Exhibit 25
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of
a Trustee Pursuant to Section 305(b)(2)___
_______________________________________________________
U.S. BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
601 Second Avenue South
Minneapolis, MN 55402
(Address of principal executive offices) (Zip Code)
Richard H Prokosch
U.S. Bank National Association
180 East Fifth Street
St. Paul, MN 55101
(Name, address and telephone number of agent for service)
TERRA CAPITAL, INC.
(Exact name of Registrant as specified in its charter)
Delaware 42-1431650
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Terra Centre
600 Fourth Street, P.O. Box 600
Sioux City, IA 51102
(Address of Principal Executive Offices) (Zip Code)
12.875% Senior Secured Notes due 2008
(Title of the Indenture Securities)
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FORM T-1
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Item 1. GENERAL INFORMATION. Furnish the following information as to the
Trustee.
a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency
Washington, D.C.
b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the \
Trustee, describe each such affiliation.
None
Items 3-15 Items 3-15 are not applicable because to the best of the
Trustee's knowledge the obligor is not in default under any
Indenture for which the Trustee acts as Trustee.
Item 16. LIST OF EXHIBITS: List below all exhibits filed as a part of this
statement of eligibility and qualification.
1. A copy of the Articles of Association of the Trustee now in
effect, attached as Exhibit 1.
2. A copy of the certificate of authority of the Trustee to commence
business, attached as Exhibit 2.
3. A copy of the certificate of authority of the Trustee to exercise
corporate trust powers, attached as Exhibit 3.
4. A copy of the existing bylaws of the Trustee, as now in effect,
attached as Exhibit 4.
5. A 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, attached as Exhibit 6.
7. Report of Condition of the Trustee as of June 30, 2001, published
pursuant to law or the requirements of its supervising or
examining authority, attached as Exhibit 7.
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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
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.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America, 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 St.
Paul, State of Minnesota on the 13th day of November, 2001.
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Richard H Prokosch
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Richard H Prokosch
Vice President
By: /s/ Julie Eddington
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Julie Eddington
Assistant Vice President
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Exhibit 1
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U.S. BANK NATIONAL ASSOCIATION
(FORMERLY NAMED FIRSTAR BANK, NATIONAL ASSOCIATION)
CHARTER NO. 24
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
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These Amended and Restated Articles of Association supersede the Articles
of Association of Firstar Bank, National Association, being renamed U.S. Bank
National Association (the "Association"), heretofore in effect.
FIRST: The title of the Association shall be "U.S. Bank National
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Association."
SECOND: The main office of the Association shall be in the City of
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Cincinnati, County of Hamilton, State of Ohio. The general business of the
Association shall be conducted at its main office and its branches.
THIRD: The Board of Directors of the Association shall consist of not less
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than five (5) nor more than twenty-five (25) shareholders, the exact number of
Directors within such minimum and maximum limits to be fixed and determined from
time to time by resolution of a majority of the full Board of Directors or by
resolution of the shareholders at any annual or special meeting thereof. Unless
otherwise provided by the laws of the United States, any vacancy in the Board of
Directors for any reason, including an increase in the number thereof, may be
filled by action of the Board of Directors.
FOURTH: The annual meeting of the shareholders for the election of
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Directors and the transaction of whatever other business may be brought before
said meeting shall be held at the main office or such other place as the Board
of Directors may designate, on the day of each year specified thereof by the
Bylaws, but if no election is held on that day, it may be held on any subsequent
day according to the provisions of law; and all elections shall be held
according to the provisions of law; and all elections shall be held according to
such lawful regulations as may be prescribed by the Board of Directors.
FIFTH: The aggregate number of shares of common stock that the Association
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has authority to issue is 3,640,000, all of which are of one class only, each
such share having a par value of $5.00 (the "Common Stock"). The Association
shall also have authority to issue 2,411,935 shares of preferred stock, without
par value (the "Preferred Stock").
No holder of shares of the capital stock of any class of the Association
shall have any pre-emptive or preferential right of subscription to any shares
of any class of stock of the Association, whether now or hereafter authorized,
or to any obligations convertible into stock of the 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.
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The Association, at any time and from time to time, may authorize and issue
debt obligations, whether or not subordinated, without the approval of the
shareholders.
Section 5.01. Series A Preferred Stock. Pursuant to the provisions of this
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Article Fifth, a series of Series A Non-Cumulative Preferred Stock, consisting
of one hundred sixty-seven thousand (167,000) shares, is hereby established and
authorized to be issued, and in addition to such matters specified elsewhere in
this Article Fifth, such Series A Non-Cumulative Preferred Stock shall have the
following powers, preferences and relative, participating, optional or other
special rights and qualifications, limitations or restrictions:
(a) Designation and Amount. The shares of Preferred Stock shall be
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designated as the Series A Non-Cumulative Preferred Stock (the "Series A
Preferred Stock"), and the number of shares constituting the Series A Preferred
Stock shall be one hundred sixty-seven thousand (167,000). The liquidation
preference of the Series A Preferred Stock shall be $1,000 per share (the
"Series A Liquidation Value").
(b) Rank. The Series A Preferred Stock shall, with respect to dividend
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rights and upon liquidation, dissolution and winding up of the Association, rank
(i) senior to all classes and series of Common Stock of the Association and to
all classes and series of capital stock of the Association now or hereafter
authorized, issued or outstanding, which by their terms expressly provide that
they are junior to the Series A Preferred Stock as to dividend distributions and
distributions upon the liquidation, dissolution or winding up of the
Association, or which do not specify their rank (collectively with the Common
Stock, the "Series A Junior Securities"); (ii) on a parity with the Series B
Preferred Stock and the Series C Preferred Stock and each other class of capital
stock or series of preferred stock issued by the Association after the date
hereof, the terms of which specifically provide that such class or series will
rank on a parity with the Series A Preferred Stock as to dividend distributions
and distributions upon the liquidation, dissolution or winding up of the
Association (collectively with the Series B Preferred Stock and the Series C
Preferred Stock, the "Series A Parity Securities"); and (iii) junior to each
other class of capital stock or series of preferred stock issued by the
Association after the date hereof, the terms of which specifically provide that
such class or series will rank senior to the Series A Preferred Stock as to
dividend distributions and distributions upon the liquidation, dissolution or
winding up of the Association (collectively, the "Series A Senior Securities").
(c) Dividends. Dividends are payable on the Series A Preferred Stock as
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follows:
(i) The holders of shares of the Series A Preferred Stock in
preference to the Series A Junior Securities shall be entitled to receive,
out of funds legally available for that purpose, and when, as, and if
declared by the Board of Directors of the Association, dividends payable in
cash at the annual rate of eight percent (8%) of the Series A Liquidation
Value (the "Series A Dividend Rate").
(ii) Dividends on the Series A Preferred Stock shall be
non-cumulative. Dividends not paid on any Series A Dividend Payment Date
shall not accumulate thereafter. Dividends shall accumulate from the first
day of any Series A Dividend Period to but excluding the immediately
succeeding Series A Dividend Payment Date. Dividends, if and when declared,
shall be payable in arrears in cash on each Series A Dividend Payment Date
of each year with respect to the Series A Dividend Period ending
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on the day immediately prior to such Series A Dividend Payment Date at
the Series A Dividend Rate to holders of record at the close of
business on the applicable Record Date, commencing on December 31, 2000
with respect to any shares of Series A Preferred Stock issued prior to
that Series A Dividend Payment Date; provided that dividends payable on
the Series A Preferred Stock on the Series A Dividend Payment Date
immediately following the first Series A Dividend Period following the
Issue Date (and any dividend payable for a period less than a full
semiannual period) shall be prorated for the period and computed on the
basis of a 360-day year of twelve 30-day months and the actual number
of days in such Series A Dividend Period; and provided, further, that
dividends payable on the Series A Preferred Stock on the Series A
Dividend Payment Date immediately following the first Series A Dividend
Period following the Issue Date shall include any accumulated and
unpaid dividends on the Realty Company Series B Exchangeable Stock
exchanged for the Series A Preferred Stock as of the Exchange Date for
the then current dividend period. Dividends on such Series A Preferred
Stock shall be paid only in cash.
(iii) No dividends on shares of Series A Preferred Stock shall
be declared by the Board of Directors or paid or set apart for payment
by the Board of Directors or paid or set apart for payment by the
Association if such declaration or payment shall be restricted or
prohibited by law.
