copy of the response of the Commission dated June 23, 1995 granting
such no-action relief. Notwithstanding any other provision of this
Agreement, the Trustee has not assumed, and shall not by its performance
hereunder be deemed to have assumed, any of the duties or obligations of
the Depositor or any other Person with respect to (a) the registration of
the Certificates pursuant to the Securities Act or any state Blue Sky
laws, (b) the sale of or the direction to issue the Certificates, or (c)
the compliance with the Securities Act, the Investment Company Act or
any applicable state or federal securities or other laws (other than the
Exchange Act) including with out limitation any requirement to update the
registration statement or prospectus relating to the Certificates in
order to render the same not materially misleading to investors.
Section 3.3 Notices by the Trustee to the Borrower, the
Guarantor, the Liquidity Provider and Eximbank. (a) The Trustee shall,
prior to the Eximbank Payment Event, if on any Note Payment Date a
Payment Deficiency exists:
(i) if a Liquidity Agreement has been delivered with
respect to the related Trust and unless payment in full of all
amounts then due and payable on the Promissory Notes has been
received by the Trustee prior to such time, no later than 10:30
a.m., New York City time, on such Note Payment Date, the Trustee
shall deliver to the Liquidity Provider, if any (with copies to the
Borrower and the Guarantor, if any), by telegram, telex, facsimile
transmission or hand delivery a Notice of Drawing executed by a
Responsible Officer of the Trustee and setting forth the amounts
that were due and payable by the Borrower on such Note Pay ment
Date and the amounts which the Borrower and the Guarantor, if any,
failed to pay as of such Note Payment Date and otherwise complying
with the requirements for such Notice of Drawing set forth in the
Liquidity Agreement;
(ii) unless, prior to the second Business Day following
such Note Payment Date, payment in full of all amounts due on the
Promissory Notes (other than pursuant to an Advance) has been
received by the Trustee , the Trustee shall deliver a Borrower
Payment Demand, duly executed by a Responsible Officer of the
Trustee and dated the Borrower Payment Demand Date, by telegram,
telex, facsimile transmission, air courier or hand delivery to the
Borrower, not later than 9:30 a.m., New York City time, on such
second Business Day following such Note Payment Date with a copy to
the Guarantor, if any, the Liquidity Provider, if any, and
Eximbank, setting forth the amounts that were due and payable by
the Borrower on such Note Payment Date and the amounts which the
Borrower has as of such date failed to pay;
(iii) unless, at or prior to 9:30 a.m., New York City
time, on the Eximbank Pay ment Demand Date, payment in full of all
amounts due on the Promissory Notes (other than pursuant to an
Advance) has been received by the Trustee, the Trustee shall file
with and deliver to Eximbank an Eximbank Payment Demand, duly
executed by a Responsible Officer of the Trustee and dated the
Eximbank Payment Demand Date, by hand delivery not later than 5:00
p.m., New York City time, on such Eximbank Payment Demand Date (or,
if an Liquidity Agree ment has been delivered, by air courier or
hand delivery, not later than 12:00 noon, New York City time, on
the Business Day following such Eximbank Payment Demand Date with a
copy to the Liquidity Provider), setting forth the amounts that
were due and payable by the Borrower on such Note Payment Date and
the amounts which the Borrower failed to pay as of such date;
(iv) in the event the Trustee receives a payment from
the Borrower on the Promissory Notes (other than pursuant to an
Advance) at any time after the delivery of an Eximbank Payment
Demand with respect to such payment pursuant to Section 3.3(a)(ii),
the Trustee shall promptly deliver a notice, exe cuted by a
Responsible Officer of the Trustee, by telegram, telex, facsimile
transmission (confirmed by telephone) or hand delivery to Eximbank,
with a copy to the Guarantor, if any, and the Liquidity Provider,
if any, stating that the Borrower made a payment on the Promissory
Notes in respect of the immediately pre ceding Note Payment Date
and setting forth the date such payment was made and the amount of
such payment.
(b) The Trustee shall, at or prior to 9:30 a.m., New
York City time, on the second Business Day following the day on which the
Trustee receives notice that any payment with respect to the Promissory
Notes, or any part thereof, received by the Trustee, the Trust, any
Certificateholder or the Liquidity Provider, if any, is rescinded or is
compelled to be returned by law as the result of the bankruptcy or
insolvency of the Borrower or is rescinded or compelled to be returned as
a result of any law, regulation or decree applicable to the Borrower,
file with and deliver to Eximbank a Preference Payment Demand duly
executed by a Responsible Officer of the Trustee and dated the date of
such delivery, by hand delivery, setting forth the amounts of such
payment that were rescinded or compelled to be returned.
(c) If a Notice of Drawing is delivered to the
Liquidity Provider by the Trustee pursuant to Section 3.3(a)(i), a copy
thereof shall be promptly delivered by the Trustee to the Borrower and
the Guarantor, if any. If any Eximbank Payment Demand or Preference
Payment Demand is delivered to Eximbank by the Trustee pursuant to
Section 3.3(a)(iii) or 3.3(b), a copy thereof shall be promptly delivered
by the Trustee to the Borrower, the Guarantor, if any, and the Liquidity
Pro vider, if any.
(d) The Trustee shall promptly notify the
Certificateholders, the Liquidity Provider, if any, the Borrower and the
Guarantor, if any, in the event that Eximbank does not pay any amounts
due under the Guarantee in accordance with the terms thereof and, if any
failure in the payment of principal or interest in respect of the
Certificates occurs and is continuing, the Trustee shall mail to the
Certificateholders, the Borrower and the Guarantor, if any, a notice
thereof prior to the close of business on the second Business Day
following such failure.
(e) The Trustee shall promptly notify the
Certificateholders, the Borrower and the Guarantor, if any, in the event
that the Liquidity Provider, if any, does not pay any amounts due under
the Liquidity Agree ment in accordance with the terms thereof.
Section 3.4 Facilitation of Borrower Payments. The Trustee
shall provide the Borrower with any information in its possession
reasonably requested by the Borrower to facilitate payment by the
Borrower of the Prom issory Notes.
Section 3.5 Enforcement of Guarantee, the Eximbank Payment
Certificate and Liquidity Agreement. The Trustee will, at its own
expense, take all necessary steps to state a claim under the Guarantee,
the Eximbank Payment Certificate and Liquidity Agreement, if any, and
will, at the expense of the Certificateholders, take such other actions
as shall be necessary to enforce the Guar antee, the Eximbank Payment
Certificate and the Liquidity Agreement, if any, in accordance with their
respective terms. The Trustee will provide (i) Eximbank with any
information in its possession requested by Eximbank to facilitate payment
by Eximbank pursuant to the Guarantee or the Eximbank Payment Certificate
and (ii) the Liquidi ty Provider, if any, with any information in its
posses sion requested by the Liquidity Provider to facilitate payment by
the Liquidity Provider pursuant to the Liquid ity Agreement.
Section 3.6 Maintenance of the Trust Account and the
Eximbank Payment Account. (a) (i) The Trustee shall establish and
maintain a trust account (the "Trust Account") as a segregated,
non-interest-bearing trust account in its trust capacity for the benefit
of the Certificateholders and the Liquidity Provider, if any, which Trust
Account shall become part of the corpus of the Trust. The Trustee shall
immediately deposit in the Trust Account all payments it receives with
respect to the Promissory Notes, but excluding amounts received with
respect to the Guarantee or the Eximbank Payment Certificate.
(ii) The Trustee shall establish and maintain a trust
account (the "Eximbank Payment Account") as a segregated,
non-interest-bearing trust account in its trust capacity for the benefit
of the Certificate holders and the Liquidity Provider, if any, which
Eximbank Payment Account shall become part of the corpus of the Trust.
The Trustee shall immediately deposit in the Eximbank Payment Account all
amounts it receives from Eximbank with respect to the Guarantee or the
Eximbank Payment Certificate.
(b) (i) Unless a Liquidity Agreement has been
delivered, the Trustee shall invest the amounts re ceived from payments
on the Promissory Notes in respect of a Note Payment Date and deposited
in the Trust Account in Eligible Investments that mature not later than
the Business Day immediately preceding the next succeeding Certificate
Payment Date. Any such amounts deposited in the Trust Account shall be
invested on the date received in Eligible Investments that bear interest
from and including such date, if received in immediately available funds
prior to 12:00 noon New York City time on such date, and any such amounts
received in immediately avail able funds at or after 12:00 noon New York
City time shall be so invested on the next succeeding Business Day. Any
returns of principal or earnings on investments of such amounts received
by the Trustee prior to the next succeeding Certificate Payment Date
shall, to the extent reasonably practicable, be reinvested by the Trustee
in accordance with the provisions of this paragraph. Any investments made
by the Trustee pursuant to this para graph shall be made through the
corporate trust depart ment of the Trustee, shall mature on the Business
Day immediately preceding the next succeeding Certificate Payment Date
or, if such a maturity date is not reason ably practicable, on the date
nearest to and preceding such Certificate Payment Date that is reasonably
practicable. The Trustee shall maintain possession of any Eligible
Investments which are evidenced by an instrument from the time of
purchase until maturity or redemption. Any Eligible Investments which are
not evidenced by an instrument shall be maintained in the Investment
Name. The Trustee shall not sell, assign or otherwise transfer any
Eligible Investment prior to the maturity thereof except to preserve the
value of the corpus of the Trust. The Trustee shall not have any
liability for losses incurred in connection with investments made in
accordance with the terms of this paragraph.
(ii) If a Liquidity Agreement has been delivered,
amounts held in the Trust Account shall not be invested by the Trustee
but shall be held in the Trust Account pending distribution pursuant
hereto.
(iii) Unless a Liquidity Agreement has been delivered,
following an Eximbank Payment Event, the Trustee shall invest all amounts
received from Eximbank with respect to the Guarantee or the Eximbank
Payment Certificate in respect of such Note Payment Date and deposited in
the Eximbank Payment Account in Eligible Investments that mature not
later than the Business Day immediately preceding the next succeeding
Certificate Payment Date. Any such amounts deposited in the Eximbank
Payment Account shall be invested on the date received in Eligible
Investments that bear interest from and includ ing such date, if received
in immediately available funds prior to 12:00 noon New York City time on
such date, and any such amounts received in immediately available funds
at or after 12:00 noon New York City time shall be so invested on the
next succeeding Business Day. Any re turns of principal or earnings on
investments of such amounts received by the Trustee prior to the next
succeeding Certificate Payment Date shall, to the extent reasonably
practicable, be reinvested by the Trustee in accordance with the
provisions of this paragraph. Any investments made by the Trustee
pursuant to this para graph shall be made through the corporate trust
depart ment of the Trustee, shall mature on the next succeeding
Certificate Payment Date or, if such a maturity date is not reasonably
practicable, on the date nearest to and preceding such Certificate
Payment Date that is reasonably practicable. The Trustee shall maintain
possession of any Eligible Investments which are evidenced by an
instrument from the time of purchase until maturity or redemption. Any
Eligible Investments which are not evidenced by an instrument shall be
maintained in the Investment Name. The Trustee shall not sell, assign or
otherwise transfer any Eligible Investment prior to the maturity thereof
except to preserve the value of the corpus of the Trust. In making
investments pursuant to this paragraph, the Trustee shall verify the
validity of the instruments purchased, the absence of liens thereon and
the conveyance of good title thereto. The Trustee shall not have any
liability for losses incurred in connection with investments made in
accordance with the terms of this paragraph.
(iv) If a Liquidity Agreement has been delivered,
following an Eximbank Payment Event, any amounts deposited in the
Eximbank Payment Account shall not be invested by the Trustee but shall
be held in the Eximbank Payment Account pending distribution to the
Certificateholders or the Liquidity Provider.
(c) Unless a Liquidity Agreement has been delivered, if
the funds in the Trust Account have been invested pursuant to Section
3.6(b)(i), at the time the Trustee distributes Available Funds in
accordance with Section 5.3(a), the Trustee will distribute to the Borrower
(at such account at such bank as the Borrower shall specify to the
Trustee in writing) any amounts in the Trust Account which represent
Investment Earnings, and all such Investment Earnings, as they are earned
and accumulated, subject to the following two sentences, shall be deemed
to be held in escrow by the Trustee for the benefit of the Borrower and
at no time shall such Investment Earnings be deemed to be held in trust
for the benefit of Certificateholders. No such Investment Earnings
amounts shall be distributed to the Borrower, if at the time of the
proposed distribution (i) a delinquency in payment under the Promissory
Notes or an Event of Default consisting of a payment default shall have
oc curred and be continuing or (ii) a delinquency in payment of the
Trustee Fees and Expenses shall have occurred and be continuing. Any
amounts so withheld from the Borrower shall be applied by the Trustee to
the payment of any overdue Trustee Fees and Expenses and the remainder,
if any, shall be retained by the Trustee in the Trust Ac count until (i)
such delinquency in payment under the Promissory Notes or Event of
Default consisting of a payment default shall have been cured or the
Certificates have matured and all amounts due on the Certificates have
been paid in full, in which event such amounts will be distributed to the
Borrower, or (ii) the Trustee is directed to distribute such funds by a
court of competent jurisdiction.
(d) Unless a Liquidity Agreement has been delivered, if
the funds in the Eximbank Payment Account have been invested pursuant to
Section 3.6(b)(iii), at all times after the occurrence of an Eximbank Payment
Event, at the time the Trustee distributes Available Funds in accordance with
Section 5.3(a), the Trustee will, to the extent of then due and unpaid
Trustee's Fees and Expenses, retain for its own account any amounts in the
Eximbank Payment Account which represent Investment Earnings and shall
distribute all amounts of such Invest ment Earnings remaining after such
retention by the Trustee to Eximbank at such account as Eximbank shall specify
to the Trustee in writing. All such Investment Earnings, as they are earned
and accumulated, shall be deemed to be held in escrow by the Trustee for
the benefit of Eximbank and the Trustee and at no time shall such
Investment Earnings be deemed to be held in trust for the benefit of
Certificateholders.
Unless a Liquidity Agreement has been delivered, the Trustee
hereby agrees that, even if on any date the amount of Investment Earnings
available to the Trust ee pursuant to this Section is insufficient to pay
the then due and payable Trustee's Fee and Expenses, the Trustee shall
have no claim against the Certificatehold ers or any other funds received
or held by the Trust for payment of its Trustee's Fee and Expenses.
However, the obligation of the Borrower pursuant to any agreement between
the Trustee and the Borrower providing for the payment of such due and
unpaid portion of the Trustee's Fee and Expenses shall remain outstanding
and in full force and effect at all times until such amounts are paid in
full.
Section 3.7 Trustee Obligation (a) Upon Failure to Deliver
Payment Demand. (a) Notwithstanding any other provision herein, if the
Trustee shall fail (x) to file with and deliver to Eximbank an Eximbank
Payment Demand and related documents as provided in Sections 3.3(a)(iii),
3.3(b), 5.2(a)(ii) and 5.5 by a date which is 150 days following the Note
Payment Date to which such Eximbank Payment Demand relates or (y) to
deliver to the Borrower and the Guarantor, if any, a Borrower Payment
Demand as provided in Sections 3.3(a)(ii) and 5.2(a)(i) by a date which
is 15 days prior to such 150th day, the Trustee, in its individual
capacity and not out of the assets of the Trust, shall pay to the Trust,
on the 151st day (or, if such 151st day is not a Business day, on the
next succeeding Business Day) (the "Special Trustee Payment Date"), an
amount equal to the sum of (i) the amount payable on the Promissory Notes
with respect to the related Note Payment Date, plus (ii) (x) if any
accrued interest on an Advance at the Advance Rate has not been paid to
the Liquidity Provider, such accrued interest at the Advance Rate from
and including such Note Payment Date to, but not including, the date of
payment by the Trustee pursuant to this Section 3.7(a) or (y) interest on
such Promissory Notes, from and excluding the related Certificate Payment
Date, through and including the date on which such funds are distributed
to Certifi cateholders, at the Certificate Interest Rate, less any
amounts paid on the Promissory Notes in respect of such Note Payment Date
prior to such Special Trustee Payment Date (other than pursuant to an
Advance). The Trustee shall deposit any Special Payment Amount which is
payable pursuant to this Section 3.7 in immediately available funds into
the Trust Account on the related Special Trustee Payment Date. Upon such
deposit, the Trustee shall establish a Special Record Date and a Special
Payment Date in accordance with Section 5.3(d). On such Special Payment
Date the Trustee shall distribute the Special Payment Amount to
Certificateholders as provided herein.
(b) The obligation of the Trustee to pay the Special
Payment Amount shall be absolute, unconditional and irrevocable and such
amount shall be payable on the related Special Trustee Payment Date
without the need for any notice or demand. Notwithstanding the foregoing,
if the Trustee shall fail to pay any required Special Payment Amount on
the related Special Trustee Payment Date, any Certificateholder or the
Liquidity Provider, if any, may give the Trustee notice of such failure,
and such amount shall be payable promptly upon receipt of such notice.
ARTICLE IV
Reports
Section 4.1 Reports to Certificateholders. (a) On or before
the tenth Business Day following each Certificate Payment Date, the
Trustee shall supply to each holder of Certificates (with a copy to the
Borrower) a semi-annual report in substantially the form attached as
Exhibit D to the related Supplement (a "Semi-Annual Report") which shall
include the following information, as of such Certificate Payment Date,
with respect to the distribution by the Trust:
(i) the aggregate amounts of Principal, if any, and
Interest distributed to the Certificateholders;
(ii) the aggregate Principal Balance of the
Certificates outstanding after such distribution; and
(iii) if the amounts referred to in (i) above are less
than the amounts of prin cipal and interest paid on the Promissory
Notes or the Eximbank Payment Certificate on the related Note
Payment Date (whether as a result of a withholding tax of the
country of the Borrower or through which payments were made which
has not been grossed-up or otherwise), the amount of any such
difference and the reason or reasons therefor (as determined on
the basis of information provided to the Trustee by the Borrower or
Eximbank or otherwise actually known by a Responsible Officer of
the Trustee); and
(iv) any additional information that the Trustee elects
to include in the SemiAnnual Report in order to satisfy
requirements, if any, under the Exchange Act, as then in effect,
with respect to the mailing of periodic reports to Certificateholders.
The Semi-Annual Report shall also state that neither a
delinquency in payment under the Promissory Notes, the Liquidity
Agreement, if any, the Guarantee or the Eximbank Payment Certificate nor
any Event of Default actually known to a Responsible Officer of the
Trustee has occurred and is continuing or, if such event has occurred and
is continuing, shall specify the event and its status and the amount, if
any, paid or payable under the Guarantee. A copy of each Semi-Annual
Report shall be sent by the Trustee to each of the Rating Agencies that
then maintains a rating for the Certificates.
(b) The fiscal year of the Trust shall be a calendar
year. Within the period of time specified in the Code or in the
regulations promulgated thereunder for federal income tax reporting
purposes after the end of each calendar year during the term of the
Declaration, the Trustee shall prepare and mail to each Certificate
holder a report setting forth the amounts distributed to such
Certificateholder and such other information as is reasonably necessary
for the preparation of such Certificateholder's federal income tax
returns for such calendar year or, in the event such person was a
Certificateholder for only a portion of such calendar year, for the
applicable portion of the year. The report required by this subsection
(b) may be combined with one of the Semi-Annual Reports sent by the
Trustee to Certificate holders each year pursuant to subsection (a)
of this Section.
(c) The Trustee will deliver, without charge, copies of
each related Semi-Annual Report to any beneficial owner of a Certificate
that delivers to it a completed Information Request at the address set
forth in Section 8.4.
Section 4.2 Tax Statements. The Trustee shall promptly
prepare and deliver to the appropriate tax authorities copies of any tax
filings for the Trust. The Borrower shall provide to the Trustee upon
request any information reasonably required by the Trustee in prepar ing
such tax filings, including, but not limited to, information with respect
to any taxes withheld by the country of the Borrower, or any country
through which payments were made, or any taxing authority or political
subdivision thereof.
Section 4.3 Annual Audits. For any year in which an Annual
Report on Form 10-K is required to be filed by the Trust with the
Commission, the Trustee shall, at the expense of the Borrower, obtain any
audit report of independent public accountants required to be filed with
such Annual Report.
Section 4.4 Notices to Rating Agencies. The Trustee will send
promptly to each of the Rating Agencies that then maintains a rating for
the Certificates, at the address set forth in Section 8.4, (a) a copy of
each notice or report provided by the Trustee to the Certifi cateholders
under this Article IV and (b) a report in the form of Exhibit F to the
related Supplement describing the occurrence of any of the following
events:
(i) any change in the identity of the Trustee or the
Liquidity Provider, if any;
(ii) any default by Eximbank in its obligation to make
payment pursuant to the Guarantee or any default by the Borrower of
its obligation to make payments pursuant to the Promissory Notes or
any default by the Liquidity Provider, if any, in its obligation to
make Advances pursuant to the Liquidity Agreement;
(iii) any amendment to the Declaration, the Promissory
Notes, the Credit Agree ment, the Guarantee, the Guarantee
Agreement or the Liquidity Agreement, if any; and
(iv) the giving of any direction by the
Certificateholders to the Trustee pursuant to Section 7.5(a) that
would alter the timing, method or effect of any claim or notice
required to be made by the Trustee pursuant to Section 3.3 or 5.2.
