EXHIBIT 99
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
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CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b) (2) _________
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-3781471
(I. R. S. Employer
Identification No.)
100 WALL STREET, NEW YORK, NY 10005
(Address of principal executive offices) (Zip Code)
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FOR INFORMATION, CONTACT:
Thomas J. Kelly, President
U.S. Bank Trust National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2506
DELTA FINANCIAL CORPORATION
(Exact name of obligor as specified in its charter)
New York 11-3336165
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
1000 Woodbury Road, Suite 200
Woodbury, New York 11797-9003
(Address of principal executive offices) (Zip Code)
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9 1/2% SENIOR SECURED NOTES DUE 2004
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Item 1. GENERAL INFORMATION.
Furnish the following information as to the trustee - -
(a) Name and address of each examining or supervising authority to
which it is subject.
NAME ADDRESS
---- --------
Comptroller of the Currency Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. LIST OF EXHIBITS.
Exhibit 1. Articles of Association of U.S. Bank Trust National
Association
Exhibit 2. Certificate of Authority to Commence Business for First
Trust of New York, National Association now known as U.S.
Bank Trust National Association
Exhibit 3. Authorization to exercise corporate trust powers for U.S.
Bank Trust National Association
Exhibit 4. By-Laws of U.S. Bank Trust National Association.
Exhibit 5. Not applicable.
Exhibit 6. Consent of First Trust of New York, National Association
now known as U.S. Bank Trust National Association, required
by Section 321(b) of the Act
Exhibit 7. Report of Condition of U.S. Bank Trust National
Association, as of the close of business on June 30, 2000,
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, U.S. Bank Trust National Association, a national banking
association organized and existing under the laws of the United States, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 19th day of October, 2000.
U.S. BANK TRUST
NATIONAL ASSOCIATION
By:/S/ MARLENE J. FAHEY
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Marlene J. Fahey
Vice President
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EXHIBIT 1
U.S. BANK TRUST
NATIONAL ASSOCIATION
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
For the purpose of organizing an association to perform any lawful
activities of national banks, the undersigned do enter into the following
Articles of Association:
FIRST. The title of this Association shall be "U.S. Bank Trust
National Association."
SECOND. The main office of this Association shall be in the City,
County and State of New York. The business of this Association will be limited
to that of a national trust bank, and to support activities incidental thereto.
This Association will not amend these Articles of Association to expand the
scope of or alter its business beyond that stated in this Article Second without
the prior approval of the Comptroller of the Currency. Prior to the transfer of
any stock of the Association, the Association will seek the prior approval of
the appropriate federal depository institution regulatory agency.
THIRD. The board of directors of the Association shall consist of not
less than five nor more than 25 persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full board of
directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
this Association with an aggregate par, fair market, or equity value of not less
than $1,000.00, as of either (i) the date of purchase, (ii) the date the person
became a director, whichever is more recent. Any combination of common or
preferred stock of this Association or U.S. Bancorp may be used.
Any vacancy in the board of directors may be filled by action of a
majority of the remaining directors between meetings of shareholders. The board
of directors may not increase the number of directors between meetings of
shareholders to a number that (1) exceeds by more than two the number of
directors last elected by shareholders where the number was fifteen or less; and
(2) exceeds by more than four the number of directors last elected by
shareholders where the number was sixteen or more, but in no event shall the
number of directors exceed twenty-five.
Terms of directors, including directors selected to fill vacancies,
shall expire at the next regular meeting of shareholders at which directors are
elected, unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall
continue to serve until his or her successor is elected and qualifies or until
there is a decrease in the number of directors and his or her position is
eliminated.
Honorary or advisory members of the board of directors, without voting
power or power of final decision in matters concerning the business of this
Association, may be appointed by resolution of a majority of the full board of
directors, or by resolution of shareholders at any annual or special meeting.
Honorary or advisory directors shall not be counted for purposes of determining
the number of directors of this Association or the presence of a quorum in
connection with any board action, and shall not be required to own qualifying
shares.