(iv) Holders of shares of Series A Preferred Stock shall not
be entitled to any dividends in excess of full dividends declared, as
herein provided, on the shares of Series A Preferred Stock. No
interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment on the shares of Series A Preferred
Stock that may be in arrears.
(v) (A) So long as any shares of Series A Preferred Stock
are outstanding, no dividends (other than dividends or distributions
paid in shares of, or options, warrants or rights to subscribe for or
purchase shares of, Series A Junior Securities and other than as
provided in clause (B) below) shall be declared, paid or set aside for
payment or other distribution upon any Series A Junior Securities or
any other Series A Parity Securities, nor shall any shares of any
Series A Junior Securities or any other Series A Parity Securities be
redeemed, purchased or otherwise acquired for any consideration (or any
moneys be paid to or set aside or made available for a sinking fund for
the redemption of any shares of any such stock) by the Association
(except by conversion into or exchange for shares of, or options,
warrants or rights to subscribe for or purchase, Series A Junior
Securities) unless, in each case, the full dividends on all outstanding
shares of the Series A Preferred Stock shall have been declared and
paid, when due, for the Series A Dividend Period, if any, terminating
on or immediately prior to the date of payment in respect of such
dividend, distribution, redemption, purchase or acquisition.
(B) When dividends for any Series A Dividend Period
are not paid in full, as provided in clause (A) above, on the shares of
the Series A Preferred Stock or any other Series A Parity Securities,
dividends may be declared and paid on any such shares for any dividend
period therefor, but only if such dividends are declared and paid pro
rata so that the amount of dividends declared and paid per share on the
shares of the Series A Preferred Stock and any other Series A Parity
Securities, in all cases shall bear to each other the same ratio that
the amount of unpaid dividends per share on the shares of the
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Series A Preferred Stock for such Series A Dividend Period and such
other Series A Parity Securities for the corresponding dividend period
bear to each other.
(d) Liquidation Preference.
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(i) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Association, the
holders of shares of Series A Preferred Stock then outstanding shall be
entitled to be paid out of the assets of the Association available for
distribution to its shareholders an amount in cash equal to the Series
A Liquidation Value for each share outstanding, plus an amount in cash
equal to all unpaid dividends thereon for the then current Series A
Dividend Period, whether or not earned or declared, before any payment
shall be made or any assets distributed to the holders of Series A
Junior Securities. If the assets of the Association are not sufficient
to pay in full the liquidation payments payable to the holders of
outstanding shares of the Series A Preferred Stock and any Series A
Parity Securities, then the holders of all such shares shall share
ratably in such distribution of assets in accordance with the amount
which would be payable on such distribution if the amounts to which the
holders of outstanding shares of Series A Preferred Stock and the
holders of outstanding shares of such Series A Parity Securities are
entitled were paid in full.
(ii) For the purpose of this Section 5.01(d), neither the
voluntary sale, conveyance, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all
of the property or assets of the Association, nor the consolidation or
merger of the Association, shall be deemed to be a voluntary or
involuntary liquidation, dissolution or winding up of the Association,
unless such voluntary sale, conveyance, exchange or transfer shall be
in connection with a plan of liquidation, dissolution or winding up of
the Association.
(e) Redemption. The Series A Preferred Stock is not redeemable prior
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to December 31, 2021. On or after such date, the Series A Preferred Stock shall
be redeemable, in whole or in part, at the option of the Association, but with
the consent of the Comptroller of the Currency and any other appropriate
regulatory authorities, if required, for cash out of any source of funds legally
available, at a redemption price equal to 100% of the Series A Liquidation Value
per share plus unpaid dividends thereon accumulated since the immediately
preceding Series A Dividend Payment Date (the "Series A Redemption Price"). Any
date of such redemption is referred to as the "Series A Redemption Date." If
fewer than all the outstanding shares of Series A Preferred Stock are to be
redeemed, the Association will select those to be redeemed by lot or pro rata or
by any other method as may be determined by the Board of Directors to be
equitable.
The Series A Preferred Stock is not subject to any sinking fund.
(f) Procedure for Redemption.
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(i) Upon redemption of the Series A Preferred Stock pursuant to
Section 5.01(e) hereof, notice of such redemption (a "Series A Notice
of Redemption") shall be mailed by first-class mail, postage prepaid,
not less than thirty (30) days nor more than sixty (60) days prior to
the Series A Redemption Date to the holders of record of the shares to
be redeemed at their respective addresses as they shall appear in the
records of the Association; provided, however, that failure to give
such notice or any defect therein or in the mailing thereof shall not
affect the validity of the proceeding for the redemption
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of any shares so to be redeemed except as to the holder to whom the
Association has failed to give such notice or except as to the holder
to whom notice was defective. Each such notice shall state: (A) the
Series A Redemption Date; (B) the Series A Redemption Price; (C) the
place or places where certificates for such shares are to be
surrendered for payment of the Series A Redemption Price; and (D) the
CUSIP number of the shares being redeemed.
(ii) If a Series A Notice of Redemption shall have been given
as aforesaid and the Association shall have deposited on or before the
Series A Redemption Date a sum sufficient to redeem the shares of
Series A Preferred Stock as to which a Series A Notice of Redemption
has been given in trust with the Transfer Agent with irrevocable
instructions and authority to pay the Series A Redemption Price to the
holders thereof, or if no such deposit is made, then upon the Series A
Redemption Date (unless the Association shall default in making payment
of the Series A Redemption Price), all rights of the holders thereof as
shareholders of the Association by reason of the ownership of such
shares (except their right to receive the Series A Redemption Price
thereof without interest) shall cease and terminate, and such shares
shall no longer be deemed outstanding for any purpose. The Association
shall be entitled to receive, from time to time, from the Transfer
Agent the interest, if any, earned on such moneys deposited with it,
and the holders of any shares so redeemed shall have no claim to any
such interest. In case the holder of any shares of Series A Preferred
Stock so called for redemption shall not claim the Series A Redemption
Price for its shares within twelve (12) months after the related Series
A Redemption Date, the Transfer Agent shall, upon demand, pay over to
the Association such amount remaining on deposit, and the Transfer
Agent shall thereupon be relieved of all responsibility to the holder
of such shares, and such holder shall look only to the Association for
payment thereof.
(iii) Not later than 1:30 p.m., Eastern Standard Time, on the
Business Day immediately preceding the Series A Redemption Date, the
Association shall irrevocably deposit with the Transfer Agent
sufficient funds for the payment of the Series A Redemption Price for
the shares to be redeemed on the Series A Redemption Date and shall
give the Transfer Agent irrevocable instructions to apply such funds,
and, if applicable and so specified in the instructions, the income and
proceeds therefrom, to the payment of such Series A Redemption Price.
The Association may direct the Transfer Agent to invest any such
available funds, provided that the proceeds of any such investment will
be available to the Transfer Agent in Milwaukee, Wisconsin at the
opening of business on such Series A Redemption Date.
(iv) Except as otherwise expressly set forth in this Section
5.01(f), nothing contained in these Amended and Restated Articles of
Association shall limit any legal right of the Association to purchase
or otherwise acquire any shares of Series A Preferred Stock at any
price, whether higher or lower than the Series A Redemption Price, in
private negotiated transactions, the over-the-counter market or
otherwise.
(v) If the Association shall not have funds legally
available for the redemption of all of the shares of Series A Preferred
Stock on any Series A Redemption Date, the Association shall redeem on
the Series A Redemption Date only the number of shares of Series A
Preferred Stock as it shall have legally available funds to redeem, as
determined in an equitable manner, and the remainder of the shares of
Series A Preferred Stock shall be redeemed, at the option of the
Association, on the earliest practicable date next
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following the day on which the Association shall first have funds
legally available for the redemption of such shares.
(g) Reacquired Shares. Shares of the Series A Preferred Stock that
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have been redeemed, purchased or otherwise acquired by the Association are not
subject to reissuance or resale as shares of Series A Preferred Stock and shall
be held in treasury. Such shares shall revert to the status of authorized but
unissued shares of preferred stock, undesignated as to series, until the Board
of Directors of the Association shall designate them again for issuance as part
of a series.
(h) Voting Rights. Except as otherwise required by applicable law,
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the holders of Series A Preferred Stock shall not have any voting rights.
