REGISTRATION NO. 333-28935
POST EFFECTIVE AMENDMENT
NO. 1 TO REGISTRATION NO. 33-76240
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
AMENDMENT NO. 1
TO
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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 or other (Primary Standard (I.R.S. Employer
jurisdiction Industrial Classification Identification Number)
of incorporation Code Number)
or organization)
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
(Address of 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
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable on or after the date of this Registration Statement.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the
following box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) of the Securities Act, please check the following
box and list the Securities Act registration statement number of the
earlier effective registration statement number for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(c) of
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement number for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434
of the Securities Act, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
<TABLE>
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<S> <C> <C> <C> <C>
Title of Securities Amount Being Proposed Maximum Proposed Maximum Amount of
Being Registered Registered(1) Offering Price Per Aggregate Offering Registration Fee(1)
Unit(2) Price
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Guaranteed Trade $152,182,846 100% $152,182,846 $46,116.02
Certificates
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</TABLE>
(1) A total of $303.10 has been previously paid. The Prospectus
included herein is a combined prospectus which also
relates to $210 of unissued Guaranteed Trade Certificates
registered under Registration Statement No. 33-76240, with respect
to which a filing fee of $0.07 has been previously paid.
(2) In accordance with Rule 429 of the General Rules and Regulations
under the Securities Act of 1933, as amended, the Prospectus
included herein is a combined prospectus which also relates to
unissued Guaranteed Trade Certificates registered under
Registration Statement No. 33-76240 and this Registration Statement
constitutes Post-Effective Amendment No. 1 to such Registration
Statement.
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<TABLE>
<CAPTION>
CROSS REFERENCE SHEET
Form S-3 Location or Location or Caption
Item Number and Caption Caption in Prospectus in Prospectus Supplement
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<S> <C> <C>
1. Forepart of the Registration Outside Front Cover Page Outside Front Cover Page
Statement and Outside Front
Cover Page of Prospectus
2. Inside Front and Outside Back Inside Front Cover; Out- Inside Front Cover; Out-
Cover Pages of Prospectus side Back Cover Page side Back Cover Page
3. Summary Information, Risk Available Information; Summary; Overview of the
Factors, and Ratio of Overview of the Transac- Transaction
Earnings to Fixed Charges tions
4. Use of Proceeds * Use of Proceeds
5. Determination of Offering * Outside Front Cover Page
Price
6. Dilution * *
7. Selling Security-Holders * *
8. Plan of Distribution Plan of Distribution Underwriting
9. Description of Securities Cover Page; Summary; Outside Front Cover Page;
to be Registered Description of the Cer- Description of the
tificates; The Trusts; Certificates; The Promissory
Certain United States Note; The Trust
Federal Tax Consequences
10. Interests of Named * *
Experts and Counsel
11. Material Changes * *
12. Incorporation of Certain Inside Front Cover Page; *
Information Available Information
13. Disclosure of Commission * *
Position on Indemnification
for Securities Act Liabilities
</TABLE>
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* Not applicable
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE
SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR
SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED NOVEMBER 6, 1997
Prospectus Supplement
(To Prospectus dated November 6, 1997)
$
Guaranteed Trade Trust 19 -
% Guaranteed Trade Certificates, Series 199 -
Evidencing Interests in a Promissory Note Guaranteed by
Export-Import Bank of the United States
Each of the Certificates offered hereby evidences an undivided fractional
interest in Guaranteed Trade Trust 199 - (the "Trust") to be formed
pursuant to a Declaration of Trust between , as trustee
(the "Trustee") and Citicorp North America, Inc., as depositor (the
"Depositor"). The assets of the Trust will consist of a promissory note
(the "Promissory Note") of the Borrower named herein, and the Eximbank
Guarantee (as defined below) or, in lieu thereof following the occurrence
of an Eximbank Payment Event or in certain other limited circumstances, an
Eximbank Payment Certificate (as such terms are hereinafter defined).
Payments on the Promissory Note will be guaranteed (the "Eximbank
Guarantee") by the Export-Import Bank of the United States ("Eximbank") as
to the payment of 100% of all amounts of principal due thereon and interest
thereon at the Guaranteed Interest Rate (as defined herein). The Eximbank
Guarantee will be entitled to the full faith and credit of the United
States of America. Each Certificate will represent the right to receive a
portion of the payments due on the Promissory Note or under the Eximbank
Guarantee, but will not be directly guaranteed by Eximbank or the United
States of America. The Certificates will not be subject to prepayment or
acceleration under any circumstances.
Interest on the Promissory Note will accrue from the date of delivery
thereof. Principal and interest are distributable to the Certificateholders
on each and , commencing , 199 .
[The Trust will benefit from an irrevocable liquidity facility (the
"Liquidity Facility") provided by . The Liquidity Facility
is intended to provide for the distribution of principal and interest in a
timely manner to Certificateholders on any Certificate Payment Date with
respect to which the Borrower defaults in payment of amounts due under the
Promissory Note.]
The Representatives intend, but are not obligated, to make a market in the
Certificates. There can be no assurance that a secondary market will
develop or, if a secondary market does develop, that it will continue.
The Attorney General of the United States has stated in an opinion dated
September 30, 1966 that Eximbank's contractual liabilities constitute
general obligations of the United States backed by its full faith and
credit and that persons in whose favor Eximbank has incurred contractual
liabilities in accordance with law "have acquired valid general obligations
of the United States, and are therefore in a position to reach beyond
Eximbank and its assets to the United States for a source of payment, if
necessary." The Eximbank Guarantee of the Promissory Note will constitute a
contractual liability of Eximbank and, as stated in such opinion, a general
obligation of the United States. The Certificates will not be directly
guaranteed by Eximbank and there will be no direct contractual liability of
Eximbank to any holder of a Certificate.
THE CERTIFICATES REPRESENT BENEFICIAL INTERESTS IN THE ASSETS OF THE TRUST
ONLY. THE CERTIFICATES ARE NOT OBLIGATIONS OF OR GUARANTEED BY THE UNITED
STATES OF AMERICA, EXIMBANK OR ANY OTHER GOVERNMENTAL AGENCY NOR ARE THEY
OBLIGATIONS OF OR GUARANTEED BY THE DEPOSITOR, THE BORROWER OR THE TRUSTEE
OR ANY AFFILIATE OF ANY THEREOF.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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Underwriting
Initial Public Discounts and Proceeds to the
Offering Price (1) Commissions (2) Trust (1)(2)
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Per Certificate..... 100.00% % %
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Total............... $ $ $
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(1) Plus accrued interest, if any, from , 19 .
(2) Before deducting expenses estimated to be .
The Certificates are offered subject to receipt and acceptance by the
Underwriters, to prior sale and to the Underwriters' right to reject any
order in whole or in part and to withdraw, cancel or modify the offer
without notice. It is expected that delivery of the Certificates will be
made in book-entry form through the facilities of The Depository Trust
Company on or about , 19 .
Citicorp Securities, Inc.
The date of this Prospectus Supplement is , 199
This Prospectus Supplement does not contain complete information
about the offering of the Certificates. Additional information is contained
in the Prospectus and purchasers are urged to read both the Prospectus
Supplement and the Prospectus itself. Sale of the Certificates may not be
consummated unless the purchaser has received both this Prospectus
Supplement and the Prospectus.
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN
TRANSACTIONS THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE
CERTIFICATES, INCLUDING OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING
TRANSACTIONS IN SUCH CERTIFICATES, AND THE IMPOSITION OF A PENALTY BID,
DURING AND AFTER THE OFFERING. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"UNDERWRITING".
The Certificates will initially be issued entirely as a global
Certificate registered in the name of a nominee of The Depository Trust
Company ("DTC"), but may, under certain limited circumstances, be
exchangeable for Certificates issued in definitive form. Beneficial
interests in the global Certificates will trade in DTC's Same-Day Funds
Settlement System, and secondary market trading activity in such interests
will therefor settle in same-day funds. Beneficial interests in global
Certificates will be shown on, and transfers thereof will be effected only
through, records maintained by DTC (with respect to DTC Participants'
interests) and DTC Participants. See "DESCRIPTION OF THE
CERTIFICATES--Book-Entry Registration" in the Prospectus.
SUMMARY
The following summary is qualified in its entirety by reference
to the more detailed information appearing elsewhere in this Prospectus
Supplement and in the accompanying Prospectus. Certain capitalized terms
used in the summary are defined elsewhere in this Prospectus Supplement and
in the accompanying Prospectus.
Title of Securities............. % Guaranteed Trade Certificates,
Series 19 - (the "Certificates").
Issuer.......................... Guaranteed Trade Trust 19 - (the "Trust").
Depositor....................... Citicorp North America, Inc., a
corporation organized under the
laws of Delaware (the
"Depositor").
Trustee......................... , a banking
corporation (the "Trustee").
The Certificates................ The Certificates evidence
fractional undivided interests
in the Trust. The Trust will be
created by the Trustee pursuant
to a Declaration of Trust (the
"Declaration of Trust") between
the Trustee and the Depositor
for the purpose of holding the
Promissory Note and the Eximbank
Guarantee and issuing the
Certificates, all as described
herein and in the Prospectus.
The Trust will issue the
Certificates in the aggregate
principal amount of $ .
The Certificates will have a
final distribution date on
, 20 . Interest
will be distributable on the
Certificates at a rate of %
per annum.
Distributions on the Certificates
will be made in [ ] semiannual
installments on each
and
(or, if not a Business Day, on
the next following Business Day)
(each a "Certificate Payment
Date") in each year, beginning
, 19 and ending
, 20 , in the
amounts set forth under
"DESCRIPTION OF THE
CERTIFICATES--Payments on the
Certificates" herein. Interest
on the Promissory Note will
accrue from the date of issuance
thereof (the "Closing Date") and
will be distributable to the
Certificateholders semiannually
on each Certificate Payment
Date.
Each Certificate will represent
the right to receive a portion
of each semiannual payment
received on the Promissory Note
or under the Eximbank Guarantee.
The Certificates will be
issuable in minimum
denominations of $1,000 original
principal amount and integral
multiples of $1 in excess
thereof, and will be available
only in book-entry form. See
"DESCRIPTION OF THE
CERTIFICATES--Book-Entry
Registration" in the Prospectus.
The Certificates represent
beneficial interests in the
Trust only and do not represent
interests in or obligations of
the Depositor, the Borrower or
the Trustee nor are they
obligations of or guaranteed by
the United States of America,
Eximbank or any other
governmental agency.
No Prepayment
or Acceleration............... The Certificates will not be
subject to prepayment or
acceleration under any
circumstances.
The Trust Assets................ The property of the Trust will
initially consist of the
Promissory Note, backed by a
guarantee (the "Eximbank
Guarantee") issued by the
Export-Import Bank of the United
States ("Eximbank"), of the
payment of 100% of all amounts
of principal and interest due
thereon at the Guaranteed
Interest Rate, and the Liquidity
Facility described below. The
guarantee of Eximbank is backed
by the full faith and credit of
the United States. The
"Guaranteed Interest Rate" will
be equal to the then applicable
rate of interest borne by the
Promissory Note, but will not
include the penalty portion of
interest on any overdue
principal and interest thereon.
See "THE EXIMBANK GUARANTEES" in
the Prospectus.
Trustee's Fees and Expenses..... The basic fees and expenses of the
Trustee (the "Basic Fee") will
be paid directly by the Borrower
to the Trustee on the closing
date and will not be payable
from the assets of the Trust.
[In addition, the Trustee will
be entitled to receive a
supplemental fee (the "Trustee
Supplemental Fee") equal to the
amount, if any, of interest on
overdue principal and overdue
interest on the Promissory Note
received from the Borrower.]
The Trustee Supplemental Fee will
be paid from payments made on
the Promissory Note. The Trustee
Supplemental Fee will be paid
only after all amounts due and
payable on the Certificates on
the related Certificate Payment
Date have been paid in full.]
In the event that the Borrower
fails to pay the Basic Fee of
the Trustee, the Trustee will be
entitled to receive, to the
extent of the Basic Fee, the
earnings on amounts deposited in
the Trust Account or the
Eximbank Payment Account (as
defined below) and invested in
Eligible Investments, as
described under "DESCRIPTION OF
THE CERTIFICATES"--Trust
Accounts and Investments of
Funds" in the Prospectus. Such
investment earnings will be
payable to the Trustee only
after all amounts due and
payable on the Certificates on
the related Certificate Payment
Date have been paid in full.
[The Trustee will not be entitled
to receive a supplemental fee
with respect to any interest on
overdue principal and interest
on the Promissory Note received
from Eximbank under the Eximbank
Guarantee. After all amounts due
and payable on the Certificates
on the related Certificate
Payment Date have been paid in
full, any remaining amounts of
interest on overdue principal
and interest paid by Eximbank
will be repaid to Eximbank in
consideration of the Eximbank
guarantee.]
The Promissory Note............. The Promissory Note will evidence
the Borrower's obligation to pay
to the Trust principal and
interest in U.S. dollars,
semiannually on each 15
and 15 (or, if
such date is not a business day,
on the next succeeding business
day) of each year (each, a "Note
Payment Date"). The first
payment that the Trust will be
entitled to receive will be that
to be made by the Borrower on
the Note Payment Date on
15, 19 . The [portion
of each] payment made by the
Borrower to the Trustee on each
such Note Payment Date to which
the Certificateholders are
entitled will be distributed to
the Certificateholders on the
immediately succeeding
Certificate Payment Date.
Principal on the Promissory Note
will be payable in equal
consecutive semiannual
installments on each Note
Payment Date commencing on
15, 19 and ending on
15, 20 . The
Promissory Note will bear
interest for the period from the
Closing Date [to the Note Payment
Date on 15, 19 ] at a
rate of % per
annum. [From and at all times
after such Note Payment Date,
the Promissory Note will bear
interest at a rate of % per
annum (the "Subsequent Interest
Rate").]
[As described herein under
"OVERVIEW OF THE TRANSACTION"
and "YIELD CONSIDERATIONS,"
principal and interest payments
on the Promissory Note will not
be distributed to the holders of
the Certificates until the th
day following each Note Payment
Date. However, because interest
will accrue on the Promissory
Notes for the period from the
Closing Date to the Note Payment
Date on 15, 19 at a
rate of % annum and
thereafter at a rate of %
per annum, the yield to
Certificateholders (assuming a
purchase price of 100% of the
principal amount thereof) will
be equal to that which would
have been produced if the
Promissory Notes bore interest
at a rate of % per annum over
its entire term to maturity and
there was no -day delay.]
The principal and interest
payments due on the Promissory
Note will be sufficient to
provide for the scheduled
amounts to be distributed to the
Certificateholders on the
following Certificate Payment
Date. [Pending distributions on
the Certificates, amounts paid
on the Promissory Note or the
Eximbank Payment Certificate
will be invested in certain
Eligible Investments. Earnings
on amounts invested in Eligible
Investments will be for the
benefit of the Borrower or, upon
the occurrence of certain events
described herein, Eximbank and
the Trustee and not for the
benefit of the
Certificateholders. Any losses
in respect of Eligible
Investments not reimbursed to
the Trust by or on behalf of the
Borrower will not be covered by
the Eximbank Guarantee and will
reduce the amounts available for
distribution to the
Certificateholders. See
"DESCRIPTION OF THE
CERTIFICATES--Trust Account and
Investment of Funds" in the
Prospectus.]
Upon the occurrence of a default
by the Borrower on the
Promissory Note, Eximbank may
accelerate the Promissory Note.
Such acceleration will not
result in an acceleration of the
Certificates. See "THE EXIMBANK
GUARANTEES--General" in the
Prospectus.
The Eximbank Guarantee.......... The Promissory Note will be
guaranteed by Eximbank as to the
payment of 100% of all principal
due thereon and interest thereon
at the Guaranteed Interest Rate.
The Eximbank Guarantee will
represent an obligation of
Eximbank backed by the full
faith and credit of the United
States. Eximbank will be
required to make payments under
the Eximbank Guarantee even if
the Borrower's obligations under
the Promissory Note are not
enforceable. See "THE EXIMBANK
GUARANTEES" in the Prospectus.