FOURTH. There shall be an annual meeting of the shareholders to elect
directors and transact whatever other business may be brought before the
meeting. It shall be held at the main office or any other convenient place the
board of directors may designate, on the day of each year specified therefore in
the bylaws, or if that day falls on a legal holiday in the State in which this
Association is located, on the next following banking day. If no election is
held on the day fixed, or in event of a legal holiday, an election may be held
on any subsequent day within sixty days of the day fixed, to be designated by
the board of directors, or, if the directors fail to fix the day, by
shareholders representing two-thirds of the shares issued and outstanding. In
all cases at least ten-days advance notice of the meeting shall be given to the
shareholders by first class mail.
A director may resign at any time by delivering written or oral notice
to the board of directors, its chairperson, or to this Association, which
resignation shall be effective when the notice is delivered unless the notice
specifies a later effective date.
A director may be removed by shareholders at a meeting called to
remove him or her, when notice of the meeting stating that the purpose or one of
the purposes is to remove him or her is provided, if there is a failure to
fulfill one of the affirmative requirements for qualification, or for cause;
PROVIDED, HOWEVER, that a director may not be removed if the number of votes
sufficient to elect him or her under cumulative voting is voted against his or
her removal.
FIFTH. The authorized amount of capital stock of this Association
shall be 10,000 shares of common stock of the par value of one-hundred dollars
($100.00) each; but said capital stock may be increased or decreased from time
to time, according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of this
Association shall have any preemptive or preferential right of subscription to
any shares of any class of stock of this Association, whether now or hereafter
authorized, or to any obligations convertible into stock of this Association,
issued, or sold, nor any right of subscription to any thereof other than such,
if any, as the board of directors, in its discretion may from time to time
determine and at such price as the board of directors may from time to time fix.
Unless otherwise specified in these Articles of Association or
required by law, (1) all matters requiring shareholder action, including
amendments to the articles of Association must be approved by shareholders
owning a majority voting interest in the outstanding voting stock, and (2) each
shareholder shall be entitled to one vote per share.
Unless otherwise provided in the bylaws, the record date for
determining shareholders entitled to notice of and to vote at any meeting is the
close of business on the day before the first notice is mailed or otherwise sent
to the shareholders, provided that in no event may a record date be more than
seventy days before the meeting.
SIXTH. The board of directors shall appoint one of its members
president of this Association and one of its members chairperson of the board.
The board of directors shall also have the power to appoint one or more vice
presidents, a secretary who shall keep minutes of the directors' and
shareholders' meetings and be responsible for authenticating the records of this
Association, and such other officers and employees as may be required to
transact the business of this Association. A duly appointed officer may appoint
one or more officers or assistant officers if authorized by the board of
directors in accordance with the bylaws.
The board of directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of this
Association.
(2) Delegate the performance of its duties, but not the
responsibility for its duties, to the officers, employees, and
agents of this Association.
(3) Fix the compensation and enter into employment contracts with its
officers and employees upon reasonable terms and conditions,
consistent with applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty
thereof.
(6) Ratify written policies authorized by this Association's
management or committees of the board.
(7) Regulate the manner in which any increase or decrease of the
capital of this Association shall be made; PROVIDED, HOWEVER,
that nothing herein shall restrict the power of shareholders to
increase or decrease the capital of this Association in
accordance with law, and nothing shall raise or lower from
two-thirds the percentage required for shareholder approval to
increase or reduce the capital.
(8) Manage and administer the business and affairs of this
Association.
(9) Adopt bylaws, not inconsistent with law or these Articles of
Association, for managing the business and regulating the affairs
of this Association.
(10) Amend or repeal bylaws, except to the extent that the articles of
Association reserve this power in whole or in part to
shareholders.
(11) Make contracts.
(12) Generally to perform all acts that are legal for a board of
directors to perform.
SEVENTH. The board of directors shall have the power to change the
location of the main office to any other place within the limits of the City of
New York without the approval of the shareholders, and shall have the power to
establish or change the location of any branch or branches of this Association
to any other location permitted under applicable law, without the approval of
the shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue
until terminated according to the laws of the United States.