SECTION 5.02. SERIES B PREFERRED STOCK. PURSUANT TO THE PROVISIONS OF
THIS ARTICLE FIFTH, A SERIES OF SERIES B NON-CUMULATIVE PREFERRED STOCK,
CONSISTING OF ONE MILLION FOUR HUNDRED NINETY-FOUR THOUSAND NINE HUNDRED
THIRTY-FIVE (1,494,935) SHARES, IS HEREBY ESTABLISHED AND AUTHORIZED TO BE
ISSUED, AND IN ADDITION TO SUCH MATTERS SPECIFIED ELSEWHERE IN THIS ARTICLE
FIFTH, SUCH SERIES B NON-CUMULATIVE PREFERRED STOCK SHALL HAVE THE FOLLOWING
POWERS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL
RIGHTS AND QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS:
(a) Designation and Amount. The shares of Preferred Stock shall be
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designated as the Series B Non-Cumulative Preferred Stock (the "Series B
Preferred Stock"), and the number of shares constituting the Series B Preferred
Stock shall be one million four hundred ninety-four thousand nine hundred
thirty-five (1,494,935). The liquidation preference of the Series B Preferred
Stock shall be $1,000 per share (the "Series B Liquidation Value").
(b) Rank. The Series B Preferred Stock shall, with respect to
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dividend rights and upon liquidation, dissolution and winding up of the
Association, rank (i) senior to all classes and series of Common Stock of the
Association and to all classes and series of capital stock of the Association
now or hereafter authorized, issued or outstanding, which by their terms
expressly provide that they are junior to the Series B Preferred Stock as to
dividend distributions and distributions upon the liquidation, dissolution or
winding up of the Association, or which do not specify their rank (collectively
with the Common Stock, the "Series B Junior Securities"); (ii) on a parity with
the Series A Preferred Stock and the Series C Preferred Stock and each other
class of capital stock or series of preferred stock issued by the Association
after the date hereof, the terms of which specifically provide that such class
or series will rank on a parity with the Series B Preferred Stock as to dividend
distributions and distributions upon the liquidation, dissolution or winding up
of the Association (collectively with the Series A Preferred Stock and the
Series C Preferred Stock, the "Series B Parity Securities"); and (iii) junior to
each other class of capital stock or series of preferred stock issued by the
Association after the date hereof, the terms of which specifically provide that
such class or series will rank senior to the Series B Preferred Stock as to
dividend distributions and distributions upon the liquidation, dissolution or
winding up of the Association (collectively, the "Series B Senior Securities").
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(c) Dividends. Dividends are payable on the Series B Preferred Stock
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as follows:
(i) The holders of the Series B Preferred Stock in
preference to the Series B Junior Securities shall be entitled to
receive, out of funds legally available for that purpose, and
when, as, and if declared by the Board of Directors of the
Association, dividends payable in cash at the applicable annual
rate set forth in this Section 5.02(c)(i) below of the Series B
Liquidation Value (the "Series B Dividend Rate"):
(1) With respect to dividends payable on each Series
B Dividend Payment Date occurring from the Issue Date
through December 31, 2005, the Series B Dividend Rate shall
be eight and seven-eighths percent (8.875%); and
(2) Thereafter, dividends shall accrue at a variable
rate per annum equal to the 5-year CMT Rate plus two percent
(2%). On December 31, 2005, and on December 31 every five
(5) years thereafter, the previous dividend rate shall be
replaced by the then-current 5-year CMT Rate plus two
percent (2%). The 5-year CMT Rate for each 5-year period
shall be determined by the Calculation Agent on the second
Business Day immediately preceding the first day of such
period (each a "CMT Determination Date").
(ii) Dividends on the Series B Preferred Stock shall be
non-cumulative. Dividends not paid on any Series B Dividend Payment
Date shall not accumulate thereafter. Dividends shall accumulate from
the first day of any Series A Dividend Period to but excluding the
immediately succeeding Series A Dividend Payment Date. Dividends, if
and when declared, shall be payable in arrears in cash on each Series B
Dividend Payment Date of each year with respect to the Series B
Dividend Period ending on the day immediately prior to such Series B
Dividend Payment Date at the Series B Dividend Rate per share to
holders of record at the close of business on the applicable Record
Date, commencing on the Exchange Date with respect to any shares of
Series B Preferred Stock issued prior to that Series B Dividend Payment
Date; provided that dividends payable on the Series B Preferred Stock
on the Series B Dividend Payment Date immediately following the first
Series B Dividend Period following the Issue Date (and any dividend
payable for a period less than a full quarterly period) shall be
prorated for the period and computed on the basis of a 360-day year of
twelve 30-day months and the actual number of days in such Series B
Dividend Period; and provided, further, that dividends payable on the
Series B Preferred Stock on the Series B Dividend Payment Date
immediately following the first Series B Dividend Period following the
Issue Date shall include any accumulated and unpaid dividends on the
Realty Company Series C Exchangeable Stock exchanged for the Series B
Preferred Stock as of the Exchange Date for the then current dividend
period. Dividends on such Series B Preferred Stock shall be paid only
in cash.
(iii) No dividends on shares of Series B Preferred Stock shall be
declared by the Board of Directors or paid or set apart for payment by
the Board of Directors or paid or set apart for payment by the
Association if such declaration or payment shall be restricted or
prohibited by law.
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(iv) Holders of shares of Series B Preferred Stock shall not be
entitled to any dividends in excess of full dividends declared, as herein
provided, on the shares of Series B Preferred Stock. No interest, or sum
of money in lieu of interest, shall be payable in respect of any dividend
payment on the shares of Series B Preferred Stock that may be in arrears.
(v) (A) So long as any shares of Series B Preferred Stock are
outstanding, no dividends (other than dividends or distributions paid in
shares of, or options, warrants or rights to subscribe for or purchase
shares of, Series B Junior Securities and other than as provided in clause
(B) below) shall be declared, paid or set aside for payment or other
distribution upon any Series B Junior Securities or any other Series B
Parity Securities, nor shall any shares of any Series B Junior Securities
or any other Series B Parity Securities be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to or set
aside or made available for a sinking fund for the redemption of any
shares of any such stock) by the Association (except by conversion into or
exchange for shares of, or options, warrants or rights to subscribe for or
purchase, Series B Junior Securities) unless, in each case, the full
dividends on all outstanding shares of the Series B Preferred Stock shall
have been declared and paid, when due, for the Series B Dividend Period,
if any, terminating on or immediately prior to the date of payment in
respect of such dividend, distribution, redemption, purchase or
acquisition.
(B) When dividends for any Series B Dividend Period are not
paid in full, as provided in clause (A) above, on the shares of the Series
B Preferred Stock or any other Series B Parity Securities, dividends may
be declared and paid on any such shares for any dividend period therefor,
but only if such dividends are declared and paid pro rata so that the
amount of dividends declared and paid per share on the shares of the
Series B Preferred Stock and any other Series B Parity Securities, in all
cases shall bear to each other the same ratio that the amount of unpaid
dividends per share on the shares of the Series B Preferred Stock for such
Series B Dividend Period and such other Series B Parity Securities for the
corresponding dividend period bear to each other.
(d) Liquidation Preference.
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(i) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Association, the holders
of shares of Series B Preferred Stock then outstanding shall be entitled
to be paid out of the assets of the Association available for distribution
to its shareholders an amount in cash equal to the Series B Liquidation
Value for each share outstanding, plus an amount in cash equal to all
unpaid dividends thereon for the then current Series B Dividend Period,
whether or not earned or declared, before any payment shall be made or any
assets distributed to the holders of Series B Junior Securities. If the
assets of the Association are not sufficient to pay in full the
liquidation payments payable to the holders of outstanding shares of the
Series B Preferred Stock and any Series B Parity Securities, then the
holders of all such shares shall share ratably in such distribution of
assets in accordance with the amount which would be payable on such
distribution if the amounts to which the holders of outstanding shares of
Series B Preferred Stock and the holders of outstanding shares of such
Series B Parity Securities are entitled were paid in full.
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(ii) For the purpose of this Section 5.02(d), neither the voluntary
sale, conveyance, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the
property or assets of the Association, nor the consolidation or merger of
the Association, shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the Association, unless such
voluntary sale, conveyance, exchange or transfer shall be in connection
with a plan of liquidation, dissolution or winding up of the Association.
