250 PARK AVENUE NEW YORK 0177 cl 70 PENNSYLVANIA AVE WASHINGTON 20006

LOWER STREET LOS ANGELES 90071

PLACE VENDDME 75001 PARIS c_ ST OLAVES HOUSE IRONMONGER LANE LONDON EC2V 8EY

40 WILLIAM STREET MELBOURNE 3000

2-JCHI ICHOME CHIYODAKUTOKTO 100

Securities and Exchange Commission

450 Fifth Street N.W

Washington D.C 20549

Attention Office of Chief Counsel

Division of Investment Management

Re Citytrust

Ladies and Gentlemen

On behalf of Citytrust and Goldman Sachs Co

we are writing to request advice to the effect that the

Division of Investment Management will not recommend that

the Commission take any action if without effecting

registration under the Investment Company Act of 1940 as

amended the 1940 Act with respect to any person in

reliance upon Sections 3c5A and 3c5C thereof

Citytrust Connecticut chartered bank acts as sponsor of

passthrough trust the Trust in connection with the

transaction more fully described below This letter is

intended to restate the letters of September 11 1990 of the

SULLIVAN CROMWELL

NEW YORK TELEPHONE 212 556-4000

TELEX 62694 INTERNATIONAL 127616 .DOME5TIC

CABLE ADDSESS LADYCOUPT NEW YORK

FACSIMILE 212 556 3568 125 BROAD STREET

212 558-

1940 Act/3c5

f2/

va1 ihii4ty 12 1990
Securities and Exchange Commission -2-

undersigned and of October 16 1990 of Gerald Slevin to

the Division

Citytrust will transfer to the Trust its entire

ownership interests in assets consisting principally of

commercial mortgage loans in the form of tax exempt

industrial development bonds Commercial Mortgage Loan

IDB5 and to much lesser extent equipment loans in the

form of tax exempt industrial development bonds Equipment

Loan IDB5 and together with the Commercial Mortgage Loan

IDB5 IDBs

The Commercial Mortgage Loan IDB5 are from

Citytrusts perspective traditional commercial mortgage

loans Accordingly like commercial mortgage loans

generally they may in some cases be secured not only by

mortgage on real estate but also by security interest in

other collateral generally equipment or guarantee

generally issued by an affiliate or an individual

proprietor The equipment included as other collateral

consists of equipment located on the real estate premises

which were the subject of the mortgage financing Although

equipment is the common type of collateral where there is

collateral other than mortgages on real estate in some

instances the additional collateral consists of other assets
Securities and Exchange Commission -3-