Notwithstanding the acceleration
of the Promissory Note, Eximbank
will be required to make
payments on the Eximbank
Guarantee in accordance with the
original amortization schedule
of the Promissory Note and,
accordingly, the Certificates
will not be subject to
prepayment or acceleration under
any circumstances.
Certain Restrictions on
the Eximbank Guarantee........ Pursuant to the terms of the
Eximbank Guarantee, Eximbank
will not be required to make a
payment under the Eximbank
Guarantee of amounts due but not
paid on a Note Payment Date
under the Promissory Note unless
the Trustee has made a timely
written demand for payment upon
each of the Borrower and
Eximbank. Accordingly, the
Declaration of Trust requires
the Trustee to make such a
timely demand upon both the
Borrower and Eximbank in
accordance with the terms of the
Eximbank Guarantee. In the event
that the Trustee fails to make a
written demand on Eximbank
within 150 days of a Note
Payment Date on which a payment
is not made or if a written
demand for payment is not made
on the Borrower at least 15 days
prior to such demand upon
Eximbank, the Trustee in its
individual capacity will be
irrevocably obligated to pay
such unpaid amounts to the
Trust.
In addition, the Eximbank
Guarantee provides that it will
cease to be effective if the
Depositor or the Trustee agrees
to any material amendment,
supplement or modification of
the Promissory Note or the
Credit Agreement pursuant to
which the Promissory Note was
issued (the "Credit Agreement")
without Eximbank's prior written
consent. The Declaration of
Trust will therefore forbid the
Depositor and the Trustee from
agreeing to any amendment,
supplement or modification of
the Promissory Note or the
Credit Agreement without
Eximbank's prior written
consent. See "THE EXIMBANK
GUARANTEES--Certain Restrictions
Applicable to Eximbank
Guarantees" in the Prospectus.
Under the Eximbank Guarantee,
there are no restrictions on the
eligibility of holders of the
Certificates based upon
residency or citizenship.
[Liquidity Facility.............. The Trust will benefit from an
irrevocable [liquidity facility]
[letter of credit] (the "Liquidity
Facility") provided by [ ] (the
"Liquidity Provider") pursuant to
a [liquidity agreement] [letter
of credit agreement] between the
Liquidity Provider, the Borrower
and the Trustee on behalf of the
Trust. The Liquidity Facility is
intended to provide for the
distribution of principal and
interest in a timely manner to
Certificateholders on any
Certificate Payment Date with
respect to which the Borrower
defaults in payment of amounts
due under the Promissory Note.
See "THE LIQUIDITY FACILITY"
herein and "THE LIQUIDITY
FACILITIES" in the Prospectus.]
ERISA Considerations............ As described in the Prospectus,
the Certificates may be
purchased by employee benefit
plans that are subject to the
Employee Retirement Income
Security Act of 1974, as amended
("ERISA"), and plans and
individual retirement accounts
that are subject to certain of
the prohibited transaction
provisions of the Internal
Revenue Code of 1986, as amended
(the "Code") (collectively,
"Plans"). The assets of the Trust
may be regarded as "plan assets"
for purposes of the fiduciary
responsibility provisions of
ERISA and the prohibited
transaction provisions of ERISA
and the Code. The Trust, however,
will be operated in an essentially
passive manner with the Trustee
having essentially custodial and
ministerial responsibilities and
functions. Any Plan fiduciary who
proposes to cause a Plan to
acquire any of the Certificates
should consult with its own
counsel with respect to the
applicability of ERISA and the
Code to such investment,
including whether the
acquisition or holding of such
Certificate may constitute a
"prohibited transaction," and
the availability of any
administrative or statutory
exemption from the prohibitions
on such transactions. See "ERISA
CONSIDERATIONS" in the
Prospectus.
Tax Status...................... In the opinion of Skadden, Arps,
Slate, Meagher & Flom LLP,
special tax counsel to the
Trust, the Trust will be
classified as a grantor trust
for federal income tax purposes,
and the Certificateholders will
be treated as beneficial owners
of fractional undivided
interests in the assets held by
the Trust. Accordingly, each
such Certificateholder must
include in income its pro rata
share of the income from the
Promissory Note included in the
Trust and may, subject to the
limitations on the deduction of
miscellaneous itemized
deductions by individuals,
estates and trusts, deduct its
share of the reasonable fees and
other deductible expenses paid
by the Trust, at the same time
and to the same extent as such
items would be included or
deducted by the
Certificateholder if the
Certificateholder held directly
a pro rata interest in the
assets of the Trust and received
and paid directly a pro rata
portion of the amounts received
and paid by the Trust. It is
anticipated that the Cer-
tificates will be issued with de
minimis original issue discount.
See "CERTAIN UNITED STATES
FEDERAL TAX CONSEQUENCES" in the
Prospectus.
Ratings......................... A condition to the issuance of the
Certificates will be a rating of
"Aaa" by [ ] and "AAA" by [ ]
(the "Rating Agencies"). A security
rating is not a recommendation
to buy, sell or hold securities,
and may be subject to revision
or withdrawal at any time. See
"RATINGS" herein and in the
Prospectus.
OVERVIEW OF THE TRANSACTION
The Trust will be formed for the purpose of holding the
Promissory Note, the Eximbank Guarantee, entering into the related
[liquidity] [letter of credit] agreement, and issuing the Certificates.
Each Certificate offered hereby will represent a fractional undivided
interest in payments on the Promissory Note. The Promissory Note will
be backed by the Eximbank Guarantee, which is a guarantee by Eximbank
of the payment of 100% of the principal of and interest at the Guaranteed
Interest Rate (as defined below) on the Promissory Note. The Eximbank
Guarantee is backed by the full faith and credit of the United States
of America. The Certificates are not directly guaranteed by Eximbank or
the United States of America.
Each scheduled payment on the Promissory Note is in an amount
sufficient to satisfy corresponding scheduled distributions on the
Certificates. [On each Certificate Payment Date, the Trustee will, from the
payments on the Promissory Note, distribute to Certificateholders payments
of the amounts due on the Certificates. The Borrower will be required to
make payments on the Promissory Note to the Trustee approximately [ ]
calendar days before payments are due on the Certificates. If the Borrower
fails to make a scheduled payment on the Promissory Note on a Note Payment
Date, and such failure continues for 30 calendar days, Eximbank, upon written
demand by the Trustee, accompanied by an assignment of the Promissory Note
and the Credit Agreement, on any Business Day following such 30-day period and,
provided that the Trustee shall also have made a written demand for payment
upon the Borrower at least 15 calendar days prior thereto, will be
obligated to pay to the Trust within [5][15] Business Days of such demand
100% of the current installment of principal of and interest at the
Guaranteed Interest Rate on the Promissory Note. Thereafter, on each
subsequent Note Payment Date, without the requirement of a demand upon the
Borrower or Eximbank, Eximbank will be obligated to directly and timely pay
to the Trust such scheduled amounts of principal and interest].
The transaction has been structured to provide the Trust with
sufficient funds so that, even in the event of a default in payment by the
Borrower, full and timely payment on the Certificates can be made by the
Trustee from payments made by Eximbank on the Eximbank Guarantee. Any
losses in respect of Eligible Investments not reimbursed to the Trust by
the Borrower will not be covered by the Eximbank Guarantee and will reduce
the amounts available for distribution to the Certificateholders. See "THE
EXIMBANK GUARANTEES", "THE PROMISSORY NOTES" and "THE CREDIT AGREEMENTS" in
the Prospectus and "DESCRIPTION OF THE CERTIFICATES--Distributions on
Certificates" herein and in the Prospectus.
USE OF PROCEEDS
The proceeds of the sale by the Trust of the Certificates
offered hereby will be used [by the trust to acquire the Promissory Notes
from the Depositor at a price equal to the aggregate principal amount
thereof, plus accrued and unpaid interest, if any, from the closing date.]
The Promissory Note provides for a loan to the Borrower in an initial
principal amount of $[ ] as evidenced by the Promissory Note and the
related Credit Agreement. The proceeds of the loan will be applied by the
Borrower to repay borrowings incurred in connection with the purchase of
petroleum production equipment and related services of U.S. origin and
manufacture from a U.S. exporter and certain other costs of this offering,
including the exposure fee payable to Eximbank for the Eximbank Guarantee.
[Underwriting commissions and certain other expenses related to the
offering will be paid by the Borrower and not out of the proceeds of the
sale of the Certificates].
THE PROMISSORY NOTE
The Promissory Note will be issued to the Depositor, which will
deposit the Promissory Note in the Trust simultaneously with the receipt by
the Trust of the proceeds from the sale of the Certificates. The Promissory
Note will be issued pursuant to a Credit Agreement dated , 199 ,
( as amended the "Credit Agreement"), among the Borrower, Eximbank and
(the "Depositor").
The Promissory Note will be in the principal amount of
$[ ] and will mature on 15, 20 . The Promissory
Note will accrue interest at the rate of % per annum from the Closing
Date [to the Note Payment Date on 15, 19 and at a rate of
% per annum thereafter.] Principal payments on the Promissory Notes
will be due in [ ] equal consecutive semi-annual installments payable
on each Note Payment Date.
Interest and principal payments on the Promissory Notes will be
payable semiannually on 15 and 15 of each year, commencing
15, 19 , to and including the final maturity of the Promissory Note
on 15, 20 ; provided that if any such date is not a Business Day,
payment will be made on the immediately succeeding Business Day. A Business
Day is any day (other than a Saturday or Sunday) on which the Federal
Reserve Bank of New York and banks generally are open for business in New
York City. Interest on the Promissory Note will be computed on the basis of
a year of 360 days consisting of twelve 30-day months.
The amounts of principal and interest payable on the Promissory
Note will be sufficient to provide for the scheduled payments on the
Certificates.
The Promissory Note will provide that any overdue principal or
interest thereon will bear interest at a rate per annum % in excess of
the Interest Rate otherwise borne by the note. Such penalty rate of %
per annum will not constitute a portion of the Guaranteed Interest Rate
subject to the Eximbank Guarantee. The transaction has been structured to
provide the Trust with sufficient funds so that, even if the Borrower fails
to pay such penalty rate, full and timely distributions on the Certificates
can be made from other payments made by the Borrower on the Promissory Note
or from payments made by Eximbank under the Eximbank Guarantee. See "THE
EXIMBANK GUARANTEES" in the Prospectus.
THE TRUST
Guaranteed Trade Trust 199 - (the "Trust") will be created for
the purpose of holding the Promissory Note and the Eximbank Guarantee and
issuing the Certificates. The Trust will be formed pursuant to a
Declaration of Trust (the "Declaration of Trust") between ,
as Trustee on behalf of the Certificateholders (the "Trustee"), and the
Depositor.
THE BORROWER
The borrower under the Promissory Note and the Credit Agreement
will be , a (the "Borrower").
DESCRIPTION OF THE CERTIFICATES
General
Each Certificate will be issued pursuant to the Declaration of
Trust. Reference is made to the accompanying Prospectus for important
additional information regarding the terms and conditions of the
Certificates and the Declaration of Trust. The following summaries of the
Certificates do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all the provisions of the
Promissory Note, the Credit Agreement, the Eximbank Guarantee and the
Declaration of Trust. Capitalized terms used herein and not otherwise
defined are used with the meanings given in the Declaration of Trust.
The Certificates will be issued in minimum denominations of
$1,000 initial principal amount and integral multiples of $1 in excess
thereof, and will be available only in book-entry form through the
facilities of The Depository Trust Company ("DTC"). See "DESCRIPTION OF THE
CERTIFICATES--Book-Entry Registration" in the Prospectus.
Distributions on the Certificates
Interest will be distributable on the Certificates at a rate of
% per annum. Interest on the Promissory Note will accrue from the
Closing Date and will be distributed semiannually on each and
(or the next succeeding Business Day if such date is not a
Business Day) (each such date, a "Certificate Payment Date") in each year,
commencing , 19 , to the persons in whose names the
Certificates are registered on the preceding or ,
as the case may be (each, a "Record Date").
Payments of principal on the Certificates are due in [ ] equal
semiannual installments distributable on each Certificate Payment Date,
commencing , 19 and ending on , 20 ,
to the persons in whose names the Certificates are registered on the
preceding Record Date, each installment being in the aggregate amount of
$ .
The Certificates will not be subject to prepayment or
acceleration under any circumstances.
The Trustee
, the Trustee under the Declaration of Trust, currently
has its principal Corporate Trust Office at ,
Attention: .
[THE LIQUIDITY FACILITY
The Trust will benefit from a separate irrevocable Liquidity
Facility. The Liquidity Facility relating to the Trust will be in an amount
initially equal to approximately $ , which amount is equal to
the scheduled payment of principal and interest due on the Promissory Note
held by the Trust on the Note Payment Date on , 19 .
Subsequent to the Note Payment Date on , 19 , the Liquidity
Facility relating to the Trust for any Note Payment Date will be equal to
the scheduled payment of principal and interest due at such Note Payment
Date on the Promissory Note held by the Trust. [ ] will be the Liquidity
Provider under the Liquidity Facility. There is no assurance that any such
ratings will not change in the future. The Liquidity Facility is designed
to provide liquidity and not credit support for the related Certificates.
The Liquidity Facility will be available to be drawn on by the Trustee in
the event that the Borrower defaults in their obligations to make any
required payment of principal and interest in full on any Promissory Note
on a Note Payment Date. The Liquidity Facility will only cover with respect
to the Promissory Note the principal and interest due on one Note Payment
Date because after the first payment default on a Note Payment Date by the
Borrower on the Promissory Note held by the Trust, Eximbank will thereafter
pay the Trust under the Eximbank Guarantee on each scheduled Note Payment
Date. The Declaration of Trust will require the Trustee to make a demand
for a drawing under the related Liquidity Facility to the Liquidity
Provider on or before [ ] a.m., New York City time, on the related Note
Payment Date if the Trustee has not received payment in full from the
Borrower. Pursuant to the Liquidity Facility, the Liquidity Provider will
be obligated to pay to the Trustee the amount demanded at or prior to
a.m., New York City time, on such Note Payment Date (and
corresponding Certificate Payment Date). The Liquidity Provider will be
entitled to receive reimbursement for any payment made under the Liquidity
Facility from amounts paid by Eximbank to the Trust under the Eximbank
Guarantee (if the Liquidity Provider has not theretofore been reimbursed).
The Liquidity Provider will be entitled to receive interest on any advances
and a facility fee and a commitment fee from the Borrower. The payment of
such interest fees and certain expenses of the Liquidity Provider will be
separate contractual obligations of the Borrower not payable from the
scheduled payments on the Promissory Note. The failure of the Borrower
to pay interest on any advances and such fees to the Liquidity Provider
will not affect the Liquidity Provider's obligations under the Liquidity
Facility.]
[YIELD CONSIDERATIONS
The effective yield to holders of the Certificates will be lower
than the yield otherwise produced by the rate of interest accruing on the
Promissory Note and the purchase price of the Certificates because
principal and interest payments on the Promissory Note will not be
distributed to the Certificateholders until the th day following each Note
Payment Date (without any additional distribution of interest or earnings
thereon in respect of such delay). However, because interest will accrue on
the Promissory Notes for the period from the Closing Date to the first Note
Payment Date at a rate of % per annum and thereafter at a rate of
% per annum, the yield to Certificateholders will be equal to that
which would have been produced if the Promissory Note bore interest at a
rate of % per annum over its entire term to maturity and there was no
-day delay in the distribution of payments of principal and interest
received on the Promissory Note to the Certificateholders.]
CERTAIN FOREIGN TAXES
Under the present tax laws of the , or any political
subdivision or taxing authority thereof, there is no tax, levy, deduction,
charge or withholding on or in connection with the execution or delivery of
the Credit Agreement, the Promissory Note or any payment to be made by the
Borrower to the Trust under the Credit Agreement or the Promissory Note.