(e) Redemption. The Series B Preferred Stock is not redeemable prior to
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December 31, 2005. On such date and on each fifth anniversary of such date, the
Series B Preferred Stock shall be redeemable, in whole or in part, at the option
of the Association, but with the consent of the Comptroller of the Currency and
any other appropriate regulatory authorities, if required, for cash out of any
source of funds legally available, at a redemption price equal to 100% of the
Series B Liquidation Value per share plus unpaid dividends thereon accumulated
since the immediately preceding Series B Dividend Payment Date (the "Series B
Redemption Price"). Any date of such redemption is referred to as the "Series B
Redemption Date." If fewer than all the outstanding shares of Series B Preferred
Stock are to be redeemed, the Association will select those to be redeemed by
lot or pro rata or by any other method as may be determined by the Board of
Directors to be equitable.
The Series B Preferred Stock is not subject to any sinking fund.
(f) Procedure for Redemption.
------------------------
(i) Upon redemption of the Series B Preferred Stock pursuant
to Section 5.02(e) hereof, notice of such redemption (a "Series B Notice
of Redemption") shall be mailed by first-class mail, postage prepaid, not
less than thirty (30) days nor more than sixty (60) days prior to the
Series B Redemption Date to the holders of record of the shares to be
redeemed at their respective addresses as they shall appear in the records
of the Association; provided, however, that failure to give such notice or
any defect therein or in the mailing thereof shall not affect the validity
of the proceeding for the redemption of any shares so to be redeemed
except as to the holder to whom the Association has failed to give such
notice or except as to the holder to whom notice was defective. Each such
notice shall state: (A) the Series B Redemption Date; (B) the Series B
Redemption Price; (C) the place or places where certificates for such
shares are to be surrendered for payment of the Series B Redemption Price;
and (D) the CUSIP number of the shares being redeemed.
(ii) If a Series B Notice of Redemption shall have been given as
aforesaid and the Association shall have deposited on or before the Series
B Redemption Date a sum sufficient to redeem the shares of Series B
Preferred Stock as to which a Series B Notice of Redemption has been given
in trust with the Transfer Agent with irrevocable instructions and
authority to pay the Series B Redemption Price to the holders thereof, or
if no such deposit is made, then upon the Series B Redemption Date (unless
the Association shall default in making payment of the Series B Redemption
Price), all rights of the holders thereof as shareholders of the
Association by reason of the ownership of such shares (except their right
to receive the Series B Redemption Price thereof without interest) shall
cease and terminate, and such shares shall no longer be deemed outstanding
for any purpose. The Association shall be entitled to receive, from time
to time, from the Transfer Agent the interest, if any, earned on such
moneys deposited with it, and the
12
holders of any shares so redeemed shall have no claim to any such
interest. In case the holder of any shares of Series B Preferred Stock so
called for redemption shall not claim the Series B Redemption Price for
its shares within twelve (12) months after the related Series B Redemption
Date, the Transfer Agent shall, upon demand, pay over to the Association
such amount remaining on deposit, and the Transfer Agent shall thereupon
be relieved of all responsibility to the holder of such shares, and such
holder shall look only to the Association for payment thereof.
(iii) Not later than 1:30 p.m., Eastern Standard Time, on the
Business Day immediately preceding the Series B Redemption Date, the
Association shall irrevocably deposit with the Transfer Agent sufficient
funds for the payment of the Series B Redemption Price for the shares to
be redeemed on the Series B Redemption Date and shall give the Transfer
Agent irrevocable instructions to apply such funds, and, if applicable and
so specified in the instructions, the income and proceeds therefrom, to
the payment of such Series B Redemption Price. The Association may direct
the Transfer Agent to invest any such available funds, provided that the
proceeds of any such investment will be available to the Transfer Agent in
Milwaukee, Wisconsin at the opening of business on such Series B
Redemption Date.
(iv) Except as otherwise expressly set forth in this Section
5.02(f), nothing contained in these Amended and Restated Articles of
Association shall limit any legal right of the Association to purchase or
otherwise acquire any shares of Series B Preferred Stock at any price,
whether higher or lower than the Series B Redemption Price, in private
negotiated transactions, the over-the-counter market or otherwise.
(v) If the Association shall not have funds legally available for
the redemption of all of the shares of Series B Preferred Stock on any
Series B Redemption Date, the Association shall redeem on the Series B
Redemption Date only the number of shares of Series B Preferred Stock as
it shall have legally available funds to redeem, as determined in an
equitable manner, and the remainder of the shares of Series B Preferred
Stock shall be redeemed, at the option of the Association, on the earliest
practicable date next following the day on which the Association shall
first have funds legally available for the redemption of such shares.
(g) Reacquired Shares. Shares of the Series B Preferred Stock that have
-----------------
been redeemed, purchased or otherwise acquired by the Association are not
subject to reissuance or resale as shares of Series B Preferred Stock and shall
be held in treasury. Such shares shall revert to the status of authorized but
unissued shares of preferred stock, undesignated as to series, until the Board
of Directors of the Association shall designate them again for issuance as part
of a series.
(h) Voting Rights. Except as otherwise required by applicable law, the
--------------
holders of Series B Preferred Stock shall nothave any voting rights.
SECTION 5.03. SERIES C PREFERRED STOCK. PURSUANT TO THE PROVISIONS OF THIS
ARTICLE FIFTH, A SERIES OF SERIES C NON-CUMULATIVE PREFERRED STOCK, CONSISTING
OF SEVEN HUNDRED FIFTY THOUSAND (750,000) SHARES, IS HEREBY ESTABLISHED AND
AUTHORIZED TO BE ISSUED, AND IN ADDITION TO SUCH MATTERS
13
SPECIFIED ELSEWHERE IN THIS ARTICLE FIFTH, SUCH SERIES C NON-CUMULATIVE
PREFERRED STOCK SHALL HAVE THE FOLLOWING POWERS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS AND QUALIFICATIONS, LIMITATIONS
OR RESTRICTIONS:
(a) Designation and Amount. The shares of Preferred Stock shall be
----------------------
designated as the Series C Non-Cumulative Preferred Stock (the "Series C
Preferred Stock"), and the number of shares constituting the Series C Preferred
Stock shall be seven hundred fifty thousand (750,000). The liquidation
preference of the Series C Preferred Stock shall be $1,000 per share (the
"Series C Liquidation Value").
(b) Rank. The Series C Preferred Stock shall, with respect to dividend
----
rights and upon liquidation, dissolution and winding up of the Association, rank
(i) senior to all classes and series of Common Stock of the Association and to
all classes and series of capital stock of the Association now or hereafter
authorized, issued or outstanding, which by their terms expressly provide that
they are junior to the Series C Preferred Stock as to dividend distributions and
distributions upon the liquidation, dissolution or winding up of the
Association, or which do not specify their rank (collectively with the Common
Stock, the "Series C Junior Securities"); (ii) on a parity with the Series A
Preferred Stock and the Series B Preferred Stock and each other class of capital
stock or series of preferred stock issued by the Association after the date
hereof, the terms of which specifically provide that such class or series will
rank on a parity with the Series C Preferred Stock as to dividend distributions
and distributions upon the liquidation, dissolution or winding up of the
Association (collectively with the Series A Preferred Stock and the Series B
Preferred Stock, the "Series C Parity Securities"); and (iii) junior to each
other class of capital stock or series of preferred stock issued by the
Association after the date hereof, the terms of which specifically provide that
such class or series will rank senior to the Series C Preferred Stock as to
dividend distributions and distributions upon the liquidation, dissolution or
winding up of the Association (collectively, the "Series C Senior Securities").
(c) Dividends. Dividends are payable on the Series C Preferred Stock as
---------
follows:
(i) The holders of the Series C Preferred Stock in
preference to the Series C Junior Securities shall be entitled to
receive, out of funds legally available for that purpose, and when,
as, and if declared by the Board of Directors of the Association,
dividends payable in cash at the annual rate of 7.75% of the Series
C Liquidation Value (the "Series C Dividend Rate").