Section 4.5 Reports to the Borrower. If no Liquidity
Agreement has been delivered, on or before the tenth Business Day
following each Certificate Payment Date, the Trustee shall supply to the
Borrower and the Guarantor, if any, a written report in the form of Exhibit
G to the related Supplement including the following information, as of
the immediately preceding Certificate Payment Date:
(i) The amount(s) and date(s) of deposit by the Trustee
to the Trust Account of all payments received by the Trust from the
Borrower or the Guarantor, if any, or for the account of the
Borrower or the Guarantor, if any, during the period commencing on
the first calendar day following the Certificate Payment Date next
preceding such Certificate Payment Date and ending on such
Certificate Payment Date; and
(ii) The aggregate amounts of principal and interest
earned for all payments referred to in clause (i) above and
deposited in the Trust Account, and invested in Eligible
Investments during the period commencing on the first calendar day
following the Certificate Payment Date next preceding such
Certificate Payment Date and ending on such Certificate Payment
Date.
ARTICLE V
Payment and Collection
Section 5.1 Receipt of Payments. With respect to any Note
Payment Date, the Trustee shall:
(i) deposit in the Trust Ac count the amounts, if any,
received from or on behalf of the Borrower or the Guarantor, if
any, on the Promissory Notes, and, if no Li quidity Agreement has
been delivered, invest such amounts in Eligible Investments for the
benefit of the Borrower in accordance with Section 3.6(b)(i);
(ii) deposit in the Trust Ac count the amounts, if any,
received from the Liquidity Provider, if any, under the Liquidity
Agreement;
(iii) deposit in the Eximbank Payment Account the
amounts, if any, received from Eximbank on the Guarantee or the
Eximbank Payment Certificate;
(iv) deposit in the Eximbank Payment Account the
amounts, if any, received from the Trustee pursuant to Section 3.7;
and
(v) apply the amounts referred to in clauses (i), (ii),
(iii) and (iv) above on the next succeeding Certificate Payment
Date in the manner specified in Section 5.3.
Section 5.2 Occurrence of Payment Deficiency. (a) With
respect to any Note Payment Date prior to the Eximbank Payment Event upon
which there shall have occurred a Payment Deficiency:
(i) if a Liquidity Agreement has been delivered with
respect to the related Trust and if no Eximbank Payment Event shall
have occurred, no later than 10:30 a.m., New York City time, on the
Note Payment Date upon which there shall have occurred a Payment
Defi ciency, the Trustee shall deliver to the Li quidity Provider
(with copies to the Borrower and the Guarantor, if any) by
telegram, telex, facsimile transmission or hand delivery a Notice
of Drawing executed by a Responsible Offi cer of the Trustee and
setting forth the amounts that were due and payable by the Bor
rower and the Guarantor, if any, on such Note Payment Date and the
amounts which the Borrower and the Guarantor, if any, failed to pay
as of such Note Payment Date and otherwise complying with the
requirements for such Notice of Drawing set forth in the Liquidity
Agreement and to take such other actions as may be required to make
a claim on and to enforce payment from the Liquidity Provider under
the Liquidity Agreement;
(ii) no later than 9:30 a.m., New York City time, on
the second Business Day following such Note Payment Date upon which
there shall have occurred a Payment Deficiency, unless prior
thereto the Trustee shall have received payment in full of all
amounts due on the Promissory Notes (other than pursuant to an
Advance), the Trustee shall deliver to the Bor rower a Borrower
Payment Demand, with copies to the Guarantor, if any, the Liquidity
Provider, if any, and Eximbank, as set forth in Section 3.3(a)(ii);
(iii) unless on or before 9:30 a.m., New York City
time, on the Eximbank Pay ment Demand Date payment of all amounts
due on the Promissory Notes shall have been received in full (other
than pursuant to an Advance), the Trustee shall (A) no later than
5:00 p.m., New York City time on such Eximbank Payment Demand Date
(or, if a Liquidity Agreement has been delivered, 12:00 p.m., New
York City time, on the Business Day following such Eximbank Payment
Demand Date), file with and deliver to Eximbank (with copies to the
Liquidity Provid er, if any) an Eximbank Payment Demand as set
forth in Section 3.3(a)(iii) and (B) tender to Eximbank the
Promissory Notes, the Credit Agreement and the Assignment, as set
forth in Section 5.5; and
(iv) promptly upon receipt thereof, in the event the
Trustee receives a payment from the Borrower or Guarantor, if any,
on the Promissory Notes following the delivery of an Eximbank
Payment Demand with respect to such payment pursuant to Section
3.3(a)(iii), the Trustee shall send a written notice to Eximbank
(with a copy to the Liquidity Provid er, if any) in accordance with
Section 3.3(a)(iv).
(b) The Trustee shall, at or prior to 9:30 a.m., New
York City time, on the second Business Day following the day on which the
Trustee receives notice that any payment with respect to the Promissory
Notes, or any part thereof, received by the Trustee, the Trust, any
Certificateholder or the Liquidity Provider, if any, is rescinded or is
compelled to be returned by law as the result of the bankruptcy or
insolvency of the Borrower or the Guarantor, if any, or is rescinded or
compelled to be returned as a result of any law, regulation or decree
applicable to the Borrower or the Guarantor, if any, file with and
deliver to Eximbank a Preference Payment Demand duly executed by a
Responsible Officer of the Trustee and dated the date of such delivery,
by hand delivery, set ting forth the amounts of such payment that were
rescind ed or compelled to be returned, and accompanied by the Promissory
Notes and an Assignment, as set forth in Sections 3.3(b) and 5.5.
(c) In addition to the foregoing actions and subject to
Section 7.1(d), the Trustee shall have the right but not the obligation,
unless payment of all amounts due on the Promissory Notes or under the
Guaranty or the Eximbank Payment Certificate have been received in full
(other than pursuant to an Advance), to take all action permitted by the
Declaration or otherwise permit ted by law to enforce any rights to any
payment due from Eximbank pursuant to the Guarantee or the Eximbank Payment
Certificate or from the Liquidity Provider, if any, under the
Liquidity Agreement, including, if necessary, any action specified in
Section 7.13; provided, however, the failure of the Trustee to take any
action to enforce any right under the Guarantee, the Eximbank Payment
Certificate or the Liquidity Agreement, if any, shall not constitute a
waiver of such right.
Section 5.3 Disposition of Proceeds of Payments. (a) On
each Certificate Payment Date, the Trust ee will apply or cause to be
applied all funds on deposit in the Trust Account or the Eximbank Payment
Account (collectively, and not including any Investment Earnings (which
shall be distributed in accordance with Section 3.6(c)), "Available
Funds"), in the following order of distribution:
(i) if a Liquidity Agreement has been delivered and
the Liquidity Provider shall have made an Advance under the
Liquidity Agreement, to the Liquidity Provider an amount equal to
all unpaid Advances, together with interest thereon at the
Guaranteed Interest Rate;
(ii) to the payment of the Trustee Basic Fee, if any,
due on such Certifi cate Payment Date;
(iii) to the payment of Interest on the Certificates
due on such Certificate Payment Date;
(iv) to the payment of Principal on the Certificates
due on such Certificate Payment Date;
(v) if a Liquidity Agreement has been delivered, to
Eximbank if there has previously been a payment by Eximbank under
the Guarantee unless Eximbank has notified the Trustee that the
Borrower has paid to Eximbank all amounts due to Eximbank;
(vi) if a Liquidity Agreement has been delivered and
the Liquidity Provider shall have made an Advance under the
Liquidity Agreement, to the Liquidity Provider an amount equal to
all interest on Advances remaining unpaid after giving effect to
the distributions pursuant to clause (i) above;
(vii) if no Liquidity Agreement has been delivered, to
the payment of the Trustee Supplemental Fee to the Trustee;
(viii) if no Liquidity Agreement has been delivered, to
Eximbank if there has previously been a payment by Eximbank under
the Guarantee unless Eximbank has notified the Trustee that the
Borrower has paid to Eximbank all amounts due to Eximbank; and
(ix) any remaining amount to the Certificateholders
which amount shall be treat ed as an additional payment of
interest;
provided, however, no Certificate shall have any priority over any other
Certificate in order of distribution of Principal or Interest.
(b) If a Liquidity Agreement has been delivered, after
a failure by the Borrower and Guarantor, if any, on any Note Payment Date
to pay in full the principal and interest due on the Promissory Notes,
amounts (other than Advances) subsequently received by the Trustee
(whether from Eximbank in respect of the Eximbank Guarantee or otherwise)
in respect of such defaulted payment (such amounts "Subsequent Amounts")
shall be distributed on the Business Day following re ceipt in the
following order of priority:
(i) if the Liquidity Provider shall have made an
Advance under the Liquidity Agreement, to the Liquidity Provider an
amount equal to all unpaid Advances, together with interest thereon
at the Guaranteed Interest Rate;
(ii) to the payment of the Trustee Basic Fee, if any,
due and unpaid on such date of distribution;
(iii) to the Certificateholders of record as of the date
of distribution (with out priority of any Certificate over any
other Certificate) under this Section 5.3(b) to the payment of
Interest on the Certificates due and unpaid on such date of
distribution;
(iv) to the Certificateholders of record as of the
date of distribution (with out priority of any Certificate over any
other Certificate) under this Section 5.3(b) to the payment of
Principal on the Certificates due and unpaid on such date of
distribution;
(v) to Eximbank if there has previously been a payment
by Eximbank under the Guarantee unless Eximbank has notified the
Trustee that the Borrower has paid to Eximbank all amounts due to
Eximbank;
(vi) to the Liquidity Provider an amount equal to all
interest on Advances remaining unpaid after giving effect to the
distributions pursuant to clause (i) above; and
(vii) to the Certificateholders of record as of the
date of distribution (with out priority of any Certificate over any
other Certificate) under this Section 5.3(b) any remaining portion
of such Subsequent Amount.
(c) All payments to holders of the Certificates shall
be made by the Trustee by check mailed to each such holder of record on
the relevant Record Date at the address appearing on the Certificate
Register, except that payments on Certificates having denominations of
$5,000,000 or more will be made by the Trustee by wire transfer at the
expense of the Borrower, if so instructed by the Certificateholder,
provided that the Trustee receives the necessary wire transfer
instructions from the Certificateholder no later than the close of
business at the Principal Corporate Trust Office on the second Business
Day next preceding the applicable Certificate Payment Date. Notwithstanding
the foregoing, the final payment on each Certificate shall be made only
against presentation and surrender of the Certificate at a Place
of Payment.
(d) If at any time (x) the Liquidity Provider shall
have received an amount equal to all unpaid Advances, together with
interest thereon at the Guaran teed Interest Rate and the Trustee shall
have received an amount equal to the entire due and unpaid Trustee Basis
Fee, if any, but (y) the Certificateholders shall not have received all
amounts due on the Certificates on the most recent Certificate Payment
Date and all prior Cer tificate Payment Dates, the Trustee shall, in
accordance with the following provisions of this subsection (d),
distribute to the Certificateholders, to the extent available, any
delinquent payments of principal on the Promissory Notes (and any amount
of interest earned thereon) and any delinquent payments of interest on
the Promissory Notes (and, to the extent permitted by law, any amounts of
interest earned thereon at the Note Inter est Rate), such distribution
not to exceed (i) the amount then overdue on the Certificates plus (ii)
an amount equal to the overdue Principal multiplied by the Note Interest
Rate (calculated on the basis of a 360-day year and actual days elapsed)
from and including the date due to but excluding the Special Payment Date
referred to below. If all amounts described in the foregoing sen tence
are paid in full to the Trustee and to the Certifi cateholders on a
Special Payment Date, then any addition al amounts held by the Trustee
shall be distributed in accordance with Section 5.3(a). When delinquent
payments of interest or principal on the Promissory Notes, or payments of
interest on any such payments, are received from the Borrower, the
Guarantor, Eximbank or the Liquid ity Provider by the Trustee, if the
Trustee is required to distribute such payments to Certificateholders
pursu ant to this subsection (d), the Trustee will establish a special
payment date (a "Special Payment Date") and a special record date (a
"Special Record Date"). The Special Payment Date will be the tenth
Business Day following such receipt of payment by the Trustee and the
Special Record Date will be the fifth Business Day pre ceding the Special
Payment Date. On the Business Day next following receipt by the Trustee
of the aforesaid payment by the Borrower, the Guarantor, Eximbank or the
Liquidity Provider, the Trustee will send a notice to all Certificateholders
informing them of the Special Payment Date, the Special Record Date and the
amount of the payments that will be made to the Certificateholders on the
Special Payment Date.
(e) The right of any Certificateholder to receive
distributions of payments on a Certificate pursu ant to the Declaration
when due or to direct the Trustee to bring suit for the enforcement of
any such payment on or after the date when due shall not be impaired or
affected without the consent of such Certificateholder.
(f) All distributions by the Trustee to holders of the
Certificates shall be made pro rata to each such holder on the basis of
the respective Percent age Interests of the Certificates held by such
holder.
Section 5.4 Extraneous Payments. (a) In the event that the
Trustee receives funds in respect of a Promissory Note payment which has
already been made and distributed in accordance with Section 5.3(a), the
Trust ee shall, subject to subsections (b) and (c) of this Sec tion 5.4
and any claims made by Eximbank pursuant to the Guarantee Agreement and
the Liquidity Provider, if any, pursuant to the Liquidity Agreement,
promptly return such funds to the source or sources from which received
and will not deposit such funds in the Trust Account.
(b) Subject to Section 5.4(c) and follow ing the
Eximbank Payment Event, in the event the Trustee receives funds from or
on behalf of the Borrower or the Guarantor in respect of a payment with
respect to the Promissory Notes, the Trustee shall promptly pay over such
funds to Eximbank and shall not deposit such funds in the Trust Account.
(c) Notwithstanding anything to the contrary contained in
subsections (a) and (b) above or any other provision hereof, if (i) a
Liquidity Agreement has been delivered with respect to the related Trust,
(ii) no amounts are at the time due and owing to the Certificateholders,
(iii) an Advance, together with interest thereon at the Advance Rate, has
not been repaid to the Liquidity Provider and (iv) the Trustee receives
funds from or on behalf of the Borrower, the Guarantor, if any, or
Eximbank in respect of the Promissory Notes or the Trustee makes a
payment pursuant to Section 3.7, the Trustee shall promptly pay over such
funds to the Li quidity Provider to the extent of such outstanding Ad
vance and such interest thereon at the Advance Rate and shall not deposit
such funds in the Trust Account or the Eximbank Payment Account.
Section 5.5 Tender of Promissory Notes to Eximbank.
Simultaneously with the delivery to Eximbank of any Eximbank Payment
Demand by the Trustee pursuant to Sections 3.3(a)(iii), 3.3(b),
5.2(a)(iii) and 5.2(b) on the Eximbank Payment Demand Date in accordance
with the terms of the Guarantee Agreement, the Trustee shall tender to
Eximbank the Promissory Notes and the Assign ment, executed by the
Trustee, on behalf of the Trust, and dated the Eximbank Payment Demand
Date (such tender to Eximbank of an Eximbank Payment Demand together with
the Promissory Notes and the Assignment is referred to as the "Eximbank
Payment Event"), in exchange for the issu ance by Eximbank to the Trust
of the Eximbank Payment Certificate, which is required by the Guarantee
Agreement to be delivered by Eximbank to the Trustee for the bene fit of
the Certificateholders and the Liquidity Provider, if any, within five
Business Days thereof.
Section 5.6 Accelerated Promissory Notes. In the event that
the Promissory Notes are accelerated by Eximbank pursuant to the Credit
Agreement and the Trustee shall thereafter receive any payment of such
accelerated amount or portion thereof from or on behalf of the Borrower
(other than from Eximbank pursuant to the Guarantee or the Guarantee
Agreement), the Trustee shall no later than the Business Day following
such receipt (i) notify Eximbank, (ii) transmit all of such funds to
Eximbank in the form received and (iii) deliver to Eximbank the
Promissory Notes and an Assignment thereof.
ARTICLE VI
The Certificates
Section 6.1 The Certificates. The Certifi cates shall be
issued in fully registered form, in the form or substantially the form of
Exhibit A to the Supplement. Each Certificate shall be denominated in an
Initial Amount of $1,000 or a multiple of $1 in excess thereof. The
Certificates shall be executed by the Trustee on behalf of the Trust by
manual or facsimile signature of a Responsible Officer. Each Certificate
shall be authenticated by the Trustee on behalf of the Trust by the
manual signature of a Responsible Officer. The Trustee shall deliver the
Certificates that are issued on original issuance to the Underwriters
upon the satisfaction of the conditions set forth in Section 2.2.
Certificates bearing the signatures of individuals who were the
authorized signatories of the Trustee at the time of execution of those
Certificates shall bind the Trust, notwithstanding that such individuals
or any of them have ceased to hold such offices or positions prior to the
delivery of such Certificates.
Section 6.2 Registration of Transfer and Exchange of
Certificates. (a) The Trustee shall main tain, in the Borough of
Manhattan, The City and State of New York, and, at its discretion, at any
other location, an office or agency for the registration of Certificates
and of transfers and exchanges of Certificates in a Certificate Register
as herein provided. Any such office or agency is referred to in this
Agreement as the "Cer tificate Registrar"; provided, however, the Trustee
shall not be relieved of any of its duties under the Declara tion by
reason of such designation. The Trustee shall serve as Certificate
Registrar, unless it shall resign or be removed pursuant to Section 7.8.
The Trustee shall register the Certificates and shall effect transfers
and exchanges of the Certificates as provided in the Declaration. The
Trustee shall give prompt written notice to the Borrower and the
Certificateholders of any change in the location of the Certificate
Register or the appoint ment of any other Certificate Registrar.
(b) Unless it shall resign or be removed pursuant to Section
7.8, the Trustee shall maintain, in the Borough of Manhattan, The City
and State of New York, and, at its discretion, any other location, an
office or agency at which the Certificates may be presented or
surrendered for final distribution thereon. Each such location is herein
referred to as a "Place of Payment." Initially, the Trustee designates
its office at 111 Wall Street - 5th Floor, New York, New York 10043 for
such purpose. Any such office or agency may make any distri butions in
respect of the Certificates at the discretion of the Trustee, and when so
acting as a designee of the Trustee is referred to in the Declaration as
a "Paying Agent"; provided, however, the Trustee shall not be relieved of
any of its duties under the Declaration by reason of such designation.
(c) Subject to Section 6.3, upon surrender of any
Certificate for registration of transfer at such office, the Certificate
Registrar, if other than the Trustee, shall promptly notify the Trustee
to execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of authorized
denominations, of like tenor, like aggregate Initial Amount and like
aggregate Principal Balance, and dated the date of authentication by the
Trustee.
(d) At the option of a Certificateholder, Definitive
Certificates may be exchanged for other Cer tificates of authorized
denominations, and of like tenor, like aggregate Initial Amount and like
aggregate Principal Balance, upon surrender of the Definitive Certificates
to be exchanged at an office or agency maintained therefor.
Whenever any Definitive Certificates are so surrendered for exchange, the
Certificate Registrar, if other than the Trustee, shall promptly notify
the Trustee, which shall execute, authenticate and deliver the
Definitive Certificates which the Certificateholder making the exchange
is entitled to receive.
(e) Every Definitive Certificate present ed or
surrendered for transfer or exchange shall be duly endorsed by, or be
accompanied by a written instrument of transfer in form satisfactory to
the Trustee or the Certificate Registrar, if other than the Trustee, duly
executed by, the holder thereof or his or her attorney duly authorized in
writing.
Section 6.3 No Charge; Disposition of Void Certificates. No
service charge shall be made for any registration of transfer or exchange
of Certificates, but the Trustee or the Certificate Registrar, if other
than the Trustee, may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with
any transfer or exchange of Certificates. All cancelled Certificates held
by the Trustee or the Certificate Registrar, if other than the Trustee,
shall be destroyed by the Trustee.
Section 6.4 Mutilated, Destroyed, Lost or Stolen
Certificates. If (i) any mutilated Certificate is surrendered to the
Trustee, any authenticating agent or the Certificate Registrar, if other
than the Trustee, or if any of them receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate, and (ii) there is
delivered to each such party such security or indemnity as they may
require to hold themselves and the Trust harmless, then, in the absence
of actual notice to a Responsible Officer of the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
authenticate and deliver in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of an
authorized denomina tion, of like tenor, like Initial Amount and like
Princi pal Balance. Upon the issuance of any new Certificate under this
Section 6.4, the Certificate Registrar, if other than the Trustee, the
Trustee and any authenticat ing agent may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses con nected therewith.
Any duplicate Certificate issued pursuant to this Section 6.4 shall
constitute complete and indefeasible evidence of ownership of the
undivided percentage interest in the Trust, as if originally is sued,
whether or not the mutilated, destroyed, lost or stolen Certificate shall
be found at any time.
Section 6.5 Persons Deemed Owners. The ownership of
Certificates shall be proved by the Certifi cate Register maintained by
Certificate Registrar pursu ant to the Declaration and neither the
Trustee nor the Borrower shall be affected by notice to the contrary.