Gain or loss on the sale or other disposition of Certificates by holders
who are nonresident non citizens of the will not be
subject to estate, gift, stamp, transfer or similar taxes in
in respect of those holdings. Holders of the
Certificates who are citizens (whether residents or nonresidents of the
may be subject to estate, gift, stamp, transfer or similar
taxes in in respect of those
holdings.
UNDERWRITING
Subject to the terms and conditions set forth in the
Underwriting Agreement (the "Underwriting Agreement"), among the Depositor,
the Borrower and each of the Underwriters named below, (the
"Underwriters"), the Depositor has agreed to sell to the Underwriters, and
each of the Underwriters for whom Citicorp Securities, Inc. and
are acting as representatives (the "Representatives"), has severally agreed
to purchase from the Depositor the respective principal amounts of
Certificates set forth opposite its name below.
Principal
Underwriters Amount
Citicorp Securities, Inc. . . . . . . . . . $
$
==========
In the Underwriting Agreement, the several Underwriters have
agreed, subject to the terms and conditions set forth therein, to purchase
all of the Certificates if any Certificates are purchased. The Depositor
has been advised by the Representatives that the several Underwriters
propose initially to offer the Certificates to the public at the offering
price set forth on the cover page of this Prospectus Supplement, and to
certain dealers at such price less a concession not in excess of %
of the principal amount of the Certificates. The Underwriters may allow and
such dealers may re-allow to other dealers a concession not in excess of
% of such principal amount. After the initial public offering, the
public offering price may be changed.
The Certificates are a new issue of securities with no
established trading market. The Depositor has been advised by the
Representatives that they intend to make a market in the Certificates but
are not obligated to do so and may discontinue making a market at any time
without notice. No assurance can be given as to the liquidity of any
trading market for the Certificates.
During and after the offering, the Underwriters may purchase and
sell the Certificates in the open market in transactions in the United
States. These transactions may include overallotment and stabilizing
transactions and purchases to cover short positions created in connection
with the offering. The Underwriters also may impose a penalty bid, whereby
selling concessions allowed to broker-dealers in respect of the
Certificates sold in the offering for their account may be reclaimed by the
Underwriters if such Certificates are repurchased by the Underwriter in
stabilizing or covering transactions. These activities may stabilize,
maintain or otherwise affect the market price of the Certificates, which
may be higher than the price that might otherwise prevail in the open
market. These transactions may be effected in the over-the-counter market
or otherwise, and these activities, if commenced, may be discontinued at
any time.
The Underwriting Agreement provides that the Borrower will
indemnify the Underwriters against certain liabilities, including
liabilities under applicable securities laws, or contribute to payments the
Underwriters may be required to make in respect thereof and will pay
certain expenses of the Underwriters, including the fees of counsel to the
Underwriters.
The provisions of Section 44(c)(8) of the Corporate Financing
Rule of the National Association of Securities Dealers, Inc. apply to this
offering.
Citicorp Securities, Inc. is an affiliate of the Depositor.
LEGAL MATTERS
Certain legal matters will be passed upon for the Depositor by
Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York, special
United States counsel to the Depositor, for the Borrower by special United
States counsel to the Borrower, and for the Underwriters by Skadden, Arps,
Slate, Meagher & Flom LLP, New York, New York. Skadden, Arps, Slate,
Meagher & Flom LLP, New York, New York, as special United States tax
counsel to the Trust, will also render an opinion regarding certain federal
income tax consequences.
RATINGS
A condition to the issuance of the Certificates will be a rating
of "Aaa" by and "AAA" by . A
securities rating is not a recommendation to buy, sell or hold securities,
and may be subject to revision or withdrawal at any time.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE
SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR
SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED NOVEMBER 6, 1997
Prospectus
Guaranteed Trade Trusts
Guaranteed Trade Certificates
(Issuable in Series)
Evidencing Interests in Promissory Notes Guaranteed by
Export-Import Bank of the United States
This Prospectus relates to Guaranteed Trade Certificates (the
"Certificates") that may be sold from time to time under this Prospectus
and the related Prospectus Supplement in one or more series (each, a
"Series") by Citicorp North America, Inc. (the "Depositor").
Unless otherwise specified in the related Prospectus Supplement, each
Series of Certificates will consist of a single Class. If, as specified in
the related Prospectus Supplement, a Series includes more than one Class,
one Class may be subordinated to another Class with respect to
distributions of principal and interest as described herein and in the
related Prospectus Supplement. Any such subordinated Class will not be
offered hereby or by any Prospectus Supplement.
Each Certificate of a Series will evidence an undivided fractional interest
in a Guaranteed Trade Trust (each, a "Trust") to be formed pursuant to a
Declaration of Trust among Citicorp North America, Inc., as depositor (the
"Depositor"), the trustee (the "Trustee") and the other parties, if any,
thereto identified in the related Prospectus Supplement. The assets of each
Trust will consist of one or more promissory notes (the "Promissory Notes")
of one or more borrowers (each, a "Borrower") identified in the related
Prospectus Supplement and the related Eximbank Guarantee or Guarantees (as
defined below) or, in lieu thereof following the occurrence of an Eximbank
Payment Event, an Eximbank Payment Certificate (as such terms are defined
herein). If so specified in the related Prospectus Supplement, the assets
of a Trust may include a Liquidity Facility or Defeasance Agreement (as
such terms are defined herein).
Payments on each Promissory Note will be guaranteed (each, an "Eximbank
Guarantee") by the Export-Import Bank of the United States ("Eximbank"), as
to the payment of 100% of all amounts of principal due thereon and interest
thereon at the Guaranteed Interest Rate specified in the related Prospectus
Supplement. Each Eximbank Guarantee will be entitled to the full faith and
credit of the United States of America. Each Certificate will represent the
right to receive a portion of the payments due on the related Promissory
Note or Notes or under the related Eximbank Guarantee or Guarantees,
Liquidity Facility, if any, or Defeasance Agreement, if any (as such terms
are defined herein) but will not be directly guaranteed by Eximbank or the
United States of America.
The Attorney General of the United States has stated in an opinion dated
September 30, 1966 that Eximbank's contractual liabilities constitute
general obligations of the United States backed by its full faith and
credit and that persons in whose favor Eximbank has incurred contractual
liabilities in accordance with law "have acquired valid general obligations
of the United States, and are therefore in a position to reach beyond
Eximbank and its assets to the United States for a source of payment, if
necessary." The Eximbank Guarantee of a Promissory Note will constitute a
contractual liability of Eximbank and, as stated in such opinion, a general
obligation of the United States. The Certificates will not be directly
guaranteed by Eximbank and there will be no direct contractual liability of
Eximbank to any holder of a Certificate.
THE CERTIFICATES REPRESENT BENEFICIAL INTERESTS IN THE ASSETS OF THE
RELATED TRUST ONLY. THE CERTIFICATES ARE NOT OBLIGATIONS OF OR GUARANTEED
BY THE UNITED STATES OF AMERICA, EXIMBANK OR ANY OTHER GOVERNMENTAL AGENCY
NOR ARE THEY OBLIGATIONS OF OR GUARANTEED BY THE DEPOSITOR, THE BORROWER OR
THE TRUSTEE OR ANY AFFILIATE OF ANY THEREOF.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
This Prospectus may not be used to consummate the sale of Certificates of a
Series unless accompanied by a Prospectus Supplement relating to such
Series of Certificates.
Citicorp Securities, Inc.
The date of this Prospectus is November 6, 1997.
PROSPECTUS SUPPLEMENT
The Prospectus Supplement relating to each Series of
Certificates to be offered hereunder will, among other things, set forth
with respect to such Series of Certificates: (i) the aggregate principal
balances, interest rates (or method of determining such rates) and
authorized denominations of the Certificates of such Series; (ii) the
Guaranteed Interest Rate (or method of determining such Rate) for the
Promissory Note or Notes relating to such Series of Certificates; (iii) the
identity of the Borrower or Borrowers related to such Series of
Certificates; (iv) the final distribution date for such Series of
Certificates; (v) if a Liquidity Facility is to be delivered in respect of
such Series of Certificates, the identity of the Liquidity Provider and
additional information with respect to such Liquidity Facility; (vi) if no
Liquidity Facility is to be delivered in respect of such Series of
Certificates, information with respect to any yield considerations that may
be applicable to such Certificates; (vii) if a Series of Certificates
includes more than one Class of Certificates, information with respect to
the characteristics of each such Class, including any provisions for
subordination of any Class or differences among Classes in their respective
interests in payments on the Promissory Note or Notes; (viii) if a portion
of the principal of or interest borne by a Promissory Note is to be
defeased by the delivery of Defeasance Securities, information with respect
to such Defeasance Securities and the related Defeasance Agreement; (ix) if
any entity other than the Trustee is to undertake the obligation to pay
amounts to the related Trust in the event that Eximbank is not obligated to
make payment under the Eximbank Guarantee of amounts due and unpaid under a
Promissory Note because demands for payment were not timely made,
information with respect to such entity; (x) if a Servicer is to be
appointed in respect of a Series of Certificates, the identity of such
Servicer and the duties to be undertaken thereby, (xi) a description of
certain foreign tax consequences relating to a Series of Certificates;
(xii) a description of any Total Loss Event or other circumstance in which
a Promissory Note may be required to be exchanged for an Eximbank Payment
Certificate; (xiii) a description of any circumstances under which the
Certificates may be prepaid or accelerated and (xiv) additional information
with respect to the plan of distribution for such Series of Certificates.
---------------------
AVAILABLE INFORMATION
The Depositor has filed a Registration Statement under the
Securities Act of 1933, as amended, with the Securities and Exchange
Commission (the "Commission") with respect to the Certificates. This
Prospectus, which forms part of the Registration Statement, does not
contain all of the information contained in such Registration Statement and
exhibits thereto. For further information, reference is made to the
Registration Statement and amendments thereof and to the exhibits thereto,
which are available for inspection without charge at the office of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
regional offices of the Commission at 7 World Trade Center, New York, New
York 10048 and at the Northwestern Atrium Building, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511, and copies of which may
be obtained form the Commission at prescribed rates. The Commission also
maintains a web site that contains reports and other information regarding
registrants that file electronically with the Commission, including the
Trust, and the address is http://www.sec.gov. The Trustee, on behalf of the
Trust, will also file or cause to be filed with the Commission such
periodic reports as are required under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and the rules and regulations of the
Commission thereunder, and after each Certificate Payment Date, and an
Annual Report on Form 10-K. Such reports will contain certain financial
information regarding the Trust, including the reports regarding the Trust
which will be furnished following each Certificate Payment Date to
Certificateholders and certain beneficial owners of the Certificates as
described under "REPORTS TO CERTIFICATEHOLDERS" below. It is anticipated
that reports on Form 8-K and Form 10-K will not be filed for any period
which ends after December 31, 1997, the Certificateholders will continue to
receive the reports described under "REPORTS TO CERTIFICATEHOLDERS"
following each Certificate Payment Date, as described below.
---------------------
REPORTS TO CERTIFICATEHOLDERS
On behalf of each Trust, the related Trustee will prepare and
send reports following each Certificate Payment Date concerning the Trust
to (i) all registered Certificateholders and (ii) to any owner of a
beneficial interest in a Certificate that requests such reports form the
Trustee in writing and certifies to the Trustee as to such beneficial
ownership. See "DESCRIPTION OF THE CERTIFICATES--Reports to
Certificateholders" herein. The Trustee will deliver, without charge, to
any registered Certificateholder of the related Series copies of all
documents and reports furnished to the Commission pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended, upon written
request delivered to the Trustee for such Series.
OVERVIEW OF THE TRANSACTION
The Certificates of each Series will evidence interests in a
separate Trust formed for the purpose of holding one or more Promissory
Notes and the related Eximbank Guarantee or Guarantees, together with, if
so specified in the related Prospectus Supplement, the related Liquidity
Facility or Defeasance Agreement, and issuing the Certificates. Each
Promissory Note will be backed by an Eximbank Guarantee, which is a
guarantee by Eximbank of the payment of 100% of the principal of and
interest at the Guaranteed Interest Rate (as defined below) on such
Promissory Note. Each Eximbank Guarantee is backed by the full faith and
credit of the United States of America. The Certificates will not be
directly guaranteed by Eximbank or the United States of America.
The following summaries describe certain provisions expected to
be common to each Series of Certificates and to each Promissory Note,
Eximbank Guarantee, Declaration of Trust, Credit Agreement, Liquidity
Facility, if any, and Defeasance Agreement, if any, with respect to each
Series. The Prospectus Supplement for each Series will describe more fully
the Certificates and provisions of each Promissory Note, Eximbank
Guarantee, Declaration of Trust, Credit Agreement, Liquidity Facility, if
any, and Defeasance Agreement, if any, with respect to such Series which
may be different from the summaries set forth below.
As stated above, each Trust may hold one or more Promissory
Notes which may be issued by one or more Borrowers. If a Trust holds more
than one Promissory Note, all of such Promissory Notes may be issued
pursuant to a single Credit Agreement or some or all of such Promissory
Notes may be issued pursuant to separate Credit Agreements. If a Trust
holds more than one Promissory Note, all of such Promissory Notes may be
guaranteed by Eximbank pursuant to a single Eximbank Guarantee or some or
all of such Promissory Notes may be guaranteed pursuant to separate
Eximbank Guarantees. Except as otherwise specified in the related
Prospectus Supplement, the descriptions of the Promissory Notes, Eximbank
Guarantees and Credit Agreements below apply to each Promissory Note,
Credit Agreement and Eximbank Guarantee related to each Trust, whether or
not such Trust holds one or more Promissory Notes.
Each scheduled payment on a Promissory Note is in an amount
sufficient to satisfy the corresponding scheduled payments on the related
Certificates. On each Certificate Payment Date, after the Trust receives
payments on the related Promissory Note, the Trustee will, from the
payments on the Promissory Note, distribute to Certificateholders payments
of the amounts due on the Certificates.
Unless a Liquidity Facility is delivered in respect of a Series
of Certificates as described in the related Prospectus Supplement, in order
to provide for timely distributions to Certificateholders, the Borrower
will be required to make payments on the Promissory Note to the Trustee a
specified number of days before payments are due on the Certificates. Such
number of days will be specified in the related Prospectus Supplement. If
the Borrower fails to make a scheduled payment on the Promissory Note on a
Note Payment Date, and such failure continues for 30 calendar days,
Eximbank, upon written demand by the Trustee on any Business Day following
such 30-day period, and provided that the Trustee shall also have made a
written demand for payment upon the Borrower at least 15 calendar days
prior thereto, will be obligated to pay to the Trust within 15 Business
Days (or such other number of days as may be specified in the related
Prospectus Supplement) of such demand 100% of the current installment of
principal of and interest at the Guaranteed Interest Rate on the Promissory
Note.
If, as specified in the related Prospectus Supplement, a
Liquidity Facility is delivered in respect of a Series of Certificates, the
Borrower will be required to make payments on the Promissory Note to the
Trustee on or immediately prior to the Certificate Payment Date. If a
scheduled payment is not received on the Promissory Note on or prior to 10
a.m. (or such other time as may be specified in the related Prospectus
Supplement) on the Certificate Payment Date, the Trustee will make demand
for payment under the Liquidity Facility in the amount of the scheduled
payment not made by the Borrower. The amount available under the Liquidity
Facility on each Certificate Payment Date will be in an amount sufficient
to make the scheduled distribution of principal and interest on such
Certificate Payment Date. The Liquidity Provider will be obligated to pay
to the Trustee the amount demanded by 11:45 a.m. (or such other time as may
be specified in the related Prospectus Supplement) on the Certificate
Payment Date and such funds will be distributed to the Certificateholders
on such Certificate Payment Date. In addition, if the Borrower fails to
make a payment on the Promissory Note and such failure continues for 30
calendar days, Eximbank, upon written demand by the Trustee on any Business
Day following such 30-day period (provided that the Trustee shall have made
written demand upon the Borrower at least 15 calendar days prior thereto),
will be obligated to pay to the Trust within fifteen Business Days (or such
other number of days as may be specified in the related Prospectus
Supplement) of such demand the 100% of the principal amount and interest at
the Guaranteed Interest Rate due and unpaid on the Promissory Note. To the
extent that the Liquidity Provider had previously satisfied a demand under
the Liquidity Facility and had not been reimbursed therefor, the Trustee
will reimburse the Liquidity Provider from amounts received from Eximbank
in respect of the payment made by the Liquidity Provider.