NINTH. The board of directors of this Association, or any three (3) or
more shareholders owning, in the aggregate, not less than twenty-five percent
(25%) of the stock of this Association, may call a special meeting of
shareholders at any time. Unless otherwise provided by the bylaws or the laws of
the United States, or waived by shareholders, a notice of the time, place, and
purpose of every annual and special meeting of the shareholders shall be given
by first-class mail, postage prepaid, mailed at least ten, and no more than
sixty, days prior to the date of the meeting to each shareholder of record at
his/her address as shown upon the books of this Association. Unless otherwise
provided by these Articles of Association or the bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. Any action required to be taken at a meeting of the
shareholders or directors or any action that may be taken at a meeting of the
shareholders or directors may be taken without a meeting if consent in writing,
setting forth the action as taken shall be signed by all the shareholders or
directors entitled to vote with respect to the matter thereof. Such action shall
be effective on the date on which the last signature is placed on the writing,
or such earlier date as is set forth therein.
ELEVENTH. Meetings of the board of directors or shareholders, regular
or special, may be held by means of conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can simultaneously hear each other, and participation in such meeting by
such aforementioned means shall constitute presence in person at such meeting.
TWELFTH: Any person, such person's heirs, executors, or
administrators, may be indemnified or reimbursed by the Association for
reasonable expenses actually incurred in connection with any action, suit or
proceeding, whether civil or criminal or administrative, to which such person or
such person's heirs, executors, or administrators shall be made a party by
reason of such person being or having been a director, advisory director,
officer, employee, or agent of the Association or of any firm, corporation, or
organization that such person served in any such capacity at the request of the
Association. Provided, however, that no person shall be so indemnified or
reimbursed in relation to any matter in such action, suit or proceeding: (1) as
to which such person shall finally be adjudged to have been guilty of or liable
for gross negligence, willful misconduct or criminal acts in the performance of
such person's duties to the Association; or (2) which has been made the subject
of a compromise settlement EXCEPT with the approval of a court of competent
jurisdiction, or the holders of record of a majority of outstanding shares of
the Association, or the board of directors acting by vote of directors not
parties to the same or substantially the same action, suit or proceeding,
constituting a majority of the whole number of directors; or (3) against
expenses, penalties, or other payments incurred in an administrative proceeding
or action instituted by an appropriate bank regulatory agency, which proceeding
or action results in a final order assessing civil money penalties or requiring
affirmative action by such person in the form of payment to this Association.
The foregoing right of indemnification or reimbursement shall not be exclusive
of other rights to which such person, such person's heirs, executors, or
administrators, may be entitled as a matter of law.
Such expenses actually incurred by such person in connection with such
action, suit or proceeding may be paid by this Association in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such person to repay such amount if it shall
ultimately be determined that such individual is not entitled to be indemnified
by the Association. Prior to the advancement of any such expenses, the board of
directors shall determine in writing that all of the following conditions are
met: (1) such person has a substantial likelihood of prevailing on the merits;
(2) in the event such person does not prevail, such person will have the
financial capability to reimburse this Association; and (3) payment of such
expenses by this Association will not adversely affect the safety and soundness
of this Association. If at any time the board of directors believes, or should
reasonably believe, that any of the above conditions are not met, this
Association shall cease paying such expenses. Further, this Association shall
enter into a written agreement with such person specifying the conditions under
which such person shall reimburse this Association.
The Association may, upon the affirmative vote of a majority of its
board of directors, purchase insurance for the purpose of indemnifying such
directors, advisory directors, officers, employees, or agents to the extent that
such indemnification is allowed in this Article Twelfth. Such insurance shall
not provide coverage of liability for any formal order issued by a regulatory
authority assessing civil money penalties against a director, advisory director,
officer, employee, or agent. Further, such insurance may, but need not be, for
the benefit of all such directors, advisory directors, officers, employees or
agents.