such as certificate of deposit or security interest in

receivables With respect to any guarantee issued by an

affiliate or an individual proprietor in the case of soite

IDBs the parent or other related corporation of the

borrowing corporation or the principals or individual

owner/operators of the borrowing corporation furnished

guarantees as additional collateral Nevertheless real

estate mortgages in the case of the Commercial Mortgage Loan

IDBs are the principal collateral as set forth below and at

least 55% of the initial value of the Trust assets meet the

tests for Class Real Estate set forth below

The Trust will be established pursuant to

pooling and servicing agreement PS Agreement among

Citytrust as seller an unaffiliated bank as trustee the

Trustee and Citytrust as servicer the Servicer

The Trust plans to issue passthrough certificates

Certificates to investors in public offering

registered under the Securities Act of 1933 as amended the

1933 Act The net proceeds received from the investors

The PS Agreement like pooling and servicing

agreements used in passthrough securitizations

generally will not be qualified under the Trust

Indenture Act of 1939 in reliance on Section 304a

thereof The Trust will be subject to the reporting

requirements of the Securities Exchange Act of 1934

pursuant to Section 15d thereof for at least one

year
Securities and Exchange Commission -4-

will be used by the Trust to purchase the assets described

below from Citytrust The Trusts assets based upon book

value as shown on the Trusts opening balance sheet prepared

in accordance with generally accepted accounting principles

GAAP will initially have the following composition

and be subject to the following tests

Class Real Estate and Eauient Loan IDBs

55% At least 55% of the initial value of the Trust

assets will consist of Commercial Mortgage Loan IDBs

and Equipment Loan IDBs The Commercial Mortgage Loan

IDB5 included in such 55% will meet the following

criteria such Commercial Mortgage Loan IDBs and

This will actually be accomplished in two steps

First Citytrust will deposit IDBs with an independent

trustee under the PS Agreement pursuant to which the

Trust is formed and will receive in return 100% of

the Certificates evidencing ownership of the Trust

Second Citytrust will sell through Goldman Sachs

Co as underwriter the passthrough certificates to

investors in public offering registered under the

1933 Act

Because condition to consummating the transaction is

that the sale by Citytrust to the Trust of the Assets

as hereinafter defined be treated by Citytrust as

sale for accounting purposes the book value of all of

the Assets on the opening balance sheet of the Trust

will be their market value Due to the difficulty of

predicting prepayments the tests are applied at the

initiation of the Trust The Trust will not be

permitted to substitute assets
Securities and Exchange Commission -5-

related collateral sometimes being referred to herein

as Class Real Estate

the original principal amount of the

loan did not exceed 100% of the value of the real

estate col.ateralizing the loan at the time the

loan was extended j.the original loan-tovalue ratio LTV was less than 100%

the value of the real estate collateral

for purposes of confirming the LTV ratio for the

loan was confirmed by an appraisal prepared in

connection with the original loan by qualified

independent thirdparty appraiser not directly

employed by Citytrust Each such appraiser was

retained to appraise the particular properties

and

the underwriting criteria applied by

Citytrust with respect to the loans secured by

real estate collateral was the same for those

loans secured exclusively by real estate as for

those which in addition to being secured by real

estate benefitted by either security interest

in other collateral or guarantee

Additionally the PS Agreement under which

the Trust is formed and the Certificates are
Securities and Exchange Commission -6-

issued will limit the ability of the Trustee or

Servicer to realize upon nonreal estate

collateral in connection with Commercial Mortgage

Loan IDB5 which go into default Specifically

Commercial Mortgage Loan 1DB benefitting from nonreal estate collateral will be disqualified as

Class Real Estate if in connection with

default the amount recovered from non-real estate

collateral including guarantees exceeds 40% of

the original principal amount of such loan the

40% test The PS Agreement will require that

recovery may be made against nonreal estate

collateral on particular Commercial Mortgage

Loan 1DB otherwise qualifying as Class Real

Estate if after giving effect to such recovery

the 40% test will be violated with respect to such

Commercial Mortgage Loan 1DB and ii the

consequence of such violation and related

disqualification of such Commercial Mortgage Loan

1DB as Class Real Estate would be to cause the

Trust based upon the Commercial Mortgage Loan

IDBB which continue to qualify as Class Real

Estate and the Equipment Loan IDBs not to satisfy

the requirement that at least 55% of the value of
Securities and Exchange Commission 7-

the Trust assets at the time the Certificates were

issued consisted of Class Real Estate and

Equipment Loan IDB5

Finally in order to qualify as Class Real

Estate or an Equipment Loan 1DB includable for purposes

of this paragraph the related 1DB must represent the

entire issuance of IDBs j. whole interest

The Equipment Loan IDBs will all represent loans

made through State or municipal developmental

authority to business to fund the purchase price of

equipment and costs specifically related to the

equipment acquisition such as installation expenses

The Equipment Loan IDBs represent less than 7% of the

initial value of the Trusts assets

Class II Real Estate 25% Up to 25% of the

initial value of the Trust assets subject to reduction

below 25% of the value of the Trust assets to the

extent that the initial value of the Class Real

Estate and Equipment Loan IDB5 exceeds 55% of the Trust

assets may consist of Commercial Mortgage Loan IDBs

which do not qualify as Class Real Estate because

they do not meet one of the criteria for Class Real

Estate outlined above Class II Real Estate
Securities and Exchange Commission -8-

Other 20% Up to 20% of the initial value

of the Trust assets may consist of loans or assets

other than Class Real Estate Class II Real Estate

and Equipment Loan IDBs Class III Assets

The Class Real Estate and the Class II Real

Estate are sometimes referred to collectively herein as the

Real Estate Assets and the Real Estate Assets Equipment

Loan IDBs and Class III Assets are sometimes referred to

collectively herein as the Assets or the Pool

Citytrusts objective in proceeding with the

transaction is to sell all or substantial part of its 1DB

portfolio In excess of 75% of the portfolio of the Trust

based upon the outstanding principal amount of the IDBs at

the date hereof consist of Commercial Mortgage Loan IDBs

The balance of the Trusts portfolio consists of either IDBs

secured by combination of real estate and equipment or of

Equipment Loan IDBs Accordingly notwithstanding the tests

and standards outlined above Citytrust anticipates that

substantially all of the Assets in the Trust will consist of

IDBs and will consist principally of Commercial Mortgage

Loan IDBs

Citytrust may sponsor two separate Trusts one of

which will acquire the IDB5 relating to Connecticut and the

other of which will acquire the IDB5 relating to New York
Securities and Exchange Commission -9-

