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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-3/A
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER
THE TRUST INDENTURE ACT OF 1939
KRUG INTERNATIONAL CORP.
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(Name of applicant)
900 CIRCLE 75 PARKWAY, SUITE 1300, ATLANTA, GEORGIA 30339
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(Address of principal executive offices)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
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SENIOR SUBORDINATED ZERO COUPON NOTES DUE 2007 UP TO $12,500,000 IN AGGREGATE PRINCIPAL
- ------------------------------------------------------------------------------------------------
Title of Class Amount
</TABLE>
Approximate date of proposed public offering: AUGUST 20, 1999
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Name and address of agent for service:
ROBERT M. THORNTON, JR.
CHIEF EXECUTIVE OFFICER
KRUG INTERNATIONAL CORP.
900 CIRCLE 75 PARKWAY, SUITE 1300,
ATLANTA, GEORGIA 30339
WITH A COPY TO
SMITH, GAMBRELL, & RUSSELL, LLP
PROMENADE II, SUITE 1300
1230 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30309-3592
ATT: HOWARD E. TURNER, ESQ.
CARL L. SOLLEE, ESQ.
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THE REGISTRANT HEREBY AMENDS THIS FORM T-3 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 FORM T-3 SHALL THEREAFTER
BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 307 AND SECTION 309 OF THE TRUST
INDENTURE ACT OF 1939 AND SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL
THIS FORM T-3 SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO 8(A), MAY DETERMINE.
CONTENTS OF APPLICATION FOR QUALIFICATION. This application for
qualification comprises--
(b) The statement of eligibility and qualification of each
trustee under the indenture to be qualified (filed with this
Form T-3/A as Exhibit T3-T1).
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, KRUG International Corp., a corporation organized and existing under
the laws of Ohio, has duly caused this application to be signed on its behalf
of the undersigned, thereunto duly authorized, and its seal to be hereunto
affixed and attested, all in the city of Atlanta and State of Georgia on the
7th day of September, 1999.
KRUG INTERNATIONAL CORP.
By: /s/ Robert M. Thornton, Jr.
----------------------------------
Robert M. Thornton, Jr.
Chief Executive Officer
2
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM T-1
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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)
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U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
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3384 PEACHTREE ROAD
SUITE 200
ATLANTA, GEORGIA 30326-1106 41-0257700
(Address of principal (Zip Code) (I.R.S. employer identification
executive offices) number)
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MARY WILLIS
U.S. BANK TRUST NATIONAL ASSOCIATION
3384 PEACHTREE ROAD
SUITE 200
ATLANTA, GEORGIA 30326-1106
404-965-7221
(Name, address and telephone number of agent for service)
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KRUG INTERNATIONAL CORPORATION
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<S> <C>
OHIO 31-0621189
(State or other (IRS employer
jurisdiction of incorporation identification no.)
or organization)
900 CIRCLE 75 PARKWAY
SUITE 1300
ATLANTA, GEORGIA 30339
(Address of principal executive offices) (Zip Code)
</TABLE>
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Senior Subordinated Zero Coupon Notes Due July 1, 2007
(Title of the indenture securities)
333-
Registration No.
<PAGE> 2
1. General information.
Furnish the following information as to the trustee:
Name and address of each examining or supervising authority to
which it is subject.
COMPTROLLER OF THE CURRENCY
WASHINGTON, D.C.
Whether it is authorized to exercise corporate trust powers.
YES.
2. Affiliations with obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
NONE.
16. List of Exhibits.
List below all exhibits filed as a part of this statement of
eligibility; exhibits identified in parentheses are filed with the
Commission and are incorporated herein by reference as exhibits hereto
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939, as
amended, and Rule 24 of the Commission's Rules of Practice.
(1) A copy of the Articles of Association of the Trustee as now in
effect (included in Exhibit 1).
(2) A copy of the Certificate of Authority of the Trustee to
commence business (included in Exhibit 2).
(3) A copy of the Authorization of the Trustee to exercise
corporate trust powers (included as part of Exhibits 1 & 2).
(4) A copy of the existing By-laws of the Trustee (included in
Exhibit 4).
(5) Copy of each Indenture referred to in Item 4. Not applicable
(6) The Consent of the Trustee required by Section 321(b) of the
Trust Indenture Act of 1939.