THIRTEENTH. These Articles of Association may be amended at any
regular or special meeting of the shareholders by the affirmative vote of the
holders of a majority of the stock of this Association, unless the vote of the
holders of a greater amount of stock is required by law, and in that case by the
vote of the holders of such greater amount. This Association's board of
directors may propose one or more amendments to these Articles of Association
for submission to the shareholders.
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EXHIBIT 2
COMPTROLLER OF THE CURRENCY
TREASURY DEPARTMENT OF THE UNITED STATES
WASHINGTON, D.C.
WHEREAS, satisfactory evidence has been presented to the Comptroller of the
Currency that FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION located in NEW YORK,
State of NEW YORK has complied with all provisions of the statutes of the
United States required to be complied with before being authorized to commence
the business of banking as a National Banking Association;
NOW, THEREFORE, thereby certify that the above-named association is
authorized to commence the business of banking as a National Banking
Association.
In testimony whereof, witness my signature
and seal of office this 22nd day of AUGUST
1994
/s/ Donald G. Coonley
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Charter No. 22746 Donald G. Coonley
Deputy Comptroller of the Currency
Miswestern District
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Comptroller of the Currency
Administrator of National Banks
-------------------------------------------------------------------------------
Washington, DC 20219
CERTIFICATE
I, Julie L. Williams, Acting Comptroller of the Currency, do hereby certify
that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering, regulation and
supervision of all National Banking Associations.
2. Effective March 30, 1998, the title of "First Trust of New York, National
Association," New York, New York, (Charter No. 22746), was changed to U.S.
Bank Trust National Association," New York, New York, (Charter No. 22746).
IN TESTIMONY WHEREOF, I have
hereunto subscribed my name and
caused my seal of office to be affixed
to these presents at the Treasury
Department, in the City of
Washington and District of Columbia,
this 16th day of April, 1998.
/s/ Julie L. Williams
----------------------------------------
Acting Comptroller of the Currency
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EXHIBIT 3
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Comptroller of the Currency
Administrator of National Banks
-------------------------------------------------------------------------------
Washington, DC 20219
CERTIFICATE OF FIDUCIARY POWERS
I, Julie L. Williams, Acting Comptroller of the Currency, do hereby certify
that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "U.S. Bank Trust National Association," New York, New York, (Charter No.
22746), was granted, under the hand and seal of the Comptroller, the right to
act in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have
hereunto subscribed my name and
caused my seal of office to be affixed
to these presents at the Treasury
Department, in the City of
Washington and District of Columbia,
this 16th day of April, 1998.
/s/ Julie L. Williams
------------------------------------
Acting Comptroller of the Currency
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EXHIBIT 4
U.S. BANK TRUST
NATIONAL ASSOCIATION
BYLAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1.1. ANNUAL MEETING. The annual meeting of the shareholders,
for the election of directors and the transaction of other business, shall be
held at a time and place as the Chairman or President may designate. Notice of
such meeting shall be given at least ten days prior to the date thereof, to each
shareholder of the Association. If, for any reason, an election of directors is
not made on the designated day, the election shall be held on some subsequent
day, as soon thereafter as practicable, with prior notice thereof.
Section 1.2. SPECIAL MEETINGS. Except as otherwise specially provided
by law, special meetings of the shareholders may be called for any purpose, at
any time by a majority of the board of directors, or by any shareholder or group
of shareholders owning at least ten percent of the outstanding stock. Every such
special meeting, unless otherwise provided by law, shall be called upon not less
than ten days prior notice stating the purpose of the meeting.
Section 1.3. NOMINATIONS FOR DIRECTORS. Nominations for election to
the board of directors may be made by the board of directors or by any
shareholder.
Section 1.4. PROXIES. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing. Proxies shall be valid only
for one meeting and any adjournments of such meeting and shall be filed with the
records of the meeting.
Section 1.5. QUORUM. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law. A majority of the votes cast
shall decide every question or matter submitted to the shareholders at any
meeting, unless otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
Section 2.1. BOARD OF DIRECTORS. The board of directors (hereinafter
referred to as the "board"), shall have power to manage and administer the
business and affairs of the Association. All authorized corporate powers of the
Association shall be vested in and may be exercised by the board.