Section 6.6 Access to List of Certificate- holders' Names
and Addresses. The Trustee will, at the request of any Certificateholder,
send communications to all Certificateholders by mail, but the Trustee
shall be entitled to all expenses, paid in advance, and an appropriate
indemnification from the requesting Certificate holder.
Section 6.7 Book Entry. Anything in the other provisions of
this Declaration to the contrary notwithstanding, it is intended that
beneficial ownership of the Certificates be evidenced by book entry. For
such purpose, effective as of the Closing Date, the Trustee
shall execute and deliver to DTC a single global certifi cate for the
Certificates, registered in the name of Cede & Co., DTC's nominee, for
deposit with DTC. On or prior to the Closing Date, the Trustee shall
enter into the DTC Letter, the terms of which shall take precedence over
any provisions in this Declaration to the contrary with respect to the
matters to which such terms relate. In the event that at any time when
DTC or a successor secu rities depository for the Certificates is acting
as securities depository for the Certificates, the Depositor shall
determine that the Certificateholders should be able to obtain
certificates representing the Certificates notwithstanding that DTC or a
successor securities depos itory will continue to act as securities
depository, the Depositor shall so notify the Trustee which shall in turn
notify DTC or such successor securities depository of the availability of
such certificates. In such event, the Trustee shall execute and deliver
on behalf of the Trust certificates representing the Certificates to DTC
or such successor securities depository for delivery thereof by DTC or
such successor securities depository to the Cer tificateholders. At any
time during the term of this Declaration, the Trustee shall have the
right, upon not less than thirty (30) days' notice to DTC, to remove DTC
as securities depository for the Certificates. In such event the Trustee
may, but need not, designate a succes sor securities depository for the
Certificates, subject to the terms and conditions of this Declaration.
ARTICLE VII
The Trustee
Section 7.1 Duties of Trustee. (a) The Trustee
undertakes to perform such duties and only such duties as are
specifically set forth in the Declara tion. If an Event of Default that
is a payment default or any other Event of Default actually known to a
Respon sible Officer of the Trustee has occurred (which has not been
cured), the Trustee shall exercise such of the rights and powers vested
in it by the Declaration, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own af fairs.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to
be furnished pursuant to any provision of the Declaration, shall examine
them to determine whether they conform as to form to the requirements of
the Declaration.
(c) No provision of the Declaration shall be construed
to relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct; provided,
however, that:
(i) prior to the time that a Responsible Officer of
the Trustee gains actual knowledge of the occurrence of an Event of
Default and after the curing of all such Events of Default which
may have occurred, the duties and obligations of the Trustee shall
be deter mined solely by the express provisions of the Declaration,
the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in the
Declaration, no implied covenants or obli gations shall be read
into the Declaration against the Trustee and, in the absence of bad
faith on the part of the Trustee, the Trustee (subject to Section
7.1(b)) may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of the Declaration;
(ii) the Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer of
the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the per tinent facts; and
(iii) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it
in good faith in accordance with the direction of Certificateholders
representing a majority of the aggregate Principal Amount of
outstanding Certificates relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under
the Declaration.
(d) Other than pursuant to Section 3.7, the Trustee
shall not be required to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its rights or powers, if
there is reasonable ground for believing that the repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it.
(e) Whether or not herein expressly so provided, every
provision of the Declaration relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provi sions of this Section 7.1.
Section 7.2 Certain Matters Affecting the Trustee. Subject to
Section 7.1, in its capacity as Trustee:
(a) in the administration of the Trust pursuant to this
Declaration, the Trustee may, whenever it reasonably deems it is
necessary or desirable that a matter be proved or established,
request a certificate signed by an authorized offi cer of the
Borrower for the purpose of proving or establishing such matter;
(b) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates, opinions, statements, instruments, reports, notices,
requests, consents or other documents furnished to the Trustee and
reasonably believed by it to be genuine and to have been signed and
presented to it pursuant to the Declaration; but in the case of any
such certificates, opinions, statements, instru ments, reports,
notices, requests, consents or other documents which by any
provisions hereof are spe cifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform as to form as to the
requirements of the Declaration;
(c) the Trustee may consult with counsel and the advice
of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Coun sel;
(d) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by the
Declaration, or to institute, conduct or defend any litigation
hereunder or in relation hereto, at the request, order or direction
of any of the Certificateholders, pursuant to the provisions of the
Declaration, unless such Certificateholders shall have offered to
the Trustee reasonable security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which may be in
curred therein or thereby; provided, however, subject to Section
7.1(d), nothing contained in the Declaration shall relieve the
Trustee of the obligations, upon the occurrence and continuance of
an Event of Default, to exercise such of the rights and powers
vested in it by the Declaration and to use the same degree of care
and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of such person's own
affairs;
(e) subject to Section 7.1(b), prior to the occurrence
of an Event of Default and after the curing of all such Events of
Default which may have occurred, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by
Certificateholders representing 25% or more in Percentage Interest
of the Certificates; provided, however, if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the reasonable opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by
the terms of the Declaration, the Trustee may require indemnity
satisfactory to the Trustee against such cost, expense or liability
as a condition to so proceeding;
(f) the Trustee may exercise any of the trusts or
powers under the Declaration or perform any duties under the
Declaration either directly or by or through agents, attorneys,
custodians or nominees;
(g) except as otherwise expressly provided in Section
3.7, the Trustee shall not be liable, in its individual capacity,
for any action taken, suffered or omitted by it in good faith and
believed by it in good faith to be authorized or within the
discretion or rights or powers conferred upon it by the
Declaration; and
(h) the Trustee shall not be charged with actual
knowledge of an Event of Default or a default under the Guarantee,
the Eximbank Payment Certifi cate or the Liquidity Agreement, if
any (other than a failure by the Borrower, the Guarantor, if any,
Eximbank or the Liquidity Provider, if any, as the case may be, to
make a payment when due under the Promissory Notes, the Guarantee,
the Eximbank Pay ment Certificate or the Liquidity Agreement, if
any) unless a Responsible Officer of the Trustee at the Principal
Corporate Trust Office obtains actual knowledge of such Event of
Default or such default or the Trustee receives written notice
thereof from the Borrower, Eximbank or a Certificateholder and may
in the absence of such notice conclusively presume that no such
Event of Default has occurred.
Section 7.3 Trustee Not Liable for Certificates, etc. (a)
The Trustee assumes no responsibility or liability for, and makes no
representations as to, the validity or sufficiency of, or as to the
accuracy of the recitals, if any, set forth in the Certificates (other
than the execution and authentication thereof), the Promissory Notes, the
Credit Agreement, the Guarantee, the Guarantee Agreement, or the
Liquidity Agreement, if any, or the accuracy of the recitals contained in
the Declaration, except that the Trustee hereby represents, warrants and
covenants that the Declaration has been and each of such other agreements
or documents which contem plates execution thereof by the Trustee has
been or will be executed and delivered by a Responsible Officer of the
Trustee who is or will be duly authorized to execute and deliver such
agreement or document on the Trustee's behalf and that, when so duly
authorized, executed and delivered by the Trustee (assuming due
authorization, execution and delivery of such other documents by such
other parties thereto) the Declaration will constitute a valid and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, receivership, conservatorship, liquidation,
reorganization, moratorium or other similar laws affecting the
enforcement of rights of creditors of national banking associations
generally, and the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(b) Subject to Section 7.1, if no Event of Default has
occurred, the Trustee shall have no re sponsibility or liability for or
with respect to the enforcement of the Promissory Notes, the Guarantee or
the Liquidity Agreement, if any. If no default under the Eximbank Payment
Certificate has occurred, the Trustee shall have no responsibility or
liability for or with respect to the enforcement of the Eximbank Payment
Cer tificate. Except for such liability as is finally deter mined to have
resulted from the Trustee's negligence or bad faith and, except as
otherwise provided in Section 3.7, (i) no recourse shall be had for any
claim based on any provision of the Declaration, the Certificates, the
Promissory Notes, the Credit Agreement, the Guarantee, the Guarantee
Agreement or the Liquidity Agreement, if any, against the Trustee in its
individual capacity, (ii) the Trustee shall not have any obligation,
liability or duty whatsoever, in its individual capacity, to any
Certificateholder or any other person with respect to any such claim, and
(iii) any such claim shall be asserted solely against the Trust.
Section 7.4 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Certificates with the same rights as it would have if it were not the
Trustee.
Section 7.5 Rights of Certificateholders and Liquidity
Provider to Direct Trustee; Limitation of Exercise of Remedies by
Certificateholders and Liquidity Provider. (a) Certificateholders
representing 25% or more in Percentage Interest of the Certificates and
the Liquidity Provider, if any, shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to
the Trustee under the Declaration, or exercising any trust power
conferred on the Trustee under the Declaration; provided, however, that
any direction to the Trustee which would alter the timing, method or
effect of any claim or notice required to be made by the Trustee pursuant
to Section 3.3 or Section 5.2 shall be given only with the written
consent of all of the Certificateholders and the Liquidity Provider, if
any; provided, further, subject to Section 7.1, the Trustee shall have
the right to decline to follow any such direction if the Trustee, being
advised by counsel, determines that the action so directed may not
lawfully be taken, or if the Trustee in good faith determines that the
action so directed would be illegal or would be unduly prejudicial to the
rights of Certificateholders or the Liquidity Provider not parties to
such direction, or if the Trustee determines in good faith that the
action would involve it in personal liability, unless the Trustee shall
have been indemnified by such Certificateholders or Liquidity Provider
against liability, cost or expense (including counsel fees and expenses)
which may be in curred in connection therewith; and provided, further
that nothing in the Declaration shall impair the right of the Trustee to
take any action deemed proper by the Trustee and which is not
inconsistent with such direction by the Certificateholders or a Liquidity
Provider or the Declaration.
(b) Neither a Liquidity Provider nor a Certificateholder may
pursue any remedy with respect to the Declaration (including without
limitation the initiation of any action, suit or proceeding) or give any
Payment Demand unless:
(1) the Certificateholder gives to the Trustee written notice
stating that an Event of Default is continuing;
(2) such Liquidity Provider or the holders of at least 25% in
Percentage Interest of the Certifi cates make a written request to
the Trustee to pursue the remedy or give the Payment Demand;
(3) the Liquidity Provider or Certificateholder or
Certificateholders, as the case may be, making the written request
pursuant to clause (2) above offer to the Trustee reasonable
security or indemni ty against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) in the case of a written request pursuant to clause (2)
above made by Certificateholders, neither the Liquidity Provider
nor the holders of at least 25% in Percentage Interest of the
Certificates do not give the Trustee a direction inconsistent with
the request during such 60-day period.
(c) Notwithstanding Section 7.5(b), the Liquidity
Provider or any Certificateholder may pursue remedies against the Trustee
upon any failure to pay any Special Payment Amount following notice by a
Certificate holder pursuant to Section 3.7(b).
(d) A Certificateholder may not use the Declaration to
prejudice the rights of another Certificateholder or to obtain a
preference or priority over another Certificateholder.
Section 7.6 Trustee's Fees and Expenses. (a) The Trustee
shall be entitled to the fees and ex penses and indemnity (the "Trustee's
Fees and Expenses") for the following:
(i) payment as compensation for all services
rendered by it under or as contemplated by the Declaration in its
capacity as Trustee (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee in an
express trust);
(ii) as reimbursement to the Trustee and any
predecessor Trustee for all expenses, disbursements and advances
incurred or made by the Trustee and any predecessor Trustee under
or as contemplated by the Decla ration in its capacity as Trustee
(including accountant's fees and expenses and fees and ex penses of
the Trustee's other agents and counsel); and
(iii) as indemnification of the Trustee and any
predecessor Trustee for, and to hold it harmless against any loss,
liability or expense arising out of or in connection with, the
acceptance or administration of the Trust and its duties as
Trustee, including the costs and expenses of defending itself
against any claim or liability in connection with the exer cise or
performance of any of its powers or duties except to the extent
attributable to negligence or bad faith on its part;
provided, however, that notwithstanding the foregoing, (a) the Trustee's
Fees and Expenses to which the Trustee shall be entitled to shall in no
event exceed the Trustee's Fees (except that, if no Liquidity Agreement
has been delivered, under the circumstances described in Section 3.6,
Investment Earnings to the extent set forth in such Section exceed such
Trustee's Fees), and (b) except as expressly provided otherwise in the
Declara tion, neither the Trust nor any Certificateholder shall in any
event be responsible for the payment to the Trust ee of any amount of
Trustee's Fees and Expenses.
(b) The Trustee hereby agrees that, if no Liquidity
Agreement has been delivered, under the circum stances described in
Section 3.6, the retention by the Trustee of Investment Earnings, if any,
to the extent set forth in such Section shall constitute full payment of
the Trustee Basic Fee.
Section 7.7 Eligibility Requirements for Trustee. The
Trustee hereunder shall at all times be a corporation having a corporate
trust office in the United States and organized and doing business under
the laws of the United States or any state of the United States,
authorized under applicable law to exercise corporate trust powers, and
having a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by federal or state authorities.
Such corporation shall maintain bankers blanket bond or similar
insurance coverage against losses arising out of the infidelity of its
employees engaged in trust or other fiduciary capacities of the type and
in the amount and with the deductibles that are customary for its
business and size. If such corporation publishes reports of condition at
least annually pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section
7.7, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section
7.7, the Trustee shall resign immediately in the manner and with the
effect specified in Section 7.8. Notwithstanding anything to the contrary
contained in this Section 7.7, any such corporation shall be a bank or
trust company, the securities of which are exempt from registration with
the Commission pursuant to Section 3(a)(2) of the Securities Act.
Section 7.8 Resignation or Removal of Trustee.
(a) Subject to the following sentence, the Trustee may
at any time resign and be discharged from the Trust by giving written
notice thereof to the Borrow er, Eximbank, the Certificate Registrar, if
other than the Trustee and the Liquidity Provider, if any. Before such
resignation or discharge shall become effective, the Borrower shall
appoint, with the consent of Eximbank, a successor Trustee by written
instrument, one copy of which instrument shall be delivered to each of
the re signing Trustee, the Certificate Registrar, if other than the
Trustee, the Borrower, Eximbank, the Liquidity Pro vider, if any, and the
successor Trustee. If no succes sor Trustee shall have been so appointed
and have accept ed appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee or any bona fide
Certificateholder may petition any court of compe tent jurisdiction for
the appointment of a successor Trustee.
(b) If at any time the Trustee shall cease to be
eligible with respect to the Trust in accor dance with the provisions of
Section 7.7 and shall fail to resign after written request therefor by
the Borrower, the Liquidity Provider, if any, or Certificateholders
representing 25% or more in Percentage Interest of the Certificates, or
if at any time the Trustee shall be legally unable to act, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
proper ty shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purposes of
rehabilitation, conservation or liquidation, then the Borrower, with the
consent of Eximbank, or any court of competent jurisdiction upon the
petition of one or more bona fide Certificateholders, may remove the
Trustee. If the Trustee is removed under the authority of the immediately
preceding sentences, the Borrower, with the consent of Eximbank, shall
promptly appoint a successor Trustee (other than the outgoing Trustee) by
written instrument, one copy of which instru ment shall be delivered to
each of the Trustee so re moved, the successor Trustee, the Certificate
Registrar, if any, Eximbank and the Liquidity Provider, if any. If no
successor Trustee shall have been so appointed and have accepted
appointment within 30 days after a determi nation to remove the Trustee,
the Trustee whose removal is sought or any bona fide Certificateholder
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) Any resignation or removal of the Trustee and
appointment of a successor Trustee pursuant to any of the provisions of
this Section 7.8 shall not become effective until acceptance of
appointment by the successor Trustee and transfer of the property of the
Trust to the successor Trustee as provided in Section 7.9.
Section 7.9 Successor Trustee. (a) Any successor Trustee
appointed as provided in Section 7.8 shall execute, acknowledge and
deliver to the Borrower, Eximbank and to its predecessor Trustee an
instrument accepting such appointment under the Declaration and the
transfer of the property of the Trust to such successor Trustee and
thereupon the resignation or removal of the predecessor Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor under the Declaration
and with like effect as if origi nally named as Trustee. The predecessor
Trustee shall deliver or cause to be delivered to the successor Trustee
or its designee the Promissory Notes, the Guarantee, the Guarantee
Agreement, the Eximbank Payment Certificate, if any, the Liquidity
Agreement, if any, any other Trust property and any related documents and
statements held by it under the Declaration, and the Borrower and the
prede cessor Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Trustee all such rights, powers,
duties and obligations. In addition, in the event that the related
Supplement provides for the payment in full of the fee of the Trustee on
the Closing Date, the predecessor Trustee shall pay to the successor
Trustee, on the date on which such successor Trustee becomes vested with
the rights, powers, duties and obligations of its predecessor under the
Declaration, an amount equal to the present value (calculated on the same
basis as the payment in full of such trustee fee at the Closing Date and
on the basis of a term equal to the period from the date of vesting to
the latest Maturity of any of the Promissory Notes) of any unearned
portion of the prepaid trustee fee.
(b) No successor Trustee shall accept appointment as
provided in this Section 7.9 unless at the time of such acceptance (i)
such successor Trustee is eligible under the provisions of Section 7.7
and (ii) the securities or deposits of such successor Trustee have the
Required Trustee Ratings or each of the Rating Agencies has confirmed in
writing that the appointment of such successor Trustee would not
adversely affect the ratings then assigned to the Certificates by such
Rating Agency.
(c) Upon acceptance of appointment by a successor
Trustee as provided in this Section 7.9, the successor Trustee shall
cause notice of the succession of the Trustee to be mailed to each
Certificateholder at its address as shown in the Certificate Register.
(d) In addition, no successor Trustee shall accept
appointment as provided in this Section 7.9 unless at the time of such
acceptance either (i) such successor Trustee is a bank or trust company
the securities of which are exempt from registration with the Commission
pursuant to Section 3(a)(2) of the Securities Act and such successor
Trustee has accepted the obliga tions of the predecessor Trustee pursuant
to Section 3.7 or (ii) the predecessor Trustee has retained the abso
lute, unconditional and irrevocable obligation pursuant to Section 3.7.
Section 7.10 Merger or Consolidation of Trustee. Without the
execution or filing of any paper or any further act on the part of any of
the parties hereto, any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to the corporate
trust busi ness of the Trustee, shall be the successor of the Trust ee
hereunder, if and only if (i) such corporation shall be eligible under
the provisions of Section 7.7 and (ii) the securities or deposits of such
corporation have the Required Trustee Ratings or each of the Rating
Agencies has confirmed in writing that the service by such corpo ration
as Trustee would not adversely affect the ratings then assigned to the
Certificates by such Rating Agency. Notwithstanding anything to the
contrary contained in this Section 7.10, any such corporation shall be a
bank or trust company, the securities of which are exempt from
registration with the Commission pursuant to Section 3(a)(2) of the
Securities Act.
Section 7.11 Authenticating Agent. (a) From time to time,
the Trustee may appoint one or more authen ticating agents with respect
to the Certificates which shall be authorized to act on behalf of the
Trustee in authenticating Certificates in connection with the issuance,
delivery and registration of transfer or exchange of the Certificates.
Wherever reference is made in the Declaration to the authentication of
Certificates by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication
on behalf of the Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Trustee by an authenticating
agent. Each authenticating agent must be an institution meeting the
requirements of Section 7.7.
(b) Any institution meeting the requirements of Section
7.7 succeeding to the corporate agency business of an authenticating
agent shall continue to be an authenticating agent without the execution
or filing of any paper or any further act on the part of the Trust ee or
such authenticating agent.
(c) An authenticating agent may at any time resign by
giving written notice of resignation to the Trustee. The Trustee may at
any time terminate the agency of an authenticating agent by giving notice
of termination to such authenticating agent.
(d) The Trustee agrees to pay to each authenticating
agent from time to time reasonable compen sation for its services under
this Section, and the Trustee shall be entitled to be reimbursed for such
payments only pursuant to the provisions of Section 7.6(a).
(e) The provisions of Sections 7.1, 7.2, 7.3 and 7.4
shall be applicable to any authenticating agent (other than for its
authentication of the Certifi cates).
(f) Pursuant to an appointment made under this Section
7.11, the Certificates may have endorsed thereon, in lieu of the
Trustee's certificate of authen tication, an alternate certificate of
authentication in substantially the following form:
This is one of the Certificates described in the
within-mentioned Declaration of Trust.
[NAME OF AUTHENTICATING AGENT]
------------------------------
as Authenticating Agent
for the Trustee,
--------------------------------
Authorized Officer
Section 7.12 Trustee May Enforce Claims With out Possession
of Certificates. All rights of action and claims under the Declaration,
the Promissory Notes, the Guarantee, the Guarantee Agreement, the
Eximbank Payment Certificate, if any, or the Certificates may be prosecuted
and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be
brought in the name of the Trustee or in its capacity as Trustee. Any
recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel in con nection with such recovery, be for
the equal and ratable benefit of the Certificateholders, with any amount
avail able after distribution in full has been made to the
Certificateholders to be distributed in accordance with Section 5.3(a).
