Registration No.___________
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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) [_]
FIRST TRUST NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
Not Applicable 91-1587893
(Jurisdiction of incorporation or organization (I.R.S. employer
if not a U.S. national bank) identification number)
601 Union Street 98101
Suite 2120 (Zip Code)
Seattle, WA 98101
(Address of principal executive offices)
Not Applicable
(Name, address and telephone number of agent for service)
----------------------
MUZAK LIMITED PARTNERSHIP
MUZAK CAPITAL CORPORATION
(Exact name of obligors as specified in their charters)
Delaware Delaware
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization incorporation or organization
of Muzak Limited Partnership) of Muzak Capital Corporation)
13-3647593 91-1722302
(I.R.S. Employer Identification (I.R.S. Employer Identification
Number of Muzak Limited Partnership) Number of Muzak Capital Corporation)
2901 Third Avenue
Suite 400
Seattle, Washington
(206) 633-3000
(Address and telephone number of
principal executive offices)
98121
(Zip Code)
__% Senior Notes Due ____
(Title of the indenture securities)
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GENERAL
Item 1. General Information.
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Furnish the following information as to the trustee --
(a) Name and address of each examining or supervising authority to which it is
subject.
Comptroller of the Currency, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligors.
--------------------------
If any obligor is an affiliate of the trustee, describe each such affiliation.
None. (See Note 1 on page 8.)
Item 3. Voting Securities of the Trustee.
--------------------------------
Furnish the following information as to each class of voting securities of the
trustee:
As of September 25, 1996
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Col. A Col. B
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Title of Class Amount outstanding
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Common Stock 10,000 Shares
2
Item 4. Trusteeships under Other Indentures.
-----------------------------------
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of any obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other indenture.
None
(b) A brief statement of the facts relied upon as a basis for the claim that no
conflicting interest within the meaning of Section 310(b)(1) of the Act
arises as a result of the trusteeship under any such other indenture,
including a statement as to how the indenture securities will rank as
compared with the securities under such other indenture.
Not Applicable.
Item 5. Interlocking Directorates and Similar Relationships with the Obligors
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or Underwriters.
---------------
If the trustee or any of the directors or executive officers of the trustee is a
director, officer, partner, employee, appointee, or representative of any
obligor or of any underwriter for any obligor, identify each such person having
any such connection and state the nature of each such connection.
None. (See Note 1 on page 8.)
Item 6. Voting Securities of the Trustee Owned by the Obligors or their
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Officials.
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Furnish the following information as to the voting securities of the trustee
owned beneficially by the obligors and each director, partner and executive
officer of the obligors:
As of September 25, 1996
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Col. A Col. B Col. C Col. D
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Percentage of voting
securities represented
Amount owned by amount given
Name of owner Title of Class beneficially in Col. C.
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None.
3
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
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Officials.
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Furnish the following information as to the voting securities of the trustee
owned beneficially by each underwriter for the obligors and each director,
partner and executive officer of each such underwriter.
As of September 25, 1996
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Col. A Col. B Col. C Col. D
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Percentage of voting
securities represented
Amount owned by amount given
Name of owner Title of Class beneficially in Col. C.
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None.
Item 8. Securities of the Obligors Owned or Held by the Trustee.
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Furnish the following information as to securities of the obligors owned
beneficially or held as collateral security for obligations in default by the
trustee:
As of September 25, 1996
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Col. A Col. B Col. C Col. D
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Amount owned bene-
Whether the ficially or held as
securities collateral Amount of Class
are voting or security for represented by
nonvoting obligations in amount given in
Title of Class securities default Col. C.
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None. (See Note 1 on Page 8.)
4
Item 9. Securities of Underwriters Owned or Held by the Trustee.
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If the trustee owns beneficially or holds as collateral security for obligations
in default any securities of an underwriter for the obligors, furnish the
following information as to each class of securities of such underwriter any of
which are so owned or held by the trustee:
As of September 25, 1996
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Col. A Col. B Col. C Col. D
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Amount owned bene-
ficially or held Percentage of class
as collateral security represented by
Name of issuer and Amount for obligations amount given
title of class outstanding in default by trustee in Col. C.
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None. (See Note 1 on Page 8.)
Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain
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Affiliates or Security Holders of the Obligors.