If two separate Trusts are sponsored in reliance upon

Sections 3c5A and 3c5C of the 1940 Act all

representations made herein with respect to the Trust will

be applicable with equal force to each such Trust

Background of CommercIal Xortaaa Loan and auiBment Loan

IDBs

The IDBs will be tax-exempt industrial development

bonds with fixed final remaining maturities ranging

generally from five to 20 years The IDBs will vary with

respect to interest rate maturity and redemption or

prepayment provisions and will range generally in

outstanding principal amount from $100000 to $6600000

Commercial mortgage loans funded by banks are

often made through governmental development programs which

promote local industry by enabling borrowers to get the

benefit of lower tax-free interest rates available to

governmental development agencies financings Commercial

mortgage loans particularly where the borrowers are middle

market companies usually benefit to some degree by whatever

other collateral may be available such as security

interests in equipment or guarantees of the owners or

corporate affiliates of the borrower Taking lien on

other available collateral is simply matter of prudent

lending standards and practices These mortgage loans are
Securities and Exchange Commission 10-

nevertheless loans made to purchase or improve real estate

where the lender looks primarily to the real estate as the

source of repayment On continuum from commercial and

industrial loans on the one hand to traditional real estate

loans on the other hand these loans are from the lenders

perspective at the real estate end of the spectrum The

role assigned by the lender to the non-real estate colla

teral is generally insignificant and is certainly less

significant than for example the FNMA FHLMC or GNMA

guarantee each of which may be viewed as an additional form

of collateral attached to pools of residential mortgage

loans packaged with those agencies guarantees for

collateralized mortgage obligations secured by GNMA FNMA or

FHLMC certificates

Loans to middlemarket companies to finance the

acquisition of equipment similarly are often made in an 1DB

format in order to get the benefit of lower tax-free

interest rates available to governmental agencies

financings

The characteristics of Citytrusts portfolio of

IDBS are illustrative All of the IDBs which Citytrust will

transfer to the Trust were issued by Connecticut or New York

developmental authorities which are authorized to make loans
Securities and Exchange Commission -11

only for the purpose of financing the acquisition or

improvement of real estate or equipment

All of the Commercial Mortgage Loan IDBs which

Citytrust proposes to sell to the Trust are IDB5 where

Citytrust makes loan to the issuing development authority

by purchasing an 1DB of the development authority issued

under trust indenture the 1DB Indenture with

Citytrusts corporate trust department generally serving as

trustee the 1DB Trustee ii the issuing developmental

authority in accordance with its statutory authorization

makes loan to borrower generally middlemarket

commercial enterprise secured by mortgage or deed of

trust on real estate and the proceeds of which are used to

acquire or improve real estate or itself acquires fee title

to the real estate and leases the real estate to the

borrower iii the issuing developmental authority assigns

the underlying mortgage or deed of trust to the 1DB Trustee

if the 1DB is structured in loan format with the

underlying borrower having title to the real estate or

grants mortgage on the real estate to the 1DB trustee if

the 1DB is structured in lease format with the issuing

developmental authority having title to the real estate

and iv Citytrusts recourse as holder of the Commercial

Mortgage Loan 1DB is limited to the underlying real estate
Securities and Exchange Commission 12-