(7) A copy of the latest Report of Condition of the Trustee
published pursuant to law or the requirements of its
supervising or examining authority as of the close of business
on March 31, 1999.
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, U.S. Bank Trust National Association, an Association organized and
existing under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Atlanta and the State of Georgia, on the 8th day of September,
1999.
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ Mary Willis
-----------------------------------------
Mary Willis
Assistant Vice President
/s/ Richard Jaegle
- ------------------------------
Richard Jaegle
Vice President
NOTE
The answers to this statement insofar as such answers relate to what
persons have been underwriters for any securities of the obligors within three
(3) years prior to the date of filing this statement, or what persons are owners
of 10% or more of the voting securities of the obligors, or affiliates, are
based upon information furnished to the Trustee by the obligors. While the
Trustee has no reason to doubt the accuracy of any such information, it cannot
accept any responsibility therefor.
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EXHIBIT 1 TO FORM T-1
ARTICLES OF ASSOCIATION
OF
U.S. BANK TRUST NATIONAL ASSOCIATION
<PAGE> 5
U.S. BANK TRUST NATIONAL ASSOCIATION
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 of
Atlanta, County of Fulton and State of Georgia. 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 shareholders at
any annual or special meeting thereof. A majority of the board of directors
shall be necessary to constitute a quorum for the transaction of business at any
directors' meeting. 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
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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.
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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.
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(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
Atlanta 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. 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 TO FORM T-1
CERTIFICATE OF AUTHORITY
OF
U.S. BANK TRUST NATIONAL ASSOCIATION
TO COMMENCE BUSINESS
<PAGE> 10
COMPTROLLER OF THE CURRENCY
TREASURER DEPARTMENT OF THE UNITED STATES
WASHINGTON D.C.
Whereas, satisfactory evidence has been presented to the Comptroller
of the Currency that U.S. Bank Trust National Association located in Atlanta,
State of Georgia, 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, I hereby 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 sixteenth day of March 1999.
/s/ John D. Hanshe, J
-------------------------------------------
Comptroller of the Currency
Charter No. 23863
[SEAL]
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EXHIBIT 3 TO FORM T-1
AUTHORIZATION
OF
U.S. BANK TRUST NATIONAL ASSOCIATION
TO EXERCISE CORPORATE TRUST POWERS
(INCLUDED AS PART OF EXHIBITS 1 & 2)
<PAGE> 12
EXHIBIT 4 TO FORM T-1
BY-LAWS
OF
U.S. BANK TRUST NATIONAL ASSOCIATION
<PAGE> 13
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.
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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.
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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. Meeting 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
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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:
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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 are 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 such persons for such
liabilities in such manner under such circumstances and to such extent as
permitted by Section 145 of the Delaware General Corporation Law, as now
enacted or hereafter amended. The board of directors may authorize the purchase
and maintenance of insurance and/or the execution of individual agreements for
the purpose of such indemnification to the extent consistent with 12 CFR
7.201(b)(2), and the Association shall advance all reasonable costs and
expenses (including attorney's fees) incurred in defending any action, suit or
proceeding to
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<PAGE> 18
all persons entitled to indemnification under this Section 8.1, all in the
manner, under the circumstances and to the extent permitted by Section 145 of
the Delaware General Corporation Law, as now enacted or hereafter amended.
Section 8.2. Notwithstanding Section 8.1, however, (a) any indemnification
payments to an institution-affiliated party, as defined at 12 USC 1813(u), for
an administrative proceeding or civil action initiated by a federal banking
agency, shall be reasonable and consistent with the requirements of 12 USC
1828(k) and the implementing regulations thereunder; and (b) any indemnification
payments and advancement of costs and expenses to an institution-affiliated
party, as defined at 12 USC 1813(u), in cases involving an administrative
proceeding or civil action not initiated by a federal banking agency, shall be
consistent with safe and sound banking practices.
ARTICLE IX
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.