(ii) Dividends on the Series C Preferred Stock shall be
non-cumulative. Dividends not paid on any Series C Dividend Payment Date
shall not accumulate thereafter. Dividends shall accumulate from the first
day of any Series C Dividend Period to but excluding the immediately
succeeding Series C Dividend Payment Date. Dividends, if and when
declared, shall be payable in arrears in cash on each Series C Dividend
Payment Date of each year with respect to the Series C Dividend Period
ending on the day immediately prior to such Series C Dividend Payment Date
at the Series C Dividend Rate per share to holders of record at the close
of business on the applicable Record Date, commencing on the Exchange Date
with respect to any shares of Series C Preferred Stock issued prior to
that Series C Dividend Payment Date; provided that dividends payable on
the Series C Preferred Stock on the Series C Dividend Payment Date
immediately following the first Series C Dividend Period following the
Issue Date
14
(and any dividend payable for a period less than a full quarterly period)
shall be prorated for the period and computed on the basis of a 360-day
year of twelve 30-day months and the actual number of days in such Series
C Dividend Period; and provided, further, that dividends payable on the
Series C Preferred Stock on the Series C Dividend Payment Date immediately
following the first Series C Dividend Period following the Issue Date
shall include any accumulated and unpaid dividends on the Funding Company
Exchangeable Securities exchanged for the Series C Preferred Stock as of
the Exchange Date for the then current dividend period. Dividends on such
Series C Preferred Stock shall be paid only in cash.
(iii) No dividends on shares of Series C Preferred Stock shall be
declared by the Board of Directors or paid or set apart for payment by the
Board of Directors or paid or set apart for payment by the Association if
such declaration or payment shall be restricted or prohibited by law.
(iv) Holders of shares of Series C Preferred Stock shall not be
entitled to any dividends in excess of full dividends declared, as herein
provided, on the shares of Series C Preferred Stock. No interest, or sum
of money in lieu of interest, shall be payable in respect of any dividend
payment on the shares of Series C Preferred Stock that may be in arrears.
(v) (A) So long as any shares of Series C Preferred Stock are
outstanding, no dividends (other than dividends or distributions paid in
shares of, or options, warrants or rights to subscribe for or purchase
shares of, Series C Junior Securities and other than as provided in clause
(B) below) shall be declared, paid or set aside for payment or other
distribution upon any Series C Junior Securities or any other Series C
Parity Securities, nor shall any shares of any Series C Junior Securities
or any other Series C Parity Securities be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to or set
aside or made available for a sinking fund for the redemption of any
shares of any such stock) by the Association (except by conversion into or
exchange for shares of, or options, warrants or rights to subscribe for or
purchase, Series C Junior Securities) unless, in each case, the full
dividends on all outstanding shares of the Series C Preferred Stock shall
have been declared and paid, when due, for the Series C Dividend Period,
if any, terminating on or immediately prior to the date of payment in
respect of such dividend, distribution, redemption, purchase or
acquisition.
(B) When dividends for any Series C Dividend Period are not
paid in full, as provided in clause (A) above, on the shares of the Series
C Preferred Stock or any other Series C Parity Securities, dividends may
be declared and paid on any such shares for any dividend period therefor,
but only if such dividends are declared and paid pro rata so that the
amount of dividends declared and paid per share on the shares of the
Series C Preferred Stock and any other Series C Parity Securities, in all
cases shall bear to each other the same ratio that the amount of unpaid
dividends per share on the shares of the Series C Preferred Stock for such
Series C Dividend Period and such other Series C Parity Securities for the
corresponding dividend period bear to each other.
(d) Liquidation Preference.
----------------------
15
(i) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Association, the
holders of shares of Series C Preferred Stock then outstanding shall be
entitled to be paid out of the assets of the Association available for
distribution to its shareholders an amount in cash equal to the Series
C Liquidation Value for each share outstanding, plus an amount in cash
equal to all unpaid dividends thereon for the then current Series C
Dividend Period, whether or not earned or declared, before any payment
shall be made or any assets distributed to the holders of Series C
Junior Securities. If the assets of the Association are not sufficient
to pay in full the liquidation payments payable to the holders of
outstanding shares of the Series C Preferred Stock and any Series C
Parity Securities, then the holders of all such shares shall share
ratably in such distribution of assets in accordance with the amount
which would be payable on such distribution if the amounts to which the
holders of outstanding shares of Series C Preferred Stock and the
holders of outstanding shares of such Series C Parity Securities are
entitled were paid in full.
(ii) For the purpose of this Section 5.03(d), neither the voluntary
sale, conveyance, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the
property or assets of the Association, nor the consolidation or merger
of the Association, shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the Association, unless such
voluntary sale, conveyance, exchange or transfer shall be in connection
with a plan of liquidation, dissolution or winding up of the
Association.
(e) Redemption. The Series C Preferred Stock shall be redeemable at any
----------
time, in whole or in part, at the option of the Association, but with the
consent of the Comptroller of the Currency and any other appropriate regulatory
authorities, if required, for cash out of any source of funds legally available,
at a redemption price equal to 100% of the Series C Liquidation Value per share
plus unpaid dividends thereon accumulated since the immediately preceding Series
C Dividend Payment Date (the "Series C Redemption Price"). Any date of such
redemption is referred to as the "Series C Redemption Date." If fewer than all
the outstanding shares of Series C Preferred Stock are to be redeemed, the
Association will select those to be redeemed by lot or pro rata or by any other
method as may be determined by the Board of Directors to be equitable.
The Series C Preferred Stock is not subject to any sinking fund.
(f) Procedure for Redemption.
------------------------
(i) Upon redemption of the Series C Preferred Stock pursuant to
Section 5.03(e) hereof, notice of such redemption (a "Series C Notice
of Redemption") shall be mailed by first-class mail, postage prepaid,
not less than thirty (30) days nor more than sixty (60) days prior to
the Series C Redemption Date to the holders of record of the shares to
be redeemed at their respective addresses as they shall appear in the
records of the Association; provided, however, that failure to give
such notice or any defect therein or in the mailing thereof shall not
affect the validity of the proceeding for the redemption of any shares
so to be redeemed except as to the holder to whom the Association has
failed to give such notice or except as to the holder to whom notice
was defective. Each such notice shall state: (A) the Series C
Redemption Date; (B) the Series C Redemption Price; (C) the place or
places where certificates for such shares are to be surrendered for
payment of the Series C Redemption Price; and (D) the CUSIP number of
the shares being redeemed.
16
(ii) If a Series C Notice of Redemption shall have been given as
aforesaid and the Association shall have deposited on or before the
Series C Redemption Date a sum sufficient to redeem the shares of
Series C Preferred Stock as to which a Series C Notice of Redemption
has been given in trust with the Transfer Agent with irrevocable
instructions and authority to pay the Series C Redemption Price to the
holders thereof, or if no such deposit is made, then upon the Series C
Redemption Date (unless the Association shall default in making payment
of the Series C Redemption Price), all rights of the holders thereof as
shareholders of the Association by reason of the ownership of such
shares (except their right to receive the Series C Redemption Price
thereof without interest) shall cease and terminate, and such shares
shall no longer be deemed outstanding for any purpose. The Association
shall be entitled to receive, from time to time, from the Transfer
Agent the interest, if any, earned on such moneys deposited with it,
and the holders of any shares so redeemed shall have no claim to any
such interest. In case the holder of any shares of Series C Preferred
Stock so called for redemption shall not claim the Series C Redemption
Price for its shares within twelve (12) months after the related Series
C Redemption Date, the Transfer Agent shall, upon demand, pay over to
the Association such amount remaining on deposit, and the Transfer
Agent shall thereupon be relieved of all responsibility to the holder
of such shares, and such holder shall look only to the Association for
payment thereof.
(iii) Not later than 1:30 p.m., Eastern Standard Time, on the
Business Day immediately preceding the Series C Redemption Date, the
Association shall irrevocably deposit with the Transfer Agent
sufficient funds for the payment of the Series C Redemption Price for
the shares to be redeemed on the Series C Redemption Date and shall
give the Transfer Agent irrevocable instructions to apply such funds,
and, if applicable and so specified in the instructions, the income and
proceeds therefrom, to the payment of such Series C Redemption Price.
The Association may direct the Transfer Agent to invest any such
available funds, provided that the proceeds of any such investment will
be available to the Transfer Agent in Milwaukee, Wisconsin at the
opening of business on such Series C Redemption Date.