Section 7.13 Suits for Enforcement. In case an Event of
Default shall occur and be continuing, the Trustee in its discretion may
(but shall not be obligated to), subject to the provisions of Section 3.3
and Section 7.5, proceed to protect and enforce its rights and the rights
of the Certificateholders and Liquidity Provider, if any, under the
Declaration by a suit, action or pro ceeding in equity or at law or
otherwise, whether for (i) enforcement of the Credit Agreement, including
any cove nants contained therein, (ii) enforcement of the Promis sory
Notes, (iii) enforcement of the Guarantee, the Guar antee Agreement and
the Eximbank Payment Certificate, (iv) the specific performance of any
covenant or agree ment contained in the Declaration, (v) in aid of the
execution of any power granted in the Declaration, the Promissory Notes,
the Guarantee, the Guarantee Agreement, the Eximbank Payment Certificate,
or the Liquidity Agree ment, if any, or (vi) for the enforcement of any
other legal, equitable or other remedy, as the Trustee, being advised by
counsel, shall deem most effectual to protect and enforce any of the
rights of the Trustee, the Certif icateholders or any Liquidity Provider;
provided, howev er, that, unless Eximbank shall have failed to make any
payment under the Guarantee or the Eximbank Payment Certificate, the
Trustee shall not take any action pursu ant to clauses (i) and (ii) of
this sentence without the written consent of Eximbank.
Section 7.14 Powers of Trustee. Anything in the Declaration
to the contrary notwithstanding, (i) the Trustee shall have the legal
power to exercise all the rights, powers and privileges of a holder of
and as Lender under the Promissory Notes as provided thereunder and under
the Guarantee Agreement and the Eximbank Pay ment Certificate, if any,
(ii) in case the Trustee has not received by a date on which
distributions are to be made on the Certificates an amount of principal
and interest under the Promissory Notes, the Eximbank Payment Certificate
or the Liquidity Agreement, if any, suffi cient to make the distributions
under clauses (i) and (ii) of Section 5.3(a) on such date, the Trustee
may recover judgment in its own name and as trustee of an express trust
(A) against Eximbank for the amount then due and payable under the
Guarantee and the Eximbank Payment Certificate, (B) against the Borrower
and the Guarantor, if any, if following an Eximbank Payment Event
Eximbank fails to make any payment under the Guarantee or the Eximbank
Payment Certificate, for the whole amount of principal of, interest on
and other amounts payable with respect to the Promissory Notes, and (C)
against the Liquidity Provider, if any, for the amount then due and
payable under the Liquidity Agreement, and (iii) the Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee, the
Certificateholders and the Liquidity Provider, if any, allowed in any
judi cial proceedings.
Section 7.15 Waiver of Setoff, Counterclaim. The Trustee, in
its capacity as Trustee and as "Noteholder" (as defined in the Credit
Agreement) and in its individual capacity with respect to amounts paid
under Section 3.7, hereby waives any rights that it may have of set-off
or counterclaim with respect to any amounts paid with respect to the
Promissory Notes (in cluding any Advance under the Liquidity Agreement),
the Credit Agreement or the Guarantee.
ARTICLE VIII
Miscellaneous
Section 8.1 Termination. The Declaration shall terminate
after the aggregate amount distributed to all Certificateholders
hereunder equals the full amount due and payable in respect of all the
Certificates in accordance with the terms thereof and any other amounts
held by the Trustee have been distributed in accordance with the
provisions hereof; provided, however, that the right of the Trustee to
the Trustee's Fees and Expenses shall survive termination and provided,
further that (i) the Trustee's obligations to file a Preference Payment
Demand and to distribute any payments from Eximbank with respect thereto
and (ii) the rights of the Liquidity Provider, if any, to receive funds
with respect to out standing Advances and interest thereon at the Advance
Rate, shall, in each case, survive termination. In no event shall the
trust created hereby continue beyond the expiration of 21 years from the
death of the last survi vor of the descendants of Joseph P. Kennedy, the
late Ambassador of the United States to the Court of St. James's, living
on the date of the Supplement.
Section 8.2 Action by Certificateholders. (a) Except as
otherwise specifically provided in the Declaration, whenever
Certificateholder approval, autho rization, direction, notice, consent,
waiver, or other action is required under the Declaration, such
direction, notice, consent, waiver or other action shall be deemed to
have been given or taken on behalf of, and shall be binding upon, all
Certificateholders if agreed to by Certificateholders representing a
majority of the aggre gate Principal Amount of the outstanding
Certificates.
(b) Any request, demand, authorization, direction,
notice, consent, waiver or other action pro vided by the Declaration to
be given or taken by Certifi cateholders may be embodied in and evidenced
by an in strument in writing executed in one or more counterparts signed
by such Certificateholders in person or by an agent or attorney-in-fact
duly appointed and authorized in writing; and except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee. Proof of
execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of the Declaration and (subject
to Section 7.1) conclusive in favor of the Trustee if made in the manner
provided in this Section 8.2.
(c) The fact and date of the execution by any
Certificateholder of any such instrument or writing may be proved in any
reasonable manner which the Trustee deems sufficient.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind every
holder of Certificates issued upon the registration of transfer thereof
or an exchange therefor or in lieu thereof, whether or not notation of
such act is made upon such Certificate.
Section 8.3 Amendments. (a) Subject to Sec tion 8.3(g) and
Section 8.3(h), the Declaration may be amended from time to time by the
Trustee and the Borrow er, without the consent of the Depositor or any of
the Certificateholders except as required by Section 8.3(g), to cure any
ambiguity, to correct or supplement any provisions herein which may be
inconsistent with any other provisions herein or to add any other
provisions with respect to matters or questions arising under the
Declaration which shall not be inconsistent with the provisions of the
Declaration; provided, that, such action will not, as evidenced by an
Opinion of Counsel delivered to the Trustee (at the expense of the Person
requesting such action) adversely affect in any material respect the
interests of any Certificateholder.
(b) Subject to Section 8.3(g) and Section 8.3(h), the
Declaration may also be amended from time to time by the Trustee and the
Borrower, with the consent of Certificateholders representing at least
25% in Percent age Interest of the Certificates but without the consent
of the Depositor, for the purpose of adding any provi sions to or
changing in any manner or eliminating any of the provisions of this
Declaration or of modifying in any manner the rights of the
Certificateholders; provided, however, without the unanimous consent of
the Certif icateholders, no such amendment shall (i) reduce in any manner
the amount of, or delay the timing of, collections of payment on the
Promissory Notes, the Guarantee or the Eximbank Payment Certificate or
distributions which are required to be made on any Certificate, (ii)
reduce in any manner the amount of, or delay the timing of, the Trust's
receipt of Advances or any portion thereof, (iii) reduce the aforesaid
percentage required to consent to any such amendment or (iv) reduce the
aforesaid percent ages required to consent to any such amendment.
(c) Promptly after the execution of any amendment or
consent pursuant to this Section 8.3, the Trustee shall furnish or cause
to be furnished written notification of the substance of such amendment
to each Certificateholder, the Depositor, the Borrower, Eximbank, the
Liquidity Provider, if any, and the Rating Agencies.
(d) If the consent of Certificateholders under this
Section 8.3 is required in connection with a proposed amendment, it shall
not be necessary for the Certificateholders to approve the particular
form of any proposed amendment, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authori zation of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as
the Trustee may prescribe.
(e) The Trustee may, but shall not be obligated to,
enter into any amendment under this Section 8.3 which affects the
Trustee's own rights, duties or immunities under the Declaration or
otherwise.
(f) In connection with any amendment pursuant to this
Section 8.3, the Trustee shall be entitled to receive an Officer's
Certificate and an Opinion of Counsel to the effect that such amendment
is autho rized or permitted by the Declaration.
(g) No amendment or supplement to, and no modification
of, the Declaration shall be made unless the Trustee shall have received
a statement in writing from each of the Rating Agencies to the effect
that the pro posed amendment, supplement or modification will not result
in a downgrading or withdrawal of the rating assigned to the Certificates
by such Rating Agency, which shall have received no less than 30 days'
notice (which notice may be waived by such Rating Agency) of such
amendment, supplement or modification; provided, however, the requirement
of this Section 8.3(g) shall not apply to any amendment, supplement or
modification that does not require the approval of any
Certificateholders; and provided, further, the requirement of this
Section 8.3(g) shall not apply to any amendment, supplement or modifica
tion that has been unanimously approved by all Certifi cateholders.
(h) No amendment or supplement to, and no modification of,
the Declaration shall be made unless the Trustee shall have received an
Opinion of Counsel to the effect that the proposed amendment, supplement
or modifi cation will not cause the Trust to be treated other than as a
grantor trust for federal income tax purposes or render any part of the
Guarantee ineffective; provided, however, the requirement of this Section
8.3(h) shall not apply to any amendment, supplement or modification that
has been unanimously approved by all Certificateholders.
(i) Notwithstanding anything to the contrary contained
in this Section 8.3, (i) no amendment or supplement to, and no
modification of, Sections 3.6(b)(ii) or 3.6(d) shall be made unless the
Trustee shall have received the written consent of Eximbank, (ii) the
last paragraph of Section 8.4(a) may not be modified, amended or
supplemented without the consent of the Trust ee, (iii) no amendment or
supplement to, and no modifica tion of, the Declaration shall be made
without the con sent of the Depositor if such amendment, supplement or
modification would have a material adverse effect on the obligations or
liabilities of the Depositor under the Declaration and (iv) if a
Liquidity Agreement has been delivered, no amendment or supplement to,
and no modifi cation of, the Declaration shall be made without the
consent of the Liquidity Provider if such amendment, supplement or
modification would have a material adverse effect on the Liquidity
Provider, including, without limitation, any adverse effect on the amount
and timing of distributions to the Liquidity Provider pursuant to
Sections 5.3(b) and 5.4(c).
Section 8.4 Notices. (a) All communications, notices and
demands sent pursuant to the Declaration shall be in writing and shall
be deemed to have been duly given if delivered by the specified method of
deliv ery, or, if not specified, by telegram, telex, facsimile
transmission or hand delivery, to the appropriate addresses set forth in
the Supplement. All communications, notices and demands sent pursuant to
the immediately preceding sentence shall be deemed to have been given at
the time of delivery if delivered by hand or when con firmed by telephone
if sent by telex, telecopy or other wire transmission; provided, however,
all notices and demands sent pursuant to the Declaration to Eximbank
shall not be deemed to have been given unless actually received by
Eximbank.
(b) All communications and notices pursu ant to the
Declaration to a Certificateholder shall be in writing and delivered at
or mailed to the address shown in the Certificate Register.
Section 8.5 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of the Declaration
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of the Declaration
and shall in no way affect the validity or enforceability of the other
provisions of the Declaration or of the Certificates or the rights of
the holders thereof.
Section 8.6 Intention of Parties. The parties intend that
the Trust be classified (for Federal income tax purposes) as a grantor
trust under Subpart E, Part I of Subchapter J of the Code, and not as a
trust or association taxable as a corporation or as a partnership. The
powers granted and obligations undertaken in the Declaration shall be so
construed so as to further such intent.
Section 8.7 Headings. The headings in the Declaration are
for purposes of reference only and shall not otherwise affect the meaning
or interpretation of any provision hereof.
Section 8.8 Governing Law. THE DECLARATION AND THE
CERTIFICATES ISSUED PURSUANT TO THE DECLARATION SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
Section 8.9 Limitation on Rights of Certificateholders. The
death or incapacity of any Certificate holder shall not operate to
terminate the Declaration or the Trust nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting
or to take any action or proceeding in any court for a partition or
winding-up of the Trust, nor otherwise affect the rights, obligations and
liabilities of the Trustee or the Borrower.
Section 8.10 Statements Required in Certifi cate or Opinion.
Each certificate or opinion with re spect to compliance with a condition
or covenant provided for in the Declaration shall include:
(i) a statement that the person making such
certificate or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or
opinions contained in such certificate or opin ion are based;
(iii) a statement that, in the opinion of such
person, he has made such exami nation or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been
complied with.
Section 8.11 Third Party Beneficiary. The provisions of and
rights created by the Declaration shall inure to, and are intended for,
the benefit of the Cer tificateholders, the Borrower, any Liquidity
Provider and the Trustee (collectively, the "Beneficiaries"), each to the
extent provided herein, and each Beneficiary shall be deemed to be a
third party beneficiary with respect thereto, entitled to enforce
directly and in its own name any rights or claims it may have under the
Declaration. No provision of the Declaration shall create any rights for
or be enforceable by any Person other than a Benefi ciary.
IN WITNESS WHEREOF, the undersigned have exe cuted this
instrument as of the date first above written.
CITIBANK, N.A., as Trustee
By:_____________________________
Title:
CITICORP NORTH AMERICA, INC.
By:_____________________________
Title:
ARTICLE I
Definitions
Section 1.1 Definitions.............................................. 1
Section 1.2 Assumptions Regarding the Promissory Notes............... 11
ARTICLE II
Delivery of the Promissory Notes
and the Other Trust Property
Section 2.1 Delivery of the Promissory Notes and the
Other Trust Property..................................... 11
Section 2.2 Conditions to Issuance of Certificates................... 12
Section 2.3 Purposes of Trust........................................ 13
Section 2.4 No Transfer of the Promissory Notes and the
Other Trust Property by the Trustee...................... 14
Section 2.5 Authority of Trustee..................................... 14
ARTICLE III
Section 3.1 General.................................................. 15
Section 3.2 Subsequent to the Closing Date........................... 15
Section 3.3 Notices by the Trustee to the Borrower, the
Guarantor, the Liquidity Provider and
Eximbank................................................. 17
Section 3.4 Facilitation of Borrower Payments........................ 20
Section 3.5 Enforcement of Guarantee, the Eximbank
Payment Certificate and Liquidity
Agreement.......................................... 20
Section 3.6 Maintenance of the Trust Account and the
Eximbank Payment Account................................. 20
Section 3.7 Trustee Obligation Upon Failure to Deliver
Payment Demand........................................... 24
ARTICLE IV
Reports
Section 4.1 Reports to Certificateholders............................ 25
Section 4.2 Tax Statements........................................... 27
Section 4.3 Annual Audits............................................ 27
Section 4.4 Notices to Rating Agencies............................... 27
Section 4.5 Reports to the Borrower.................................. 28
ARTICLE V
Payment and Collection
Section 5.1 Receipt of Payments...................................... 29
Section 5.2 Occurrence of Payment Deficiency......................... 29
Section 5.3 Disposition of Proceeds of Payments...................... 32
Section 5.4 Extraneous Payments...................................... 35
Section 5.5 Tender of Promissory Notes to Eximbank................... 36
Section 5.6 Accelerated Promissory Notes............................. 36
ARTICLE VI
The Certificates
Section 6.1 The Certificates......................................... 36
Section 6.2 Registration of Transfer and Exchange of
Certificates....................................... 37
Section 6.3 No Charge; Disposition of Void Certificates.............. 38
Section 6.4 Mutilated, Destroyed, Lost or Stolen
Certificates....................................... 38
Section 6.5 Persons Deemed Owners.................................... 39
Section 6.6 Access to List of Certificate-holders' Names
and Addresses............................................ 39
Section 6.7 Book Entry............................................... 39
ARTICLE VII
The Trustee
Section 7.1 Duties of Trustee........................................ 40
Section 7.2 Certain Matters Affecting the Trustee.................... 42
Section 7.3 Trustee Not Liable for Certificates, etc................. 44
Section 7.4 Trustee May Own Certificates............................. 45
Section 7.5 Rights of Certificateholders and Liquidity
Provider to Direct Trustee; Limitation of
Exercise of Remedies by Certificateholders
and Liquidity Provider................................... 45
Section 7.6 Trustee's Fees and Expenses.............................. 47
Section 7.7 Eligibility Requirements for Trustee..................... 48
Section 7.8 Resignation or Removal of Trustee........................ 48
Section 7.9 Successor Trustee........................................ 50
Section 7.10Merger or Consolidation of Trustee....................... 51
Section 7.11Authenticating Agent..................................... 51
Section 7.12Trustee May Enforce Claims Without Possession
of Certificates.......................................... 53
Section 7.13Suits for Enforcement.................................... 53
Section 7.14Powers of Trustee........................................ 54
Section 7.15Waiver of Setoff, Counterclaim........................... 54
ARTICLE VIII
Miscellaneous
Section 8.1 Termination.............................................. 54
Section 8.2 Action by Certificateholders............................. 55
Section 8.3 Amendments............................................... 56
Section 8.4 Notices.................................................. 58
Section 8.5 Severability of Provisions............................... 58
Section 8.6 Intention of Parties..................................... 59
Section 8.7 Headings................................................. 56
Section 8.8 Governing Law............................................ 56
Section 8.9 Limitation on Rights of Certificateholders............... 56
Section 8.10Statements Required in Certificate or
Opinion............................................ 56
Section 8.11Third Party Beneficiary.................................. 57
EXHIBIT 99.2
GUARANTEED TRADE TRUST 1997-A
_________________________
SUPPLEMENT TO
DECLARATION OF TRUST
_________________________
CITIBANK, N.A.,
as Trustee
and
CITICORP NORTH AMERICA, INC.,
as Depositor
Dated as of November 26, 1997
SUPPLEMENT TO
DECLARATION OF TRUST
GUARANTEED TRADE TRUST 1997-A
SUPPLEMENT TO DECLARATION OF TRUST made as of
November 26, 1997 by CITIBANK, N.A., a national banking
association (the "Trustee"), and CITICORP NORTH AMERICA,
INC., a Delaware corporation (the "Depositor").
WHEREAS, the Trustee and the Depositor desire
to establish a trust (the "Trust") for the primary
purposes of (a) depositing and holding (i) a certain
Promissory Note (as hereinafter defined) issued by
Empresa Colombiana de Petroleos (the "Borrower") (other
than the right to receive any payments of Default
Interest (as defined herein) with respect thereto) and
the right to receive accrued and unpaid interest thereon
to November 26, 1997 (being one day's interest), (ii) the
Eximbank Guarantee (as defined herein), (iii) the
Liquidity Agreement (as defined herein) and (iv) after
the occurrence of an Eximbank Payment Event (as defined
herein), the Eximbank Payment Certificate and (b) issuing
the Certificates (as hereinafter defined);
WHEREAS, the Trustee and the Depositor desire
that the creation of the Trust and the duties of the
Trustee be governed by a Declaration of Trust (the
"Declaration") comprised of this Supplement (the
"Supplement") and the Master Terms of Trust (the "Master
Terms"), dated as of November 26, 1997, between the
Trustee and the Depositor;
WHEREAS, the Promissory Note will be guaranteed
under a guarantee (the "Guarantee") issued by the United
States of America, acting through the Export-Import Bank
of the United States ("Eximbank"), an independent agency
of the government of the United States, as to the payment
of 100% of all amounts of principal due thereon and
interest thereon at the Guaranteed Interest Rate (as
defined herein);
WHEREAS, the Depositor desires to provide for
the timely payment of the principal of and interest on
the Promissory Notes by delivering to the Trust a
Liquidity Reimbursement Agreement, dated as of November
26, 1997 (as such may be amended, supplemented or
otherwise modified from time to time, the "Liquidity
Agreement"), between Citibank, N.A., acting through its
Nassau Branch (in such capacity, the "Liquidity
Provider") and between Trustee;
WHEREAS, the Trustee has agreed to give certain
notices to and make certain demands for payment on the
Borrower and Eximbank pursuant to the terms of the
Guarantee Agreement (as hereinafter defined), each such
notice and demand to be made through the Nassau Branch
(as defined herein), all as required by the Guarantee
Agreement;
WHEREAS, the Trustee and the Depositor desire
that the respective beneficial interests in the Trust be
divided into transferable percentage interests, such
interests to be represented by the Certificates;
WHEREAS, the Trustee and the Depositor desire
that the Trustee act as paying agent and transfer agent
on behalf of the Trust; and
NOW, THEREFORE, the Trustee hereby declares
that all money and property received by the Trustee under
the Declaration of Trust shall be held and managed in
trust for the equal and ratable benefit of holders, from
time to time, of the beneficial interests issued
hereunder and for the benefit of the Liquidity Provider
in respect of Advances made under the Liquidity
Agreement, subject to the provisions hereof.
1. Definitions. As used in the Declaration
of Trust, of which this Supplement is a part, the
following terms shall have the following meanings (any
term defined in both the Master Terms and this Supplement
shall have the meaning set forth in this Supplement):
"Borrower" shall mean Empresa Colombiana de
Petroleos, a wholly-owned industrial and commercial
enterprise of the State of the National Order created
under the laws of the Republic of Colombia and organized
and validly existing in good standing under the laws of
the Republic of Colombia, and its successors.
"Certificate" shall mean each certificate of
beneficial interest issued by the Trust, which entitles
the Certificateholder to, among other things, as provided
herein and in the Master Terms, an undivided interest in
each semi-annual payment of principal and interest on the
Promissory Note, executed and delivered by the Trustee on
behalf of the Trust and authenticated by the Trustee or
an authenticating agent, and substantially in the form of
Exhibit A to this Supplement.
"Certificate Interest Rate" shall mean the per
annum rate of 6.104% (calculated on the basis of a 360-
day year consisting of twelve 30-day months).