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If the trustee owns beneficially or holds as collateral security for obligations
in default voting securities of a person who, to the knowledge of the Trustee
(1) owns 10 percent or more of the voting securities of any obligor or (2) is an
affiliate, other than a subsidiary, of any obligor, furnish the following
information as to the voting securities of such person.
As of September 25, 1996
================================================================================
Col. A Col. B Col. C Col. D
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Amount owned bene-
ficially or held Percentage of class
as collateral security represented by
Name of issuer and Amount for obligations in amount given
title of class outstanding default by trustee in Col. C.
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None.
5
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
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Owning 50 Percent or More of the Voting Securities of the Obligors.
------------------------------------------------------------------
If the trustee owns beneficially or holds as collateral security for obligations
in default any securities of a person who, to the knowledge of the trustee, owns
50 percent or more of the voting securities of any obligor, furnish the
following information as to each class of securities of such person any of which
are so owned or held by the trustee.
As of September 25, 1996
================================================================================
Col. A Col. B Col. C Col. D
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Amount owned bene-
ficially or held Percentage of class
as collateral security represented by
Name of issuer and Amount for obligations in amount given
title of class outstanding default by trustee in Col. C.
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None. (See Note 1 on Page 8.)
Item 12. Indebtedness of the Obligors to the Trustee.
-------------------------------------------
Except as noted in the instructions, if any obligor is indebted to the trustee,
furnish the following information:
As of September 25, 1996
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Col. A Col. B Col. C
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Nature of Indebtedness Amount Outstanding Date Due
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None. (See Note 1 on Page 8.)
6
Item 13. Defaults by the Obligors.
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(a) State whether there is or has been a default with respect to the securities
under this indenture. Explain the nature of any such default.
There has not been any such default.
(b) If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of any obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there
has been a default under any such indenture or series, identify the
indenture or series affected, and explain the nature of any such default.
Not applicable.
Item 14. Affiliations with the Underwriters.
----------------------------------
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
None. (See Note 1 on Page 8.)
Item 15. Foreign Trustee.
---------------
Identify the order or rule pursuant to which the foreign trustee is authorized
to act as sole trustee under indentures qualified or to be qualified under the
Act.
Not applicable.
7
Item 16. List of Exhibits.
----------------
List below all exhibits filed as part of this statement of eligibility.
Exhibit
Number
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1. A copy of the articles of association of the trustee, as now in
effect.
2. A copy of the certificate of authority of the trustee to commence
business.
3. A copy of the authorization of the trustee to exercise corporate
trust powers.
4. A copy of the bylaws of the trustee, as now in effect.
5. Not applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the report of condition of the trustee as of the close of
business on June 30, 1996 published pursuant to the requirements of
the Comptroller of the Currency.
8. Not applicable.
9. Not applicable.
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Note 1. At the date hereof, it is anticipated that Donaldson, Lufkin & Jenrette
Securities Corporation and Lazard Freres & Co. LLC will be the only
underwriters of the securities proposed to be offered and the Trustee
has been advised of the names of all underwriters of securities of the
obligors in the past year. Since this Form T-1 is filed prior to
ascertainment by the Trustee of all facts upon which to base responsive
answers to Item 2, 5, 7, 8, 9, 10, 11, 12 and 14, the answers to said
Items are based upon incomplete information. Upon ascertainment by the
Trustee of such facts, the answers to such Items will be amended, if
necessary, to reflect any facts which differ from those stated and which
would have been required to be stated if known at the date hereof.
8
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
FIRST TRUST NATIONAL ASSOCIATION, a national banking 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, all in the City of Seattle and State of Washington on
the 25 day of September, 1996.
FIRST TRUST NATIONAL ASSOCIATION
By: /s/ Mary Bator
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Name: Mary Bator
--------------------------
Title: Trust Officer
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9
FIRST 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 "First Trust National
Association."
SECOND. The main office of this Association shall be in the City of
Seattle, County of King and State of Washington. The business of this
Association will be limited of 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 this Association shall consist of not
less than five nor more than twenty-five 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 value of not less than $1,000, or common
or preferred stock of First Bank System, Inc. with an aggregate par, fair
market, or equity value of not less than $1,000, as of either (i) the date of
purchase, (ii) the date the person became a director or (iii) the date of that
person's most recent election to the board of directors, whichever is more
recent. Any combination of common or preferred stock of this Association or
First Bank System, Inc. may be used.