loan and any related collateral or guarantees j.the

IDB5 are without recourse to the issuing developmental

authority In almost all cases Citytrusts mortgage is

first mortgage Generally speaking in the case of

Commercial Mortgage Loans IDB5 the assignment or grant of

mortgage contemplated by clause iii of the preceding

sentence is not set forth in separate document but instead

is incorporated in and is part of the 1DB Indenture The

entire 1DB Indenture has in each case been recorded in the

appropriate real estate recording office Accordingly

re-assignment of mortgage or deed of trust to the Trustee

under the PS Agreement or an assignment of mortgage

granted by the issuing developmental authority whichever is

applicable would have to be effected by causing the Trustee

or another banks trust department acting on behalf of the

Trustee to become 1DB Trustee on each underlying Commercial

Mortgage Loan 1DB with the document pursuant to which the

new 1DB Trustee is appointed being recorded in the appro

priate real estate recording office

The Equipment Loan IDBs are structurally

identical except that the proceeds of the IDB5 are used by

the issuing developmental authority to make loan to

borrower the proceeds of which are used to acquire

equipment
Securities and Exchange Commission 13-

At the time Citytrust originates Commercial

Mortgage Loan IDBs Citytrust applies the same underwriting

criteria to the IDBs as it applies to its other commercial

mortgage loans not made through developmental authority

intermediary As general matter Citytrust requires an

original LTV ratio for commercial mortgage loans including

the IDBs of not more than 80% in most cases based upon an

appraisal by qualified appraiser The LTV exceeds 80%

only where to do so is necessary in order to cover costs

strictly related to the real estate being financed such as

closing costs As in the case of its other commercial

mortgage loans the appraisal analyzes the underlying

property as an income producing property based upon

anticipated rentals that could be achieved in leasing the

property to new tenant Accordingly the appraisal does

not solely rely on the present corporate tenant and its

ability to pay to establish the appraised amount of the

underlying property

The additional collateral securing Commercial

Mortgage Loan IDBs generally consists of the guarantee

of proprietor or corporate parent or ii equipment

located on the real estate premises In no case is

Generally the Commercial Mortgage Loan IDB5 had

original LTVs of not more than 80%
Securities and Exchange Commission -14-

additional collateral principal source of repayment of the

loan Like any prudent lender Citytrust attempts to take

whatever ancillary collateral it can to support commercial

mortgage loans Moreover because real estate is often

held in special purpose corporations owned by the actual

property user generally for state tax reasons the

guarantor which generally is also the owner of all of the

special purpose corporations stock is often the user of

the property and is the primary cash source for servicing

the loan absent selling the property

Descrintion of the Transaction

The Trust will be formed pursuant to PS

Agreement to be entered into between Citytrust as Seller

an unaffi.iated bank as Trustee and Citytrust as Servicer

Pursuant to the PS Agreement the Trust at its formation

will issue to investors the Holders the Certificates

representing fractional undivided interests in the Pool

The Trustee will use the proceeds of the Certificates to buy

from Citytrust the Assets to be included in the Pool

Responsibility for administering the Assets

including collecting on the Assets and making determinations

as to when real estate loans should be foreclosed or real

estate sold will reside with the Servicer pursuant to the

PS Agreement The Servicer will have responsibility for
Securities and Exchange Commission -15-

liquidating and collecting upon the Assets preparing

financial information for the Trust and preparing on behalf

of the Trust other filings and reports required under the

PS Agreement or applicable law including the Securities

Exchange Act of 1934 as amended The Trustee acting on

behalf of the Holders will have authority to substitute

another Servicer if the Servicer defaults in its obligations

under the PS Agreement

Under the PS Agreement the Trust will

irrevocably instruct the Servicer to remit all payments and

collections on the Assets directly to the Trustee after

deducting the servicing fee Cash collections so remitted

to the Trustee will be maintained by the Trustee in

collateral account the Collateral Account under the PS

Agreement and used from time to time to make payments on the

Certificates to the Holders

The Trust will not engage in any investment

activity with respect to the Assets or any of the proceeds

thereof or otherwise except that the Trustee will be

directed in the PS Agreement to temporarily invest payments

received on the Assets in certain Permitted Investments

until they are passed-through to the Holders on the next

succeeding payment date on the Certificates Permitted

Investments are high grade obligations customary for
Securities and Exchange Commission 16

temporary investment of funds pending distributions in

asset-backed transactions and must mature not later than the

next succeeding payment date Payments and collections with

respect to the Assets will be passed through to the Holders

monthly or quarterly

The Trust will have neither employees officers

managers board of directors board of trustees or an

investment advisor nor the need for any of those parties

because the Trust will not conduct any activities requiring

their services

The Pool will be fixed at the time Citytrust

conveys the Pool to the Trust No substitution or exchange

of the Assets of the Pool will be permitted The Trust will

conduct only the business relating to its ownership and

liquidation of the Assets and issuance of the Certificates

The Trust is expected to terminate promptly after the date

on which less than designated percentage expected to be

5% of the total original principal amount of all of the

IDBs in the Pool is outstanding Any Assets remaining in

the Pool at such time are expected to be liquidated into

cash with the proceeds of such liquidation then distributed

to the Holders The Certificates are not redeemable or

otherwise payable at the election of Holders The only

source of liquidity for investors who require more liquidity
Securities and Exchange Commission 17-