"Certificate Payment Date" shall mean each
January 15 and July 15, commencing on January 15, 1998,
or, if any such date is not a Business Day, the next
succeeding Business Day.
"Citibank Nassau" shall mean Citibank, N.A.,
acting through its Nassau branch, as lender under the
Credit Agreement.
"Closing Date" shall mean 10:00 a.m., New York
City time, on November 26, 1997 or such later date as
shall be determined by agreement between the Depositor
and the Trustee.
"Credit Agreement" shall mean the Credit
Agreement dated as of April 1, 1996, made by and among
Citibank, N.A., acting through its Nassau Branch, as
original lender thereunder, the Borrower and Eximbank, as
such Agreement was amended on July 30, 1996, June 11,
1997, July 10, 1997 and November 12, 1997 and as such
Agreement may be further amended, supplemented or
otherwise modified from time to time.
"Declaration" shall mean the Declaration of
Trust, comprised of this Supplement and the Master Terms,
as the same may be amended, supplemented or otherwise
modified from time to time.
"Default Interest" shall mean interest at a
rate of 1 1/4% per annum payable by the Borrower upon a
payment default in the respect of the Promissory Note, as
provided in Section 2.2 of the Credit Agreement and in
the Promissory Note.
"Eligible Investments" shall not be applicable
with respect to the Trust.
"Guarantee Agreement" shall mean the Guarantee
Agreement dated as of April 30, 1996, made by and between
Citibank, N.A., acting through its Nassau Branch, as
original lender, and Eximbank, as such Agreement as such
Agreement was amended on July 30, 1996 and as such
Agreement may be further amended, supplemented or
otherwise modified from time to time.
"Guaranteed Interest Rate" shall mean 6.104%
per annum.
"Guarantor" shall not be applicable with
respect to the Trust.
"Investment Name" shall not be applicable with
respect to the Trust.
"Liquidity Agreement" shall have the meaning
specified in the Recitals hereto.
"Liquidity Provider shall mean Citibank, N.A.,
its successors and assigns, or such other Person which
shall at any time act in the capacity of liquidity
provider to ensure the timely payment of principal of and
interest on the Promissory Note.
"Master Terms" shall mean the Master Terms of
Trust, dated as of November 26, 1997, between the Trustee
and the Depositor, as the same may be amended,
supplemented or otherwise modified from time to time.
"Moody's" shall mean Moody's Investors Service,
Inc. or its successors.
"Note Payment Date" shall mean each January 15
and July 15, commencing January 15, 1998; provided,
however, if any such date is not a Business Day, the next
succeeding Business Day.
"Notice of Drawing" shall mean any written
demand delivered to the Liquidity Provider by the Trustee
pursuant to the Declaration and the Liquidity Agreement,
which demand shall be substantially in the form of
Exhibit A to the Liquidity Agreement.
"Promissory Note" shall mean the Promissory
Note of the Borrower issued pursuant to the Credit
Agreement in the Initial Amount of $147,882,628.79, with
the guarantee legend of Eximbank endorsed thereon
pursuant to the Guarantee Agreement, such Promissory Note
(less the right to receive Default Interest thereon and
the right to receive accrued and upaid interest thereon
to November 26, 1997 (being one day's interest)) having
been deposited in the Trust.
"Rating Agencies" shall mean Moody's and S&P.
"Record Date" shall mean, for any Certificate
Payment Date, the first calendar day of the month of such
Certificate Payment Date.
"Required Trustee Ratings" shall mean (i) long-
term or short-term security or deposit ratings of at
least Baa3 or P-3, respectively, by Moody's and (ii)
long-term or short-term security or deposit ratings of at
least BBB or A-3, respectively, of S&P.
"S&P" shall mean Standard & Poor's Ratings
Services, a division of McGraw-Hill, Inc., or its
successors.
"Supplement" shall mean this Supplement to
Declaration of Trust.
"Transfer Agreement" shall mean the Transfer
Agreement, dated November 26, 1997, from Citibank Nassau
to the Depositor.
"Trust" shall mean the trust created by the
Declaration and designated "Guaranteed Trade Trust 1997-
A."
"Trustee Basic Fee" shall not be applicable
with respect to the Trust.
"Trustee Supplemental Fee" shall not be
applicable with respect to the Trust.
All references herein to Articles or Sections
shall be to the Articles or Sections of the Master Terms
unless such Article or Section shall appear herein, in
which event such reference shall be to the Article or
Section as it appears in this Supplement. All references
herein to Paragraphs shall be to this Supplement.
2. Declaration of Trust. The Trustee, for
itself and its successors and assigns, declares that it
shall hold all the estate, right, title and interest in,
to and under the Trust Property and any other property
received by it under this Declaration in trust for the
equal and ratable benefit of all present and future
Certificateholders and the Liquidity Provider in respect
of Advances made under the Liquidity Agreement, subject
to the terms and provisions set forth in the Declaration.
The Trust shall be designated "Guaranteed Trade Trust
1997-A."
3. Further Conditions to Issuance of
Certificates. Section 2.2(b) of the Master Terms is
hereby amended by the addition of the following:
(vi) the Promissory Note shall be in an Initial
Amount equal to the aggregate initial principal
amount of the Certificates issued on the
Closing Date, the interest rate borne by the
Promissory Note shall be equal to the
Certificate Interest Rate and the Note Payment
Dates shall be the same as the Certificate
Payment Dates.
(vii) receipt by the Trustee from the
Borrower of $14,100 in payment in full of
the fee of the Trustee set forth in
Section 7.6(a)(i) (such fee consisting of
(a) an initial fee of $2,000 and (b) the
amount of $12,100 (which amount is equal
to the present value of a stream of annual
payments of $2,000 each made on ______ of
each year, commencing on the Closing Date
and ending on _______, 200_), calculated
using a discount rate of __% per annum)).
(viii) delivery by the Depositor of the
Transfer Agreement and an assignment of the
Depositor's rights thereunder to the Trustee.
(ix) delivery to the Trustee by Citibank
Nassau pursuant to the Transfer Agreement of
three pre-executed Eximbank Payment Demands and
three pre-executed Borrower Payment Demands.
(x) delivery to the Trustee of an opinion,
addressed to the Trustee and dated the Closing
Date, of special Bahamas counsel to the
Liquidity Provider substantially to the effect
set forth in Exhibit C-7.
4. Amendment to Section 3.7(a) of the Master
Terms. Section 3.7(a) of the Master Terms is hereby
amended by the deletion thereof in its entirety and the
substitution of the following:
(a) Notwithstanding any other provision
herein, if the Trustee (x) shall fail to file
with and deliver to Eximbank an Eximbank
Payment Demand (to the extent provided to the
Trustee by Citibank Nassau) and related
documents as provided in Sections 3.3(a)(iii),
3.3(b), 5.2(a)(ii) and 5.5 by a date which is
150 days following the Note Payment Date to
which such Eximbank Payment Demand relates, (y)
shall fail to deliver to the Borrower and the
Guarantor, if any, a Borrower Payment Demand
(to the extent provided to the Trustee by
Citibank Nassau) as provided in Sections
3.3(a)(ii) and 5.2(a)(i) by a date which is 15
days prior to such 150th day or (z) shall fail
to notify Citibank Nassau in a timely manner of
the necessity for Citibank Nassau to execute
additional Eximbank Payment Demands or Borrower
Payment Demands and the consequent failure of
the Trustee to deliver such Demands pursuant to
clauses (x) or (y) above, the Trustee, in its
individual capacity and not out of the assets
of the Trust, shall pay to the Trust, on the
151st day (or, if such 151st day is not a
Business day, on the next succeeding Business
Day) (the "Special Trustee Payment Date"), an
amount equal to the sum of (i) the amount
payable on the Promissory Notes with respect to
the related Note Payment Date, plus (ii) (x) if
any accrued interest on an Advance at the
Advance Rate has not been paid to the Liquidity
Provider, such accrued interest at the Advance
Rate from and including such Note Payment Date
to, but not including, the date of payment by
the Trustee pursuant to this Section 3.7(a) or
(y) interest on such Promissory Notes, from and
excluding the related Certificate Payment Date,
through and including the date on which such
funds are distributed to Certificateholders, at
the Certificate Interest Rate, less any amounts
paid on the Promissory Notes in respect of such
Note Payment Date prior to such Special Trustee
Payment Date (other than pursuant to an
Advance). The Trustee shall deposit any
Special Payment Amount which is payable
pursuant to this Section 3.7 in immediately
available funds into the Trust Account on the
related Special Trustee Payment Date. Upon
such deposit, the Trustee shall establish a
Special Record Date and a Special Payment Date
in accordance with Section 5.3(d). On such
Special Payment Date the Trustee shall
distribute the Special Payment Amount to
Certificateholders as provided herein.
5. (a) Additional Duties of Trustee. The
Trustee shall (a) enter into the Liquidity Agreement, (b)
hold in trust for the benefit of the Certificateholders
the pre-executed Eximbank Payment Demands and Borrower
Payment Demands delivered to the Trustee pursuant to
Section 2.2(b)(viii) (c) complete and file with or
deliver to Eximbank and the Borrower the pre-executed
Eximbank Payment demands and Borrower Payment Demands as
required by Sections 3.3, 5.2 and 5.5 of the Master
Terms, (d) give timely notice to Citibank Nassau of the
necessity to execute and deliver additional pre-executed
Eximbank Payment Demands and Borrower Payment demands and
(e) at the expense of the Certificateholders, enforce the
obligations of Citibank Nassau under the Transfer
Agreement.
(b) Remittances to the Depositor. Upon
receipt from the Borrower of (i) interest accrued on the
Promissory Note to November 26, 1997, or (ii) any Default
Interest, (but only after application of amounts to the
payment of the Provider and the Certificateholders
pursuant to Section of the Master Terms), the Trustee
shall remit such amounts to the Depositor.
6. Notices. All communications notices and
demands sent pursuant to the Declaration shall be sent to
the following addresses:
If to the Trustee:
Citibank, N.A.,
as Trustee
111 Wall Street - 5th Floor
New York, New York 10005
Attention: Corporate Trust
Department
Facsimile No.: 212-657-3862
If to Eximbank:
Export-Import Bank of the United States
811 Vermont Avenue, N.W.
Washington, D.C. 20571
Telex: 248460 or 197681
Facsimile No.: (202) 566-7524
Attention: Vice President - Americas
Division
If to the Borrower:
Empresa Colombiana de Petroleos
Carrera 13 #36-24
Santa Fe de Bogota
Colombia
Attention: Diana Espinosa
Tel: (571) 234 4858
Facsimile No.: (571) 288 5865
If to the Liquidity Provider:
Citibank, N.A.
399 Park Avenue
New York, New York 10043
Attention:
Facsimile No.: (212)
If to Moody's:
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Structured Finance Group
Facsimile No.: (212) 553-4600
If to S&P:
Standard & Poor's Ratings Services
26 Broadway, 3rd Floor
New York, New York 10004
Attention: Letter of Credit/MTN
Facsimile No.: (212) 208-0031
or at such other address as the party may designate by
notice to the other parties hereto in accordance with
Section 8.4(a) of the Master Terms.
IN WITNESS WHEREOF, the undersigned have
executed this instrument as of the date first above
written.
CITIBANK, N.A., as Trustee
By:_____________________________
Name:
Title:
CITICORP NORTH AMERICA, INC.
By:_____________________________
Name:
Title:
EXHIBIT A
Any of the Certificates executed by the Trustee
and authenticated by the Trustee or any authenticating
agent shall be in substantially the following form, with
the blanks therein appropriately completed:
[To be included in global Certificate delivered to DTC--
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OF OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE LESS THAN THE INITIAL AMOUNT SET FORTH BELOW. THE
PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE
OBTAINED BY REQUEST OF THE TRUSTEE.
INITIAL AMOUNT
Certificate No. ___________ $ _______________________
Maturity Date ___________ CERTIFICATE INTEREST RATE
_________%
CUSIP No. ________________
CERTIFICATE
Evidencing an undivided fractional interest in
all payments of principal and interest made on the
promissory note dated November 26, 1997 (the "Promissory
Note") of Empresa Colombiana de Petroleos (the
"Borrower"). The payment of one hundred percent (100%)
of all principal due on the Promissory Note and interest
due thereon at the Guaranteed Interest Rate is guaranteed
by the United States of America acting through the
Export-Import Bank of the United States. The Promissory
Note, the Guarantee and the other Trust Property are held
in trust by GUARANTEED TRADE TRUST 1997-A.
THIS CERTIFICATE DOES NOT REPRESENT AN
OBLIGATION OF AND IS NOT GUARANTEED BY THE UNITED STATES
OF AMERICA OR ANY GOVERNMENTAL AGENCY NOR IS IT AN
OBLIGATION OF OR GUARANTEED BY THE BORROWER OR CITIBANK,
N.A., IN ITS CAPACITY AS THE TRUSTEE OR LIQUIDITY
PROVIDER.
This certifies that __________________________
_______________________________ is the registered owner
of an undivided interest in certain payments made on or
in respect of the Promissory Note. The Principal due on
this Certificate on any Certificate Payment Date is
determined by multiplying the Percentage Interest hereby
represented by the payment of principal of the Promissory
Note received on the Note Payment Date immediately
preceding such Certificate Payment Date. Interest due on
this Certificate for an Interest Period shall be
calculated using the Principal Balance hereof and the per
annum Certificate Interest Rate stated above (calculated
on the basis of a 360-day year consisting of twelve 30-
day months).
The Promissory Note will be held in trust by
Guaranteed Trade Trust 1997-A (the "Trust"). The Trust
has been created pursuant to a Declaration of Trust (the
"Declaration"), comprised of the Master Terms of Trust
dated as of November 26, 1997, between Citibank, N.A., as
Trustee of the Trust (the "Trustee"), and Citicorp North
America, Inc. (the "Depositor") and the Supplement to
Declaration of Trust dated as of November 26, 1997
between the Trustee and the Depositor. The assets of the
Trust include the Promissory Note (other than the right
to any Default Interest thereon). Payments on the
Promissory Note are guaranteed by a guarantee (the
"Guarantee") issued by Eximbank as to the payment of one
hundred percent (100%) of principal of and interest at
the Guaranteed Interest Rate due on the Promissory Note.
The Guarantee is entitled to the full faith and credit of
the United States of America. The Guarantee was issued
pursuant to the Guarantee Agreement dated as of April 1,
1996 (as amended, the "Guarantee Agreement") between
Eximbank, and Citibank, N.A., acting through its Nassau
Branch.
IN THE CASE OF AN EVENT OF DEFAULT ONLY
EXIMBANK MAY ACCELERATE THE PROMISSORY NOTE.
ACCELERATION OF THE PROMISSORY NOTE WILL NOT RESULT IN AN
ACCELERATION OF THE CERTIFICATES.
Timely payment of the principal of and interest
on this Certificate will be supported by a Liquidity
Reimbursement Agreement, dated as of November 26, 1997
(the "Liquidity Agreement") between Citibank, N.A.,
acting through its Nassau Branch, as liquidity provider
(the "Liquidity Provider") and the Trustee.
To the extent not defined herein, all
capitalized terms shall have the meanings assigned to
such terms in the Declaration. This Certificate is one
of the Certificates described in the Declaration and is
issued under and subject to the terms, provisions and
conditions of the Declaration. By acceptance of this
Certificate, the holder assents to and becomes bound by
the Declaration.
Except as otherwise provided in the
Declaration, distributions on the Certificates will be
made by check mailed to the Certificateholder at the
address for such Certificateholder appearing on the
Certificate Register without the presentation or
surrender of the Certificate or the making of any
notation hereon. Notwithstanding the foregoing, the
final distribution on this Certificate will be made only
upon presentation and surrender of this Certificate at
the office or agency maintained for that purpose by the
Trustee in the Borough of Manhattan, The City and State
of New York.
By their acceptance of this Certificate, the
registered owner hereof and any beneficial owner of an
interest herein agree that, except as otherwise expressly
provided in Section 3.7 of the Declaration, (a) this
Certificate is executed and delivered by Citibank, N.A.
(or any successor Trustee), not individually or
personally but solely as Trustee of the Trust, in the
exercise of the powers and authority conferred and vested
in it by the Declaration of Trust, (b) the
representations, undertakings and agreements made herein
are made and intended not as personal representations,
undertakings and agreements by Citibank, N.A. (or any
successor Trustee), but are made and intended for the
purpose of binding only the Trust, (c) nothing contained
herein shall be construed as creating any liability on
Citibank, N.A. (or any successor Trustee), individually
or personally, to perform any covenant either expressed
or impliedly contained herein, all such liability, if
any, being expressly waived by the registered owner
hereof and any beneficial owner of an interest herein and
by any Person claiming by, through or under such owners,
and (d) under no circumstances shall Citibank, N.A. (or
any successor Trustee) be personally liable for the
payment of any indebtedness or expenses of the Trust, the
Borrower or the Depositor or be liable for the breach or
failure of any obligation, representation, warranty or
covenant made or undertaken by the Trust, the Borrower or
the Depositor under this Certificate.
This Certificate is limited in right of payment
to collections on or with respect to the Promissory Note,
the Guarantee, the Eximbank Payment Certificate and the
Liquidity Agreement, all as more specifically set forth
herein and in the Declaration. Each scheduled payment on
the Promissory Note is in an amount sufficient to satisfy
the corresponding scheduled payments on the Certificates.
Under the terms of the Liquidity Agreement, if
the Borrower fails to make a scheduled payment when due
of any installment of principal or interest when due
under the Promissory Note, the Liquidity Provider will be
obligated to advance the amount of such scheduled
payments on the date due.
Under the terms of the Guarantee Agreement, if
the Borrower fails to make a scheduled payment when due
of any installment of principal or interest under the
Promissory Note and such failure has continued for 30
calendar days, Eximbank, upon receipt of a written demand
for payment on any Business Day subsequent to such 30-day
period by the Trustee (and provided that the Trustee has
made a payment demand upon the Borrower at least 15
calendar days prior thereto), accompanied by the
defaulted Promissory Note and an assignment of the
Promissory Note to Eximbank (the "Eximbank Payment
Event"), is obligated to pay to the Trust within five
Business Days of such demand one hundred percent (100%)
of the installment of principal and interest at the
Guaranteed Interest Rate due on the Promissory Note (the
"Guaranteed Amounts"). To the extent that the Liquidity
Provider has advanced the amount of such installment, the
Liquidity Provider will be entitled to the payment by
Eximbank of such Guaranteed Amounts. Thereafter, on each
subsequent Note Payment Date following the Eximbank
Payment Event, the Guarantee Agreement provides that
Eximbank will directly and timely pay the Guaranteed
Amounts due under the Promissory Note to the Trust on
each scheduled Note Payment Date until the scheduled
maturity of the Promissory Note (regardless of any
acceleration of the Promissory Note), without a
requirement of demand on or notice to the Borrower or
Eximbank for such payment.
The Declaration of Trust requires the Trustee
to give timely notice of borrowing to the Liquidity
Provider and to make a timely payment demand on the
Borrower or Eximbank under the Promissory Note or the
Guarantee, respectively. The Declaration provides that
if the Guarantee should expire because of a failure to
make timely demand by the Trustee, any amount with
respect to which the Guarantee shall have expired shall
be immediately payable by the Trustee.
Subject to the terms of the Declaration and
until the Promissory Note have been paid in full, the
Trustee shall distribute on January 15 and July 15 (or on
the next succeeding Business Day if such January 15 or
July 15 is not a Business Day) of each year, commencing
January 15, 1998 (each a "Certificate Payment Date"), to
the person in whose name this Certificate is registered
on the first calendar day of the calendar month of such
Certificate Payment Date, Interest for the applicable
Interest Period. An "Interest Period" shall mean the
period from and including the most recent Certificate
Payment Date (or, if there is no such Certificate Payment
Date, from and including the Closing Date) to but
excluding the next succeeding Certificate Payment Date.
Equal semi-annual principal amortization payments on the
Promissory Note are required by the terms of the
Promissory Note on each January 15 and July 15, from
January 15, 1998 through July 15, 2003. To the extent
such principal amortization payments are received by the
Trustee, the Percentage Interest to which the holder of
this Certificate is entitled will be applied to such
principal amortization payments and the resulting amount
will be distributed to such holder on the following
January 15 or July 15, as applicable (or, if such date is
not a Business Day, the next following Business Day) of
each year commencing January 15, 1998. Accordingly, the
outstanding Principal Balance of this Certificate at any
time may be less than the Initial Amount set forth above.
To the extent such Principal Balance is received by the
Trustee, the Principal Balance of this Certificate on
July 15, 2003 will be distributed to the
Certificateholder on such date upon surrender of this
Certificate at the office or agency maintained for that
purpose by the Trustee in the Borough of Manhattan, The
City and State of New York.
The Declaration permits, with certain
exceptions therein provided, the amendment thereof and
the modification of the rights and obligations of the
Certificateholders under the Declaration at any time by
the Trustee and the Borrower, with the consent of
Certificateholders representing at least 25% in
Percentage Interest of the Certificates but, unless such
amendment would adversely affect the Depositor, without
the consent of the Depositor. Any such amendment and any
such consent by the holder of this Certificate shall be
conclusive and binding on such holder and upon all future
holders of this Certificate and of any Certificate issued
in exchange hereof or in lieu hereof whether or not
notation thereof is made upon the Certificate. The
Declaration also permits, under certain circumstances,
the amendment thereof by the Trustee and the Borrower
without the consent of any of the Certificateholders.