Upon the making of a demand on Eximbank under the Eximbank
Guarantee in respect of any Note Payment Date on which both principal and
interest are payable, the Trustee will be required to assign to Eximbank
the rights of the Trust to the Promissory Note and the Credit Agreement
and, unless otherwise specified in the related Prospectus Supplement,
Eximbank will deliver to the Trustee an Eximbank Payment Certificate. With
respect to each subsequent Note Payment Date (and corresponding Certificate
Payment Date), without the requirement of a demand upon the Borrower or
Eximbank, Eximbank will be obligated under such Eximbank Payment
Certificate to directly and timely pay to the Trust all principal and
interest at the Guaranteed Interest Rate then due on the Promissory Note.
In addition, if so described in the related Prospectus
Supplement, upon the occurrence of certain events described therein (an
"Exchange Event"), the prepayment of the Promissory Note (or a portion
thereof) will be required. In such event, the Trustee will be required to
assign to Eximbank the rights of the Trust to the Promissory Note (or a
portion thereof) and Eximbank will deliver to the Trustee an Eximbank
Payment Certificate in exchange therefor. The Promissory Note (or portion
thereof) held by Eximbank will then be prepaid. Following the delivery of
such Eximbank Payment Certificate, on each subsequent Note Payment Date,
without the requirement of a demand upon the Borrower or Eximbank, Eximbank
will be obligated to directly and timely pay to the Trust the amounts that
would have been due on such Promissory Note (or portion thereof) in
accordance with its original amortization schedule. Accordingly, unless
otherwise specified in the related Prospectus Supplement, the Certificates
will not be subject to prepayment even though the Promissory Note (or a
portion thereof) is prepaid as a result of an Exchange Event.
In the case of any Series of Certificates evidencing an interest
in a Promissory Note the interest rate on which (exclusive of any penalty
rate required to be paid in respect of overdue principal and interest on
such Promissory Note) exceeds the Guaranteed Interest Rate covered by the
Eximbank Guarantee (such excess, the "Unguaranteed Portion"), either (i)
the Unguaranteed Portion will be defeased by the Borrower by the delivery
to the Trustee pursuant to a Defeasance Agreement of United States Treasury
obligations (the "Defeasance Collateral") in amounts and maturities
sufficient to pay the Unguaranteed Portion as it comes due or (ii) a Class
of Certificates of such Series (the "Subordinate Certificates") will be
issued which is subordinated to the rights of the senior Class of
Certificates of such Series (the "Senior Certificates") such that proceeds
of the Eximbank Guarantee or the Liquidity Facility, if any, will be
sufficient to distribute to the Senior Certificates their allocable share
of the scheduled payments on the Promissory Note. The Subordinate
Certificates will not be offered by the Prospectus or any Prospectus
Supplement.
THE EXIMBANK GUARANTEES
General
Eximbank, pursuant to the Eximbank Guarantees, will guarantee
payment of 100% of the principal of and interest at the Guaranteed Interest
Rate on the related Promissory Note. Each Eximbank Guarantee provides that
after Eximbank's endorsement of a guarantee legend on the Promissory Note
or the delivery by Eximbank of a certificate to the effect that the
disbursement evidenced by such Promissory Note is subject to the Eximbank
Guarantee, Eximbank's guarantee will be a binding obligation of Eximbank,
except as provided under "-- Certain Restrictions Applicable to the
Eximbank Guarantees" below, even if the Borrower's obligations under such
Promissory Note are not enforceable.
The Attorney General of the United States of America has stated
in an opinion that Eximbank's contractual liabilities constitute general
obligations of the United States backed by its full faith and credit. The
Eximbank Guarantees of the Promissory Notes by Eximbank will constitute
contractual liabilities of Eximbank and, as stated in such opinion, general
obligations of the United States of America. The Certificates will not be
directly guaranteed by Eximbank and there will be no direct contractual
liability of Eximbank to any holder of a Certificate.
Unless otherwise specified the related Prospectus Supplement, in
addition, the General Counsel of Eximbank will opine, or will have opined,
among other things, that Eximbank has the power and authority to enter into
each Eximbank Guarantee, that each Eximbank Guarantee 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
and that Eximbank's guarantee of payment on the related Promissory Note
will be backed by the full faith and credit of the United States. See
"--Eximbank" below.
Unless otherwise specified in the related Prospectus Supplement,
under the terms of each Eximbank Guarantee, if the Borrower fails to make
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), is obligated to pay to the Trust within 15 Business
Days (or such other number of days as may be specified in the related
Prospectus Supplement) of such demand 100% of the installment of principal
and interest due on the Promissory Note, together with interest at the
Guaranteed Interest Rate specified in the related Prospectus Supplement on
overdue principal and overdue interest from the original due date to the
actual date of payment by Eximbank (all such amounts of principal and
interest, the "Guaranteed Amounts").
Unless otherwise specified in the related Prospectus Supplement,
following an Eximbank Payment Event or, if so described in the related
Prospectus Supplement, an Exchange Event and the required assignment of the
Promissory Note and Credit Agreement to Eximbank, Eximbank will execute and
deliver a certificate (the "Eximbank Payment Certificate"), providing for
the timely payment to the Trust by Eximbank of the Guaranteed Amounts due
under the Promissory Note on each Note Payment Date until the scheduled
maturity of the Promissory Note (regardless of any acceleration of the
Promissory Note). On and after such time, the property of the Trust will
consist of the Eximbank Payment Certificate, which will be a direct
obligation of Eximbank, backed by the full faith and credit of the United
States of America.
A form of the Eximbank Guarantee is filed as an exhibit to the
Registration Statement of which this Prospectus is a part.
Certain Restrictions Applicable to Eximbank Guarantees
Pursuant to the terms of each Eximbank Guarantee, Eximbank will
not be required to make a payment under an Eximbank Guarantee of amounts
due under the related Promissory Note on a Note Payment Date if a written
demand for payment upon Eximbank is not made within 150 days of such Note
Payment Date and if a written demand for payment upon the Borrower is not
made at least 15 calendar days prior to such demand upon Eximbank.
Accordingly, each Declaration of Trust requires the Trustee (or, if so
specified in the related Prospectus Supplement, the Servicer) to make such
a demand upon the Borrower on or prior to the second Business Day following
the failure by the Borrower to make any payment on the Promissory Note and
upon Eximbank on the Business Day after the 30th day following the failure
of the Borrower to make a payment on the Promissory Note. In the event that
Eximbank is not obligated to make a payment under the Eximbank Guarantee of
any amounts due and unpaid under the Promissory Note because written
demands for payment were not timely made upon Eximbank and the Borrower by
the Trustee (or the Servicer), then the Trustee (or, if so specified in the
related Prospectus Supplement, the Servicer) will itself be irrevocably
obligated to pay such amounts to the Trust. Such payment, including
interest on overdue interest and overdue principal at the Guaranteed
Interest Rate, will be made by the Trustee, or the Servicer, as the case
may be, on the 151st day after the related Note Payment Date, without the
requirement of notice or demand. Notwithstanding the foregoing, any
Certificateholder may make a demand upon the Trustee or the Servicer, as
the case may be, if such amount is not paid when due, in which event the
Trustee or the Servicer, as the case may be, will be required to make such
payment promptly upon receipt of such written demand from any
Certificateholder (or the Servicer). In addition, the Eximbank Guarantee
provides that it will cease to be effective if the Depositor or the Trustee
agrees to any material amendment, supplement or modification of the
Promissory Note or the Credit Agreement without Eximbank's prior written
consent. The Declaration of Trust will therefore forbid the Depositor and
the Trustee from agreeing to any amendment, supplement or modification of
the Promissory Note or the Credit Agreement without Eximbank's prior
written consent. See "DESCRIPTION OF THE CERTIFICATES--Events of Default,
Enforcement of Promissory Note, Eximbank Guarantee, Liquidity Facility and
Defeasance Agreement" and "--Amendments" herein.
Eximbank
Eximbank is an independent agency of the United States
government, corporate in form, all of the capital stock of which is held by
the Secretary of the Treasury, was founded in 1934 and operates under
authority contained in the Export-Import Bank Act of 1945, as amended (12
U.S.C. Section 635 et seq.) (the "EXIM Act"). Eximbank's purpose is to aid
in financing exports and imports of goods and services between the United
States and foreign countries and, in furtherance thereof, the EXIM Act
vests broad banking powers in Eximbank, including the power to borrow and
lend, to guarantee and insure loans, and to purchase or guarantee
negotiable instruments, evidences of indebtedness and other securities.
Eximbank's authority to exercise its functions has been limited to
specified periods, which have been extended by Congressional action from
time to time. The EXIM Act currently provides that the authority empowering
Eximbank to continue to exercise its functions expires on September 30,
1997. Although the current authority under the EXIM Act to provide loans
and guarantees in support of import and export activities expires on
September 30, 1997, Eximbank is permitted to assume prior thereto liability
as a guarantor of obligations maturing subsequent to that date.
The Attorney General of the United States, in an opinion dated
September 30, 1966, stated that Eximbank's contractual liabilities
constitute general obligations of the United States backed by its full
faith and credit and that persons in whose favor Eximbank has incurred
contractual liabilities in accordance with law "have acquired valid general
obligations of the United States, and are therefore in a position to reach
beyond Eximbank and its assets to the United States for a source of
payment, if necessary." The Eximbank Guarantee of each Promissory Note by
Eximbank will constitute a contractual liability of Eximbank and, as stated
in such opinion, a general obligation of the United States. The
Certificates will not be directly guaranteed by Eximbank and there will be
no direct contractual liability of Eximbank to any holder of a Certificate.
DESCRIPTION OF THE CERTIFICATES
General
The Certificates will be issued in Series pursuant to separate
Declarations of Trust. A form of Declaration of Trust is filed as an
exhibit to the Registration Statement of which this Prospectus is a part.
The Certificates will be issuable in the authorized
denominations specified in the related Prospectus Supplement. Unless
otherwise specified in the related Prospectus Supplement, the Certificates
will be issued in book-entry form only. See "--Book-Entry Registration"
herein. If definitive Certificates of any Series are issued as specified in
the related Prospectus Supplement, the transfer of definitive Certificates
may be registered and the Certificates exchanged at the office of the
Trustee and any other transfer agent designated by the Trustee without the
payment of any service charge other than any tax or governmental charge
payable in connection with such registration of transfer or exchange.
Distributions on the Certificates
Interest will be distributable on the Certificates at the rate
per annum specified in, or determined in the manner specified in, the
related Prospectus Supplement. Unless otherwise specified in the related
Prospectus Supplement, interest on the Certificates will accrue from the
Closing Date and will be distributed on the dates specified in the related
Prospectus Supplement (each such date, a "Certificate Payment Date").
Payments of principal on the Certificates will be distributable
in the aggregate amount and on the Certificate Payment Dates specified in
the related Prospectus Supplement.
Unless otherwise specified in the related Prospectus Supplement,
the Certificates will not be subject to prepayment or acceleration under
any circumstances.
The Trustee is obligated to apply all Available Funds (as
defined below), including any payments received from the Borrower or other
person in respect of the Promissory Note, any payments received from
Eximbank pursuant to the Eximbank Guarantee, any amounts received from the
Liquidity Provider, if any, under any Liquidity Facility and any amounts
received under the Defeasance Agreement, if any, to make the distributions
to the Certificateholders on such date. If the Available Funds for
distribution to the Certificateholders on any Certificate Payment Date are
less than the amounts required to be distributed to all Certificateholders
in full on such date, distributions will be made to the respective
Certificateholders (other than holders of Subordinate Certificates, if any)
on a pro rata basis. If a Class of Subordinate Certificates is issued, no
distribution will be made to the Holders of such Subordinate Certificates
until all amounts required to be distributed to the holders of the Senior
Certificates have been paid in full. If distributions on any Certificates
are not made when scheduled as a result of failure of timely payment on the
Promissory Note (or the Eximbank Guarantee, the Liquidity Facility, if any,
or the Defeasance Agreement, if any) after a default in payment on the
Promissory Note), Certificateholders will be entitled to distributions of
interest on overdue principal and overdue interest at the rate of interest
then distributable on the Certificates.
"Available Funds" means, unless otherwise specified in the
related Prospectus Supplement, in respect of any date on which payments are
due on the Certificates, any payments received by the Trustee from the
Borrower, Eximbank or the Liquidity Provider, if any, on or in respect of
the Promissory Note, the Eximbank Guarantee, the Eximbank Payment
Certificate or Liquidity Facility, if any, as well as amounts received
under the Defeasance Agreement, if any, in each case in respect of the
related Note Payment Date.
Book-Entry Registration
Unless otherwise specified in the related Prospectus Supplement,
the Certificates will be issued in the form of one or more global
Certificates that will be deposited with The Depository Trust Company
("DTC") and registered in the name of a nominee of DTC. The Certificates
will be available only in book-entry form. Certificateholders may hold
their Certificates through DTC, if they are participants of DTC, or
indirectly through organizations which are participants in such systems.
Cede & Co., as nominee for DTC, will be the registered holder of
the global Certificates. No Certificateholder will be entitled to receive a
certificate representing such person's interest in the Certificates. The
laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such laws may
impair the ability to purchase or transfer beneficial interests in the
global Certificates.
Owners of beneficial interests in the global Certificates will
not be considered the holders thereof for any purpose under the Declaration
of Trust or the Certificates. Unless DTC notifies the Trustee that it is
unwilling or unable to continue as depositary for the global Certificates
or ceases to be a "clearing agency" registered under the Exchange Act,
owners of beneficial interests in the global Certificates will not be
entitled to have any portions of the global Certificates registered in
their names, will not receive or be entitled to receive physical delivery
of Certificates in definitive form and will not be considered the owners or
holders of the global Certificates (or any Certificates represented
thereby) under the Declaration of Trust or the Certificates.
All references herein to actions by Certificateholders shall
refer to actions taken by DTC upon instructions from its participants ("DTC
Participants"), and all references herein to distributions, notices,
reports and statements to Certificateholders shall refer to distributions,
notices, reports and statements to Cede & Co., as the registered holder of
the Certificates for distribution to Certificateholders in accordance with
DTC procedures. Accordingly, each Certificateholder must rely on the
procedures of DTC and, if such person is not a DTC Participant, on the
procedures of the DTC Participant through which such person owns its
interest, to exercise any rights of a holder under the Declaration of
Trust. Neither the Trust, the Trustee, nor any agent of the Trust or the
Trustee, nor the Borrower will have any responsibility or liability for any
aspect of DTC's records or any DTC Participant's records relating to or
payments made on account of beneficial interests in the global Certificates
or for maintaining, supervising or reviewing any of DTC's records or any
DTC Participant's records relating to such beneficial interest.
DTC is a limited-purpose trust company organized under the laws
of the State of New York, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the Uniform Commercial Code
and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934, as amended. DTC was created to
hold securities for DTC Participants and facilitate the clearance and
settlement of securities transactions between DTC Participants through
electronic book-entry changes in accounts of DTC Participants, thereby
eliminating the need for physical movement of certificates. DTC
Participants include certain of the Underwriters, securities brokers and
dealers, banks, trust companies and clearing corporations and may include
certain other organizations. Indirect access to the DTC system also is
available to others such as banks, brokers, dealers and trust companies
that clear through or maintain a custodial relationship with a DTC
Participant, either directly or indirectly ("Indirect Participants").
Under the rules, regulations and procedures creating and
affecting DTC and its operations, DTC is required to make book-entry
transfers among DTC Participants on whose behalf it acts with respect to
the Certificates and is required to receive and transmit distributions of
principal of and interest on the Certificates. DTC Participants and
Indirect Participants with which Certificateholders have accounts with
respect to the Certificates similarly are required to make book-entry
transfers and receive and transmit such payments on behalf of their
respective Certificateholders.