than that provided by the pass-through of regular payments

as the IDBs will by the sale of their Certificates

The Certificates will evidence fractional

undivided interests in the corpus of the Trust which will

be comprised of the Assets The Certificates will not be

redeemable at the option of the Holders

Each Commercial Mortgage Loan 1DB will be in the

form of bond issued under an indenture that is the 1DB

itself with an 1DB Trustee with the 1DB in turn secured by

the loan from the issuing developmental authority to the

ultimate borrower as well as the mortgage or deed of trust

in each case herein called mortgage securing that loan

Because the IDBs are securities for purposes of the Unifornt

Commercial Code the transfer of the IDB5 from Citytrust to

the Trustee at closing will be accomplished by delivering

certificates evidencing the IDB5 to the Trustee together

with endorsements to the Trustee permitting ultimate regis

tration of the IDBs in the name of the Trustee Promptly

after the closing each 1DB will be re-registered in the name

of the Trustee The Trustee as holder of the 1DB by

virtue of its right to direct actions taken by the 1DB

trustee effectively becomes the beneficiary of the mortgage

or deed of trust
Securities and Exchange Commission -18-

It will be condition to closing for the issuance

of the Certificates with respect to each Trust that

Citytrust and Goldman Sachs Co receive an opinion of

independent counsel acceptable to them to the effect that

if receiver were appointed for Citytrust under the applic

able provisions of the Connecticut banking law the property

held by Citytrust as 1DB Trustee including the related

mortgages or assignments of mortgages would not be assets

business or property of Citytrust which would be subject to

disposition by such receiver pursuant to the applicable

provisions of the Connecticut General Statutes Citytrust

has authorized us to confirm that it will use its best

efforts to cause the Trustee or the trust department of

another acceptable commercial bank other than Citytrust to

become 1DB Trustee for each Commercial Mortgage Loan 1DB by

not later than 120 days after the closing

The Trustee will be required to monitor the

performance of the Servicer on behalf of the Holders In

the event of default by the Servicer in the performance of

its obligations the Trustee will have the right on behalf

of the Holders to remove the Servicer and ii to

assume all of the rights and obligations of the Servicer or

to appoint another appropriate entity to act as Servicer
Securities and Exchange Commission -19-

Legal AnalYsis

Section 3c of the 1940 Act exempts from the

definition of investment company and therefore from the

registration requirements of the 1940 Act

any person who is not engaged in the business of

issuing redeemable securities face amount

certificates of the installment type or periodic

payment plan certificates and who is primarily

engaged in one or more of the following busi

nesses purchasing or otherwise acquiring

notes drafts acceptances open accounts

receivable and other obligations reDresentina

Dart or all of the sales Drice of merchandise

insurance and services and purchasing

or otherwise acquiring mortaages and other liens

on and interests in real estate Emphasis

added

If the Trust despite its passivity were to be deemed to be

person engaged in an activity sufficient to bring it

within the definition of an investment company under

Section 3a of the 1940 Act in our opinion the Trust will

nonetheless be excluded from that definition by clauses

and of Section 3c of the 1940 Act and therefore

from the registration requirements of the 1940 Act because

it will be engaged primarily in the businesses of

purchasing notes and other obligations

representing the sales price of merchandise and

purchasing or otherwise acquiring mortgages and other liens

on and interests in real estate
Securities and Exchange Commission 20-

As discussed below we do not think that there is

any question but that the Trust as described herein should

not be deemed to be issuing redeemable securities face

amount certificates of the installment type or periodic

payment plan certificates Rather we think this proposal

raises only two issues first does the Class Real

Estate as described above qualify as mortgages and other

liens on and interests in real estate within the meaning of

clause of Section 3c5 and second may an issuer

which holds both notes and other obligations

representing part or all of the sales price of merchandiset

qualifying under clause of Section 3c5 such as

Equipment Loan IDBs and mortgages and other liens on and

interests in real estate qualifying under clause of

Section 3c5 such as the Class Real Estate aggregate

such assets for purposes of reaching determination that

the issuer is primarily engaged in one or more of the

businesses described in clauses and of Section

3c

Face-Amount Certificates of the Installment TvDe

Periodic Payment Plan Certificates

The Trust will not be engaged in the business of

issuing face-amount certificates of the installment type

or periodic payment plan certificates The term face-
Securities and Exchange Commission 21-