The Certificates are issuable only as
registered Certificates without coupons, in denominations
of $1,000 and integral multiples of $1,000 in excess
thereof, except that one Certificate may be issued in a
different amount. As provided in the Declaration and
subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates, of
authorized denominations, of like tenor, like aggregate
Initial Amount and like Principal Balance, all as
requested by the Certificateholder surrendering the same.
As provided in the Declaration and subject to
certain limitations therein set forth, the transfer of
this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for
registration of transfer at the office or agency
maintained by the Trustee in the Borough of Manhattan,
The City and State of New York, accompanied by a written
instrument of transfer in form satisfactory to the
Trustee or any Certificate Registrar duly executed by the
Certificateholder or such Certificateholder's attorney
duly authorized in writing. Thereupon one or more new
Certificates, of like tenor and authorized denominations
and for the same aggregate Initial Amount and Principal
Balance will be issued to the designated transferee or
transferees.
No service charge may be imposed for any such
registration of transfer or exchange but the Trustee or
any Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith.
The Trustee, the Certificate Registrar, if
other than the Trustee, any paying agent and any
authenticating agent and any agent of any of them may
treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and none
of the Trustee, the Certificate Registrar, if other than
the Trustee, any paying agent, any authenticating agent,
or any agent of any such agent shall be affected by
notice to the contrary.
The Declaration shall terminate after the
aggregate amount distributed to all Certificateholders
equals the full amount due and payable in respect of all
the Certificates and all other amounts held by the
Trustee have been distributed in accordance with the
terms of the Declaration, with certain exceptions set
forth in Section 8.1 of the Declaration.
This Certificate does not purport to summarize
all provisions of the Declaration and reference is made
to the Declaration for information with respect to the
interest, rights, benefits, obligations, proceeds and
duties evidenced hereby and the rights, duties and
immunities of the Trustee. Copies of the Declaration and
all amendments thereof will be provided to any
Certificateholder free of charge upon a written request
to the Trustee at 120 Wall Street - 13th Floor, New York,
New York 10043, Attention: Corporate Trust Department.
Unless this Certificate has been executed by
the Trustee, by manual or facsimile signature of a duly
authorized signatory and the certificate of
authentication hereon has been manually executed by or on
behalf of the Trustee, this Certificate shall not be
entitled to any benefit under the Declaration or be valid
for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this
instrument to be duly executed on behalf of the Trust.
Date ___________________
GUARANTEED TRADE TRUST 1997-A
By: CITIBANK, N.A.,
not in its individual
capacity but solely as
Trustee
By: ____________________________
Trustee's Certificate of
Authentication
This is one of the Certifi-
cates described in the within-
mentioned Declaration of Trust
By: CITIBANK, N.A.
as Trustee
By: __________________________
Authorized Officer
ASSIGNMENT
For value received the undersigned, subject to
the provisions of Section 6.2 of the Declaration, sells,
assigns and transfers unto (name, address including zip
code and taxpayer identification or Social Security
number of assignee)
_______________________________________________
_________________________________________________________
_________________________________________________________
the within Certificate and does hereby irrevocably
constitute and appoint
_____________________________________
___________ attorney to transfer the said Certificate on
the books kept for registration thereof with full power
of substitution on the premises.
Dated:____________________
___________________________
Signature by or on behalf
of assignor
Exhibit B-1
FORM OF BORROWER PAYMENT DEMAND
_________________, ____
Empresa Colombiana de Petroleos
Attention:
Gentlemen:
The undersigned hereby notifies you of a
payment default under the Promissory Note dated November
26, 1997 (the "Promissory Note") executed by you in favor
of Citibank, N.A. Capitalized terms used herein and not
defined herein shall have the respective meanings
assigned in the Promissory Note.
The undersigned further notifies you that
$________ of principal, $_______ of interest and $_______
of postmaturity interest on the Promissory Note remain
unpaid as of the date hereof (but not including such
date), which amounts represent the unpaid amount in
respect of the $________ payable on the Note Payment Date
occurring on __________ __, ____. The undersigned hereby
demands immediate payment in full of such amounts in
immediately available funds in accordance with the
provisions of the Promissory Note.
This notice is being provided by the
undersigned in its capacity as Trustee under the
Declaration of Trust (the "Declaration") made by the
undersigned and Citicorp North America, Inc., as
depositor (such Declaration being comprised of the Master
Terms of Trust dated as of November 26, 1997 and a
Supplement dated as of November 26, 1997), as amended
from time to time to the date hereof, and constitutes a
"Payment Demand" referred to in the Declaration and a
"written demand for payment" referred to in Section 4.01
of the Guarantee Agreement dated as of April 1, 1996
among Eximbank, and Citibank, N.A., acting through its
Nassau Branch.
Very truly yours,
CITIBANK, N.A., ACTING THROUGH
ITS NASSAU BRANCH
By: ____________________________
Title:
cc: Export-Import Bank of the
United States
Exhibit B-2
FORM OF EXIMBANK PAYMENT DEMAND
________________, 19__
Export-Import Bank of the United States
811 Vermont Avenue, N.W.
Washington, D.C. 20571
Attention: Vice President-Claims and Recoveries Division
Re: Guarantee No. AP065759XX-Colombia
Gentlemen:
Pursuant to Sections 4.01 and 4.02 of the
Guarantee Agreement dated as of April 1, 1996 (as
amended, the "Guarantee Agreement") between you and the
undersigned, the undersigned, hereby notifies you of a
payment default under the Promissory Note dated November
26, 1997 (the "Promissory Note") executed by Empresa
Colombiana de Petroleos (the "Borrower"), in favor of
Citibank, N.A. (the "Noteholder").
The undersigned notifies you that on the Note
Payment Date occurring on _____________ __, 19__,
$________ of principal and $________ of interest was due
on the Promissory Note, and as of the date hereof
$_________ in respect thereof has been received by the
Noteholder. As of the date hereof (but not including
such date), $________ of principal, $________ of interest
and $_________ of post-maturity interest on the
Promissory Note remain unpaid. The undersigned hereby
demands payment in full of the unpaid amount of principal
on the Promissory Note specified in the preceding
sentence and interest at the Guaranteed Interest Rate on
such amount of principal and interest until the date of
payment thereof by you in accordance with the provisions
of the Guarantee Agreement.
This notice is being provided on behalf of the
Noteholder, the holder of the Promissory Note, and
constitutes a "demand" referred to in Sections 4.01 and
4.02 of the Guarantee Agreement.
Very truly yours,
CITIBANK, N.A., ACTING
THROUGH ITS NASSAU BRANCH
By: ____________________________
Exhibit B-3
FORM OF PREFERENCE PAYMENT DEMAND
____________________, 19__
Export-Import Bank of the United States
811 Vermont Avenue, N.W.
Washington, D.C. 20571
Attention: Vice President-Claims and Recoveries Division
Re: Guarantee No. AP065759XX-Colombia
Gentlemen:
Pursuant to Sections 2.07, 4.01 and 4.02 of the
Guarantee Agreement dated as of April 1, 1996 (as amended
to the date hereof, the "Guarantee Agreement") between
you and the undersigned, the undersigned hereby notifies
you that a payment under the Promissory Note dated
November __, 1997 (the "Promissory Note") executed by
Empresa Colombiana de Petroleos (the "Borrower"), in
favor of the Trust created by the Declaration of Trust
(the "Noteholder") has been rescinded or compelled to be
returned.
The undersigned notifies you that payment of
$_________ of principal and $_________ of interest made
by the Borrower in respect of the Note Payment Date
occurring on _____________ __, 19__, has been
[[rescinded] [compelled to be returned] [by law as the
result of the bankruptcy or insolvency of the Borrower]
[as a result of a law, regulation or decree applicable to
the Borrower]]. The undersigned hereby demands payment
in full of the rescinded or returned amount of principal
on the Promissory Note specified in the preceding
sentence and interest at the Guaranteed Interest Rate on
such amount of principal and interest until the date of
payment thereof by you in accordance with the provisions
of the Guarantee Agreement.
This notice is being provided on behalf of the
Noteholder, the holder of the Promissory Note, and
constitutes a "demand" referred to in Sections 2.07, 4.01
and 4.02 of the Guarantee Agreement.
Very truly yours,
CITIBANK, N.A., ACTING THROUGH
ITS NASSAU BRANCH
By: ____________________________
Exhibit C-1
Opinion, dated the Closing Date and addressed
to the Trustee, of counsel for the Trustee substantially
to the effect that:
(a) The Trustee has been duly
incorporated and is validly existing as a banking
association organized under the laws of the United
States, and has the power and authority (corporate
and other) to enter into, and to take all action
required of it under, the Declaration and the
Guarantee Agreement.
(b) The Declaration and the Guarantee
Agreement have each been duly authorized, executed
and delivered by the Trustee and each constitutes a
legal, valid and binding agreement of the Trustee,
enforceable against the Trustee in accordance with
its terms, except as such enforceability may be
limited by bankruptcy, insolvency, receivership,
conservatorship, liquidation, reorganization,
moratorium or other similar laws affecting the
enforcement of rights of creditors of national
banking associations generally, and the application
of general principles of equity (regardless of
whether such enforceability is considered in a
proceeding in equity or at law).
(c) The Certificates have been duly
executed, authenticated and delivered by the Trustee
on behalf of the Trust.
Exhibit C-2
Opinion dated the Closing Date of Colombian
counsel to the Borrower, substantially to the effect
that:
(a) The Borrower is duly organized and
existing in good standing under the laws of the
Republic of Colombia and has full power, authority
and legal right to incur the indebtedness and
obligations provided for in the Credit Agreement and
the Promissory Note, and has taken all legal and
other action necessary to authorize it to execute
and deliver the Promissory Note and the Credit
Agreement and perform and observe the terms and
conditions of the Promissory Note and the Credit
Agreement.
(b) No authorization, registration or
approval (including any foreign exchange approval
with respect to the availability and transfer of
Dollars necessary to make all required payments
under the Credit Agreement or the Promissory Note)
of, or filing or registration with the Republic of
Colombia, or of any governmental agency or public
office thereof or therein, together with any other
third-party consent, which is necessary or advisable
for the execution, delivery and performance of the
Credit Agreement or the Promissory Note or to assure
the validity, binding effect and enforceability
hereof or thereof has not been obtained or made and
each such authorization, registration, approval,
filing or consent which has been made is binding and
enforceable and in full force and effect.
(c) No constitutional provision, law,
ordinance, decree or regulation of the Government of
Colombia, or any agency, department or
instrumentality thereof, no order, judgment, award
or decree of any court, arbitrator or governmental
authority, no provision of any charter, by-law or
similar instrument of the Borrower and no provision
of any agreement or other instrument binding on the
Borrower or to which it or its properties or
revenues may be subject is or will be contravened by
its execution and delivery of the Credit Agreement
or the Promissory Note or its performance and
observance of terms and conditions of the Credit
Agreement or the Promissory Note.
(d) There is no pending or, to the best
of the knowledge of such counsel, threatened action
or proceeding affecting the Borrower before any
court, governmental agency, international
organization or arbitrator, which (i) questions or
could affect the legality, validity, binding effect
or enforceability of the Credit Agreement or the
Promissory Note, (ii) might restrain or enjoin or
have the effect of restraining or enjoining its
performance or observance of the terms and the
conditions of the Credit Agreement or the Promissory
Note or (iii) may individually or in the aggregate
materially and adversely affect the financial
condition or operations of the Borrower.
(e) Under the present laws of the
Republic of Colombia or any political subdivision or
taxing authority thereof, there is no Tax (as
defined in the Credit Agreement) imposed (whether by
withholding or otherwise) on or in connection with
the execution, delivery, performance or enforcement
of the Credit Agreement or the Promissory Note or
any other document to be furnished thereunder or on
any payment to be made under the Credit Agreement or
the Promissory Note.
(f) There are no stamp taxes or similar
taxes and duties or registration charges or fees
payable in connection with the transactions
contemplated by the Credit Agreement that have not
been paid.
(g) No consent, license, approval or
authorization of, or registration, recording or
filing with, the Government of Colombia or any
court, agency, department or other administrative
authority or instrumentality of the Government of
Colombia or any local or other governmental
authority within Colombia is required for the
execution, delivery or performance of the Credit
Agreement or the Promissory Note by the Borrower or
for the validity, enforceability, priority or
admissibility thereof.
(h) The execution and delivery of the
Credit Agreement or the Promissory Note by the
Borrower and its performance and observance of the
terms and conditions thereof will not result in the
creation of any Lien (as defined in the Credit
Agreement) on any of the present or future revenues
or properties of the Borrower under any agreement,
instrument or other documents to which the Borrower
is a party or by which the Borrower or any of its
revenues or properties may be bound or affected.
(i) The payment obligations of the
Borrower under the Credit Agreement and the
Promissory Note constitute the direct, general and
unconditional obligations of the Borrower and rank
in all respects at least pari passu in priority of
payment with all unsecured debt of the Borrower
(except to the extent that any such debt ranks
senior to such obligations solely by reason of
Encumbrances specifically excepted under Section
6.03(b) of the Credit Agreement).
(j) The waiver of immunity by the
Borrower, the appointment of the Process Agent for
service of process and the consent by the Borrower
to the jurisdiction of the courts specified in the
Credit Agreement, all as provided in the Credit
Agreement, are irrevocably binding on the Borrower
and are valid under the laws of the Republic of
Colombia.
(k) The provision that the law of the
State of New York shall govern the Credit Agreement
and the Promissory Note, all as provided in the
Credit Agreement and the Promissory Note, are
irrevocably binding on the Borrower and are valid
under the laws of the Republic of Colombia and will
be recognized and given effect by the courts of the
Republic of Colombia.
(l) The Credit Agreement and the
Promissory Note are in proper legal form under the
laws of the Republic of Colombia for the most
expeditious enforcement thereof against the Borrower
in the courts of the Republic of Colombia and any
judgment obtained in the courts of New York will be
recognized and enforced by the courts of the
Republic of Colombia.
(m) Citibank, N.A., acting through its
Nassau Branch, as original lender, was not prevented
from entering into, and the Trustee is not prevented
from accepting an assignment of, the Credit
Agreement by reason of any of the prohibitions and
incompatibilities mentioned in Law 80 of 1993 of the
Republic of Colombia.
In rendering the opinions set forth above, such
counsel may assume and state that he has not
independently verified (i) the authenticity of all
documents submitted to him as originals and the
conformity to the originals of all documents submitted to
him as copies, (ii) that the execution and delivery of
the Credit Agreement and the Promissory Note have been
duly authorized by each of the parties thereto (other
than the Borrower) and that each of the parties thereto
(other than the Borrower) has full power, authority and
legal right to enter into each such agreement and to
perform its obligations thereunder, and (iii) that the
Credit Agreement has been duly executed and delivered by
each of the parties thereto (other than the Borrower).
Such counsel may also assume that the Credit Agreement or
the Promissory Note are legal, valid, binding and
enforceable under New York law.
In rendering such opinions, such counsel may
limit his opinions to matters governed by the laws of the
Republic of Colombia.
Exhibit C-3
Opinion dated the Closing Date of special New
York counsel to the Borrower, substantially to the effect
that:
(a) The Credit Agreement and the
Promissory Note are the valid and binding
obligations of the Borrower, enforceable against the
Borrower in accordance with their respective terms,
and the Promissory Note is entitled to the benefits
of the Credit Agreement.
(b) The execution and delivery of the
Credit Agreement and the Promissory Note by the
Borrower and the performance by the Borrower of its
obligations therein and herein contemplated do not
require the consent, approval, authorization,
registration or qualification of or with any federal
or New York State governmental authority, except
such as have been obtained or effected (except as to
any consent, approval, authorization, registration
or qualification that may be required under United
States securities laws and state securities or Blue
Sky laws, as to which such counsel need express no
opinion).
In addition, such counsel shall state that,
based on inquiry of lawyers currently with such law firm
who, according to the records of such law firm, have
performed legal services for the Borrower since January
1, 1997, such counsel know of no legal or governmental
proceedings pending to which the Borrower is a party or
threatened against the Borrower, (A) asserting the
invalidity of the Credit Agreement or the Promissory Note
or (B) seeking to prevent the performance of any of the
transactions contemplated by the Credit Agreement or the
Promissory Note; provided that such counsel may regard
any legal or governmental proceedings not to be
threatened unless the potential litigant or governmental
authority has manifested to such counsel a present
intention to initiate such proceedings.
In rendering the opinions expressed above, such
counsel may assume (i) the authenticity of all documents
submitted to them as originals and the conformity to
originals of all documents submitted to them as copies,
(ii) that the signatures on all documents that they have
examined are genuine, (iii) each party (including the
Borrower) to the Credit Agreement and the Promissory Note
has satisfied those legal requirements that are
applicable to it to the extent necessary to make such
agreement or obligation enforceable against it (except
that no such assumption is made as to the Borrower
regarding matters of the federal law of the United States
of America or the law of the State of New York), and (iv)
the accuracy as to factual matters of each document we
have reviewed (including, without limitation, the
accuracy of the representations and warranties of
Ecopetrol in the Credit Agreement.
In addition, such counsel may state that (i)
the opinion expressed in paragraph (a) above is subject
to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally and to possible judicial
action giving effect to governmental actions or foreign
laws affecting creditors' rights generally, to general
principles of equity and to judicial application of
foreign laws or governmental actions affecting creditors'
rights, (ii) the enforceability of the obligations of the
Borrower under the Liquidity Reimbursement Agreement, the
Reimbursement Note and the other Borrower Documents are
subject to general principles of equity (regardless of
whether such enforcement is sought in a proceeding in
equity or at law) and (iii) the enforceability in the
United States of the waiver by the Borrower of its
immunities from court jurisdiction and from legal
process, as set forth in the the Credit Agreement, is
subject to the limitations imposed by the United States
Foreign Sovereign Immunities Act of 1976.
In rendering such opinions, such counsel may
limit their opinions to the federal law of the United
States of America and the law of the State of New York.
Exhibit C-4
Opinion, dated the Closing Date and addressed
to the Trustee, of special counsel to the Trust and the
Depositor, substantially to the effect that:
(a) The Depositor is a corporation duly
incorporated and validly existing under the laws of
the State of Delaware with all requisite corporate
power and authority to execute, deliver and perform
its obligations under the Transfer Agreement and the
Declaration.
(b) The Declaration is a valid and
binding agreement of the Depositor, enforceable
against the Depositor in accordance with its terms,
except to the extent that enforcement thereof may be
limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights
generally, and (b) general principles of equity
(regardless of whether enforceability is considered
in a proceeding at law or in equity).
(c) The Certificates, when duly and
validly executed and authenticated by the Trustee in
the manner contemplated by the Declaration and
delivered to and paid for by the Underwriter
pursuant to this Agreement, will be validly issued
and outstanding and entitled to the benefits of the
Declaration.
(d) The Registration Statement, as of its
effective date, and the Prospectus, as of its date,
appeared on their face to be appropriately
responsive in all material respects to the
requirements of the Act and the rules and
regulations thereunder, except that in each case
such counsel need express no opinion as to financial
statements, schedules and other financial data
included therein or excluded therefrom or the
exhibits to the Registration Statement, and such
counsel need assume no responsibility for the
accuracy, completeness or fairness of the statements
contained in the Registration Statement or the
Prospectus except to the extent set forth in
Sections 7(d)(iv) and (viii) hereof.
(e) The Declaration is not required to be
qualified under the Trust Indenture Act of 1939, as
amended.
(f) The Trust is not an "investment
company" or under the "control" of an "investment
company" as such terms are defined under the
Investment Company Act of 1940, as amended.
Such counsel shall state that they are advised
by the Commission that the Registration Statement was
declared effective under the Act (specifying the time and
date of such declaration), and, to the best of the
knowledge of such counsel, no stop order suspending its
effectiveness has been issued and no proceedings for that
purpose have been instituted or are pending or threatened
by the Commission.
In rendering the opinions expressed above, such
counsel may assume (i) the authenticity of all documents
submitted to them as originals and the conformity to
originals of all documents submitted to them as copies,
(ii) that the signatures on all documents that they have
examined are genuine and (iii) that the Declaration and
the Credit Agreement constitute the legal, valid, binding
and enforceable obligations of each party thereto other
than the Depositor.
In rendering the opinions set forth above, such
counsel may limit their opinions to matters governed by
the laws of the State of New York and the United States
of America.