Any vacancy of 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 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
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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.
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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.
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(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,
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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
Seattle 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
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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: (a) Any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than any action
by or in the right of the Association) by reason of the fact that he is or was a
director, officer, employee or agent of the Association, or is or was serving at
the request of the Association as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall be indemnified by the Association, unless similar indemnification is
provided by such other corporation, partnership, joint venture, trust or other
enterprise (any funds received by any person as a result of the provisions of
this Article being deemed an advance against his receipt of any such other
indemnification from any such other corporation, partnership, joint venture,
trust or other enterprise), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interest of the Association, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
---- ----------
equivalent, shall not, of itself, create a presumption that the person seeking
indemnification did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Association, and,
with respect to any criminal
-5-
action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
(b) An person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
Association to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the Association, or
is or was serving at the request of the Association as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other corporation, partnership, joint venture, trust or other enterprise shall
be indemnified by the Association, unless similar indemnification is provided by
such other corporation, partnership, joint venture, trust or other enterprise
(any funds received by any person as a result of the provisions of this Article
being deemed an advance against his receipt of any such other indemnification
from any such other corporation, partnership, joint venture, trust or other
enterprise), against expenses (including attorney's fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Association and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Association
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
of the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
Association has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in paragraphs (a) and (b), or in defense
of any claim, issue or matter therein, such person shall be indemnified by the
Association against expenses (including attorney's fees) actually and reasonably
incurred by such person in connection therewith.
(d) Except as set forth in paragraph (c) of this Article, any
indemnification under paragraphs (a) and (b) of this Article (unless ordered by
the court), shall be made by the Association only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because such person has met the
applicable standard of conduct set forth in paragraphs (a) and (b) of this
Article. Such determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) if there are no such directors, of if such directors
so
-6-
direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses (including attorney's fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Association in advance of the
final disposition of such action, suit or proceeding upon receipt of any
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Association. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
(f) The indemnification and advancement of expenses provided by this
Article shall not be deemed exclusive of any other rights to which those seeking
indemnification or seeking advancement of expenses may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in an official capacity and as to action in another capacity
while holding such office.
(g) By action of the Board of Directors, notwithstanding any interest of
the directors in the action, the Association may purchase and maintain
insurance, in such amounts as the Board of Directors deems appropriate, on
behalf of any person who is or was a director, officer, employee or agent of the
Association, or is or was serving at the request of the Association as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Association shall have the power to indemnify him against
such liability under the provisions of this Article.
(h) For purpose of this Article, references to "the Association" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or agents, so that any
person who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
this Article with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued.
-7-
(i) For purposes of this Article, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the Association" shall
include any service as a director, officer, employee or agent of the
Association which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
Association" as referred to in this Article.
(j) The indemnification and advancement of expenses hereby provided
shall, unless otherwise provided when authorized or ratified, continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of
such person.
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.
-8-
IN WITNESS WHEREOF, we have hereunto set our hands as of the 28th day of
June, 1996, effective as of the acceptance thereof by the Comptroller of the
Currency.
/s/ Peter E. Raskind /s/ Lawrence J. Bell
- ------------------------- -------------------------
Peter E. Raskind Lawrence J. Bell
/s/ Terry L. McRoberts /s/ Dyan M. Huhta
- ------------------------- -------------------------
Terry L. McRoberts Dyan M. Huhta
/s/ Dennis M. Egan /s/ Nancy D. Stahl
- ------------------------- -------------------------
Dennis M. Egan Nancy D. Stahl
/s/ Diana Woodard
-------------------------
Diana Woodard
-9-
Comptroller of the Currency
TREASURY DEPARTMENT [CLIP ART] OF THE UNITED STATES
Washington, D.C.