amount certificates of the installment type is defined in

Section 2a5 of the 1940 Act as any certificate

investment contract or other security which represents an

obligation on the part of its issuer to pay stated or

determinable sum or sums at fixed or determinable date or

dates more than twenty-four months after the date of

issuance in consideration of the payment of periodic

installments of stated or determinable amount

Section 2a27 of the 1940 Act defines periodic payment

plan certificate as any certificate investment

contract or other security providing for series of

periodic payments by the holder and representing an

undivided interest in certain specified securities or in

unit or fund of securities purchased wholly or partly with

the proceeds of such payments and any security the

issuer of which is also issuing securities of the character

described in clause and the holder of which has

substantially the same rights and privileges as those which

holders of securities of the character described in

clause have upon completing the periodic payments for

which such securities provide Since the Certificates do

not provide for periodic payments or installments to be made

by the Holders the Trust will not be engaged in the
Securities and Exchange Commission -22-

business of issuing face amount certificates of the

installment type or periodic payment plan certificates

Redeemable Securities

Likewise the Trust will not be engaged in the

business of issuing redeemable securities Sec

tion 2a32 of the 1940 Act defines redeemable

security as any security other than shortterm paper

under the terms of which the holder upon its presentation

to the issuer or to person designated by the issuer is

entitled to receive approximately his proportionate

share of the issuers current net assets or the cash

equivalent thereof In the proposed transaction the Trust

will be modeled after closed end investment company not

an open end investment company As set forth above the

Holders of Certificates will not have the right to force any

early payment or redemption

Mortaages and Other Liens on and Interest in Real

Estate

The description of proposed transactions in three

noaction requests seeking confirmation that the Division

would not recommend enforcement action to the Commission if

the requesting party proceeded in reliance upon

Section 3c described the real estate assets as

being secured exclusively by real estate at least as to 55%
Securities and Exchange Commission 23-

in the case of the two most recent letters and 65% in the

oldest letter of the assets described in the requests

Merrill Lynch Pierce Fenner Smith Inc pub avail

November 1981 involving IDBs United Bankers Inc

pub avail May 23 1988 involving variety of different

types of assets in connection with banks proposed spin

off of low quality assets and La Quinta Motor Inns Inc

pub avail January 1989 involving IDBs The letters

raise concern as to whether traditional commercial

mortgage loan which benefits from nonreal estate collateral

such as security interest in equipment or guarantee as

consequence fails to qualify in the Staffs view as

good interest in real estate for purposes of Section

3c

We submit that the Real Estate Assets under the

circumstances described above should be considered

qualifying interests in real estate for purposes of Section

3c5C All of the Commercial Mortgage Loan IDB5 were

originated from Citytrusts perspective as traditional

commercial mortgage loans Their proceeds were used to

finance the acquisition or improvement of real estate they

are secured by real estate and Citytrust applied its

customary criteria for commercial mortgage loans in

underwriting the loans Although Citytrust views all of the
Securities and Exchange Commission -24-

Commercial Mortgage Loan IDB5 as traditional commercial

mortgage loans the criteria described above for the Class

Real Estate are even more stringent and are intended to

demonstrate unequivocably that those Commercial Mortgage

Loan IDBs are mortgages on or other interests in real

estate within the meaning of Section

As indicated Class Real Estate together with

Equipment Loan IDB5 will constitute at least 55% of the

Assets of each Trust Moreover although Citytrust proposes

to have the flexibility to have up to 20% of Trusts

Assets not qualify under either clause or clause of

Section 3c5 consistent with the standards outlined in

United Bankers Inc supra Citytrust in fact expects that

substantially all of the Assets in each Trust will consist

of Class Real Estate Class II Real Estate or Equipiiient

Loan IDBs

Aaareaation for PurDoses of Clauses and of

Section 3c5

Section 3c exempts any person who is

primarily engaged in one or more of the businesses

described in clauses and Although we are not

aware of any interpretive or noaction letter addressing

whether person can rely on combination of clauses

and for particular transaction as opposed to only
Securities and Exchange Commission 25--