Because DTC can only act on behalf of DTC Participants, which in
turn act on behalf of Indirect Participants and certain banks, the ability
of a Certificateholder to pledge Certificates to persons or entities that
do not participate in the DTC system, or otherwise take actions in respect
of such Certificates, may be limited due to the lack of physical
certificates for such Certificates.
Prior to the initial delivery date of the Certificates, it is
expected that DTC will have advised the Trust that it will take any action
permitted to be taken by a Certificateholder under the Declaration of Trust
only at the direction of one or more DTC Participants to whose account with
DTC the Certificates are credited. Additionally, prior to the initial
delivery date of the Certificates, it is expected that DTC will have
advised the Trust that it will take such actions with respect to specified
portions of the Percentage Interests (as defined below) in the Certificates
only at the direction of and on behalf of DTC Participants whose holdings
include Percentage Interests that satisfy such specified percentages.
None of the Underwriters, the Depositor, the Trust, the Trustee
or any Borrower, or their affiliates can give any assurances that DTC will
perform or continue to perform the procedures discussed above, and such
procedures may be discontinued at any time.
Events of Default, Enforcement of Promissory Note, Eximbank Guarantee,
Liquidity Agreement and Defeasance Agreement
If the Borrower fails to deposit with the Trustee all amounts
due on the Promissory Note on a Note Payment Date, the Declaration of Trust
provides that the Trustee will be required to send a payment demand to the
Borrower (with a copy thereof to Eximbank) on or prior to the second
Business Day following such Note Payment Date, setting forth the amounts
due on the Promissory Note on such date and the amounts due and unpaid by
the Borrower. If any amounts due on the Promissory Note remain unpaid on
the thirtieth calendar day after such Note Payment Date, the Trustee will
be required to file with and deliver to Eximbank on the first Business Day
following such thirtieth calendar day a payment demand setting forth the
amounts due on the Promissory Note on such date and the amounts due and
unpaid by the Borrower and demanding payment from Eximbank under the
Eximbank Guarantee. Under the Eximbank Guarantee, Eximbank, upon receipt of
a demand for payment and satisfaction of all other requirements contained
in the Eximbank Guarantee, will within fifteen Business Days (or such other
number of days as may be specified in the related Prospectus Supplement) of
such demand make payment of all principal and interest at the Guaranteed
Interest Rate owing in respect of such defaulted payment. See "THE EXIMBANK
GUARANTEES" and "THE PROMISSORY NOTES" herein.
Simultaneously with the making of a demand on Eximbank under the
Eximbank Guarantee in respect of any Note Payment Date on which both
principal and interest are payable (an "Eximbank Payment Event") or in
respect of an Exchange Event, the Trustee will be required to assign to
Eximbank the rights of the Trust to the Promissory Note and the Credit
Agreement and, unless otherwise specified in the related Prospectus
Supplement, Eximbank will deliver to the Trustee an Eximbank Payment
Certificate providing for payment to the Trust by Eximbank of all amounts
of principal and interest at the Guaranteed Interest Rate due under the
Promissory Note on each Note Payment Date, until the scheduled maturity of
the Promissory Notes. Thereafter, Eximbank will directly and timely pay all
amounts of principal and interest due under the Promissory Note to the
Trust on each subsequent Note Payment Date, without a requirement of demand
on or notice to the Borrower or Eximbank for such payment. On and after
such Eximbank Payment Event, the property of the Trust will consist of the
Eximbank Payment Certificate, which is a direct obligation of Eximbank,
backed by the full faith and credit of the United States of America, and
the Defeasance Agreement, if any.
Unless otherwise specified in the related Prospectus Supplement,
under the Credit Agreement, Eximbank will have the sole right to accelerate
the Promissory Note upon an Event of Default. Unless otherwise specified in
the related Prospectus Supplement, such acceleration will relate only to
the rights of Eximbank vis-a-vis the Borrower and will not result in an
acceleration of the Certificates, as Eximbank will be required to make
payments under the Eximbank Guarantee in accordance with the original
amortization schedule of the Promissory Note.
The Trustee is required to take all necessary action, as
permitted or required by the Declaration of Trust, the Eximbank Guarantee,
any Liquidity Facility, any Defeasance Agreement and applicable law to (i)
enforce payments due from Eximbank under the Eximbank Guarantee and from
the Liquidity Provider, if any, under any Liquidity Facility and enforce
the Defeasance Agreement, if any, and (ii) apply amounts received in
accordance with the Declaration of Trust for the benefit of the
Certificateholders.
Trust Accounts and Investments of Funds
The Trustee will establish two separate, segregated,
non-interest bearing trust accounts (the "Trust Account" and the "Eximbank
Payment Account") for the benefit of the Certificateholders. All payments
received by the Trustee in respect of the Promissory Note (including
amounts received under the Liquidity Facility, if any) will be paid into
the Trust Account, except amounts received under the Eximbank Guarantee,
which will be paid into the Eximbank Payment Account. If so specified in
the related Prospectus Supplement, the Trust may establish additional
segregated non-interest bearing trust accounts, including, without
limitation, a defeasance account into which all payments received by the
Trustee under the Defeasance Agreement, if any, will be deposited.
Each of the Trust Account and the Eximbank Payment Account will
be maintained by the Trustee in its trust capacity. The Declaration of
Trust directs the Trustee to invest all funds deposited in the Trust
Account and the Eximbank Payment Account in respect of a Note Payment Date
in Eligible Investments (as defined below) that mature prior to the
immediately succeeding Certificate Payment Date; provided that, if a
Liquidity Facility is delivered with respect to a Series of Certificates
and the Note Payment Dates fall on the corresponding Certificate Payment
Dates, such funds will not be invested by the Trustee.
"Eligible Investments" are required to mature prior to the next
succeeding Certificate Payment Date and, unless otherwise specified in the
related Prospectus Supplement, consist of non-callable non-prepayable
bonds, notes, bills or other 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) either (a) backed by the full faith
and credit of the United States and, if guaranteed by the United States of
America or an agency or instrumentality thereof or a corporation sponsored
thereby, providing for the full and timely payment thereof or (b) rated in
either the highest long-term debt rating category or highest short-term
debt rating category of each of the Rating Agencies rating such
Certificates and (iii) purchased from the issuer thereof as principal.
Unless otherwise specified in the related Prospectus Supplement,
each Declaration of Trust provides that the Certificateholders have no
rights to the interest earned on Eligible Investments.
Unless otherwise specified in the related Prospectus Supplement,
interest earned on Eligible Investments relating to the Trust Account will
be distributed to the Borrower; provided, however, that no such amounts
will be distributed to the Borrower if at the time of such proposed
distribution any Certificateholder has not received distributions of all
amounts which it is entitled to receive or the Basic Fee has not been paid
to the Trustee. The Borrower will be obligated to reimburse the Trust for
losses on investments in such Eligible Investments.
Unless otherwise specified in the related Prospectus Supplement,
interest earned on Eligible Investments relating to the Eximbank Payment
Account will be distributed first to the Trustee in payment of any due and
unpaid Basic Fees and Expenses and any remaining portion of such interest
will be paid to Eximbank.
Any losses on Eligible Investments not reimbursed to the Trust
will not be covered by the Eximbank Guarantee and will reduce the amounts
available for distribution to the Certificateholders.
Reports to Certificateholders
On each Certificate Payment Date, the Trustee is obligated to
supply the Certificateholders, and any beneficial owner of an interest in a
certificate that delivers to the Trustee a written request certifying to
its beneficial ownership with a report which is to include the following
information as of the related Certificate Payment Date: (i) the aggregate
amounts of principal and interest distributed to the holders of
Certificates; (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 principal and interest paid on
the Promissory Note on the related Note Payment Date, the amount of any
such difference and the reason or reasons therefor. The report will also
state that neither a delinquency in payment under the Promissory Note, the
Eximbank Guarantee, the Eximbank Payment Certificate, the Liquidity
Facility, if any, or the Defeasance Agreement, if any, nor any Event of
Default that is a payment default or, to its knowledge, any other Event of
Default has occurred or, if any such event has occurred and is continuing,
will specify the event and its status.
The fiscal year of each Trust will be a calendar year. Within
the prescribed period of time for tax reporting purposes after the end of
each calendar year during the term of the Declaration of Trust, the Trustee
is to prepare and mail to each Certificateholder of record at any time
during such year a report setting forth such information as is reasonably
necessary for the preparation of that 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 Trustee will deliver, without charge, to any registered
Certificateholder copies of all documents and reports furnished to the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended, upon written request to the Trustee.
Amendments
The Declaration of Trust may be amended from time to time by the
Trustee, and, if parties thereto, the Servicer, if any, and the Borrower,
without the consent of the Depositor or any of the Certificateholders, to
cure any ambiguity, to correct or supplement any inconsistent provisions
therein, to add any other provisions with respect to matters or questions
arising thereunder which shall not be inconsistent with the provisions
thereof; provided that such action will not, as evidenced by an opinion of
counsel delivered to the Trustee, adversely affect in any material respect
the interests of the Certificateholders.
The Declaration of Trust may also be amended from time to time
by the Trustee, and, if parties thereto, the Servicer, if any, and the
Borrower or the Lessee, if any, with the consent of holders of Certificates
representing at least 51% of the Percentage Interest in the outstanding
Certificates but without the consent of the Depositor, for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of the Declaration of Trust or of modifying in any manner
the rights of the Certificateholders, except that (a) without the unanimous
consent of the Certificateholders, no such amendment may (i) reduce in any
manner the amount of, or delay the timing of, collections of payments on
the Promissory Note, the Eximbank Guarantee, the Eximbank Payment
Certificate, the Liquidity Facility, if any, or the Defeasance Agreement,
if any, or distributions which are required to be made on the Certificates
or (ii) reduce the percentage required to consent to any such amendment,
and (b) without the consent of the Depositor no such amendment may
adversely affect the obligations or liabilities of the Depositor.
"Percentage Interest" means, with respect to any Certificate at any time,
the percentage determined by dividing the outstanding principal amount of
such Certificate by the aggregate outstanding principal amount of all of
the Certificates.
No amendment, modification or supplement to or of the
Declaration of Trust may be made unless (i) the Trustee shall have received
an opinion of counsel to the effect that the proposed amendment, supplement
or modification 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
Eximbank Guarantee, the Liquidity Facility, if any, or the Defeasance
Agreement, if any, ineffective or (ii) if no such opinion is obtained, such
amendment, modification or supplement has been unanimously approved by the
Certificateholders. In addition, no amendment, modification or supplement
requiring the consent of any of the Certificateholders may be made without
the unanimous approval of the Certificateholders unless the Trustee shall
have received a statement in writing from each of the Rating Agencies to
the effect that the proposed amendment, supplement or modification will not
in and of itself result in a downgrading or withdrawal of the ratings then
assigned to the Certificates.
Promptly after the execution of any amendment or consent
pursuant to the Declaration of Trust, the Trustee is obligated to furnish
or cause to be furnished written notification of the substance of such
amendment or consent to each Certificateholder, the Depositor, the Borrower
or the Lessee, if any, Eximbank and the Rating Agencies.
Termination
The Declaration of Trust will terminate after payment in full
has been made on the Certificates and any other amounts held by the Trustee
have been distributed in accordance with the provisions thereof, but in no
event later than 21 years after the death of the last survivor of the
descendants of the person named in the Declaration of Trust living as of
the date of the Declaration of Trust.
The Trustee
The Trustee under the Declaration of Trust will be named in the
related Prospectus Supplement. The Trustee is obligated to provide each
Certificateholder with prompt written notice of any change in the address
of the corporate trust office specified in the related Prospectus
Supplement.
Unless otherwise specified in the related Prospectus Supplement,
the Trustee may resign at any time, by giving written notice to the
Borrower, Eximbank and the certificate registrar, if other than the
Trustee. The Borrower (or, if there is a Lessee specified in the related
Prospectus Supplement, the Lessee), the holders of Certificates
representing 25% or more of the aggregate Percentage Interests of all of
the outstanding Certificates, or a court of competent jurisdiction upon the
petition of one or more Certificateholders, may also remove the Trustee if
such Trustee ceases to be eligible to continue as such under the
Declaration of Trust or if such Trustee becomes legally unable to act or
insolvent. In the event the Trustee demonstrates itself unwilling to
fulfill its duties, the Borrower (or, if there is a Lessee specified in the
related Prospectus Supplement, the Lessee), or a court of competent
jurisdiction upon the petition of one or more Certificateholders, may
remove the Trustee. In the event of resignation or removal of the Trustee,
the Borrower (or, if there is a Lessee specified in the related Prospectus
Supplement, the Lessee), with the consent of Eximbank, will appoint a
national bank or a state banking institution subject to state banking
supervision as successor Trustee. If no successor Trustee has been
appointed and has accepted appointment within 30 days after the giving of a
notice of resignation or a determination to remove the Trustee, the
resigning Trustee or the Trustee whose removal is sought, as the case may
be, or any Certificateholder, may petition any court of competent
jurisdiction for the appointment of a successor Trustee. Any resignation or
removal of a Trustee and appointment of a successor Trustee will not become
effective until any required approval by Eximbank is received, acceptance
of the appointment by the successor Trustee and transfer of the property of
the Trust to such successor Trustee. In addition, unless the Servicer is
designated in the related Prospectus Supplement as the person irrevocably
obligated to pay the amounts described under "THE EXIMBANK
GUARANTEE--Certain Restrictions Applicable to the Eximbank Guarantee" to
the Trust in the event of a failure to make a timely demand on Eximbank, no
resignation or removal of the Trustee or appointment of a successor Trustee
will become effective unless either (i) the Trustee remains irrevocably
obligated to pay such amounts to the Trust in the event of the failure of
the successor Trustee to make a timely demand on Eximbank or (ii) the
successor Trustee irrevocably assumes such obligation.
Duties and Immunities of the Trustee
The Trustee assumes no responsibility or liability for, and
makes no representations as to, the validity or sufficiency, or as to the
accuracy, of the recitals, if any, set forth in the Certificates (other
than the execution and authentication thereof), the Promissory Note, the
Eximbank Guarantee, the Liquidity Facility, if any, the Defeasance
Agreement, if any, or the Credit Agreement (or the accuracy of the recitals
in the Declaration of Trust), except for the Trustee's representation as to
the due execution of all documents signed by it.
The Trustee undertakes to perform such duties and only such
duties as are specifically set forth in the Declaration of Trust. Subject
to the foregoing sentence, the Trustee will be liable for its own
negligence or misconduct except for (i) good faith errors in judgment
(provided the Trustee was not negligent in ascertaining the pertinent
facts) and (ii) actions taken or omitted pursuant to the direction of
Certificateholders as described below. If an Event of Default has occurred
(which has not been cured), the Trustee is obligated to exercise such of
the rights and powers vested in it by the Declaration of Trust, 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
affairs. The Trustee will not be charged with actual knowledge of an Event
of Default or a default under the Eximbank Guarantee, Eximbank Payment
Certificate, the Liquidity Facility, if any, or the Defeasance Agreement,
if any, (other than a failure by the Borrower, the Liquidity Provider, if
any, or Eximbank, as the case may be, to make a payment when due under the
Promissory Note, the Eximbank Guarantee, the Eximbank Payment Certificate,
the Liquidity Facility, if any, or the Defeasance Agreement, if any) unless
a responsible officer of the Trustee at its principal corporate trust
office obtains actual knowledge thereof or receives written notice thereof
from the Borrower, Eximbank, the Liquidity Provider, if any, the Servicer,
if any, or any Certificateholder.