Whereas, satisfactory evidence has been presented to the Comptroller of the
Currency that FIRST TRUST WASHINGTON
located in SEATTLE State of WASHINGTON 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 under the title "FIRST TRUST NATIONAL ASSOCIATION"
effective July 15, 1996
In testimony whereof, witness my signature and
seal of office this 15th day of July 1996
/s/ Robert R. Klinzing
Charter No. 23133 Robert R. Klinzing
Deputy Comptroller of the Currency
Midwestern District
Comptroller of the Currency
Administrator of National Banks
Midwestern District Office
2345 Grand Blvd., Suite 700
Kansas City, Missouri 64108-2625
TRUST PERMIT
WHEREAS, First Trust National Association, located in Seattle, Washington, being
a national banking association, organized under the statutes of the United
States, has made application for authority to act as fiduciary;
AND WHEREAS, applicable provisions of the statutes of the United States
authorize the grant of such authority;
NOW THEREFORE, I hereby certify that the said association is authorized to act
in all fiduciary capacities permitted by such statutes, effective July 15, 1996.
IN TESTIMONY WHEREOF, witness my
signature and seal of the OCC on July 15, 1996
[SIGNATURE APPEARS HERE]
-------------------------------------------
Robert R. Klinzing
Deputy Comptroller
Midwestern District Office
Charter No. 23133
AMENDED BYLAWS
OF
FIRST TRUST NATIONAL ASSOCIATION
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 specifically provided
----------------
by law, special meetings of 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
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 of 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.
August 20, 1996
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 II
----------
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.
-2-
August 20, 1996
38
Section 3.2 Audit Committee. The board shall appoint an Audit Committee
---------------
which shall consist of at least two Directors. 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 by the board 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 judgement 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.
-3-
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, documents 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 the 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.
-4-
August 20, 1996
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 and records of the
Association properly endorsed.
ARTICLE VI
----------
Corporate Seal
--------------
Section 6.1. The Chairman, the President, the Secretary, any Assistant
Secretary or other officer designated by the board, the Chairman, or the
President, shall have authority to affix the corporate seal to any document
requiring such seal, and to attest the same. Such seal shall be substantially in
the following form:
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 an 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 provisions of the Articles of Association or Bylaws.
-5-
August 20,1996
Section 7.2 Records. The Articles of Association, the Bylaws, and the
-------
proceedings of all meetings of the shareholders, the board, the standing
committees of the board, shall be recorded in appropriate minute books provided
for the purpose. The minutes of 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 direction 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.
-6-
August 20, 1996
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.
-7-
August 20, 1996
Exhibit 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939 in connection with the proposed issuance by Muzak Limited Partnership and
Muzak Capital Corporation of Senior Notes, we hereby consent that reports of
examinations by federal, state, territorial and district authorities may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
FIRST TRUST NATIONAL ASSOCIATION
By /s/ Mary Bator
------------------------------
Dated: September 25, 1996
------------------
TRUST COMPANY
STATEMENT OF CONDITION
Statement of Condition of First Trust Washington in the State of Washington,
King County, as of the quarter ending June 30, 1996
-------------
================================================================================
ASSETS DOLLAR AMOUNTS IN THOUSANDS
- --------------------------------------------------------------------------------
1. Cash and Due From Banks........................... 79,306
----------------------
2. U.S. Treasury Obligations......................... 0
----------------------
3. Obligations of U.S. Gov't Agencies................ 0
----------------------
4. Obligations of States & political subdiv.......... 0
----------------------
5. Other securities.................................. 0
(Includes $______ corporate stock) ----------------------
6. (a) Loans......................................... 0
----------------------
(b) Less: Reserve for possible Loan Losses........ 0
----------------------
(c) Net Loans..................................... 0
----------------------
7. Fixed Assets...................................... 154
----------------------
8. Other real estate owned........................... 0
----------------------
9. Other Assets...................................... 26,665
----------------------
10. TOTAL ASSETS...................................... 106,128
----------------------
LIABILITIES
11. Total deposits.................................... 0
----------------------
12. Liabilities for borrowed money.................... 0
----------------------
13. Mortgaged indebted................................ 0
----------------------
14. Other Liabilities................................. 3,539
----------------------
15. TOTAL LIABILITIES................................. 3,539
----------------------
SHAREHOLDER EQUITY
16. Capital........................................... 100
----------------------
17. Surplus........................................... 104,468
----------------------
18. Undivided profits................................. -1,981
----------------------
19. Reserves.......................................... 0
----------------------
20. TOTAL CAPITAL ACCOUNTS............................ 102,587
----------------------
21. TOTAL LIABILITIES AND CAPITAL ACCOUNTS............ 106,126
----------------------
- --------------------------------------------------------------------------------
I, Merita D. Schollmeier, Assistant Secretary (Official Title) of the above
named trust company do solemnly swear that the above statement is true and that
this Report of Condition (including the Trust Supplemental Information Report)
is true to the best of my knowledge and belief.