Exhibit C-5
Opinion, dated the Closing Date and addressed
to the Trustee, of the General Counsel of Eximbank,
substantially to the effect that:
(a) Eximbank is a validly organized body
corporate and agency of the United States of America
for the purposes of this transaction with power and
authority set forth in the Export-Import Bank Act of
1945, as amended, to enter into the Guarantee
Agreement in its capacity as guarantor of the
principal of and interest on the Promissory Note, to
endorse a Guarantee Legend (as defined in the
Guarantee Agreement) on the Promissory Note and to
issue Eximbank Payment Certificates with respect to
the Promissory Note;
(b) The Guarantee Agreement has been duly
and validly authorized, executed and delivered by
Eximbank and constitutes a legal, valid and binding
agreement of Eximbank in accordance with its terms;
(c) The endorsement of the Guarantee
Legend (as defined in the Guarantee Agreement) on
the Promissory Note has been duly and validly
authorized by Eximbank and such Guarantee Legend has
been endorsed on the Promissory Note issued by the
Borrower and Eximbank's guarantee of payment of the
principal of and interest on such Promissory Note
will be a legal, valid and binding undertaking of
Eximbank in accordance with the terms of the
Guarantee Agreement, and such guarantee will be
backed by the full faith and credit of the United
States of America; and
(d) The issuance of an Eximbank Payment
Certificate with respect to the Promissory Note has
been duly and validly authorized by Eximbank and,
when such Eximbank Payment Certificate is issued by
Eximbank pursuant to the terms of the Guarantee
Agreement, Eximbank's payment obligation on such
Eximbank Payment Certificate will be a legal, valid
and binding undertaking of Eximbank in accordance
with its terms, and such payment obligation will be
backed by the full faith and credit of the United
States of America.
Exhibit C-6
Opinion, dated the Closing Date and addressed
to the Trustee, of special United States counsel to the
Liquidity Provider, substantially to the effect that:
(a) The Liquidity Provider is validly
existing as a national banking association organized
under the laws of the United States, and has the
power and authority (corporate and other) to enter
into, and to take all action required of it under,
the Liquidity Agreement.
(b) The Liquidity Agreement has been
duly authorized, executed and delivered by the
Liquidity Provider and constitutes a legal, valid
and binding agreement of the Liquidity Provider,
enforceable against the Liquidity Provider in
accordance with its terms, except to the extent that
enforcement thereof may be limited by (a)
bankruptcy, insolvency, receivership,
conservatorship, reorganization, moratorium or other
similar laws now or hereafter in effect relating to
rights of creditor's of national banking
associations generally, and (b) general principles
of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
(c) The execution, delivery and
performance by the Liquidity Provider of the
Liquidity Agreement do not contravene the articles
of association or by-laws of the Liquidity Provider.
In rendering the opinions expressed above, such
counsel may assume (i) the authenticity of all documents
submitted to them as originals and the conformity to
originals of all documents submitted to them as copies,
(ii) that the signatures on all documents that they have
examined are genuine and (iii) that the Liquidity
Agreement constitutes the legal, valid, binding and
enforceable obligation of each party thereto other than
the Liquidity Provider.
In rendering the opinions set forth above, such
counsel may limit their opinions to matters governed by
the laws of the State of New York and the United States
of America.
Exhibit C-7
Opinion, dated the Closing Date and addressed
to the Trustee, of special Bahamas counsel to the
Liquidity Provider, substantially to the effect that:
(a) Citibank, N.A. (the "Bank") is duly
licensed by the [APPROPRIATE GOVERNMENTAL AUTHORITY]
of the Bahamas to maintain a branch office in
Nassau, Bahamas and is validly existing as a foreign
banking organization under the laws of the Bahamas
and has all the powers of a foreign branch as
specified under _________ of the [Banking Law] of
the Bahamas (including, without limitation, the
power to enter into and perform under liquidity
facilities such as the Liquidity Agreement), and is
authorized to transact business in the Bahamas.
(b) To the best of the knowledge of such
counsel, no authorization, consent or approval of or
by Bahamian governmental authority is necessary for
the execution, delivery and performance by the Bank
of the Liquidity Agreement, except such
authorizations, consents and approvals as are in
full force and effect.
In rendering the opinions set forth above, such
counsel may limit their opinions to matters governed by
the laws of the Bahamas.
EXHIBIT D
[FORM OF SEMI-ANNUAL REPORT]
GUARANTEED TRADE TRUST 1997-A
__% GUARANTEED TRADE CERTIFICATES
SEMI-ANNUAL REPORT
CERTIFICATE PAYMENT DATE: __________15, ___
AGGREGATE AMOUNT OF PRINCIPAL
DISTRIBUTED TO CERTIFICATEHOLDERS
ON SUCH CERTIFICATE PAYMENT DATE:
$__________[1]
AGGREGATE AMOUNT OF INTEREST
DISTRIBUTED TO CERTIFICATEHOLDERS
ON SUCH CERTIFICATE PAYMENT DATE:
$__________[2]
AGGREGATE PRINCIPAL BALANCE OF
THE CERTIFICATES OUTSTANDING
AFTER SUCH DISTRIBUTION: $__________
[INSERT ONE OF THE FOLLOWING ITEMS [1], [2], [3] OR [4],
AS APPLICABLE:]
[1] [No delinquency in payment under the Promissory
Notes, [the Liquidity Agreement], the Guarantee or
the Eximbank Payment Certificate nor any Event of
Default actually known to a Responsible Officer of
the Trustee has occurred and is continuing.]
[2][A delinquency in payment under the Promissory
Notes, [the Liquidity Agreement], the Guarantee or
the Eximbank Payment Certificate has occurred and is
continuing [SPECIFY THE EVENT AND ITS STATUS AND THE
AMOUNT, IF ANY, PAID OR PAYABLE UNDER THE
GUARANTEE]. No Event of Default actually known to a
Responsible Officer of the Trustee has occurred and
is continuing.]
[3][No delinquency in payment under the Promissory
Notes, [the Liquidity Agreement], the Guarantee or
the Eximbank Payment Certificate has occurred and is
continuing. An Event of Default has occurred and is
continuing [SPECIFY THE EVENT AND ITS STATUS AND THE
AMOUNT, IF ANY, PAID OR PAYABLE UNDER THE
GUARANTEE].]
[4][A delinquency in payment under the Promissory
Notes, [the Liquidity Agreement], the Guarantee or
the Eximbank Payment Certificate and an Event of
Default has occurred and is continuing [SPECIFY THE
EVENT AND ITS STATUS AND THE AMOUNT, IF ANY, PAID OR
PAYABLE UNDER THE GUARANTEE].]
INSERT ONLY IF APPLICABLE TO SUCH CERTIFICATE PAYMENT DATE:
[If the amounts referred to in [1] and [2] above are
less than the amounts of principal and interest paid
on the Promissory Notes or the Eximbank Payment
Certificate on the related Note Payment Date
(whether as a result of a withholding tax of the
country of the Borrower or through which payments
were made which has not been grossed-up or
otherwise), specify the amount of any such
difference and the reason or reasons therefor (as
determined on the basis of information provided to
the Trustee by the Borrower or Eximbank or otherwise
actually known by a Responsible Officer of the
Trustee)]
[INSERT ANY ADDITIONAL INFORMATION NECESSARY IN ORDER TO
SATISFY REQUIREMENTS, IF ANY, UNDER THE EXCHANGE ACT, AS
THEN IN EFFECT, WITH RESPECT TO THE MAILING OF PERIODIC
REPORTS TO CERTIFICATEHOLDERS.}
All capitalized terms used herein that are not
otherwise defined shall have the meanings assigned to
such terms in the Declaration of Trust, dated as of
_____, 1997, between Citicorp Securities, Inc. and
Citibank, N.A.
CITIBANK, N.A., as Trustee
EXHIBIT E
[FORM OF INFORMATION REQUEST]
GUARANTEED TRADE TRUST 1997-A
__% GUARANTEED TRADE CERTIFICATES
[Date]
Citibank, N.A.,
as Trustee
120 Wall Street - 13th Floor
New York, New York 10043
Attention: Corporate Trust Department
Ladies and Gentlemen:
The undersigned hereby requests that copies of
each Semi-Annual Report with respect to the above-
referenced Certificates be sent to it at the address set
forth below
The undersigned hereby certifies that it is the
beneficial owner of an interest in $__________ principal
amount of such Certificates.
All capitalized terms used herein that are not
otherwise defined shall have the meanings assigned to
such terms in the Declaration of Trust, dated as of
_____, 1997, between Citicorp Securities, Inc. and
Citibank, N.A.
Very truly yours,
[INSERT NAME OF
BENEFICIAL OWNER]
By:
Name:
Title:
Mailing Address for Semi-Annual Reports:
EXHIBIT F
[FORM OF NOTICE TO RATING AGENCIES]
GUARANTEED TRADE TRUST 1997-A
__% GUARANTEED TRADE CERTIFICATES
[Date]
TO: Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Structured Finance Group
Facsimile No.: (212) 553-4600
Standard & Poor's Ratings Services
26 Broadway, 3rd Floor
New York, New York 10004
Attention: Letter of Credit/MTN
Facsimile No.: (212) 208-0031
Pursuant to Section 4.4 of the Declaration of
Trust, dated as of _________, 1997 (the "Declaration"),
between Citicorp North America, Inc. and Citibank, N.A.,
as Trustee, you are hereby notified that:
[INSERT APPLICABLE NOTICE:]
[____________ has been appointed successor Trustee.]
[____________ has been appointed successor Liquidity
Provider.]
[Eximbank has defaulted in its obligation to make
payment pursuant to the Guarantee.]
[The Borrower has defaulted in its obligation to
make payments pursuant to the Promissory Note.]
[The Liquidity Provider has defaulted in its
obligation to make Advances pursuant to the
Liquidity Agreement.]
[The [Declaration][Promissory Note][Credit
Agreement][Guarantee][Guarantee Agreement][Liquidity
Agreement] has been amended and copy of such
amendment is attached hereto.]
[The Trustee has received a direction from the
Certificateholders pursuant to Section 7.5(a) of the
Declaration that would alter the timing, method or
effect of any claim or notice required to be made by
the Trustee pursuant to Section 3.3 or 5.2 of the
Declaration].
All capitalized terms used herein that are not
otherwise defined shall have the meanings assigned to
such terms in the Declaration.
CITIBANK, N.A., as Trustee
EXHIBIT G
[FORM OF REPORT TO BORROWER
PURSUANT TO SECTION 4.5 OF MASTER TERMS]
NOT APPLICABLE
EXHIBIT 99.3
============================================================================
LIQUIDITY REIMBURSEMENT AGREEMENT
between
CITIBANK, N.A., ACTING THROUGH ITS NASSAU BRANCH,
and
CITIBANK, N.A.,
not in its individual capacity,
but solely as Trustee of Guaranteed Trade Trust 1997-A
dated as of November 26, 1997
============================================================================
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.....................................................1
ARTICLE II
THE ADVANCES
Section 2.1 Commitment......................................................5
Section 2.2 Notice of Drawing...............................................5
Section 2.3 Disbursement of Funds...........................................5
Section 2.4 Evidence of Obligation to Reimburse.............................6
Section 2.5 Interest Payments; Remittances of Interest by Trustee...........6
Section 2.6 Remittances of Reimbursements by Trustee........................6
Section 2.7 Reimbursement on Non-Business Days..............................6
Section 2.8 Method and Place of Reimbursement...............................6
Section 2.9 Limitations on Trustee's Obligations to Remit...................7
Section 2.10 Obligations Absolute............................................7
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent to Effectiveness...........................7
Section 3.2 Conditions Precedent to Each Advance............................9
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Company, the Trustee
and Citibank...................................................9
ARTICLE V
COMPANY FAILURE EVENTS
Section 5.1 Company Failure Events.........................................10
ARTICLE VI
MISCELLANEOUS
Section 6.1 Exercise of Rights.............................................10
Section 6.2 Successors and Assigns.........................................10
Section 6.3 Headings.......................................................10
Section 6.4 Notices; Requests; Demands.....................................11
Section 6.5 Survival of Representations and Warranties.....................12
Section 6.6 Governing Law..................................................12
Section 6.7 Counterparts...................................................12
Section 6.8 Further Assurances.............................................12
Section 6.9 Recourse.......................................................13
Section 6.10 Judgment Currency..............................................13
Section 6.11 Effective Date.................................................13
Section 6.12 Amendment......................................................13
EXHIBITS
Exhibit A - Form of Notice of Drawing
Exhibit B - Opinion of Special Counsel to the Trustee
Exhibit C - Opinion of General Counsel of Eximbank
LIQUIDITY REIMBURSEMENT AGREEMENT
LIQUIDITY REIMBURSEMENT AGREEMENT dated as of November 26,
1997 among CITIBANK, N.A., ACTING THROUGH ITS NASSAU BRANCH (in such
capacity, the "Provider") and CITIBANK, N.A., not in its individual
capacity, but solely as trustee (in such capacity, the "Trustee") of
GUARANTEED TRADE TRUST 1997-A (the "Trust").
W I T N E S S E T H:
WHEREAS, Citicorp North America, Inc. (the "Depositor")
proposes to purchase a Promissory Note (as defined herein) of Empresa
Colombiana de Petroleos (the "Company") from Citibank, N.A., acting
through its Nassau Branch (in such capacity, the "Originator")
WHEREAS, the Depositor proposes to deposit such Promissory
Note in the Trust which will in turn issue Guaranteed Trade Certificates
evidencing interests in the Promissory Note (the "Certificates") pursuant
to the Declaration of Trust (as defined herein) and the Depositor proposes
to sell the Certificates;
WHEREAS, as a condition to the purchase by the Depositor of
the Promissory Note from the Originator and the issuance of the
Certificates by the Trust, the Depositor and the Trust require that the
timely distribution of principal and interest to holders of Certificates
be supported by the irrevocable mechanism provided by this Agreement;
WHEREAS, subject to the terms and conditions set forth herein
and in a Letter Agreement of even date between the Company and the
Provider, the Provider is willing to provide the Trust the mechanism
provided herein and in the Declaration of Trust;
NOW THEREFORE, it is agreed:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be
equally applicable to both singular and plural forms of the terms
defined):
"Advance" shall have the meaning provided in Section 2.1.
"Agreement" shall mean this Liquidity Reimbursement Agreement
as it may from time to time be amended, supplemented or otherwise modified
in accordance with the terms hereof.
"Base Rate" shall mean the fluctuating rate per annum, as
shall be in effect from time to time, equal to the higher of (i) the rate
of interest announced publicly by Citibank, N.A. in New York, New York,
from time to time as Citibank, N.A.'s Base Rate or (ii) 50 basis points
per annum above the Federal Funds Rate.
"Business Day" means any day on which banks and the Federal
Reserve Bank of New York are open for business in New York.
"Certificates" shall have the meaning provided in the Declaration
of Trust.
"Certificate Liquidity Bank Account" shall have the meaning
provided in Section 2.8 of this Agreement.
"Colombian Business Day" shall mean any Business Day on which
banks are open for business in Colombia.
"Commitment" shall mean $16,460,815.39, but in no event less
than an amount equal to the Maximum Payment Amount.
"Company" shall have the meaning provided in the first paragraph
of this Agreement.
"Company Documents" shall mean and include the Credit
Agreement, the Letter Agreement, the Promissory Note and the Reimbursement
Promissory Note.
"Company Failure Event" shall have the meaning provided in the
Reimbursement Promissory Note.
"Credit Agreement" shall mean the Credit Agreement dated as of
April 1, 1996 among the Originator, the Company and Eximbank, as the same
may at any time be amended or modified and in effect, in accordance with
the terms hereof and thereof.
"Credit Agreement Event of Default" shall mean an "Event of
Default" as defined in the Credit Agreement.
"Declaration of Trust" shall mean the Supplement and the Master
Terms.
"Depositor" shall have the meaning provided in the first
paragraph to this Agreement.
"Effective Date" shall have the meaning provided in Section 6.11.
"Eximbank" shall mean the Export-Import Bank of the United States.
"Eximbank Guarantee Agreement" shall mean the Guarantee
Agreement dated as of April 1, 1996 between the Provider and Eximbank, as
the same may at any time be amended or modified and in effect, in
accordance with the terms hereof and thereof.
"Expiry Date" shall mean the earlier of (a) July 15, 2003 or
(ii) the date on which Payment Certificates are delivered to the Trustee
by Eximbank.
"Federal Funds Rate" shall mean, for any day, a fluctuating
interest rate per annum equal to the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such
day for such transactions received by the Provider from three federal
funds brokers of recognized standing selected by it.
"Guarantee Legend" shall mean the guarantee legend of Eximbank
endorsed on the Promissory Note pursuant to Section 3.02 of the Eximbank
Guarantee Agreement.
"Guaranteed Interest Rate" shall have the meaning provided in
the Eximbank Guarantee Agreement.
"Interest" shall mean, with respect to each day on which an
Advance is outstanding and has not been reimbursed under this Agreement,
an amount equal to the unpaid amount of such outstanding Advance times the
applicable Interest Rate.
"Interest Rate" shall mean, (A) with respect to any day on or
prior to the fifteenth day after the making of an Advance, the greater of
(i) a per annum interest rate expressed as a percentage equal to the Base
Rate less 50 basis points per annum (calculated and applied on the basis
of the actual number of days and a year of 360 days) and (ii) the
Guaranteed Interest Rate (calculated and applied on the basis of a 360-day
year consisting of twelve 30-day months) and (B) with respect to any day
following the fifteenth day after the making of an Advance, the greater of
(i) a per annum interest rate expressed as a percentage equal to the Base
Rate (calculated and applied on the basis of the actual number of days and
a year of 360 days) and (ii) the Guaranteed Interest Rate (calculated and
applied on the basis of a 360-day year consisting of twelve 30-day
months).
"Letter Agreement" shall mean the Letter Agreement dated
November 26, 1997 between the Company and the Provider.
"Master Terms" shall mean the Master Terms of Trust dated as
of November 26, 1997 between the Trustee and the Depositor, as the same
may at any time be amended or modified and in effect, in accordance with
the terms hereof and thereof.
"Maximum Payment Amount" shall mean the maximum remaining
scheduled installment of principal and interest due at any time on the
Promissory Note, provided that for purposes of determining the Maximum
Payment Amount hereunder, the maximum remaining scheduled installment of
principal and interest due with respect to the Promissory Note upon
assignment to Eximbank in exchange for a Payment Certificate pursuant to
Section 4.03 of the Eximbank Guarantee Agreement shall equal zero.
"Notice of Drawing" shall have the meaning provided in Section
2.2.
"Originator" shall have the meaning provided in the first
paragraph of this Agreement.
"Payment Certificates" shall mean certificates issued by
Eximbank to the Trustee for the benefit of the holders of Certificates
pursuant to Section 4.05 of the Eximbank Guarantee Agreement under the
circumstances described therein.
"Payment Deficiency" shall mean, on any Promissory Note
Payment Date, the difference obtained (if a positive number) by
subtracting (x) all amounts received by the Trustee from or on behalf of
the Company (other than by means of an Advance) in respect of principal
and interest due and payable on the Promissory Note with respect to such
Promissory Note Payment Date from (y) all scheduled payments of principal
and interest due and payable on such Promissory Note Payment Date.
"Promissory Note" shall mean the Promissory Note of the
Company issued pursuant to the Credit Agreement.
"Promissory Note Payment Date" shall have the meaning provided
in the Declaration of Trust, provided that for purposes of this Agreement,
with respect to a Promissory Note which is assigned to Eximbank in
exchange for a Payment Certificate pursuant to Section 4.05 of the
Eximbank Guarantee Agreement, no Promissory Note Payment Date shall occur
after the date such Payment Certificate is delivered to the Trustee.
"Prospectus" shall mean the Prospectus dated November 6, 1997
as it relates to the Certificates.
"Prospectus Supplement" shall mean the Prospectus Supplement
dated November 21, 1997 relating to the Certificates.
"Provider" shall have the meaning provided in the first paragraph
of this Agreement.
"Provider's Office" shall mean the office of the Provider at
111 Wall Street, Fifth Floor, New York, NY 10005, Attention: Corporate
Trust Department, or such other office as the Provider may designate in
writing to the Trustee and the Company.
"Reimbursement Failure" shall mean the failure of the Provider
to be reimbursed in full for the entire amount of an Advance, together
with any interest accrued thereon at the Guaranteed Interest Rate, within
150 days of the date such Advance is made.
"Reimbursement Promissory Note" shall mean the promissory note
of the Company delivered pursuant to the Letter Agreement and in
substantially the form attached thereto as Exhibit A.
"Supplement" shall mean the Supplement to the Declaration of
Trust dated as of November 26, 1997 between the Depositor and the Trustee,
as the same may at any time be amended or modified and in effect, in
accordance with the terms hereof and thereof.
"Transfer Agreement" shall mean the Transfer Agreement dated
November 26, 1997 between the Depositor and the Originator, as the same
may at any time be amended or modified and in effect, in accordance with
the terms hereof and thereof.
"Trust" shall have the meaning provided in the first paragraph of
this Agreement.
"Trustee" shall mean Citibank, N.A., not in its individual
capacity but solely as trustee of the Trust under the Declaration of
Trust, and any of its successors and assigns in such capacity.
"Underwriter" shall mean Citicorp Securities, Inc.
"Underwriting Agreement" shall mean the Underwriting Agreement
dated November 21, 1997 between the Underwriter, the Depositor and the
Company.