Subject to the foregoing paragraph, the Trustee will have no
responsibility or liability for or with respect to the enforcement of the
Promissory Note or, if no Event of Default has occurred, the Eximbank
Guarantee, the Liquidity Facility, if any, or the Defeasance Agreement, if
any, and, if no default under the Eximbank Payment Certificate has
occurred, the Trustee will have no responsibility or liability for or with
respect to the enforcement of the Eximbank Payment Certificate. Except for
any liability that may arise under the Declaration of Trust as the result
of the failure of the Trustee to make a claim on Eximbank within 150 days
following a payment default by the Borrower or such other liability as is
finally determined to have resulted from the Trustee's negligence or bad
faith, no recourse shall be had for any claim based on any provision of the
Declaration of Trust, the Certificates, the Promissory Note, the Guarantee,
the Liquidity Facility, if any, the Defeasance Agreement, if any, or the
Credit Agreement against the Trustee in its individual capacity, and any
such claim may be asserted solely against the Trust.
Subsequent to the occurrence of the Eximbank Payment Event, the
Trustee's only recourse with respect to the principal and interest due
under the Promissory Note will be against Eximbank for payments due under
the Eximbank Payment Certificate, which payments will correspond to the
payments of principal and interest due on the Promissory Note without
giving effect to any acceleration thereof.
The Declaration of Trust also provides that Certificateholders
representing at least 51% in Percentage Interest of the Certificates may,
with certain exceptions, direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any
trust power conferred on the Trustee, with respect to the Certificates,
except that the Trustee need not comply with such directions if it
determines in good faith that the action would involve it in personal
liability. A Certificateholder may not pursue any remedy under the
Declaration of Trust or give any demand for payment unless (1) the
Certificateholder gives to the Trustee written notice stating that an event
of default is continuing; (2) the holders of Certificates representing at
least 51% in Percentage Interest of the Certificates make a written request
to the Trustee to pursue the remedy or give a demand notice; (3) such
Certificateholder or Certificateholders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense; (4) the
Trustee does not comply with the request within sixty days after receipt of
the request and the offer of security or indemnity; and (5) the holders of
at least 51% in Percentage Interest of the Certificates do not give the
Trustee a direction inconsistent with the request during such sixty-day
period. The Trustee will be under no obligation to exercise any remedy or
power under the Declaration of Trust unless the Certificateholders shall
have offered it reasonable indemnity against costs, expenses and
liabilities incurred in connection therewith.
The Servicer
If so specified in the related Prospectus Supplement, a servicer
identified therein (the "Servicer") may be selected to perform certain
duties described in such Prospectus Supplement. Such duties may include, as
specified in such Prospectus Supplement, (i) the making of demands upon the
Borrower and Eximbank upon the occurrence of a payment default under the
related Promissory Note, (ii) the preparation and making of reports to
Certificateholders described under "DESCRIPTION OF THE
CERTIFICATES--Reports to Certificateholders" and (iii) the undertaking of
the obligation to pay amounts to the related Trust in the event that
Eximbank is not obligated to make payment under the Eximbank Guarantee of
amounts due and unpaid under a Promissory Note because demands for payment
were not timely made; provided that no Servicer will undertake such
obligation unless it is a national bank or a state banking institution
subject to state banking supervision. The Servicer, if any, will undertake
its duties pursuant to the related Declaration of Trust or pursuant to a
Servicing Agreement (the "Servicing Agreement") for the applicable Trust or
for multiple Trusts. A form of Servicing Agreement is filed as an exhibit
to the Registration Statement of which this Prospectus is part.
Trustee's and Servicer's Fees and Expenses
Unless otherwise specified in the related Prospectus Supplement,
the basic fees and expenses of the Trustee (the "Basic Fees and Expenses")
will be paid directly by or on behalf of the Borrower to the Trustee and
will not be payable from the assets of the Trust. In addition, unless
otherwise specified in the related Prospectus Supplement, if payments on
the Certificates are not made when due, the Trustee will be entitled to
receive a supplemental fee (the "Trustee Supplemental Fee") equal to the
amount, if any, of interest on overdue principal and interest on the
Promissory Note received from the Borrower.
The Trustee Supplemental Fee will be paid from payments made on
the Promissory Note. The Trustee Supplemental Fee will be paid only after
all amounts due and payable on the Certificates on the related Certificate
Payment Date have been paid in full and only if the Trustee has made any
payment demand required to be made on the Borrower and Eximbank with
respect to such Certificate Payment Date in a timely manner.
Unless otherwise specified in the related Prospectus Supplement,
the fees and expenses (the "Servicer's Fees and Expenses") of the Servicer,
if any, will be paid directly by the Borrower to the Servicer.
In the event that the Borrower fails to pay the Basic Fees and
Expenses of the Trustee or the Servicer's Fees and Expenses to the
Servicer, if any, the Trustee and the Servicer, if any, will be entitled,
to the extent of the Basic Fees and Expenses or the Servicer's Fees and
Expenses, as the case may be, to receive the earnings on amounts, if any,
deposited in the Trust Account or the Eximbank Payment Account (as defined
below) and invested in Eligible Investments, as described under
"DESCRIPTION OF THE CERTIFICATES--Trust Accounts and Investments of Funds."
Such investment earnings will be payable to the Trustee or the Servicer, if
any, only after all amounts due and payable on the Certificates on the
related Certificate Payment Date have been paid in full.
Except as otherwise described under "--Duties and Immunities of
the Trustee", the Basic Fees and Expenses payable to the Trustee will cover
(i) compensation for all services rendered by the Trustee or as
contemplated by the Declaration of Trust, (ii) all expenses, disbursements
and advances made by the Trustee under or as contemplated by the
Declaration of Trust (including the fees, expenses and disbursements of the
Trustee's accountants, counsel and other agents), and (iii) any loss,
liability or expense arising out of or in connection with the acceptance or
administration of the Trust and its duties as Trustee.
The Servicer's Fees and Expenses payable to the Servicer, if
any, will cover (i) compensation for all services rendered by the Servicer
or as contemplated by the Declaration of Trust, (ii) all expenses,
disbursements and advances made by the Servicer or as contemplated by the
Declaration of Trust (including the fees, expenses and disbursements of the
Servicer's accountants, counsel and other agents) and (iii) any loss,
liability or expense arising out of or in connection with the servicing of
the Trust and its duties as Servicer.
THE PROMISSORY NOTES
Each Promissory Note will either, as specified in the related
Prospectus Supplement, be issued to, or otherwise be acquired by, the
Depositor, which will deposit the Promissory Note in the related Trust
simultaneously with the receipt by the Trust of the proceeds from the sale
of the Certificates. Each Promissory Note will be issued pursuant to a
Credit Agreement. A form of the Credit Agreement, with a form of Promissory
Note attached, is filed as an exhibit to the Registration Statement of
which this Prospectus is a part.
Each Promissory Note will be in the principal amount, mature on
the date and bear interest at the rate or rates per annum specified in the
related Prospectus Supplement. Interest and principal payments on each
Promissory Note will be payable on the dates specified in the related
Prospectus supplement (the "Note Payment Dates"). Unless otherwise
specified in the related Prospectus Supplement, interest on each Promissory
Note will be computed on the basis of a 360-day year consisting of twelve
30-day months.
Unless otherwise specified in the related Prospectus Supplement,
the Borrower will have no right to prepay to the Trust any amounts due
under the Promissory Note.
The amounts of principal and interest payable on the Promissory
Note or Notes underlying a Series of Certificates will be sufficient to
provide for the scheduled payment on such Certificates.
Each Promissory Note will be payable in lawful money of the
United States without deduction for or on account of any present or future
taxes, duties or other charges levied or imposed on the Promissory Note or
the proceeds or holder thereof by the country of the Borrower or any
political subdivision or taxing authority thereof or any other taxing
jurisdiction other than the United States or any political subdivision or
taxing authority thereof.
Each Promissory Note will provide that any overdue principal or
interest thereon will bear interest at the rate or rates per annum
specified in the related Prospectus Supplement. The portion of any such
rate in excess of the rate that would then have been applicable to the
Promissory Note had principal or interest not been overdue will not
constitute a portion of the Guaranteed Interest Rate pursuant to the
Eximbank Guarantee. Each transaction will be structured to provide the
Trust with sufficient funds so that, even if the Borrower fails to pay such
penalty rate, full and timely distributions on the Certificates can be made
from other payments made by the Borrower on the Promissory Note or from
payments made by Eximbank under the Eximbank Guarantee, from payments made
by the Liquidity Provider, if any, under the Liquidity Facility, from
amounts received under the Defeasance Agreement, if any, or from amounts
otherwise distributable to holders of Subordinate Certificates, if any.
THE CREDIT AGREEMENTS
Each Promissory Note will be issued pursuant to a Credit
Agreement entered into by a Borrower with Eximbank and, unless otherwise
specified in the related Prospectus Supplement, the Depositor. Each Credit
Agreement contains terms and provisions relating to the rights and remedies
of the Trust and Eximbank with respect to the Promissory Note and the loan
evidenced thereby. Under each Credit Agreement, Events of Default include
the failure of the Borrower to make payments under the Promissory Note as
provided therein.
Unless otherwise specified in the related Prospectus Supplement,
the Borrower will have no right to prepay to the Trust any amounts due
under the Promissory Note. Accordingly unless otherwise specified in the
related Prospectus Supplement all payments of principal and interest owed
by the Borrower to the Trust under the Promissory Note will be required to
be made to the Trust on the Note Payment Date specified in the Promissory
Note.
Upon the occurrence of an Event of Default, Eximbank may
accelerate payment of the Promissory Note. Unless otherwise specified in
the related Prospectus Supplement, such acceleration will relate only to
the rights of Eximbank vis-a-vis the Borrower and will not result in any
prepayment of the Certificates, as Eximbank will be required to make
payments under the Eximbank Guarantee in accordance with the original
amortization schedule of the Promissory Note.
THE LIQUIDITY FACILITIES
If so specified in the related Prospectus Supplement, an
irrevocable revolving liquidity facility, letter of credit or surety bond
will be provided in an amount equal to, unless otherwise specified in the
such Prospectus Supplement, the largest remaining scheduled payment of
principal and interest due at any time on the Promissory Note or Notes
included in the related Trust (each, a "Liquidity Facility"). The provider
(the "Liquidity Provider") under any such Liquidity Facility will be
specified in the related Prospectus Supplement.
The Liquidity Facilities will provide for the distribution in a
timely manner of principal and interest to the Certificateholders on any
Certificate Payment Date with respect to which the Borrower defaults in the
payment of amounts due under a Promissory Note.
A form of irrevocable revolving liquidity facility is filed as
an exhibit to the Registration Statement of which this Prospectus is a
part.
THE DEFEASANCE AGREEMENTS
If so specified in the related Prospectus Supplement, the
Borrower or other entity specified in such Prospectus Supplement will
provide for the payment of the Unguaranteed Portion of principal or
interest due on a Promissory Note by delivery to the Trustee on the Closing
Date of non-callable United States government securities (the "Defeasance
Collateral") pursuant to a Defeasance Agreement (each, a 'Defeasance
Agreement') with the Trustee. The Defeasance Collateral will be in amounts
and have maturities sufficient to provide for payment of the Unguaranteed
Portion of each payment on interest on the Promissory Note as it comes due
on each Note Payment Date. Upon maturity of each portion of the Defeasance
Collateral, the Trustee will apply the proceeds thereof to the payment of a
portion of the amounts due on the Promissory Note.
A form of Defeasance Agreement is filed as an exhibit to the
Registration Statement of which this Prospectus is a part.
SUBORDINATE CERTIFICATES
In order to provide for the payment of any Unguaranteed Portion
of interest due on a Promissory Note and if so specified in the related
Prospectus Supplement, a Class of Certificates of a Series (the
"Subordinate Certificates") may be issued which is subordinated to the
rights of the senior Class of Certificates of such Series (the "Senior
Certificates") such that proceeds of the Eximbank Guarantee or the
Liquidity Facility, if any, will be sufficient to distribute to the
Senior Certificates their allocable share of the scheduled payments on the
Promissory Note. The Subordinate Certificates will not be offered by the
Prospectus or any Prospectus Supplement.
THE TRUSTS
Each Guaranteed Trade Trust (each, a "Trust") will be specially
created for the purpose of holding the related Promissory Note and the
related Eximbank Guarantee, Liquidity Facility, if any, Defeasance
Agreement, if any, and Eximbank Payment Certificate, if any, and issuing
the Certificates. Each Trust will be formed pursuant to a Declaration of
Trust (the "Declaration of Trust") between the Trustee named in the related
Prospectus Supplement, the Depositor and, if so specified in the related
Prospectus Supplement, the Servicer, with, if so specified, the consent and
agreement of the related Borrower. No Trust will have any material assets
other than the related Promissory Note, backed by the related Eximbank
Guarantee and, if so specified in the related Prospectus Supplement, a
Liquidity Facility and Defeasance Agreement and, in the event the Eximbank
Payment Event occurs, the Eximbank Payment Certificate, a direct obligation
of Eximbank. No Declaration of Trust will permit the related Trust to
engage in any activity other than holding such assets, issuing the
Certificates and engaging in certain other necessary activities related
thereto.
THE DEPOSITOR
Citicorp North America, Inc. (the "Depositor") is a corporation
organized under the laws of Delaware. The Depositor is an affiliate of
Citicorp Securities, Inc., one of the Underwriters. The principal executive
offices of the Depositor are located at 399 Park Avenue, New York, New York
10043 and its telephone number is 212-559-1000.
CERTAIN UNITED STATES FEDERAL TAX CONSEQUENCES
The following summarizes certain federal income tax consequences
arising from the purchase, ownership and disposition of Certificates. The
summary is based upon the Internal Revenue Code of 1986, as amended (the
"Code"), and the United States Treasury Regulations promulgated thereunder,
as interpreted by court decisions and Internal Revenue Service rulings and
procedures, all as in effect on the date hereof. The discussion does not
deal with all aspects of federal income taxation that may be relevant to
particular investors, some of whom may be subject to special rules. This
discussion is also generally limited to investors who will hold the
Certificates as "capital assets" (generally, property held for investment)
within the meaning of Section 1221 of the Code. Prospective investors are
advised to consult their own tax advisors to determine the federal, state,
local and any other tax consequences arising out of the purchase, ownership
and disposition of Certificates.
Tax Status of the Trust
In the opinion of Skadden, Arps, Slate, Meagher & Flom LLP
("Special United States Tax Counsel"), the Trust will be classified as a
grantor trust for federal income tax purposes rather than as an association
taxable as a corporation or as a partnership, and accordingly, each
Certificateholder will be treated for federal income tax purposes as the
owner of an undivided interest in the assets of the Trust.
General Tax Consequences to Certificateholders
Each Certificateholder, in accordance with his method of
accounting, will be required to include in income his pro rata share of the
income of the Trust and will generally be entitled to deduct his pro rata
share of expenses incurred by the Trust. However, a noncorporate
Certificateholder's allocable share of expenses may be a "miscellaneous
itemized deduction" as defined in Section 67 of the Code, which will be
deductible by a noncorporate Certificateholder only to the extent that the
aggregate of such deductions (including those arising from transactions
unrelated to holding the Certificates) exceeds 2% of such
Certificateholder's adjusted gross income. In addition, in the case of
Certificateholders who are individuals, otherwise allowable itemized
deductions will be reduced, but not by more than 80%, by an amount equal to
3% of the Certificateholder's adjusted gross income over a statutorily
defined threshold. The threshold is $121,200 in the case of a married couple
filing jointly for taxable years beginning in 1997. The dollar thresholds
are subject to adjustment for inflation.
The portion of each payment to a Certificateholder that is
allocable to principal will represent a recovery of capital, which will
reduce the tax basis of such Certificateholder's interest in the assets of
the Trust.
Each Certificateholder's pro rata share of income with respect
to the Promissory Note (which will include any withholding taxes paid over
to foreign tax authorities) will be treated as income from sources without
the United States for federal income tax purposes. If, as a result of an
Eximbank Payment Event or an Exchange Event, an Eximbank Payment
Certificate is substituted for the Promissory Note, it is possible that
such substitution would be treated as an exchange for federal tax purposes,
with the result that each Certificateholder could be required to recognize
gain or loss as if such Certificateholder had actually exchanged his
interest in the Promissory Note for an interest in the Eximbank Payment
Certificate. If such substitution of obligations were treated as an
exchange, each Certificateholder's pro rata share of income with respect to
the Eximbank Payment Certificate would be treated thereafter as income from
sources within the United States for federal income tax purposes.