Section 2.2. POWERS. In addition to the foregoing, the board of
directors shall have and may exercise all of the powers granted to or conferred
upon it by the Articles of Association, the Bylaws and by law.
Section 2.3. NUMBER. The board shall consist of a number of members to
be fixed and determined from time to time by resolution of the board or the
shareholders at any meeting thereof, in accordance with the Articles of
Association.
Section 2.4. ORGANIZATION MEETING. The newly elected board shall meet
for the purpose of organizing the new board and electing and appointing such
officers of the Association as may be appropriate. Such meeting shall be held on
the day of the election or as soon thereafter as practicable, and, in any event,
within thirty days thereafter. If, at the time fixed for such meeting, there
shall not be a quorum present, the directors present may adjourn the meeting
until a quorum is obtained.
Section 2.5. REGULAR MEETINGS. The regular meetings of the board shall
be held, without notice, as the Chairman or President may designate and deem
suitable.
Section 2.6. SPECIAL MEETINGS. Special meetings of the board may be
called by the Chairman or the President of the Association, or at the request of
two or more directors. Each member of the board shall be given notice stating
the time and place of each such meeting.
Section 2.7. QUORUM. A majority of the directors shall constitute a
quorum at any meeting, except when otherwise provided by law; but fewer may
adjourn any meeting. Unless otherwise provided, once a quorum is established,
any act by a majority of those constituting the quorum shall be the act of the
board.
Section 2.8. VACANCIES. When any vacancy occurs among the directors,
the remaining members of the board may appoint a director to fill such vacancy
at any regular meeting of the board, or at a special meeting called for that
purpose.
ARTICLE III
COMMITTEES
Section 3.1. ADVISORY BOARD OF DIRECTORS. The board may appoint
persons, who need not be directors, to serve as advisory directors on an
advisory board of directors established with respect to the business affairs of
either this Association alone or the business affairs of a group of affiliated
organizations of which this Association is one. Advisory directors, shall have
such powers and duties as may be determined by the board, provided, that the
board's responsibility for the business and affairs of this Association shall in
no respect be delegated or diminished.
Section 3.2. AUDIT COMMITTEE. The board shall appoint an Audit
Committee which shall consist of at least two Directors of the Association or of
an affiliate of the Association. If legally permissible, the Board may determine
to name itself as the Audit Committee. The Audit Committee shall direct and
review audits of the Association's fiduciary activities.
The members of the Audit Committee shall be appointed each year and
shall continue to act until their successors are named. The Audit Committee
shall have power to adopt its own rules and procedures and to do those things
which in the judgment of such Committee are necessary or helpful with respect to
the exercise of its functions or the satisfaction of its responsibilities.
Section 3.3. EXECUTIVE COMMITTEE. The board may appoint an Executive
Committee which shall consist of at least three directors and which shall have,
and may exercise, all the powers of the board between meetings of the board or
otherwise when the board is not meeting.
Section 3.4. OTHER COMMITTEES. The board may appoint, from time to
time, committees of one or more persons who need not be directors, for such
purposes and with such powers as the board may determine. In addition, either
the Chairman or the President may appoint, from time to time, committees of one
or more officers, employees, agents or other persons, for such purposes and with
such powers as either the Chairman or the President deems appropriate and
proper.
Whether appointed by the board, the Chairman, or the President, any
such Committee shall at all times be subject to the direction and control of the
board.
Section 3.5. MEETINGS. MINUTES AND RULES. An advisory board of
directors and/or committee shall meet as necessary in consideration of the
purpose of the advisory board of directors or committee, and shall maintain
minutes in sufficient detail to indicate actions taken or recommendations made;
unless required by the members, discussions, votes or other specific details
need not be reported. An advisory board of directors or a committee may, in
consideration of its purpose, adopt its own rules for the exercise of any of its
functions or authority.
