AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 16, 1999
REGISTRATION NO. 333-63081
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-----------------
USA GROUP SECONDARY
MARKET SERVICES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 35-1872185
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
30 SOUTH MERIDIAN STREET
INDIANAPOLIS, INDIANA 46204-3503
(317) 951-5640
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
EDWARD R. SCHMIDT, ESQ.
GENERAL COUNSEL
USA GROUP SECONDARY MARKET SERVICES, INC.
30 SOUTH MERIDIAN STREET
INDIANAPOLIS, INDIANA 46204-3503
(317) 951-5123
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
-----------------
COPIES TO:
TIMOTHY M. HARDEN, ESQ. REED D. AUERBACH, ESQ.
KRIEG DEVAULT ALEXANDER STROOCK & STROOCK & LAVAN LLP
& CAPEHART LLP 180 MAIDEN LANE
ONE INDIANA SQUARE NEW YORK, NEW YORK 10038
INDIANAPOLIS, INDIANA 46204
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this Registration Statement becomes effective as
determined by market conditions.
-----------------
If the only securities being registered on this Form are being 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, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act Registration Statement Number of the earlier
effective Registration Statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
Registration Statement Number of the earlier effective Registration Statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
Proposed Proposed
Amount Maximum Maximum
Title of Each Class of to be Offering Aggregate Amount of
Securities to be Registered Registered Price Offering Registration
Per Unit(1) Price(1) Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Asset-Backed Notes................. $1,398,668,000 100.00% $1,398,668,000 $388,847
- --------------------------------------------------------------------------------------------------------------------
Asset-Backed Certificates.......... $1,000,000 100.00% $1,000,000 $295
- --------------------------------------------------------------------------------------------------------------------
Total.............................. $1,399,668,000 100.00% $1,399,668,000 $389,142(2)
====================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Previously paid.
</TABLE>
-------------------
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.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
INCLUDED IN THIS REGISTRATION STATEMENT IS A COMBINED PROSPECTUS AND RELATES TO
REGISTRATION STATEMENT NO. 333-23243 AS PREVIOUSLY FILED BY THE REGISTRANT ON
FORM S-3 WITH $508,652,000 SECURITIES REGISTERED. THIS REGISTRATION STATEMENT,
WHICH IS A NEW REGISTRATION STATEMENT, ALSO CONSTITUTES POST-EFFECTIVE AMENDMENT
NO. 2 TO REGISTRATION STATEMENT NO. 333-23243, AND SUCH POST-EFFECTIVE AMENDMENT
SHALL HEREAFTER BECOME EFFECTIVE CONCURRENTLY WITH THE EFFECTIVENESS OF THIS
REGISTRATION STATEMENT AND IN ACCORDANCE WITH SECTION 8(C) OF THE SECURITIES ACT
OF 1933.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Expenses in connection with the offering of the Notes and the Certificates
being registered herein are estimated as follows:
SEC registration fee...................................... $389,142
Legal fees and expenses................................... 168,000
Accounting fees and expenses.............................. 72,000
Blue Sky fees and expenses................................ 45,000
Rating agency fees........................................ 2,100,000
Eligible Lender Trustee fees and expenses................. 30,000
Indenture Trustee fees and expenses....................... 20,000
Printing expenses......................................... 240,000
Miscellaneous............................................. 15,000
Total........................................ $3,079,142
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As authorized by Section 145 of the General Corporation Law of
Delaware (the "Delaware Corporation Law") and the By- Laws of SMS, each director
and officer of SMS may be indemnified by SMS against expenses (including
attorney's fees, judgments, fines and amounts paid in settlement) actually and
reasonably incurred in connection with the defense or settlement of any
threatened, pending or completed legal proceedings in which he is involved by
reason of the fact that he is or was a director or officer of SMS if he acted in
good faith and in a manner that he reasonably believed to be in or not opposed
to the best interest of SMS, and, with respect to any criminal action or
proceeding, if he had no reasonable cause to believe that his conduct was
unlawful. If the legal proceeding, however, is by or in the right of SMS, the
director or officer may not be indemnified in respect of any claim, issue or
matter as to which he shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to SMS unless a court determines
otherwise.
There are directors' and officers' liability insurance policies
outstanding which insure directors and officers of SMS. The policies insure SMS
against losses for which SMS shall be required or permitted by law to indemnify
directors and officers and which result from claims made against such directors
or officers based upon the commission of wrongful acts in the performance of
their duties. The losses covered by the policies are subject to certain
exclusions and do not include fines or penalties imposed by law or other matters
deemed uninsurable under the law. The policies contain certain self-insured
retention provisions.
ITEM 16. EXHIBITS.