Credit for Foreign Taxes Withheld
Subject to the limitations set forth in Section 904 of the Code
(which generally restricts the availability of foreign tax credits to the
tax liability of a U.S. Person (as defined below) attributable to
foreign-source income of the same type as the income with respect to which
the tax was imposed, as determined under complex U.S. tax rules), any
foreign tax withheld or paid with respect to a U.S. Person's pro rata share
of interest on the Promissory Note generally may be taken as a foreign tax
credit against United States federal income taxes by such a U.S. Person who
makes an appropriate election for the taxable year. U.S. Persons who do not
elect to claim foreign tax credits for a taxable year may claim a United
States tax deduction for their pro rata share of such foreign tax in such
taxable year.
Interest, Discount and Premium
A purchaser of a Certificate will be treated as purchasing an
interest in the Promissory Note at a price equal to the purchase price paid
for the Certificate. To the extent that the purchase price of a Certificate
is less than or greater than the portion of the principal balance of the
Promissory Note which is allocable to the Certificate, the interest in the
Promissory Note will have been acquired at a discount or premium.
The treatment of any discount on the Promissory Note will depend
on whether the discount represents original issue discount or market
discount. The original issue discount on the Promissory Note will be
considered to be zero if it is less than a statutorily defined de minimis
amount. In other cases, original issue discount will be required to be
included in income by the Certificateholder under an economic accrual
method regardless of whether payments are actually made to the
Certificateholder, although such accrued amounts will not have to be
included in income again when received thereby.
If the Promissory Note is acquired at a market discount,
Certificateholders will be required to include each principal payment on
the Promissory Note in gross income as ordinary income to the extent of the
accrued market discount on the Promissory Note not previously included in
income. The market discount on the Promissory Note will be considered to be
zero if it is less than a statutorily defined de minimis amount.
If the Promissory Note is acquired at a premium,
Certificateholders that hold their Certificates as capital assets and elect
to amortize bond premium will be allowed to amortize such premium as an
offset to interest income on the Promissory Note. An election to amortize
bond premium applies to all obligations held by a Certificateholder at the
beginning of the first taxable year to which the election applies and to
all such obligations thereafter acquired by such Certificateholder and
shall generally be binding for all subsequent years with respect to all
obligations of such Certificateholder.
The method of accruing market discount and premium on the
Promissory Note will be determined by rules to be provided in Treasury
Regulations which have not yet been issued. Until such regulations are
issued, market discount and premium will accrue, at the taxpayer's
election, either (1) on the basis of a constant interest method, or (2) in
proportion to the stated interest paid on the Promissory Note in the
accrual period relative to the stated interest remaining to be paid on the
Promissory Note as of the beginning of the accrual period.
The excess of interest paid or accrued to purchase or carry a
Promissory Note with market discount over interest received on such
Promissory Note is allowed as a current deduction only to the extent such
excess is greater than the untaxed market discount that accrued during the
taxable year in which such interest expense was incurred. The deferred
interest expense is, in general, allowed as a deduction not later than the
year in which the Promissory Note is disposed of. A Certificateholder may
elect to include market discount in income currently as it accrues on all
obligations acquired by such holder at a market discount during the taxable
year such election is made and thereafter, in which case the interest
deferral rule described above would not apply.
Sale of a Certificate
If a Certificate is sold, gain or loss will be recognized in an
amount equal to the difference between the amount realized on the sale and
the Certificateholder's adjusted basis in the Certificate. In general, a
Certificateholder's adjusted basis will equal the Certificateholder's cost
for the Certificate, decreased by any offset previously allowed for accrued
premium and by the amount of the Certificateholder's pro rata share of
prior payments on the Promissory Note that are not of qualified stated
interest and increased by the amount original issue discount and market
discount previously included in income with respect to the Promissory Note.
Any gain or loss will generally be capital gain or loss.
Foreign Certificateholders
Subject to the discussion with respect to backup withholding
below, a Certificateholder that is not a U.S. Person generally will not be
subject to U.S. federal income taxation, including withholding taxes, on
his pro rata share of income with respect to the Promissory Note because
such income will be treated as income from sources without the United
States. Gains realized upon the sale of a Certificate by a
Certificateholder that is not a U.S. Person generally should not be subject
to U.S. federal income tax. Notwithstanding the preceding two sentences,
however, a Certificateholder that is not a U.S. Person generally will be
subject to U.S. federal income taxation on amounts received or gains
realized with respect to a Certificate to the extent such amounts or gain
are effectively connected with a U.S. trade or business of the
Certificateholder. Furthermore, an individual Certificateholder who is not
a U.S. Person may be taxed on any gain from the sale or disposition of a
Certificate if the individual is present in the United States for 183 days
or more during the taxable year in which the sale or disposition occurs.
For purposes of this discussion, a "U.S. Person" is a citizen or
resident of the United States, a corporation or partnership created or
organized in or under the laws of the United States or any state or
political subdivision thereof, an estate the income of which is includible
in gross income for U.S. federal income tax purposes regardless of its
source or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust and one or more
United States fiduciaries have the authority to control all substantial
decisions of such trust.
Backup Withholding
Payment made on the Certificates and proceeds from the sale of
the Certificates will not be subject to a "backup" withholding tax of 31%
unless, in general, the Certificateholder fails to comply with certain
reporting procedures (generally, provision of an IRS Form W-8) and is not
an exempt recipient under applicable provisions of the Code.
ERISA CONSIDERATIONS
The Employee Retirement Income Security Act of 1974, as amended
("ERISA"), imposes certain restrictions on employee benefit plans subject
to ERISA ("Plans") and on persons who are parties in interest or
disqualified persons ("Parties in Interest") with respect to such Plans.
ERISA also imposes certain duties on persons who are fiduciaries of Plans
subject to ERISA and prohibits certain transactions between a Plan and
Parties in Interest with respect to such Plans. Under ERISA, any person who
exercises any authority or control respecting the management or disposition
of the assets of a Plan is considered to be a fiduciary of such Plan
(subject to certain exceptions not here relevant). Certain employee benefit
plans, such as governmental plans and church plans (if no election has been
made under Code section 410(d)), are not subject to the restrictions of
ERISA, and assets of such plans may be invested in the Certificates without
regard to the ERISA considerations described below, subject to other
applicable federal and state law. However, any such governmental or church
plan which is qualified under Code section 401(a) and exempt from taxation
under Code section 501(a) is subject to the prohibited transaction rules
set forth in Code section 503. Certain plans not subject to ERISA, such as
individual retirement accounts and certain Keogh plans, are subject to
prohibitions in the Internal Revenue Code against transactions with Parties
in Interest. Moreover, based on the reasoning of the United States Supreme
Court in John Hancock Life Ins. Co. v. Harris Trust and Sav. Bank, 114 S.
Ct. 517 (1993), an insurance company's general account may be deemed to
include assets of the Plans investing in the general account (e.g., through
the purchase of an annuity contract), and the insurance company might be
treated as a Party-in-Interest with respect to a Plan by virtue of such
investment.
Investments by Plans are subject to ERISA's general fiduciary
requirements, including the requirement of investment prudence and
diversification and the requirement that a Plan's investments be made in
accordance with the documents governing the Plan.
Plan fiduciaries must also determine whether the acquisition and
holding of the Certificates and the operations of the Trust would result in
direct or indirect Prohibited Transactions. Although the assets of the
Trust are essentially passive in nature and the responsibilities and
functions to be performed by the Trustee are generally custodial and
ministerial in nature, the operations of the Trust could result in
Prohibited Transactions if Plans that purchase the Certificates are deemed
to own an interest in the underlying assets of the Trust.
The Department of Labor ("DOL") has issued a final regulation
(29 C.F.R. Section 2510.3-101) concerning the definition of what
constitutes the assets of a Plan (the "Plan Asset Regulation"). This
regulation provides that, as a general rule, the underlying assets and
properties of corporations, partnerships, trusts and certain other entities
in which a Plan (which is subject to ERISA) makes an "equity" investment
will be deemed for purposes of ERISA to be assets of the investing Plan
unless certain exceptions apply. There can be no assurance that any of the
exeptions will apply to the Trust. Accordingly, if a Plan purchases the
Certificates, the Trust Fund could be deemed to hold plan assets unless one
of the exceptions under the Plan Asset Regulation is applicable to the
Trust. The Trustee, however, will have limited discretionary investment
authority and the Trust will be operated in an essentially passive manner
with the Trustee having essentially custodial and ministerial
responsibilities and functions (other than with respect to its limited
investment authority).
Regardless of whether the Trust is deemed to hold plan assets of
Plans that are holders of Certificates, possible violations of the
prohibited transaction or fiduciary responsibility rules could occur if
Certificates are purchased with assets of any Plan if the Underwriter, the
Trustee or the Borrower, or any of their affiliates is a party in interest
or disqualified person with respect to such Plan, unless such acquisition
is subject to a statutory or administrative exemption, such as ERISA
Section 401(c)(1), regarding insurance company general accounts; Prohibited
Transaction Class Exemption ("PTCE") 91-38, regarding certain investments
by bank collective investment funds; PTCE 90-1, regarding certain insurance
company pooled separate accounts; PTCE 95-60, regarding certain investments
by insurance company general accounts; PTCE 84-14, regarding certain
transactions effected on behalf of a Plan by a "qualified professional
asset manager;" PTCE 96-23, regarding certain transactions effected on
behalf of a Plan by an "in-house asset manager"; or pursuant to any other
available exemption.
Any Plan fiduciary which proposes to cause a Plan to purchase
Certificates should consult with its counsel with respect to the potential
applicability of ERISA and the Code to such investments and whether the
exemptions discussed above or another exemption would be applicable and
determine on its own whether all conditions have been satisfied.
Moreover, each Plan fiduciary should determine whether, under
the general fiduciary standards of investment prudence and diversification,
an investment in the Certificates is appropriate for the Plan, taking into
account the overall investment policy of the Plan and the composition of
the Plan's investment portfolio.
The information above is of general application and may be
modified by information with respect to ERISA considerations contained in
the Prospectus Supplement relating to a Series of Certificates. Fiduciaries
of Plans should review such information, if any, in considering the
purchase of Certificates of such a Series.
PLAN OF DISTRIBUTION
Each Series of Certificates offered hereby and by means of the
related Prospectus Supplements may be sold directly by the Depositor or may
be offered through an underwriter or an underwriting syndicate (the
"Underwriters"), which may include Citicorp Securities, Inc., an affiliate
of the Depositor. The Prospectus Supplement with respect to each Series of
Certificates will set forth the terms of the offering of such Series of
Certificates, including the name or names of the Underwriters, the proceeds
to the Depositor, and either the initial public offering price, the
discounts and commissions to the Underwriters and any discounts or
concessions allowed or reallowed to certain dealers, or the method by which
the price at which the Underwriters will sell the Certificates will be
determined.
Unless otherwise specified in such Prospectus Supplement, the
Underwriters will be obligated to purchase all of the Series of
Certificates described in the Prospectus Supplement with respect to such
Series if any such Certificates are purchased. The Certificates may be
acquired by the Underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices
determined at the time of sale.
If the Certificates of a Series are offered other than through
Underwriters, the related Prospectus Supplement will contain information
regarding the nature of such offering and any agreements to be entered into
between the Depositor, the related Borrower and the purchasers of such
Certificates.
The place and time of delivery for each Series of Certificates
in respect of which this Prospectus is delivered will be set forth in the
Prospectus Supplement with respect to such Series.
LEGAL MATTERS
Certain legal matters will be passed upon for the Depositor and
the Underwriters by Skadden, Arps, Slate, Meagher & Flom LLP, New York, New
York. Skadden, Arps, Slate, Meagher & Flom LLP, as special United States
tax counsel to the Trust, will also render an opinion regarding certain
federal income tax consequences.
RATINGS
Unless otherwise specified in the related Prospectus Supplement,
at the time of issuance, it is anticipated that the Certificates of each
Series will be rated in the highest rating category of the nationally
recognized statistical rating organization or organizations specified
therein. The Certificates of each Series offered hereby will be rated at
least "investment grade", typically one of the four highest generic rating
categories, by at least one such nationally recognized statistical rating
organization.
No dealer, salesman or any other person
has been authorized to give any
information or to make any
representations other than those $
contained in this Prospectus
Supplement and the Prospectus in
connection with the offer made by this
Prospectus Supplement and the Prospectus
and, if given or made, such information
or representations must not be relied
upon. Neither the delivery of this GUARANTEED TRADE TRUST
Prospectus Supplement and the Prospectus 199 -
nor any sale made hereunder shall under
any circumstances create any
implication that there has been no
change in the affairs of the Trust, the
Guaranteed Trade Trust, the Borrower or
Eximbank since the date hereof. This
Prospectus Supplement and the Prospectus
do not constitute an offer or
solicitation by anyone in any state in
which such offer or solicitation is not
authorized or in which the person making
such offer or solicitation is not
authorized or in which the person making
the solicitation is not qualified to do
so or to anyone to whom it is unlawful
to make such offer or solicitation. %
---------------
TABLE OF CONTENTS Page Guaranteed Trade Certificates
Series 199 -
Prospectus Supplement
Summary.............................
Overview of the Transaction.........
Use of Proceeds.....................
The Promissory Note.................
The Trust...........................
The Borrower........................
Description of the Certificates.....
Yield Considerations................
Certain Foreign Taxes...............
Underwriting........................
Legal Matters.......................
Ratings.............................
Prospectus
- ----------
Prospectus Supplement................ PROSPECTUS
Available Information................ SUPPLEMENT
Reports to Certificateholders........
Overview of the Transactions.........
The Eximbank Guarantees..............
Description of the Certificates......
The Promissory Notes.................
The Credit Agreements................
The Liquidity Facilitiess............
The Defeasance Agreements............
Subordinate Certificates.............
The Trusts...........................
The Depositor........................
Certain United States Federal Tax
Consequences.......................
ERISA Considerations.................
Plan of Distribution.................
Legal Matters........................ Citicorp Securities, Inc.
Ratings..............................
-----------------------
Until , 199 (90 days after the
date of this Prospectus Supplement),
all dealers effecting transactions in
the Certificates, whether or not
participating in this distribution, may
be required to deliver this Prospectus
Supplement and the Prospectus. This is
in addition to the obligations of
dealers to deliver a Prospectus Supple-
ment and the Prospectus when acting as
underwriters and with respect to their
unsold allotments or subscriptions.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses to be
incurred in connection with the offering described in this Registration
Statement, other than underwriting discounts and commissions:
SEC Registration Fee......................$ 46,116*
Trustee's and Servicer's
Fees and Expenses....................... 20,000
Printing and Engraving ................... 10,000
Legal Fees and Expenses................... 50,000
Blue Sky Fees............................. 1,000
Accounting Fees and Expenses.............. 0
Rating Agency Fees........................ 85,000
Miscellaneous............................. 25,000
Total...............................$237,116
* Of such amount, $303.10 has been previously paid.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the Delaware General Corporation Law ("DGCL")
permits a corporation to provide in its certificate of incorporation that
a director of the corporation shall not be personally liable to the
corporation or its shareowners for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the corporation or its shareowners,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for payments
of unlawful dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper
personal benefit.
Subsection (a) of Section 145 of the General Corporation Law of the
State of Delaware empowers a corporation to indemnify any person who was
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right
of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify
any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the fact
that such person acted in any of the capacities set forth above, against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit
if he acted under similar standards, except that no indemnification may
be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only
to the extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 145 further provides that to the extent a director or
officer of a corporation, among others, has been successful on the merits
or otherwise in the defense of any action, suit or proceeding referred to
in subsections (a) and (b) or in the defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith; that expenses incurred by a director or officer in defending
any action, suit or proceeding may be paid by the corporation in advance
of the final disposition thereof upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it is
ultimately determined that such director or officer is not entitled to
indemnification under Section 145; and that indemnification and
advancement of expenses provided for by Section 145 shall not be deemed
exclusive of any other rights to which the person seeking indemnification
or advancement of expenses may be entitled; and empowers the corporation
to purchase and maintain insurance on behalf of a director or officer
of the corporation, among others, against any liability asserted against
him or incurred by him in any such capacity or arising out of his status
as such, whether or not the corporation would have the power to indemnify
him against such liabilities under Section 145.