(iv) Except as otherwise expressly set forth in this Section
5.03(f), nothing contained in these Amended and Restated Articles of
Association shall limit any legal right of the Association to purchase
or otherwise acquire any shares of Series C Preferred Stock at any
price, whether higher or lower than the Series C Redemption Price, in
private negotiated transactions, the over-the-counter market or
otherwise.
(v) If the Association shall not have funds legally available for
the redemption of all of the shares of Series C Preferred Stock on any
Series C Redemption Date, the Association shall redeem on the Series C
Redemption Date only the number of shares of Series C Preferred Stock
as it shall have legally available funds to redeem, as determined in an
equitable manner, and the remainder of the shares of Series C Preferred
Stock shall be redeemed, at the option of the Association, on the
earliest practicable date next following the day on which the
Association shall first have funds legally available for the redemption
of such shares.
17
(g) Reacquired Shares. Shares of the Series C Preferred Stock that have
-----------------
been redeemed, purchased or otherwise acquired by the Association are not
subject to reissuance or resale as shares of Series C Preferred Stock and shall
be held in treasury. Such shares shall revert to the status of authorized but
unissued shares of preferred stock, undesignated as to series, until the Board
of Directors of the Association shall designate them again for issuance as part
of a series.
(h) Voting Rights. Except as otherwise required by applicable law, the
-------------
holders of Series C Preferred Stock shall not have any voting rights.
SECTION 5.04. DEFINITIONS. FOR THE PURPOSE OF SECTIONS 5.01, 5.02 AND
5.03 HEREOF, THE FOLLOWING TERMS SHALL HAVE THE MEANINGS INDICATED:
"5-year CMT Rate" for any CMT Determination Date will be the rate equal
to:
(i) the weekly average interest rate of U.S. Treasury securities
having an index maturity of five years for the week that ends
immediately before the week in which the relevant CMT
Determination Date falls, as such rate appears on page "7052"
on Telerate (or such other page as may replace the 7052 page
on that service or any successor services) under the heading
"... Treasury Constant Maturities ... Federal Reserve Board
Release H.15 ... Mondays Approximately 3:45 p.m."
(ii) If the applicable rate described in clause (i) above is not
displayed on Telerate page 7052 at 3:00 p.m., New York City
time, on the relevant CMT Determination Date, then the 5-year
CMT Rate will be the Treasury constant maturity rate
applicable to a five-year index maturity for the weekly
average as published in H.15(519) (as defined below).
(iii) If the applicable rate described in clause (ii) above does
not appear in H.15(519) at 3:00 p.m., New York City time, on
the relevant CMT Determination Date, then the 5-year CMT Rate
will be the Treasury constant maturity rate, or other U.S.
Treasury rate, applicable to a five-year index maturity with
reference to the relevant CMT Determination Date, that:
(a) is published by the Board of Governors of the Federal
Reserve System, or the U.S. Department of the Treasury;
and
(b) is determined by the Association to be comparable to the
applicable rate formerly displayed on Telerate page 7052
and published in H.15(519).
(iv) If the rate described in clause (iii) above does not appear
at 3:00 p.m., New York City time, on the relevant CMT
Determination Date, than the 5-year CMT Rate will be the
yield to maturity of the arithmetic mean of the secondary
market offered rates for Treasury notes having an original
maturity of approximately five years and a remaining term to
maturity of not less than four years, and in a representative
amount, as of
18
approximately 3:30 p.m., New York City time, on the
relevant CMT Determination Date, as quoted by three
primary U.S. government securities dealers in New York
City selected by the Association. In selecting these
offered rates, the Association will request quotations
from five primary dealers and will disregard the
highest quotation - or, if there is equality, one of
the highest - and the lowest quotation - or, if there
is equality, one of the lowest.
(v) If the Association is unable to obtain three quotations
of the kind described in clause (iv) above, the CMT
Rate will be the yield to maturity of the arithmetic
mean of the secondary market offered rates for Treasury
notes with an original maturity longer than five years
and a remaining term to maturity closest to five years,
and in a representative amount, as of approximately
3:30 p.m., New York City time, on the relevant CMT
Determination Date, as quoted by the three primary U.S.
governmental securities dealers in New York City
selected by the Association. In selecting these offered
rates, the Association will request quotations from
five primary declares and will disregard the highest
quotation - or, if there is equality, one of the
highest - and the lowest quotation, or, if there is
equality, one of the lowest.
(vi) If fewer than five but more than two primary dealers
are quoting offered rates as described above in clause
(v), then the 5-year CMT Rate for the relevant CMT
Determination Date will be based on the arithmetic mean
of the offered rates so obtained, and neither the
highest nor the lowest of those quotations will be
disregarded.
(vii) If two or fewer primary dealers are quoting offered
rates as described above in clause (v), the 5-year CMT
Rate in effect for the new dividend period will be the
5-year CMT Rate in effect for the prior dividend
period.
As used in this definition, "H.15(519)" means the weekly statistical
release entitled "Statistical Release H.15(519)," or any successor publication,
published by the Board of Governors of the Federal Reserve System.
Absent manifest error, the Association's determination of the 5-year
CMT Rate will be final and binding.
"Association" means U.S. Bank National Association (formerly named
Firstar Bank, National Association), a national banking association.
"Business Day" means a day on which the New York Stock Exchange is open
for trading and which is not a day on which banking institutions in The City of
New York and Milwaukee, Wisconsin are authorized or required by law or executive
order to close.
"Calculation Agent" means any Person authorized by the Association to
determine the Series B Dividend Rate, which initially shall be the Association.
"CMT Determination Date" has the meaning set forth in Section
5.02(c)(i)(2) hereof.
19
"Dividend Payment Date" means, as the context requires, a Series A
Dividend Payment Date, a Series B Dividend Payment Date or a Series C Dividend
Payment Date.
"Exchange Date" means, as the context requires, any date on which the
Realty Company Series B Exchangeable Stock is exchanged for the Series A
Preferred Stock, any date on which the Realty Company Series C Exchangeable
Stock is exchanged for the Series B Preferred Stock, or any date on which the
Funding Company Exchangeable Securities are exchanged for the Series C Preferred
Stock.
"Firstar Realty" means Firstar Realty L.L.C., an Illinois limited
liability company.
"Funding Company Exchangeable Securities" means the Non-Cumulative
Exchangeable Preferred Securities of USB Funding LLC, a Delaware limited
liability company.
"Issue Date" means, as the context requires, the first date on which
shares of Series A Preferred Stock, Series B Preferred Stock or Series C
Preferred Stock are issued.
"Person" means any individual, firm, bank or other entity and shall
include any successor (by merger or otherwise) of such entity.
"Realty Company Series B Exchangeable Stock" means the Series B
Non-Cumulative Exchangeable Preferred Stock of Firstar Realty.
"Realty Company Series C Exchangeable Stock" means the Series C
Non-Cumulative Exchangeable Preferred Stock of Firstar Realty.
"Record Date" means the 15th day of the month in which the applicable
Dividend Payment Date falls for dividends declared by the Board of Directors.
"Series A Dividend Payment Date" means each June 30 and December 31 of
each year.
"Series A Dividend Period" is the period from a Series A Dividend
Payment Date to, but excluding, the next succeeding Series A Dividend Payment
Date, except that the initial Series A Dividend Period shall commence on the
date of the original issuance of shares of Series A Preferred Stock.
"Series A Dividend Rate" has the meaning set forth in Section
5.01(c)(i) hereof.
"Series A Junior Securities" has the meaning set forth in Section
5.01(b) hereof.
"Series A Liquidation Value" has the meaning set forth in Section
5.01(a) hereof.
"Series A Notice of Redemption" has the meaning set forth in Section
5.01(f)(i) hereof.
"Series A Parity Securities" has the meaning set forth in Section
5.01(b) hereof.
"Series A Preferred Stock" has the meaning set forth in Section 5.01(a)
hereof.
20
"Series A Redemption Date" has the meaning set forth in Section 5.01(e)
hereof.
"Series A Redemption Price" has the meaning set forth in Section
5.01(e) hereof.
"Series A Senior Securities" has the meaning set forth in Section
5.01(b) hereof.
"Series B Dividend Payment Date" means each June 30 and December 31 of
each year.
"Series B Dividend Period" is the period from a Series B Dividend
Payment Date to, but excluding, the next succeeding Series B Dividend Payment
Date, except that the initial Series B Dividend Period shall commence on the
original issuance of shares of Series B Preferred Stock.