1.1 --Form of Underwriting Agreement for Notes**
1.2 --Form of Underwriting Agreement for Certificates**
3.1 --Restated Certificate of Incorporation of USA Group Secondary Market
Services, Inc.*
3.2 --By-laws of USA Group Secondary Market Services, Inc.*
3.3 --Form of Certificate of Trust for the Trusts (included as an exhibit
to Exhibit 4.2)**
4.1 --Form of Indenture between the Trust and the Indenture Trustee
(included as an exhibit thereto a form of Note)**
4.2 --Form of Trust Agreement among the Seller, the Company and the
Eligible Lender Trustee (included as an exhibit thereto a form of
Certificate)**
4.3 --Form of Note (included as an exhibit to Exhibit 4.1)**
4.4 --Form of Certificate (included as an exhibit to Exhibit 4.2)**
5.1 --Opinion of Krieg DeVault Alexander & Capehart LLP with respect to
legality (previously filed)
5.2 --Opinion of Richards, Layton & Finger with respect to legality
(previously filed)
8.1 --Opinion of Stroock & Stroock & Lavan LLP with respect to tax
matters
8.2 --Opinion of Krieg DeVault Alexander & Capehart LLP with respect to
tax matters (previously filed)
23.1 --Consent of Krieg DeVault Alexander & Capehart LLP (included as part
of Exhibit 5.1)
23.2 --Consent of Stroock & Stroock & Lavan LLP (included as part of
Exhibit 8.1)
23.3 --Consent of Richards, Layton & Finger (included as part of Exhibit
5.2)
24.1 --Power of Attorney (previously filed)
25 --Statement of Eligibility under the Trust Indenture Act of 1939 of
the Indenture Trustee (previously filed)
99.1 --Form of Loan Sale Agreement among the Seller, the Trust and the
Eligible Lender Trustee**
99.2 --Form of Loan Servicing Agreement among the Servicer, the Trust and
the Eligible Lender Trustee**
99.3 --Form of Administration Agreement among the Trust, the Indenture
Trustee and USA Group Secondary Market Services, Inc., as
Administrator**
- -------------
* Previously filed in Registration Statement on Form S-3 (Reg. No.
33-94952, filed with the Commission by the Registrant on July 25,
1995).
** Previously filed in Amendment No. 2 to Registration Statement on
Form S-3 (Reg. No. 33-76784, filed with the Commission by the
Registrant on June 7, 1994).
ITEM 17. UNDERTAKINGS.
(a) As to Rule 415:
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, 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, as amended;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
PROVIDED, HOWEVER, that the undertakings set forth in clauses (i) and (ii) above
do not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended, that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended, 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.
(3) 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.
(b) As to documents subsequently filed that are incorporated by reference:
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended, that is incorporated
by reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undersigned Registrant hereby undertakes to provide to the
Underwriter at the closing specified in the Underwriting Agreements Notes and
Certificates in such denominations and registered in such names as required by
the Underwriter to permit prompt delivery to each purchaser.
(d) As to indemnification:
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described under Item 15, 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 Act and is therefore unenforceable. In the event that a claim
for indemnification against such liabilities (other than payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of such Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, such 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 expressed in the Act and will
be governed by the final adjudication of such issue.
(e) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, as amended, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, as amended, each post-effective amendment that contains a form of
prospectus 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.
(f) The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended, in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS REGISTRATION STATEMENT OR AMENDMENT TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF
INDIANAPOLIS, STATE OF INDIANA, ON FEBRUARY 16, 1999.
USA GROUP SECONDARY MARKET SERVICES, INC., as originator of
the Trust (Registrant)
By: /S/ CHERYL E. WATSON
-----------------------------
CHERYL E. WATSON
SENIOR VICE PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT OR AMENDMENT HAS BEEN SIGNED BELOW ON FEBRUARY 16, 1999
BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED.
SIGNATURE CAPACITY
* Chairman of the Board, President,
- ----------------------- Chief Executive Officer (Principal
STEPHEN W. CLINTON Executive Officer) and Director
* Senior Vice President (Principal
- ----------------------- Accounting Officer)
CHERYL E. WATSON
* Executive Vice President and
- ----------------------- Chief Financial Officer
VINCENT J. OTTO (Principal Financial Officer)
* Director
- -------------------------
ERNEST J. NEWBORN, JR.
Director
*
- --------------------------
IKE G. BATALIS
*BY: /S/ CHERYL E. WATSON
------------------------
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Sequential
Exhibit Page
No. Description No.