/s/ Merita D. Schollmeier
-----------------------------------------
Correct-Attest: /s/ [SIGNATURE APPEARS HERE] (Director)
------------------------------
/s/ [SIGNATURE APPEARS HERE] (Director)
------------------------------
/s/ [SIGNATURE APPEARS HERE] (Director)
------------------------------
STATE OF MINNESOTA, County of Hennepin
-----------------------
Sworn to and subscribed before me this 26 day of July, 1996.
-- ---- ----
/s/ Lynn Willemsen
---------------------------------------------------------------
Notary Public in and for the State of MN
-----------------,
residing at Hennepin
------------------------------
[AFFIX NOTARY SEAL ------------------------------------------
HERE APPEARS HERE] [SEAL OF LYNN M. WILLEMSEN
NOTARY NOTARY PUBLIC - MINNESOTA
PUBLIC MY COMMISSION EXPIRES
APPEARS JANUARY 31, 2000
HERE]
------------------------------------------
TRUST - SUPPLEMENTAL INFORMATION REPORT
(Round Dollar Amounts to Nearest Thousands - 000)
OF First Trust Washington AS OF June 30, 1996
-------------------------------------------- -----------------------
PROFIT AND LOSS FROM FIDUCIARY ACTIVITIES
All Report of Income schedules are to be reported on a
calendar year to date basis.
QUARTER ENDED: June 30, 1996
-----------------------
INCOME RELATED TO FIDUCIARY ACTIVITIES:
Trust Fee Income.............................$ 2032
-----------------------
Investment Income............................. 0
-----------------------
All other income.............................. 370
-----------------------
Total Fiduciary Income....... 2402
-----------------------
EXPENSES RELATED TO FIDUCIARY ACTIVITIES:
Salaries & Employee Benefits.................. 1248
-----------------------
Occupancy Expense............................. 135
-----------------------
Interest Expense.............................. 0
-----------------------
Legal Expense................................. 0
-----------------------
All Other Expense............................. 4555
-----------------------
Provision for Trust Loss...................... 0
-----------------------
Total Fiduciary Expense....... 5935
-----------------------
NET PROFIT BEFORE TAXES............................ (3536)
-----------------------
Tax Provision................................. 1237
-----------------------
NET PROFIT......................................... (2299)
-----------------------
- -----------------------------------------------------------------------------
Note: Signed supporting schedules may be attached where additional space is
necessary. Indicate if market/cost:
---------------------
0 Total number of discretionary accounts.
- --------------------
0 Dollar amount of assets of discretionary accounts.
- --------------------
0 Total number of nondiscretionary accounts.
- --------------------
0 Dollar amount of assets of nondiscretionary accounts.
- --------------------
0 Number of accounts with pending litigation.
- --------------------Amount: 0
--------------------
Yes Does the trust company Blanket Bond coverage?
- --------------------Amount: 75,000,000.00
--------------------
Yes Does the trust department have Errors and Omissions
- --------------------coverage?
Amount: 20,000,000.00
--------------------
No Is there a guarantee by a parent or affiliate to maintain
- --------------------capital of the company?
Amount of Guarantee: 0
--------------------
* $ 625,442,377.00 Corporate trusts administered, if applicable.
- --------------------
* $ 524,673,370.00 Paying and escrow agencies.
- --------------------
Report any personnel changes in trust officers or administrators since the last
quarterly report:
None
- --------------------
*These accounts are held by First Bank National Association, Minneapolis,
Minnesota, an affiliate. The type of accounts include Corporate Trust and Paying
Agency accounts of municipalities and corporations. First Trust Washington
functions as a service provider pursuant to agreement for First Bank National
Association, Minneapolis, Minnesota, in administering these accounts.
ANNUAL STATEMENT OF THE TRUST DEPARTMENT/COMPANY
Of First Trust Washington, at Seattle, in the State of Washington, King County,
at the close of business June 30, 1996 , Capital of Bank/Trust
Company $___0___.