The Restated Certificate of Incorporation, as amended, of the
Depositor provides, in effect that, to the extent and under the
circumstances permitted by subsections (a) and (b) of Section 145, the
Depositor (i) shall indemnify any person who was or is a party or is
threatened to be made a party to any action, suit or proceeding described
in subsections (a) and (b) by reason of the fact that he is or was a
director or officer of the Depositor against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement, and
(ii) may indemnify any person who was or is a party or is threatened to
be made a party to any such action, suit or proceeding if such person was
an employee or agent of the Depositor and is or was serving at the
request of the Depositor as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise. Such Restated Certificate of Incorporation also provides, in
effect, that expenses incurred by a director or officer in defending a
civil or criminal action, suit or proceeding shall be paid by the
Depositor in advance of the final disposition thereof upon receipt of an
undertaking by or on behalf of the director or officer to repay such
amount if it shall ultimately be determined that such director or officer
is not entitled to be indemnified by the Depositor. In addition, as
permitted by Section 145 of the General Corporation Law of the State of
Delaware, the Depositor maintains liability insurance covering
directors and principal officers.
ITEM 16. EXHIBITS.
(a) Financial Statements:
None.
(b) Exhibits:
1.1 -- Form of Underwriting Agreement
(Filed as Exhibit 1.1 to Regis-
tration Statement No. 33-76240
filed with the Commission and
incorporated herein by refer-
ence)
4.1 -- Form of Declaration of Trust,
including form of Certificates
(Filed as Exhibit 4.1 to Regis-
tration Statement No. 33-76240
filed with the Commission and
incorporated herein by refer-
ence)
5.1 -- Opinion of Skadden, Arps,
Slate, Meagher & Flom LLP as to
legality
8.1 -- Opinion of Skadden, Arps,
Slate, Meagher & Flom LLP as to
certain federal tax matters
10.1 -- Form of Credit Agreement, in-
cluding form of Promissory Note
(Filed as Exhibit 10.1 to Regis-
tration Statement No. 33-76240
filed with the Commission and
incorporated herein by refer-
ence)
10.2 -- Form of Eximbank Guarantee
(Filed as Exhibit 10.2 to Regis-
tration Statement No. 33-76240
filed with the Commission and
incorporated herein by refer-
ence)
10.3 -- Form of Defeasance Agreement
(Filed as Exhibit 10.3 to Regis-
tration Statement No. 33-76240
filed with the Commission and
incorporated herein by refer-
ence)
10.4 -- Form of Liquidity Agreement
(Filed as Exhibit 10.4 to Regis-
tration Statement No. 33-76240
filed with the Commission and
incorporated herein by refer-
ence)
10.5 -- Form of Servicing Agreement
(Filed as Exhibit 10.5 to Regis-
tration Statement No. 33-76240
filed with the Commission and
incorporated herein by refer-
ence)
24.1 -- Consent of Skadden, Arps,
Slate, Meagher & Flom LLP (included
as part of Exhibits 5.1 and 8.1)
25.1 -- Powers of Attorney of Directors
and Officers of the Depositor
(Appear on signature page of
this Registration Statement)
ITEM 17. UNDERTAKINGS.
(a) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connec-
tion with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as ex-
pressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
(b) The undersigned registrant hereby undertakes that:
1. For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of a registration statement in reliance
upon Rule 430A and contained in the form of a prospectus filed by
the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective;
2. To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required
by Section 10(a)(3) of the Securities Act of
1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if
the total dollar volume of securities offered would not
exceed that which was registered) and any deviation from the
low or high and of the estimated maximum offering range may
be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
Provided, however, that paragraph (a)(1)(i) and (a)(l)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
3. That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
4. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(c) The undersigned registrant hereby undertakes to provide to the
underwriter at the closing specified in the underwriting agreements,
Certificates in such denominations and registered in such names as a
required by the underwriters to permit prompt delivery to each purchaser.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 (other than the
assignment of security rating required by Transaction Requirement B.5 of
Form S-3), (ii) it reasonably believes that the security rating
requirement of Transaction Requirement B.5 of Form S-3 will be met by the
time the securities to be offered under this registration statement are
sold and (iii) it has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in
The City and State of New York, on November 6, 1997.
GUARANTEED TRADE TRUSTS
By: Citicorp North America, Inc.
By /s/ AeKyong Chung
Name: AeKyong Chung
Title: Vice President
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
Signature Title Date
____________________ Chairman of the Board
(Rodney F. Ballek) of Directors
/s/ William R. Silver* President and Chief November 6, 1997
- --------------------- Operating Officer
(William R. Silver) (Principal Executive
Officer)
/s/ Thomas F. Boland* Director November 6, 1997
_____________________
(Thomas F. Boland)
/s/ Ira S. Rimerman* Director November 6, 1997
_____________________
(Ira S. Rimerman)
/s/ John Armstrong* Vice President/ November 6, 1997
____________________ Chief Financial Officer
(John Armstrong) (Principal Financial and
Accounting Officer)
* By /s/ Milca Esdaille
----------------------------------
(Milca Esdaille, Attorney-in-Fact)
EXHIBIT INDEX
Exhibit Description Page
1.1 Form of Underwriting Agreement (Filed
as Exhibit 1.1 to Registration Statement
No. 33-76240 filed with the Commission
and incorporated herein by reference)
4.1 Form of Declaration of Trust, including
form of Certificates (Filed as Exhibit
4.1 to Registration Statement No. 33-
76240 filed with the Commission and in-
corporated herein by reference)
5.1 Opinion of Skadden, Arps, Slate,
Meagher & Flom LLP as to legality
8.1 Opinion of Skadden, Arps, Slate,
Meagher & Flom LLP as to certain federal tax
matters
10.1 Form of Credit Agreement, including
form of Promissory Note (Filed as Exhibit
10.1 to Registration Statement No. 33-
76240 filed with the Commission and in-
corporated herein by reference)
10.2 Form of Eximbank Guarantee (Filed as
Exhibit 10.2 to Registration Statement
No. 33-76240 filed with the Commission
and incorporated herein by reference)
10.3 Form of Defeasance Agreement (Filed as
Exhibit 10.3 to Registration Statement
No. 33-76240 filed with the Commission
and incorporated herein by reference)
10.4 Form of Liquidity Facility (Filed as
Exhibit 10.4 to Registration Statement
No. 33-76240 filed with the Commission
and incorporated herein by reference)
10.5 Form of Servicing Agreement (Filed as
Exhibit 10.5 to Registration Statement
No. 33-76240 filed with the Commission
and incorporated herein by reference)
24.1 Consent of Skadden, Arps, Slate,
Meagher & Flom LLP (included as part of
Exhibits 5.1 and 8.1)
25.1 Powers of Attorney of Directors and Of-
ficers of Depositor (appear on the sig-
nature page)
Exhibit 5.1
November 6, 1997
Citicorp North America, Inc.
399 Park Avenue
New York, New York 10043
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to Citicorp
North America, Inc., a Delaware corporation (the
"Depositor"), in connection with the preparation of a
registration statement on Form S-3 (the "Registration
Statement"), including the prospectus and form of
prospectus supplement included therein (together, the
"Prospectus"), filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of
1933, as amended (the "Act") for the registration under
the Act of Guaranteed Trade Trust Certificates (the
"Certificates") evidencing interests in one or more
trusts to be established by the Depositor (each, a
"Trust"). The assets of each Trust will consist
primarily of one or more promissory notes which will be
guaranteed as to the payment of principal and interest by
Export-Import Bank of the United States. The
Certificates of each Trust will be issued pursuant to a
separate Declaration of Trust (each, a "Declaration of
Trust") between the trustee (each, a "Trustee") named
therein and the Depositor. Forms of the Master Terms of
Trust (the "Master Terms") and Supplement to the
Declaration (the "Trust Supplement") which will comprise
each Declaration of Trust have been filed with the
Commission. We do not express any opinion herein as to
the issuance of Certificates pursuant to any agreement
other than the Declaration.
This opinion is being furnished in accordance
with the requirements of Item 601(b)(5) of Regulation S-K
of the General Rules and Regulations promulgated under
the Act (the "Rules and Regulations").
We have examined and are familiar with
originals or copies, certified or otherwise identified to
our satisfaction, of (i) the Registration Statement
including the Prospectus; (ii) the form of Master Terms;
(iii) the form of Trust Supplement (including the form of
Certificate annexed as an exhibit to the Trust
Supplement); (iv) the certificate of incorporation of the
Depositor as currently in effect; (v) the by-laws of the
Depositor as currently in effect; (vi) certain
resolutions of the Board of Directors of the Depositor
and (vii) such other documents as we have deemed
necessary or appropriate as a basis for the opinions set
forth below.
In our examination, we have assumed the genuineness
of all signatures, the legal capacity of all natural
persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents
of all documents submitted to us as certified or
photostatic copies and the authenticity of the originals
of such copies. In making our examination of
all of the documents referred to in the preceding
paragraph we have assumed that all the parties executing
such documents had the power, corporate or other, to
enter into and perform all obligations thereunder and we
have also assumed the due authorization by all requisite
action, corporate and other, and execution and delivery
by such parties of such documents and the validity and
binding effect thereof. As to any facts material to such
opinions which we did not independently establish or
verify, we have relied upon statements and
representations of officers and other representatives of
the Depositor and of public officials and agencies.
Members of our Firm are admitted to the Bar of
the States of New York and Delaware and we express no opinion
as to the laws of any jurisdiction other than the laws of the
State of New York and the General Corporation Law of the State
of Delaware.
Based upon and subject to the foregoing, we are
of the opinion that:
(i) Each Declaration of Trust,
upon the due execution and delivery thereof by
the Depositor, will constitute a valid and
binding obligation of the Depositor,
enforceable against the Depositor in accordance
with its terms, except that (a) the
enforceability thereof may be subject to
bankruptcy, insolvency, receivership,
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
such enforceability is considered in a
proceeding in equity or at law); and
(ii) The Certificates, when
duly executed and authenticated by the related
Trustee and delivered against payment therefor
in accordance with the terms of the Declaration
of Trust pursuant to which such Certificates
are issued, will be validly issued and
outstanding, and fully paid and nonassessable,
and the holders of such Certificates will be
entitled to the benefits of such Declaration of
Trust.
We consent to the filing of this opinion as an
exhibit to the Registration Statement and to the
references to Skadden, Arps, Slate, Meagher & Flom LLP
under the caption "Legal Matters" in the Prospectus
included in the Registration Statement. We further
consent to the incorporation of this opinion by reference
as an exhibit to any registration statement relating to
Certificates which is filed pursuant to Rule 462(b) of
the Rules and Regulations and to the references to
Skadden, Arps, Slate, Meagher & Flom LLP under the
caption "Legal Matters" in the prospectus included in or
incorporated by reference in any such registration
statement. In giving the above consents, we do not admit
that we come within the category of persons whose consent
is required under Section 7 of the Act or the Rules and
Regulations.
Very truly yours,
/s/ Skadden, Arps, Slate,
Meagher & Flom LLP
Exhibit 8.1
November 6, 1997
Citicorp North America, Inc.
399 Park Avenue
New York, New York 10043
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special federal tax
counsel to Citicorp North America, Inc., a Delaware
corporation (the "Depositor"), in connection with the
preparation of a registration statement on Form S-3 (the
"Registration Statement"), including the prospectus and
form of prospectus supplement included therein (together,
the "Prospectus"), filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of
1933, as amended (the "Act") for the registration under
the Act of Guaranteed Trade Trust Certificates (the
"Certificates") evidencing interests in one or more
trusts to be established by the Depositor (each, a
"Trust"). The assets of each Trust will consist
primarily of one or more promissory notes which will be
guaranteed as to the payment of principal and interest by
Export-Import Bank of the United States. The
Certificates of each Trust will be issued pursuant to a
separate Declaration of Trust (each, a "Declaration of
Trust") between the trustee (each, a "Trustee") named
therein and the Depositor. Forms of the Master Terms of
Trust (the "Master Terms") and Supplement to the
Declaration (the "Trust Supplement") which will comprise
each Declaration of Trust have been filed with the
Commission. We do not express any opinion herein as to
the issuance of Certificates pursuant to any agreement
other than the Declaration.
This opinion is being furnished in accordance
with the requirements of Item 601(b)(8) of Regulation S-K
of the General Rules and Regulations promulgated under
the Act (the "Rules and Regulations").
We have examined and are familiar with
originals or copies, certified or otherwise identified to
our satisfaction, of (i) the Registration Statement
(including the Prospectus); (ii) the form of Master
Terms; (iii) the form of Trust Supplement (including the
form of Certificate annexed as an exhibit to the Trust
Supplement); and (iv) such other documents as we have
deemed necessary or appropriate as a basis for the
opinions set forth below.
In our examination, we have assumed the legal
capacity of all natural persons, the genuineness of all
signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents
of all documents submitted to us as certified or
photostatic copies and the authenticity of the originals
of such latter documents. In making our examination of
all of the documents referred to in the preceding
paragraph we have assumed that all the parties executing
such documents had the power, corporate or other, to
enter into and perform all obligations thereunder and we
have also assumed the due authorization by all requisite
action, corporate and other, and execution and delivery
by such parties of such documents and the validity and
binding effect thereof. We have further assumed that the
parties to such documents will comply with the terms
thereof. As to any facts material to such opinions which
we did not independently establish or verify, we have
relied upon statements and representations of officers
and other representatives of the Depositor and of public
officials and agencies.
In rendering our opinion, we have also
considered and relied upon the Internal Revenue Code of
1986, as amended, administrative rulings, judicial
decisions, regulations and such other authorities as we
have deemed appropriate. The statutory provisions,
regulations, interpretations and other authorities upon
which our opinion is based are subject to change, and
such changes could apply retroactively. In addition,
there can be no assurance that positions contrary to
those stated in our opinion will not be taken by the
Internal Revenue Service.
Members of our Firm are admitted to the Bar of
the State of New York, and we express no opinion as to
the laws of any other jurisdiction other than the federal
laws of the United States of America to the extent
specifically referred to herein.
Based on and subject to the foregoing, we are
of the opinion that the applicable statements in the
Prospectus under the caption "Certain United States
Federal Tax Consequences," to the extent that they
constitute matters of law or legal conclusions, are a
fair and accurate summary of the matters addressed
therein, under existing law and the assumptions stated
therein.
You should be aware, however, that these
opinions represent our conclusions as to the application
of existing law. There can be no assurance that contrary
positions may not be taken by the Internal Revenue
Service. We also note that the form of Prospectus and
Prospectus Supplement filed herewith do not relate to a
specific transaction. Accordingly, the above-referenced
description of federal tax consequences may, under
certain circumstances, require modification in the
context of an actual transaction.
We consent to the filing of this opinion as an
exhibit to the Registration Statement and to the
references to Skadden, Arps, Slate, Meagher & Flom LLP
under the caption "Certain United States Federal Tax
Consequences" in the Prospectus included in the
Registration Statement. We further consent to the
incorporation of this opinion by reference as an exhibit
to any registration statement relating to the
Certificates which is filed pursuant to Rule 462(b) of
the Rules and Regulations and to the references to
Skadden, Arps, Slate, Meagher & Flom LLP under the
caption "Certain United States Federal Tax Consequences"
in the prospectus included in or incorporated by
reference in any such registration statement. In giving
the above consents, we do not admit that we come within
the category of persons whose consent is required under
Section 7 of the Act or the Rules and Regulations.
Very truly yours,
/s/ Skadden, Arps, Slate,
Meagher & Flom LLP