1.1 --Form of Underwriting Agreement for Notes**
1.2 --Form of Underwriting Agreement for Certificates**
3.1 --Restated Certificate of Incorporation of USA Group Secondary Market
Services, Inc.*
3.2 --By-laws of USA Group Secondary Market Services, Inc.*
3.3 --Form of Certificate of Trust for the Trusts (included as an exhibit
to Exhibit 4.2)**
4.1 --Form of Indenture between the Trust and the Indenture Trustee
(included as an exhibit thereto a form of Note)**
4.2 --Form of Trust Agreement among the Seller, SMS and the Eligible
Lender Trustee (included as an exhibit thereto a form of
Certificate)**
4.3 --Form of Note (included as an exhibit to Exhibit 4.1)**
4.4 --Form of Certificate (included as an exhibit to Exhibit 4.2)**
5.1 --Opinion of Krieg DeVault Alexander & Capehart LLP with respect to
legality (previously filed)
5.2 --Opinion of Richards, Layton & Finger with respect to legality
(previously filed)
8.1 --Opinion of Stroock & Stroock & Lavan LLP with respect to tax matters
8.2 --Opinion of Krieg DeVault Alexander & Capehart LLP with respect to
tax matters (previously filed)
23.1 --Consent of Krieg DeVault Alexander & Capehart LLP
(included as part of Exhibit 5.1)
23.2 --Consent of Stroock & Stroock & Lavan LLP (included as part of
Exhibits 8.1)
23.3 --Consent of Richards, Layton & Finger (included as part of
Exhibit 5.2)
24.1 --Power of Attorney (previously filed)
25 --Statement of Eligibility under the Trust Indenture Act of
1939 of the Indenture Trustee (previously filed)
99.1 --Form of Loan Sale Agreement among the Seller, the Trust and the
Eligible Lender Trustee**
99.2 --Form of Loan Servicing Agreement among the Servicer, the
Trust and the Eligible Lender Trustee**
99.3 --Form of Administration Agreement among the Trust, the Indenture
Trustee and USA Group Secondary Market Services, Inc., as
Administrator**
- ----------------
* Previously filed in Registration Statement on Form S-3 (Reg. No.
33-94952, filed with the Commission by the Registrant on July 25,
1995).
** Previously filed in Amendment No. 2 to Registration Statement on
Form S-3 (Reg. No. 33-76784, filed with the Commission by the
Registrant on June 7, 1994).
EXHIBIT 8.1
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038-4982
February 16, 1999
USA Group Secondary Market Services, Inc.
30 South Meridian Street
Indianapolis, Indiana 46204-3503
Gentlemen:
We have acted as special counsel to USA Group Secondary Market Services, Inc.
(the "Company") in connection with the preparation of a registration statement
on Form S-3 (the "Registration Statement") relating to the proposed offering
from time to time in one or more series (each, a "Series") by one or more trusts
of Asset-Backed Certificates (the "Certificates") and Asset-Backed Notes (the
"Notes" and together with the Certificates, the "Securities"). The Registration
Statement has been filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"). As set
forth in the Registration Statement, each Series of Securities is to be issued
under and pursuant to the terms of a separate pooling and servicing agreement,
or sale and servicing agreement, trust agreement and indenture (each, an
"Agreement") among the Company, as depositor, the servicer and an independent
trustee (the "Trustee") to be identified in the prospectus supplement for each
Series of Securities.
As such counsel, we have examined copies of the Certificate of Incorporation and
By-Laws of the Company, the Registration Statement, the base Prospectus and form
of Prospectus Supplement included therein, the form of each Agreement, and
originals or copies of such other corporate minutes, records, agreements and
other instruments of the Company, certificates of public officials and other
documents and have made such examinations of law, as we have deemed necessary to
form the basis for the opinions hereinafter expressed. In our examination of
such materials, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all copies submitted to us. As to various questions of
fact material to such opinions, we have relied, to the extent we deemed
appropriate, upon representations, statements and certificates of officers and
representatives of the Company and others.
Attorneys involved in the preparation of this opinion are admitted to practice
law in the State of New York and we do not express any opinion herein concerning
any law other than the federal laws of the United States of America, and the
laws of the State of New York.
Based upon and subject to the foregoing, we are of the opinion that the
statements set forth in the base Prospectus under the heading "Certain Federal
Income Tax Consequences," to the extent they constitute matters of law or legal
conclusions with respect thereto, constitute our opinion with respect to such
matters.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, to the references to this firm in the Prospectus and the
related Prospectus Supplement which forms a part of the Registration Statement
and to the filing of this opinion as an exhibit to any application made by or on
behalf of the Company or any dealer in connection with the registration of the
Securities under the securities or blue sky laws of any state or jurisdiction.
In giving such consent, we do not admit hereby that we come within the category
of persons whose consent is required under Section 7 of the Act or the Rules and
Regulations of the Commission thereunder.
Very truly yours,
/s/ Stroock & Stroock & Lavan LLP
STROOCK & STROOCK & LAVAN LLP