================================================================================
FIDUCIARY STATEMENT
- --------------------------------------------------------------------------------
ASSETS DOLLAR AMOUNTS IN THOUSANDS
- --------------------------------------------------------------------------------
1. Cash................................................ 0
----------------------
2. Investments:
(a) Bonds....................................... 0
----------------------
(b) Stocks...................................... 0
----------------------
(c) Real Estate Loans........................... 0
----------------------
(d) Other Loans................................. 0
----------------------
(e) Real Estate................................. 0
----------------------
(f) Miscellaneous............................... 0
----------------------
3. Time Deposits:
(a) Own Bank.................................... 0
----------------------
(b) Other Banks................................. 0
----------------------
4. Demand Deposits:
(a) Own Bank.................................... 0
----------------------
(b) Other Banks................................. 21,600
----------------------
5. Corporate Investments............................... 4,947,984
----------------------
6. Agency, Safekeeping, Custodian, & Escrow Invest..... 5,566,732
----------------------
7. Advances to trust or overdrafts..................... 0
----------------------
8. Other real estate owned............................. 0
----------------------
9. TOTAL ASSETS........................................ 10,536,216
----------------------
LIABILITIES
10. Fiduciary Accounts:
(a) Court Trusts................................ 0
----------------------
(b) Personal Living Trusts...................... 0
----------------------
(c) Employee Benefit Trusts..................... 0
----------------------
(d) Collective Investment Funds................. 0
----------------------
(e) Less Units of Collective Investment Funds... 0
----------------------
(f) Total Fiduciary accounts--Net total of above
(a) through (e)............................. 0
----------------------
11. Corporate Accounts.................................. 4,956,954
----------------------
12. Agency, Safekeeping, Custodian, & Escrow............ 5,579,262
----------------------
13. Due to Commercial Dept. or Bank Advances............ 0
----------------------
14. TOTAL LIABILITIES................................... 10,536,216
----------------------
- --------------------------------------------------------------------------------
I, Merita D. Schollmeier, Assistant Secretary (Official Title) of the above
named bank or trust company do solemnly swear that the above statement is true
and that the schedules and answers attached hereto fully and correctly represent
the true state of the several matters therein contained to the best of my
knowledge and belief.
/s/ Merita D. Schollmeier
----------------------------------------
Correct--Attest: [SIGNATURE APPEARS HERE] (Director)
----------------------------
[SIGNATURE APPEARS HERE] (Director)
----------------------------
[SIGNATURE APPEARS HERE] (Director)
----------------------------
STATE OF Minnesota County of Hennepin
Sworn to and subscribed before me this 26th of July, 1996.
---- ---- --
/s/ Lynn Willemsen
----------------------------------------
Notary Public in and for the State of MN
--
residing at Hennepin
----------------------------
[SEAL OF NOTARY Lynn M. Willemsen
PUBLIC APPEARS HERE] Notary Public - Minnesota
My Commission Expires
January 31, 2000
First Trust Washington
--------------------------------
(Name of Trust Company)
CERTIFICATE OF ORIGINAL REPORT OF CONDITION
June 30, 1996
Due Date: July 30, 1996
-------------
The undersigned hereby certify that the enclosed two (2) duplicate Reports of
Condition are true and complete copies of the original Report of condition as
of June 30, 1996 and that such report has been prepared in
conformance with the official instructions and is true to the best of our
knowledge and belief.
As required by RCW 30.08.092, the number of authorized shares issued shares of
the trust company as of the reporting date are:
Authorized Shares 1,000
--------------
Issued Shares 1,000
--------------
/s/Signature appears here
--------------------------
President or Manager or Cashier
[SEAL OF LYNN M. WILLEMSEN /s/Signature appears here
NOTARY PUBLIC-MINNESOTA --------------------------
APPEARS HERE] Director
/s/Signature appears here
--------------------------
Assistant Secretary
State of Minnesota
County of Hennepin
--------
Sworn to and described before
me this 26 day of July, 1996
-- ---- --
and I hereby certify that I am
not an officer or director of
this bank.
/s/Lynn Willemsen
-----------------------
Notary Public
My appointment expires: 1-31-00
-------