ARTICLE IV
OFFICERS AND EMPLOYEES
Section 4.1. CHAIRMAN OF THE BOARD. The board may appoint one of its
members to be Chairman of the board to serve at the pleasure of the board. The
Chairman shall supervise the carrying out of the policies adopted or approved by
the board; shall have general executive powers, as well as the specific powers
conferred by these Bylaws; shall also have and may exercise such powers and
duties as from time to time may be conferred upon or assigned by the board.
Section 4.2. PRESIDENT. The board may appoint one of its members to be
President of the Association. In the absence of the Chairman, the President
shall preside at any meeting of the board . The President shall have general
executive powers, and shall have and may exercise any and all other powers and
duties pertaining by law, regulation or practice, to the Office of President, or
imposed by these Bylaws. The President shall also have and may exercise such
powers and duties as from time to time may be conferred or assigned by the
Board.
Section 4.3. VICE PRESIDENT. The board may appoint one or more Vice
Presidents who shall have such powers and duties as may be assigned by the board
and to perform the duties of the President on those occasions when the President
is absent, including presiding at any meeting of the board in the absence of
both the Chairman and President.
Section 4.4. SECRETARY. The board shall appoint a Secretary, or other
designated officer who shall be Secretary of the board and of the Association,
and shall keep accurate minutes of all meetings. The Secretary shall attend to
the giving of all notices required by these Bylaws to be given; shall be
custodian of the corporate seal, records, document and papers of the
Association; shall provide for the keeping of proper records of all transactions
of the Association; shall have and may exercise any and all other powers and
duties pertaining by law, regulation or practice, to the Secretary, or imposed
by these Bylaws; and shall also perform such other duties as may be assigned
from time to time, by the Board .
Section 4.5. OTHER OFFICERS. The board may appoint, and may authorize
the Chairman or the President to appoint, any officer as from time to time may
appear to the board, the Chairman or the President to be required or desirable
to transact the business of the Association. Such officers shall exercise such
powers and perform such duties as pertain to their several offices, or as may be
conferred upon or assigned to them by these Bylaws, the board, the Chairman or
the President.
Section 4.6. TENURE OF OFFICE. The Chairman or the President and all
other officers shall hold office for the current year for which the board was
elected, unless they shall resign, become disqualified, or be removed. Any
vacancy occurring in the Office of Chairman or President shall be filled
promptly by the board.
Any officer elected by the board or appointed by the Chairman or the
President may be removed at any time, with or without cause, by the affirmative
vote of a majority of the board or, if such officer was appointed by the
Chairman or the President, by the Chairman or the President, respectively.
ARTICLE V
STOCK
Section 5.1. Shares of stock shall be transferable on the books of the
Association, and a transfer book shall be kept in which all transfers of stock
shall be recorded. Every person becoming a shareholder by such transfer shall,
in proportion to such person's shares, succeed to all rights of the prior holder
of such shares. Each certificate of stock shall recite on its face that the
stock represented thereby is transferable only upon the books of the Association
properly endorsed.
ARTICLE VI
CORPORATE SEAL
Section 6.1. The Association shall have no corporate seal; provided,
however, that if the use of a seal is required by, or is otherwise convenient or
advisable pursuant to, the laws or regulations of any jurisdiction, the
following seal may be used, and the Chairman, the President, the Secretary and
any Assistant Secretary shall have the authority to affix such seal.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. EXECUTION OF INSTRUMENTS. All agreements, checks, drafts,
orders, indentures, notes, mortgages, deeds, conveyances, transfers,
endorsements, assignments, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, guarantees, proxies and other instruments or
documents may be signed, countersigned, executed, acknowledged, endorsed,
verified, delivered or accepted on behalf of the Association, whether in a
fiduciary capacity or otherwise, by any officer of the Association, or such
employee or agent as may be designated from time to time by the board by
resolution, or by the Chairman or the President by written instrument, which
resolution or instrument shall be certified as in effect by the Secretary or an
Assistant Secretary of the Association. The provisions of this section are
supplementary to any other provision of the Articles of Association or Bylaws.