"Series B Dividend Rate" has the meaning set forth in Section
5.02(c)(i) hereof.
"Series B Junior Securities" has the meaning set forth in Section
5.02(b) hereof.
"Series B Liquidation Value" has the meaning set forth in Section
5.02(a) hereof.
"Series B Notice of Redemption" has the meaning set forth in Section
5.02(f)(i) hereof.
"Series B Parity Securities" has the meaning set forth in Section
5.02(b) hereof.
"Series B Preferred Stock" has the meaning set forth in Section 5.02(a)
hereof.
"Series B Redemption Date" has the meaning set forth in Section 5.02(e)
hereof.
"Series B Redemption Price" has the meaning set forth in Section
5.02(e) hereof.
"Series B Senior Securities" has the meaning set forth in Section
5.02(b) hereof.
"Series C Dividend Payment Date" means each January 15 and July 15 of
each year.
"Series C Dividend Period" is the period from a Series C Dividend
Payment Date to, but excluding, the next succeeding Series C Dividend Payment
Date, except that the initial Series C Dividend Period shall commence on the
original issuance of shares of Series C Preferred Stock.
"Series C Dividend Rate" has the meaning set forth in Section
5.03(c)(i) hereof.
"Series C Junior Securities" has the meaning set forth in Section
5.03(b) hereof.
"Series C Liquidation Value" has the meaning set forth in Section
5.03(a) hereof.
"Series C Notice of Redemption" has the meaning set forth in Section
5.03(f)(i) hereof.
"Series C Parity Securities" has the meaning set forth in Section
5.03(b) hereof.
"Series C Preferred Stock" has the meaning set forth in Section 5.03(a)
hereof.
"Series C Redemption Date" has the meaning set forth in Section 5.03(e)
hereof.
21
"Series C Redemption Price" has the meaning set forth in Section
5.03(e) hereof.
"Series C Senior Securities" has the meaning set forth in Section
5.03(b) hereof.
"Transfer Agent" means a bank or trust company as may be appointed from
time to time by the Board of Directors of the Association, or a committee
thereof, to act as transfer agent, paying agent and registrar of the Series A
Preferred Stock, the Series B Preferred Stock and the Series C Preferred Stock.
SIXTH: The Board of Directors shall appoint one of its members
-----
President of the Association, who shall be Chairman of the Board, unless the
Board appoints another Director to be the Chairman of the Board. The Board of
Directors shall have the power to appoint one or more Vice Presidents; and to
appoint a Cashier and such other officers and employees as may be required to
transact the Business of the Association. The Board of Directors shall have the
power to define the duties of the officers and employees of the Association; to
fix the salaries to be paid to them; to dismiss them; to require bonds from them
and to fix the penalty thereof; to regulate the manner in which any increase of
the capital of the Association shall be made; to manage and administer the
business affairs of the Association; to make all Bylaws that it may be lawful
for them to make and generally to do and perform all acts that it may be legal
for a Board of Directors to do and perform.
SEVENTH: The Board of Directors, without need for approval of
-------
shareholders, shall have the power to change the location of the main office of
the Association, subject to such limitations as from time to time may be
provided by law; and shall have the power to establish or change the location of
any branch or branches of the Association to any other location, without the
approval of the shareholders, but subject to the approval of the Comptroller of
the Currency.
EIGHTH: The corporate existence of the Association shall continue until
------
terminated in accordance with the laws of the United States.
NINTH: The Board of Directors of the Association, the Chairman of the
-----
Board, the President, or any three or more holders of Common Stock owning, in
the aggregate, not less than twenty-five percent of the Common Stock of this
Association, may call a special meeting of shareholders at any time. Unless
otherwise provided by the laws of the United States, 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 (10) days
prior to the date of such meeting to each shareholder of record entitled to vote
at such meeting at his address as shown upon the books of the Association.
TENTH: Any person, his heirs, executors, or administrators, may be
-----
indemnified or reimbursed by the Association for reasonable expenses actually
incurred in connection with any action, suit, or proceeding, civil or criminal,
to which he or they shall be made a party by reason of his being or having been
a Director, officer, or employee of the Association or of any firm, corporation,
or organization which he served in any such capacity at the request of the
Association. Provided, however, that no person shall be so indemnified or
reimbursed in relation to any matter in such action, suit, or proceeding as to
which he shall finally be adjudged to have been guilty of or liable for gross
negligence, willful misconduct or criminal acts in the performance of his duties
to the Association. And, provided further, that no person shall be so
22
indemnified or reimbursed in relation to any matter in such action, suit, or
proceeding which has been made the subject of a compromise settlement except
with the approval of a court of competent jurisdiction, or the holders of record
of a majority of the outstanding shares of the Association, or the Board of
Directors, acting by vote of Directors not parties to the same or substantially
the same action, suit or proceeding, constituting a majority of the whole number
of Directors. And, provided further, that no Director, officer or employee shall
be so indemnified or reimbursed for expenses, penalties or other payments
incurred in an administrative proceeding or action instituted by an appropriate
bank regulatory agency where said proceeding or action results in a final order
assessing civil money penalties or requiring affirmative action by an individual
or individuals in the form of payments to the Association. The foregoing right
of indemnification shall not be exclusive of other rights to which such person,
his heirs, executors, or administrators, may be entitled as a matter of law. The
Association may, upon the affirmative vote of a majority of its Board of
Directors, purchase insurance for the purpose of indemnifying its Directors,
officers and other employees to the extent that such indemnification is allowed
in the preceding paragraph. Such insurance may, but need not, be for the benefit
of all Directors, officers, or employees.
ELEVENTH: Except as otherwise specifically provided in Article Fifth
--------
hereof, these Amended and Restated 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 outstanding shares of Common Stock of the
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.
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Exhibit 2
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Exhibit 3
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Exhibit 4
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BYLAWS
OF
U.S. BANK NATIONAL ASSOCIATION
ARTICLE I.
- ----------
MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING
The annual meeting of shareholders shall be held at the main banking house of
the Association or other convenient place duly authorized by the Board of
Directors (the "Board") at 11:00 a.m. on the second Tuesday in March of each
year, or such other date or time which the Board may designate at any Board
meeting held prior to the required date for sending notice of the annual meeting
to the shareholders. Notice of such meeting shall be mailed to shareholders not
less than ten (10) or more than sixty (60) days prior to the meeting date.
SECTION 2. SPECIAL MEETINGS
Special meetings of shareholders may be called and held at such times and upon
such notice as is specified in the Articles of Association.
SECTION 3. QUORUM
A majority of the outstanding capital stock represented in person or by proxy
shall constitute a quorum of any meeting of the shareholders, unless otherwise
provided by law, but less than a quorum may adjourn any meeting, from time to
time, and the meeting may be held as adjourned without further notice.
SECTION 4. INSPECTORS
The Board of Directors may, and in the event of its failure so to do, the
Chairman of the Board may appoint Inspectors of Election who shall determine the
presence of quorum, the validity of proxies, and the results of all elections
and all other matters voted upon by shareholders at all annual and special
meetings of shareholders.
SECTION 5. VOTING
In deciding on questions at meetings of shareholders, except in the election of
directors, each shareholder shall be entitled to one vote for each share of
stock held. A majority of votes cast shall decide each matter submitted to the
shareholders, except where by law a larger vote is required. In all elections of
directors, each shareholder shall have the right to vote the number of shares
owned by him for as many persons as there are directors to be elected, or to
cumulate such shares and give one candidate as many votes as the number of
directors multiplied by the number of his shares equal, or to distribute them on
the same principle among as many candidates as he shall think fit.
SECTION 6. WAIVER AND CONSENT
The shareholders may act without notice or a meeting by a unanimous written
consent by
26
all shareholders.
ARTICLE II.
BOARD OF DIRECTORS
SECTION 1. TERM OF NOTICE
The directors of this Association shall hold office for one year and until their
successors are duly elected and qualified.
SECTION 2. REGULAR MEETINGS
The organizational meeting of the Board of Directors shall be held on the same
date as soon as practical following the annual meeting of shareholders wherever
the Directors deem appropriate. Other regular meetings of the Board of Directors
shall be held at such time and place as may be designated in the notice of the
meeting. When any regular meeting of the Board falls on a holiday, the meeting
shall be held on the next banking business day, unless the Board shall designate
some other day.