***
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<PAGE> 19
EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned, U.S. BANK TRUST 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:_____________, 1999
U.S. BANK TRUST NATIONAL ASSOCIATION
------------------------------------
Mary Willis
Assistant Vice President
<PAGE> 20
EXHIBIT 7 TO FORM T-1
REPORT OF CONDITION
<PAGE> 21
<TABLE>
<S> <C> <C> <C>
U.S. BANK TRUST NATIONAL ASSOCIATION Call Date: 3/31/99 State #: 000000 FFIEC: 034
3384 PEACHTREE ROAD Vendor ID: D Cert. #: 35225 Page: RC-1
ATLANTA, GA 30326 Transit #: 09100002
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
C100
SCHEDULE RC - BALANCE SHEET
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A): RCON
a. Non-interest-bearing balances and currency and coin (1)____________________________________________ 0081 $32,050
b. Interest-bearing balances (2)______________________________________________________________________ 0071 0
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)_________________________________________ 1754 0
b. Available-for-sale securities (from Schedule RC-B, column D)_______________________________________ 1773 1,500
3. Federal funds sold (4) and securities purchased under agreements to resell_____________________________ 1350 0
4. Loans and lease financing receivables: RCON
a. Loans and leases, net of unearned income (from Schedule RC-C)________________ 2122 $0
b. LESS: Allowance for loan and lease losses____________________________________ 3123 0
c. LESS: Allocated transfer risk reserve________________________________________ 3128 0
d. Loans and leases, net of unearned income, allowance, and RCON
reserve (item 4.a minus 4.b and 4.c)_____________________________________________________________ 2125 0
5. Trading assets_________________________________________________________________________________________ 3545 0
6. Premises and fixed assets (including capitalized leases)_______________________________________________ 2145 0
7. Other real estate owned (from Schedule RC-M)___________________________________________________________ 2150 0
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M)_______________ 2130 0
9. Customers' liability to this bank on acceptances outstanding___________________________________________ 2155 0
10. Intangible assets (from Schedule RC-M)_________________________________________________________________ 2143 21,740
11. Other assets (from Schedule RC-F)______________________________________________________________________ 2160 249
12. Total assets (sum of items 1 through 11)_______________________________________________________________ 2170 $55,539
</TABLE>
- -------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 22
<TABLE>
<S> <C> <C> <C>
U.S. BANK TRUST NATIONAL ASSOCIATION Call Date: 3/31/99 State #: 000000 FFIEC: 034
3384 PEACHTREE ROAD Vendor ID: D Cert. #: 35225 Page: RC-2
ATLANTA, GA 30326 Transit #: 09100002
</TABLE>
SCHEDULE RC - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E) 2200 $0
RCON
(1) Non-interest-bearing (1)_____________________________________________________ 6631 $0
(2) Interest-bearing_____________________________________________________________ 6636 0
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(1) Non-interest-bearing_________________________________________________________ 6631 0
(2) Interest-bearing_____________________________________________________________ 6636 0
14. Federal funds purchased and securities sold under agreements to repurchase___________ 2800 0
15. a. Demand notes issued to the U.S. Treasury___________________________________________________________ 2840 0
b. Trading liabilities________________________________________________________________________________ 3548 0
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases):
a. With a remaining maturity of one year or less______________________________________________________ 2332 0
b. With a remaining maturity of more than one year through three years_________________________________ A547 0
c. With a remaining maturity of more than three years__________________________________________________ A548 0
17. Not applicable
18. Bank's liability on acceptances executed and outstanding_______________________________________________ 2920 0
19. Subordinated notes and debentures (3)__________________________________________________________________ 3200 0
20. Other liabilities (from Schedule RC-G)_________________________________________________________________ 2930 567
21. Total liabilities (sum of items 13 through 20)_________________________________________________________ 2948 $567
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus__________________________________________________________ 3838 $0
24. Common stock___________________________________________________________________________________________ 3230 1,000
25. Surplus (exclude all surplus related to preferred stock)_______________________________________________ 3839 54,000
26. a. Undivided profits and capital reserves_____________________________________________________________ 3632 (28)
b. Net unrealized holding gains (losses) on available-for-sale securities_____________________________ 8434 0
c. Accumulated net gains (losses) on cash flow hedges ________________________________________________ 4,336
27. Cumulative foreign currency translation adjustments____________________________________________________
28. Total equity capital (sum of items 23 through 27)______________________________________________________ 3210 $54,972
29. Total liabilities and equity capital (sum of items 21 and 28)__________________________________________ 3300 $55,539
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1998____________________________________________________________________ 6724 2
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm
which submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------
(1) Includes total demand deposits and non-interest-bearing time and savings
deposits.
(2) Report "term federal funds purchased" in Schedule RC, item 16, "Other
borrowed money."
(3) Includes limited-life preferred stock and related surplus.