ARTICLE II
THE ADVANCES
Section 2.1 Commitment. The Provider hereby irrevocably
agrees, for the benefit of the Trustee, on behalf of the Trust, on the
terms and conditions hereinafter set forth, to make advances (the
"Advances") in the event of a Payment Deficiency as provided herein from
time to time on any Business Day during the period from and including
November 26, 1997, to and including the Expiry Date in an amount not to
exceed the Commitment; provided that, in no event shall the amount of an
Advance exceed the amount of the Payment Deficiency to which such Advance
relates. Funds may from time to time be advanced, reimbursed pursuant to
Sections 2.6 or 2.9 and readvanced under this Article II.
Section 2.2 Notice of Drawing. Whenever required pursuant to
Section 3.3(a)(i) of the Declaration of Trust, the Trustee on behalf of
the Trust shall give the Provider at the Provider's Office written notice
or telephonic notice (to be promptly confirmed in writing thereafter) by
no later than 10:30 a.m. (New York City time) on the proposed advance
date. Each such written notice (each, a "Notice of Drawing") shall be in
substantially the form of Exhibit A hereto and shall specify the principal
amount the Trustee requires the Provider to advance hereunder.
Section 2.3 Disbursement of Funds. Subject to the satisfaction
of the conditions set forth in Article III, by no later than 12:30 p.m.
(New York City time) on the requested date of advance specified in the
Notice of Drawing, the Provider will deliver to the Trustee, on behalf of
the Trust, in freely transferable U.S. dollars and in immediately
available funds, the Advance requested to be made on such date.
Section 2.4 Evidence of Obligation to Reimburse. (a) The
Provider shall maintain an account or accounts evidencing the obligation
of the Trustee to remit funds on behalf of the Trust pursuant to the
Declaration of Trust to the Provider, and of the obligation of the Company
to reimburse the Provider pursuant to the Letter Agreement and the
Reimbursement Promissory Note, from time to time resulting from each
Advance, including the amounts of any Advances reimbursed to the Provider
and any Interest paid from time to time hereunder. The entries made in
such account or accounts shall be prima facie evidence of the amounts thus
owed. The failure of the Provider to make any such entry shall in no
manner affect the obligation of the Trustee to remit funds to the Provider
pursuant to the Declaration of Trust or of the Company to reimburse the
Provider for any Advances hereunder or to pay to the Provider any Interest
arising under the Reimbursement Promissory Note.
Section 2.5 Interest Payments; Remittances of Interest by
Trustee. (a) Pursuant to Section 5.3(b) of the Declaration of Trust and
subject to Section 2.9 hereof, the Trustee, on behalf of the Trust, agrees
to remit Interest to the Provider with respect to the unreimbursed amount
of each Advance from and including the date such Advance is made to but
excluding the date such Advance is reimbursed in full by the Company
pursuant to the Letter Agreement and the Reimbursement Promissory Note
and, to the extent that such Interest is so remitted by the Trustee to the
Provider, such Interest shall be credited against amounts owed by the
Company pursuant to the Letter Agreement and the Reimbursement Promissory
Note.
Section 2.6 Remittances of Reimbursements by Trustee. Pursuant
to Section 5.3(b) of the Declaration of Trust and subject to Section 2.9
hereof, the Trustee, on behalf of the Trust, agrees to remit to the
Provider the entire amount of each Advance not reimbursed by the Company
pursuant to the Letter Agreement and the Reimbursement Promissory Note
and, to the extent that such amount is so remitted by the Trustee to the
Provider, such amount shall be credited by the Provider against amounts
owed by the Company pursuant to this Section 2.6.
Section 2.7 Reimbursement on Non-Business Days. Whenever any
reimbursement or payment to be made hereunder shall be stated to be
required to be made on a day which is not a Business Day, the date on
which such reimbursement or payment is required to be made shall be
extended to the next succeeding Business Day, provided that the Interest
shall continue to be applied at the Interest Rate during such extension.
Section 2.8 Method and Place of Reimbursement. All
reimbursements and payments to the Provider under this Agreement shall be
made without offset, counterclaim or setoff, to the account of the
Provider at Citibank, Account Number (the "Certificate Liquidity Bank
Account") on the date when required to be made and shall be made in freely
transferable U.S. dollars and in immediately available funds. Amounts
reimbursed or paid hereunder shall be applied first to payment of any
Interest and then to reimbursement of Advances.
Section 2.9 Limitations on Trustee's Obligations to Remit.
Except as otherwise provided in Section 3.7 of the Declaration of Trust,
the Trustee's obligations to remit funds to reimburse the Provider for an
Advance and to pay any Interest shall be satisfied solely from the assets
of the Trust as provided in the Declaration of Trust and no recourse shall
be had for any such obligation against the Trustee or any asset of the
Trustee.
Section 2.10 Obligations Absolute. Except as provided in
Article III hereof, the obligations of the Provider to make Advances
hereunder shall be absolute and irrevocable and such Advances shall be
made in accordance with the terms hereof, irrespective of any right, claim
or defense (including the defense of fraud) that the Provider may have at
any time against the Trustee, the Trust or the Company, whether in
connection with this Agreement, the transactions contemplated hereunder or
by the Company Documents or any unrelated transaction and notwithstanding
the bankruptcy or insolvency of the Company, the Depositor or the Trustee.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent to Effectiveness. This
Agreement shall be effective upon the occurrence of the following conditions
precedent:
(a) Basic Documents. Each of the following documents shall
have been executed and delivered by the parties thereto and be in full
force and effect, the Provider shall have received, in the case of (i),
(iii), (iv), (vii), (viii) and (ix) below, copies thereof, in the case of
(ii) below, the duly executed Reimbursement Promissory Note, and, in the
case of (v), (vi) and (x) below, duly executed counterparts thereof, and
each such document shall be in form and substance satisfactory to the
Provider:
(i) the Promissory Note with the Guarantee Legend of Eximbank
endorsed thereon;
(ii) the Reimbursement Promissory Note;
(iii) the Credit Agreement;
(iv) the Certificates;
(v) the Supplement;
(vi) the Master Terms;
(vii) the Eximbank Guarantee Agreement;
(viii) the Transfer Agreement;
(ix) the Underwriting Agreement; and
(x) the Letter Agreement
(b) No Default. After giving effect to the effectiveness of
this Agreement, the Trustee shall have performed its obligations under the
Declaration of Trust and the Company shall not be in default of (i) any of
its obligations under the Letter Agreement or the Reimbursement Promissory
Note or (ii) any of its material obligations under any of the other
Company Documents.
(c) Representations and Warranties. All representations and
warranties of the Trustee contained in this Agreement shall be true and
correct and with the same force and effect as though such representations
and warranties had been made as of the Effective Date.
(d) Certificates and Declaration of Trust in Full Force and
Effect. The Certificates shall have been duly executed and authenticated
by the Trustee pursuant to the Declaration of Trust and purchased by the
Underwriter pursuant to the Underwriting Agreement and the Declaration of
Trust and the Certificates shall be in full force and effect.
(e) Eximbank Guarantee Agreement and Guarantee Legend in Full
Force and Effect. The Eximbank Guarantee Agreement and the Guarantee
Legend endorsed on the Promissory Note shall be in full force and effect.
(f) Opinions of Counsel. The Provider shall have received (i)
from Seward & Kissel, special counsel to the Trustee, a favorable opinion
in form and substance satisfactory to the Provider and substantially to
the effect set forth in Exhibit B; (ii) from the General Counsel of
Eximbank, a favorable opinion in form and substance satisfactory to the
Provider and substantially to the effect set forth in Exhibit C; and (iii)
from Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to the
Provider, a favorable opinion satisfactory in form and substance to the
Provider with respect to certain matters relating to this Agreement and
the Eximbank Guarantee Agreement and the transactions contemplated hereby
(including, without limitation, as to the enforceability of the Eximbank
Guarantee Agreement against Eximbank).
(g) Documentation and Proceedings. The Provider shall have
received copies of this Agreement and incumbency certificates, all
certified on the Effective Date by appropriate corporate authorities and
satisfactory in form and substance to the Provider.
(h) Trustee's Certificates. The Provider shall have received a
certificate or certificates satisfactory in form and substance to the
Provider and executed by an authorized officer of the Trustee certifying
that it has received on behalf of the Trust and has in its possession the
Promissory Note with the Guarantee Legend endorsed thereon.
(i) Fees. Skadden, Arps, Slate, Meagher & Flom LLP shall have
received its fee and expenses of $10,000 in connection with its acting as
special counsel to the Provider.
(j) No Adverse Law or Regulation. No law or regulation shall
be applicable that, in the judgment of the Provider, restrains, prevents
or imposes materially adverse conditions upon the transactions
contemplated hereby.
(k) Other Documents. To the extent not provided to the
Provider pursuant to any other paragraph of this Section 3.1, the Provider
shall have received copies of all agreements, certificates and other
documents delivered in connection with the issuance of the Certificates
together with, in the case of legal opinions, letters permitting the
Provider to rely thereon.
(l) Stamp Taxes and Similar Taxes Paid. All stamp taxes and
similar taxes and duties payable in connection with the transactions
contemplated by this Agreement shall have been paid in full.
Section 3.2 Conditions Precedent to Each Advance. The
obligation of the Provider to make an Advance shall be subject to the
further conditions precedent that: (i) the Provider shall have received a
Notice of Drawing in accordance with Section 2.2; (ii) no event has
occurred and is continuing that constitutes a Reimbursement Failure; (iii)
the amount of such Advance shall not exceed the amount of the Payment
Deficiency on the date of the related Notice of Drawing and (iv) the
Eximbank Guarantee Agreement and the Guarantee Legend shall be in full
force and effect and Eximbank shall not have improperly dishonored any
prior demand made under the Eximbank Guarantee Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Trustee .
The Trustee hereby represents and warrants as follows:
(i) Corporate Existence. The Trustee is duly organized,
validly existing, and in good standing as a national banking
association under the laws of the United States; and
(ii) Corporate Power; Authorization. The Trustee has the
full corporate power, authority and legal right to execute, deliver
and perform this Agreement and the Declaration of Trust on behalf of
the Trust and shall have taken all necessary action to authorize the
execution, delivery, and performance by it of this Agreement and the
Declaration of Trust. This Agreement and the Declaration of Trust
have been duly executed and delivered by the Trustee.
ARTICLE V
COMPANY FAILURE EVENTS
Section 5.1 Company Failure Events. So long as the Eximbank
Guarantee Agreement and the Guarantee Legend are in full force and effect,
in the event of (i) the failure by the Company to reimburse the Provider
for any Advance, and to pay any Interest applicable thereto, within two
Colombian Business Days after such Advance was made by the Provider, or
(ii) the failure by the Company to pay any other amounts due under the
Company Documents and the continuance of such failure for a period of 7
calendar days, the obligations of the Provider to make Advances shall,
subject to the provisions of Sections 2.1 and 3.2, continue.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Exercise of Rights. No failure or delay on the
part of the Provider to exercise any right, power or privilege under this
Agreement and no course of dealing between either the Trustee, on behalf
of the Trust or the Company and the Provider shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights
and remedies herein expressly provided are cumulative and not exclusive of
any rights or remedies which the Provider would otherwise have pursuant to
law or equity. No notice to or demand on any party in any case shall
entitle such party to any other or further notice or demand in similar or
other circumstances, or constitute a waiver of the right of the other
party to any other or further action in any circumstances without notice
or demand.
Section 6.2 Successors and Assigns. This Agreement shall bind,
and the benefits hereof shall inure to, the Trust, the Trustee and the
Provider and their respective successors and assigns, provided that (i)
the Trustee, on behalf of the Trust may not transfer or assign any or all
of its rights and obligations hereunder without the prior written consent
of the Provider, (ii) the Provider shall not assign its rights and
obligations hereunder without the prior written consent of the Trustee and
(iii) each of Moody's and Standard & Poor's shall have delivered to the
Trustee written confirmation that any such assignment by the Provider
shall not result in the qualification, downgrade or withdrawal of the then
current ratings of the Certificates. Notwithstanding anything to the
contrary contained herein, the Provider may assign any or all of its
rights hereunder or under any other Company Document, the Declaration of
Trust or the Eximbank Guarantee Agreement, as security, to any Federal
Reserve Bank.
Section 6.3 Headings. The descriptive headings of the various
provisions of this Agreement are inserted for convenience of reference
only and shall not be deemed to affect the meaning or construction of any
of the provisions hereof.
Section 6.4 Notices; Requests; Demands. Except where
telephonic instructions or notices are authorized herein to be given, all
notices, demands, instructions and other communications required or
permitted to be given to or made upon any party hereto shall be in writing
and in the English language and shall be personally delivered or sent by
registered, certified or express mail, postage prepaid, return receipt
requested, or by facsimile transmission (with hard copy to follow) or
prepaid telegram (with messenger delivery specified in the case of a
telegram) and shall be deemed to be given for purposes of this Agreement
on the day that such writing is delivered or sent to the intended
recipient thereof in accordance with the provisions of this Section.
Unless otherwise specified in a notice sent or delivered in accordance
with the foregoing provisions of this Section, notices, demands,
instructions and other communications in writing shall be given to or made
upon the respective parties hereto at their respective addresses (or to
their respective facsimile or telephone numbers) and in the case of
telephonic instructions or notices, by calling the telephone number or
numbers indicated for such party below:
If to the Company:
Empresa Colombiana de Petroleos
Carrera 13
Santa Fe de Bogota,
Colombia
Attention: Diana Espinosa
Telephone: (571) 234-4858
(571) 234-4852
Facsimile: (571) 288-6440
(571) 288-5865
If to the Provider:
Citibank, N.A., acting
through its Nassau Branch
111 Wall Street
Fifth Floor
New York, NY 10005
Attention: Corporate Trust Department
Telephone: (212) 657-5778
Facsimile: (212) 657-3862
If to the Trustee:
Citibank, N.A., as Trustee
111 Wall Street
Fifth Floor
New York, NY 10005
Attention: Corporate Trust Department
Telephone: (212) 657-5778
Facsimile: (212) 657-3862
If to the Trust:
Guaranteed Trade Trust 1997-A
c/o Citibank, N.A., as Trustee
120 Wall Street
13th Floor
New York, New York 10043
Attention: Corporate Trust Department
Telephone: 212-412-6185
Facsimile: 212-480-1615
Section 6.5 Survival of Representations and Warranties. All
representations and warranties contained in Article IV shall survive the
execution and delivery of this Agreement and any Advance and shall
continue so long as and until such time as all amounts reimbursable or
payable hereunder shall have been reimbursed or paid in full or the
Provider has any Commitment hereunder.
Section 6.6 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
Section 6.7 Counterparts. This Agreement may be executed in
any number of copies, and by the different parties hereto on the same or
separate counterparts, each of which shall be deemed to be an original
instrument.
Section 6.8 Further Assurances. The Trustee, on behalf of the
Trust agrees to do such further acts and to execute and deliver to the
Provider such additional assignments, agreements, powers and instruments,
as the Provider may prepare and require or deem advisable to carry into
effect the purposes of this Agreement or to better assure and confirm unto
the Provider its rights, powers and remedies hereunder; provided however,
that the Trustee shall not be required to execute any such document which
may in its sole judgment conflict with its duties or, so long as such
execution is not required hereunder, increase its liability under this
Agreement or the Declaration of Trust.
Section 6.9 Recourse. (a) The obligations of the Trustee under
this Agreement and the Declaration of Trust are solely the obligations of
the Trustee, on behalf of the Trust. Except as expressly provided in
Section 3.7 of the Declaration of Trust, no recourse shall be had for the
reimbursement or payment of any amount reimbursable or owing in respect of
any Advance or Interest or for the payment of any fee hereunder or any
other obligation of the Trustee or claim against the Trustee arising out
of or based upon this Agreement or the Declaration of Trust against
Citibank, N.A., in its individual capacity or any stockholder, employee,
officer, director, duly designated agent or incorporator of the Trustee.
Nothing in this Section 6.9 shall limit any rights that the Provider may
have against Persons other than the Trustee, on behalf of the Trust.
(b) The Provider agrees that the obligations of the Trustee on
behalf of the Trust to remit funds hereunder in respect of Advances shall
be payable solely from the Trust as provided in Section 5.3(b) of the
Declaration of Trust and that, except as expressly provided in Section 3.7
of the Declaration of Trust, the Provider shall not look to any property
or assets of the Trustee in respect of such obligations.
Section 6.10 Judgment Currency. All payments required to be
made hereunder by the Trustee on behalf of the Trust, shall be in United
States Dollars, regardless of any law, rule, regulation or statute,
whether now or hereafter in existence or in effect in any jurisdiction,
which affects or purports to affect such obligations.
Section 6.11 Effective Date. This Agreement shall become
effective on the date (the "Effective Date") on which the Trustee on
behalf of the Trust and the Provider shall have executed and delivered a
counterpart of this Agreement and all of the conditions set forth in
Section 3.1 hereof have been satisfied.
Section 6.12 Amendment. No amendment or waiver of any
provision of this Agreement, nor consent to any departure therefrom shall
in any event be effective unless the same shall be in writing and signed
by the Provider and the Trustee, on behalf of the Trust, and then such
waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. No amendment hereto shall be
effective unless the Trustee shall have received a statement in writing
from each of the Rating Agencies that such amendment will not result in a
downgrading or withdrawal of the rating assigned to the Certificates by
such Rating Agency, which shall have received no less than 30 days notice
(which notice may be waived by such Rating Agency) of such amendment.
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the
date first above written.
CITIBANK, N.A., ACTING THROUGH ITS
NASSAU BRANCH
By:-----------------------------------
Name:
Title:
Accepted and agreed to this 26th day
of November 1997.
CITIBANK, N.A., not in its individual
capacity but solely as Trustee of
GUARANTEED TRADE TRUST 1997-A
By:------------------------------
Name:
Title:
EXHIBIT A
NOTICE OF DRAWING
Citibank, N.A., acting through
its Nassau Branch
111 Wall Street
Fifth Floor
New York, NY 10005
Attention: Corporate Trust Office
[Date]
Ladies and Gentlemen:
The undersigned, Citibank, N.A., as Trustee of the Guaranteed
Trade Trust 1997-A (the "Trust"), refers to the Liquidity Reimbursement
Agreement, dated as of November 26, 1997 (the "Liquidity Reimbursement
Agreement", the terms defined therein being used herein as therein
defined), and hereby gives you notice, irrevocably, pursuant to Section
2.2 of the Liquidity Reimbursement Agreement, that the undersigned hereby
requests an Advance under the Liquidity Reimbursement Agreement, and in
that connection sets forth below the information relating to such Advance
(the "Proposed Advance") as required by Section 2.2 of the Liquidity
Reimbursement Agreement:
The aggregate amount of the Proposed Advance is
$_______________.
Such amount shall be transferred as follows: [insert wiring
instructions].
The undersigned hereby certifies that on the date hereof, and
on the date of the Proposed Advance, no event has occurred and is
continuing that constitutes a Reimbursement Failure.
Very truly yours,
CITIBANK, N.A., not in its individual
capacity but solely as Trustee of
Guaranteed Trade Trust 1997-A
By:____________________________________
Name:
Title:
EXHIBIT B
A favorable opinion of Seward & Kissel, special counsel to the
Trustee, in form and substance satisfactory to the Provider and
substantially to the effect set forth below:
(a) The Trustee is validly existing as a banking association
organized under the laws of the United States, and has the power and
authority (corporate and other) to enter into, and to take all
action required of it under, the Declaration.
(b) The Declaration has been duly authorized, executed and
delivered by the Trustee and constitutes a legal, valid and binding
agreement of the Trustee, enforceable against the Trustee in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, receivership, conservatorship,
liquidation, reorganization, moratorium or other similar laws
affecting the enforcement of rights of creditors of national banking
associations generally, and the application of general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(c) The Certificates have been duly executed, authenticated
and delivered by the Trustee on behalf of the Trust.
EXHIBIT C
A favorable opinion of the General Counsel of Eximbank in form
and substance satisfactory to the Provider and substantially to the effect
set forth below:
(a) Eximbank is a validly organized body corporate and agency
of the United States of America for the purposes of the transaction
contemplated by the Eximbank Guarantee Agreement with power and
authority set forth in the Export-Import Bank Act of 1945, as
amended, to enter into the Eximbank Guarantee Agreement in its
capacity as guarantor of the principal of and interest on the
Promissory Note, to endorse a Guarantee Legend on the Promissory
Note and to issue Eximbank Payment Certificates with respect to the
Promissory Note;
(b) The Eximbank Guarantee Agreement has been duly and validly
authorized, executed and delivered by Eximbank;
(c) The endorsement of the Guarantee Legend on the Promissory
Note has been duly and validly authorized by Eximbank and such
Guarantee Legend has been endorsed on the Promissory Note issued by
the Company and Eximbank's guarantee of payment of the principal of
and interest on such Promissory Note will be a legal, valid and
binding undertaking of Eximbank in accordance with the terms of the
Guarantee Agreement, and such guarantee will be backed by the full
faith and credit of the United States of America; and
(d) The issuance of an Eximbank Payment Certificate with
respect to the Promissory Note has been duly and validly authorized
by Eximbank and, when such Eximbank Payment Certificate is issued by
Eximbank pursuant to the terms of the Guarantee Agreement,
Eximbank's payment obligation on such Eximbank Payment Certificate
will be a legal, valid and binding undertaking of Eximbank in
accordance with its terms, and such payment obligation will be
backed by the full faith and credit of the United States of America.