one of such clauses the introductory language to Section

3c5 clearly and unequivocally states on its face by

referring to one or more of the following businesses that

combination of the three clauses may be relied upon

Moreover assuming an entity does not issue redeemable

securities face amount certificates of the installment type

or periodic payment plan certificates and accordingly is

passive investment vehicle we are aware of no policy reason

why reliance on combination of the sub-clauses in Section

3c5 should not be permitted Accordingly we believe

the Trust should qualify under Section 3c5 if at least

55% of the Assets consist of Class Real Estate or

Equipment Loan IDBs

Investment Comanv Act Exemption

We believe that the Trust should be regarded as

falling within the exemption provided in Section 3c

of the Investment Company Act We believe that none of the

other aspects of the proposed transaction gives rise to

concerns resulting in regulation appropriate under the

Investment Company Act We therefore respectfully request

the Staff to indicate that it will not recommend action to

the Commission if registration under the 1940 Act is not

effected with respect to any person
Securities and Exchange Commission -26-

Because Citytrust and Goldman Sachs Co are

anxious to proceed with the formation of the Pool and the

distribution of the Certificates we would appreciate

response to the request made hereby as promptly as practic

able If for any reason the Staff is disposed not to grant

the requested no-action positions we request an opportunity

to discuss this situation with the Staff prior to the

issuance of any formal letter

We thank you for your attention to this matter

If you have any questions or if we may provide further

information please telephone John Bauingardner Jr

2125583866 Mark Welshimer 2125583669 or

Gerald Slevin 2125583855 of this office

Very truly yours

Mark Welshimer

cc Jordan Yarett
PUBiIC

_____________

Our Ref No 90-470-CC

RESPorl vi inr urlICE OF CHIEF COUNSEL Citytrust

DIVISION OF INVESTMENT MANAGEMENT File No 132-3

By letter of December 12 1990 you request that we not

recommend any enforcement action to the Commission if Citytrust

Connecticut chartered bank sponsors trust Trust that

will issue non-redeemable certificates Certificates .2

without registering the Trust or anything else under the

Investment Company Act of 1940 1940 Act in reliance on

clauses and of section 3c5 of the 1940 Act 21

The Trust will be formed under pooling and servicing

agreement PS Agreement between Citytrust as seller and

servicer and an unaffiliated bank as trustee Trustee

Citytrust will transfer to the Trust commercial mortgage loans in

the form of industrial development bonds Mortgage IDBs and

equipment loans in the form of industrial development bonds

Equipment IDBs The Equipment IDBs represent loans made to

fund the purchase price of equipment and costs specifically

related to equipment acquisition such as installation

expenses .J The Mortgage IDBs represent loans made to finance

the acquisition or improvement of real estate they are secured

by real estate and generally had an original loantovalue ratio

of not more than 80% In some cases the Mortgage IDBs are also

secured by other collateral generally equipment located on the

real estate premises which were the subject of the mortgage

The Certificates which will be issued in minimum

denomination of $100000 will be registered under the

Securities Act of 1933 and the Trust will be subject to the

reporting requirements of the Securities Exchange Act of

1934 for at least one year

21 Section 3c of the 1940 Act in part excepts from the

definition of an investment company any person that is not

engaged in the business of issuing redeemable securities and

is primarily engaged in one or more of the following

businesses purchasing or otherwise acquiring

obligations representing part or all of the sales price

of merchandise insurance and services and

purchasing or otherwise acquiring mortgages and other

liens on and interests in real estate Emphasis

added

./ In State of Israel pub avail Aug 12 1988 the staff

took noaction position under section 3c with

respect to trusts that would issue certificates the

proceeds of which would be used to refinance loans made for

the purchase of defense articles defense services design

and construction services and related expenses
financing and in some instances by other assets such as

certificate of deposit and security interest in receivables or

guarantee issued by the parent another related corporation

the principals or the individual owner/operators of the

borrowing corporation

You represent that on the basis of market value at least

55% of the Trusts assets .4/ will consist of Mortgage IDBs and

Equipment Loan IDBs Each Mortgage 1DB included in the 55% will

meet the following criteria Class Real Estate

the original principal amount of the loan did not exceed

100% of the value of its real estate collateral when the

loan was made

the value of the real estate collateral was confirmed by

an appraisal prepared in connection with the original loan

by qualified independent third-party appraiser retained to

appraise the particular properties

Citytrust applied the same underwriting criteria whether

the loan was secured exclusively by real estate or

additionally by other collateral or guarantee and

Mortgage 1DB benefitting from non-real estate

collateral will be disqualified as Class Real Estate if

in connection with default the amount recovered from nonreal estate collateral including guarantees exceeds 40% of