Section 7.2. RECORDS. The Articles of Association, the Bylaws and the
proceedings of all meetings of the shareholders, the board, and standing
committees of the board, shall be recorded in appropriate minute books provided
for the purpose. The minutes or each meeting shall be signed by the Secretary,
or other officer appointed to act as Secretary of the meeting.
Section 7.3. TRUST FILES. There shall be maintained in the Association
files all fiduciary records necessary to assure that its fiduciary
responsibilities have been properly undertaken and discharged.
Section 7.4. TRUST INVESTMENTS. Funds held in a fiduciary capacity
shall be invested according to the instrument establishing the fiduciary
relationship and according to law. Where such instrument does not specify the
character and class of investments to be made and does not vest in the
Association a discretion in the matter, funds held pursuant to such instrument
shall be invested in investments in which corporate fiduciaries may invest under
law.
Section 7.5. NOTICE. Whenever notice is required by the Articles of
Association, the Bylaws or law, such notice shall be by mail, postage prepaid,
telegram, in person, or by any other means by which such notice can reasonably
be expected to be received, using the address of the person to receive such
notice, or such other personal data, as may appear on the records of the
Association. Prior notice shall be proper if given not more than 30 days nor
less than 10 days prior to the event for which notice is given.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. The association shall indemnify to the full extent
permitted by, and in the manner permissible under, the Articles of Association
and the laws of the United States of America, as applicable and as amended from
time to time, any person made, or threatened to be made, a party to any action,
suit or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that such person is or was a director, advisory director,
officer or employee of the Association, or any predecessor of the Association,
or served any other enterprise as a director or officer at the request of the
Association or any predecessor of the Association.
Section 8.2. The board in its discretion may, on behalf of the
Association, indemnify any person, other than a director, advisory director,
officer or employee, made a party to any action, suit or proceeding by reason of
the fact that such person is or was an agent of the Association or any
predecessor of the Association serving in such capacity at the request of the
Association or any predecessor of the Association.
ARTICLE IX
BYLAWS: INTERPRETATION AND AMENDMENT
Section 9.1. These Bylaws shall be interpreted in accordance with and
subject to appropriate provisions of law, and may be amended, altered or
repealed, at any regular or special meeting of the board.
Section 9.2. A copy of the Bylaws, with all amendments, shall at all
times be kept in a convenient place at the main office of the Association, and
shall be open for inspection to all shareholders during Association hours.
-------------------------
I, Patrick J. Crowley, hereby certify that: (i) I am a duly
constituted Assistant Secretary of U.S. Bank Trust National Association (the
"Association") and (ii) the foregoing bylaws are the bylaws of the Association,
and all of them are now lawfully in force and effect.
I have hereunto affixed my official signature in the City of New York,
on the 6th day of October, 2000.
/S/ PATRICK J. CROWLEY
-------------------------------
Name: Patrick J. Crowley
Title: Assistant Secretary
<PAGE>
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
the undersigned, FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION hereby consents
that reports of examination of the undersigned by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Dated: September 2, 1994
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION
/s/ Dennis J.Calabrese
----------------------------
Dennis J. Calabrese
Vice President
<PAGE>
EXHIBIT 7
U.S. BANK TRUST NATIONAL ASSOCIATION
STATEMENT OF FINANCIAL CONDITION
AS OF 6/30/2000
($000'S)
6/30/2000
---------
ASSETS
Cash and Due From Depository Institutions $53,918
Federal Reserve Stock 3,337
Fixed Assets 382
Intangible Assets 58,689
Other Assets 8,441
-----
TOTAL ASSETS $124,767
LIABILITIES
Other Liabilities 11,584
TOTAL LIABILITIES 11,584
------
EQUITY
Common and Preferred Stock 1,000
Surplus 120,932
Undivided Profits (8,749)
------
TOTAL EQUITY CAPITAL 113,183
TOTAL LIABILITIES AND EQUITY CAPITAL $124,767
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
U.S. Bank Trust National Association
By:
------------------------
Vice President
Dated: June 30, 2000