the original principal amount of the loan the 40% test

The PS Agreement will require that recovery may not be made

against nonreal estate collateral on Mortgage 1DB

otherwise qualifying as Class Real Estate if after giving

effect to such recovery the 40% test will be violated

with respect to such Mortgage 1DB and ii the consequence

of such violation and related disqualification would be to

cause the Trust based upon the Mortgage IDBs that continue

to qualify as Class Real Estate and the Equipment Loan

IDB5 to fail the requirement that at least 55% of the value

of the Trust assets at the time of the issuance of the

Certificates consisted of Class Real Estate and Equipment

Loan IDBs

4/ Because condition to consummating the transaction is that

the sale by Citytrust to the Trust of the assets be treated

by Citytrust as sale for accounting purposes the book

value of all of the Trust assets on the opening balance

sheet of the Trust will be their market value
Further to qualify as Class Real Estate or an Equipment Loan

1DB includable in the 55% the related 1DB must represent the

entire issuance of IDBs Up to 25% of the Trusts assets

subject to reduction below 25% to the extent that the Class

Real Estate and Equipment IDB8 exceeds 55% of the Trusts assets

will consist of Mortgage IDBs that do not qualify as Class Real

Estate because they do not meet one of the criteria for Class

Real Estate Class II Real Estate Up to 20% of the Trusts

assets may consist of assets other than Class Real Estate

Class II Real Estate and Equipment IDBs The Trusts assets

will be fixed at the time Citytrust conveys them to the Trust

and no substitution of Trust assets will be permitted

You assert that assets in the Class Real Estate category

will qualify as mortgages and other liens on and interests in

real estate within the meaning of section 3c5C 2J In

We take the view that company is not excepted under

section 3c5C unless at least 55% of its assets consist

of mortgages and other liens on and interests in real

estate 55% test and the remaining 45% of its assets

consist primarily of real estate-type interests 45%

test e.g Prudential-BaChe Securities Inc pub

avail Aug 19 1985 Salomon Brothers Inc pub avail

June 17 1985 To meet the 45% test company must invest

at least 25% of its total assets in real estate-type

interests subject to reduction to the extent that it

invests more than 55% of its total assets in assets meeting

the 55% test and may invest no more than 20% of its total

assets in miscellaneous investments .g United

Bankers Inc pub avail March 23 1988 La Quinta Motor

Inns Inc pub avail May 23 1988

We understand that the conveyance of the assets to the Trust

and the issuance of the Certificates will occur

simultaneously

1/ You state that the mortgage or deed of trust securing each

Mortgage 1DB was assigned or granted to Citytrmist as the 1DB

trustee under trust indenture and that the assignment or

grant is not set forth in separate document but is

incorporated in the trust indenture that has been recorded

in the appropriate real estate office You further state

that it will be condition to closing for the issuance of

the Certificates that Citytrust and the underwriter

Goldman Sacha Co receive an opinion of independent

counsel that if receiver were appointed for Citytrust

under the Connecticut banking law the property held by

Citytrust as 1DB trustee including the related mortgages or

continued..
Iv

telephone conversation with Elizabeth Tsai of the staff on

December 13 1990 you represented that with respect to this

category the Trustee as holder of 100% of the issuance of each

Mortgage 1DB will have the right unilaterally to direct the 1DB

trustee to foreclose the mortgage securing the 1DB in the event

of default You confirmed that Citytrust will use its best

efforts to cause the Trustee or another unaffiliated trustee

other than Citytrust to become 1DB trustee for each Mortgage 1DB

by not later than 120 days after the closing In telephone

conference with the staff on December 1990 Jordan Yarett

representative of Citytrust stated his belief that it will be

possible to substitute trustees

You also assert that the introductory language to section

3c5 by referring to one or more of the following

businesses indicates that person may rely on combination of

clauses and of section 3c5 You believe that

the Trust will be excepted under clauses and of section

3c5 because it will not be issuing redeemable securities and

it will be primarily engaged in the businesses described in

clauses and

On the basis of the facts and representations made to us

orally and in your letter we would not recommend any enforcement

action to the Commission if Citytrust sponsors the Trust without

registering it under the 1940 Act in reliance on clauses and

of section 3c5 Because this response is based on

representations made to the Division you should note that any

different facts or circumstances might require different

conclusion Further this response expresses only the

enforcement position of the Division and does not purport to

express any legal conclusions on the questions presented

Thomas Harman

Chief Counsel

2/C .continued

assignments of mortgages would not be assets business or

property of Citytrust subject to disposition by such

receiver