SECTION 3. SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by the Chairman of the
Board of the Association, or at the request of three or more Directors. Notice
of the time, place and purposes of such meetings shall be given by letter, by
telephone, in person, by facsimile, by electronic mail or other reasonable
manner to every Director.
SECTION 4. QUORUM
A majority of the entire membership of the Board shall constitute a quorum of
any meeting of the board.
SECTION 5. NECESSARY VOTE
A majority of those Directors present and voting at any meeting of the Board of
Directors shall decide each matter considered, except where otherwise required
by law or the Articles or Bylaws of this Association.
SECTION 6. COMPENSATION
Directors, excluding full-time employees of the Bank, shall receive such
reasonable compensation as may be fixed from time to time by the Board of
Directors.
SECTION 7. ELECTION-AGE & RETIREMENT-AGE LIMITATION
No person shall be elected or re-elected a Director after reaching his
seventieth (70/th/) birthday. Every Director of the Bank shall retire no later
than the first month next following his seventieth (70/th/) birthday.
SECTION 8. DIRECTORS EMERITUS
The Board shall have the right from time to time to choose as Directors Emeritus
persons who have had prior service as members of the Board and who may receive
such compensation as shall be fixed from time to time by the Board of Directors.
27
ARTICLE III.
OFFICERS
- --------
SECTION 1. WHO SHALL CONSTITUTE
The Officers of the Association shall be a Chairman of the Board, Chief
Executive Officer, a President, a Secretary, and other officers such as Vice
Chairman of the Board, Executive Vice Presidents, Senior Vice Presidents, Vice
Presidents, Vice Presidents, Assistant Vice Presidents, Assistant Secretaries,
Trust Officers, Trust Investment Officers, Trust Real Estate Officers, Assistant
Trust Officers, Controller, Assistant Controller, Auditor and Assistant
Auditors, as the Board may appoint from time to time. The Board may choose to
delegate authority to elect officers other than the Chairman, Chief Executive
Office, President, Secretary, Vice Chairman and Executive Vice Presidents, to
the Chief Executive Officer or President. Any person may hold two offices. The
Chairman of the Board, all Vice Chairmen of the Board, Chief Executive Officer
and the President shall at all times be members of the Board of Directors.
SECTION 2. NUMBER
As provided in the Articles of Association, the Board of this Association shall
consist of not less than five nor more than twenty-five members. At any meeting
of the shareholders held for the purpose of electing directors, or changing the
number thereof, the number of directors may be determined by a majority of the
votes cast by the shareholders in person or by proxy. Any vacancy occurring in
the Board shall be filled by the remaining directors. Between meetings of the
shareholders held for the purpose of electing directors, the Board by a majority
vote of the full Board may increase the size of the Board by not more than four
directors in any one year, but not to more than a total of twenty-five
directors, and fill any vacancy so created in the Board. All directors shall
hold office until their successors are elected and qualified.
SECTION 3. TERM OF OFFICE
All officers shall be elected for and shall hold office for one year and until
their successors are elected and qualified, subject to the right in the Board of
directors by a majority vote of the entire membership to discharge any officer
at any time.
SECTION 4. CHAIRMAN OF THE BOARD
The Chairman of the Board shall have general executive powers and duties and
shall perform such other duties as may be assigned from time to time by the
Board of Directors. He shall, when present, preside at all meetings of the
shareholders and directors and shall be ex officio a member of all committees of
the Board. He shall name all members of the committees of the Board, subject to
the confirmation thereof by the Board.
SECTION 5. CHIEF EXECUTIVE OFFICER
The Chief Executive Officer, who may also be the Chairman or the President,
shall have general executive powers and duties and shall perform such other
duties as may be assigned from time to time by the Board of Directors.
SECTION 6. PRESIDENT
The President shall have general executive powers and duties and shall perform
such other
28
duties as may be assigned from time to time by the board of Directors. In
addition, if designated by the Board of Directors, the President shall be the
Chief Executive Officer and shall have all the powers and duties of the Chief
Executive Officer, including the same power to name temporarily a Chief
Executive Officer to serve in the absence of the President if there is a vacancy
in the position of the chairman or in the event of the absence or incapacity of
the Chairman.
SECTION 7. VICE CHAIRMAN OF THE BOARD
The Board of directors shall have the power to elect one or more Vice Chairmen
of the Board of Directors. Any such Vice Chairmen of the Board shall participate
in the formation of the policies of the Association and shall have such other
duties as may be assigned to him from time to time by the Chairman of the Board
or by the Board of Directors.
SECTION 8. OTHER OFFICERS
The Secretary and all other officers appointed by the Board of Directors shall
have such duties as defined by law and as may from time to time be assigned to
them by the chief executive Officer or the Board of Directors.
SECTION 9. RETIREMENT
Every officer of the Association shall retire not later than the first of the
month next following his 65/th/ birthday. The Board of directors may, in its
discretion, set the retirement date and terms of retirement of an officer at a
date later than provided above.
ARTICLE IV.
COMMITTEES
SECTION 1. COMPENSATION COMMITTEE
The duties of the Compensation Committee of the Association shall be carried out
by the Compensation Committee of the financial holding company that is the
parent of this Association.
SECTION 2. COMMITTEE ON AUDIT
The duties of the Audit Committee of the Association shall be carried out by the
Audit Committee of the financial holding company that is the parent of this
Association.
SECTION 3. TRUST COMMITTEE
The Board of Directors of this Association shall also serve as the Trust
Committee. The Trust Committee shall determine policies of the Department and
review actions of the Trust Policy Committee. All actions of the Trust Committee
shall be reported to the Board of Directors.
SECTION 4. TRUST POLICY COMMITTEE
There shall be a standing committee of this association to be known as the Trust
Policy Committee composed of the officers of the Association. The Trust Policy
Committee or such officers as may be duly designated by the Trust Policy
Committee, shall pass upon the
29
acceptance of all trusts, the closing out or relinquishment of all trusts and
the making, retention, or disposition of all investments of trust funds in
conformity with policies established by the Trust Committee. Action of the Trust
Policy Committee shall be reported to the Trust Committee.
SECTION 5. PENSION COMMITTEE
The duties of the Pension Committee of the Association shall be carried out by
the Compensation Committee of the financial holding company that is the parent
of this Association.
SECTION 6. OTHER COMMITTEES
The Chairman may appoint, from time to time, other committees for such purposes
and with such powers as he or the Board my direct.
ARTICLE V.
MINUTE BOOK
The organization papers of this Association, the Bylaws as revised or
amended from time to time and the proceedings of all regular and special
meetings of the shareholders and the directors shall be recorded in a minute
book or books. All reports of committees required to be made to the Board shall
be recorded in a minute book or shall be filed by the recording officer. The
minutes of each meeting of the shareholders and the Board shall be signed by the
recording officer.
ARTICLE VI.
CONVEYANCES, CONTRACTS, ETC.
All transfers and conveyances of real estate, mortgages, and transfers,
endorsements or assignments of stock, bonds, notes, debentures or other
negotiable instruments, securities or personal property shall be signed by any
elected or appointed officer.
All checks, drafts, certificates of deposit and all funds of the
Association held in its own or in a fiduciary capacity may be paid out by an
order, draft or check bearing the manual or facsimile signature of any elected
or appointed officer of the Association.
All mortgage satisfactions, releases, all types of loan agreements, all
routine transactional documents of the Association, and all other instruments
not specifically provided for, whether to be executed in a fiduciary capacity or
otherwise, may be signed on behalf of the Association by any elected or
appointed officer thereof.
The Secretary or any Assistant Secretary of the Association or other
proper officer may execute and certify that required action or authority has
been given or has taken place by resolution of the Board under this Bylaw
without the necessity of further action by the Board.
ARTICLE VII.
SEAL
The Association shall have no corporate seal.
30
ARTICLE VIII.
INDEMNIFICATION OF DIRECTORS,
OFFICERS, AND EMPLOYEES
SECTION 1. INDEMNIFY
The Association shall indemnify such persons for such liabilities in such manner
under such circumstances and to such extent as permitted by the corporate laws
of the Sate of Ohio as enacted or 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, and the Association shall
advance all reasonable costs and expenses (including attorneys' fees) incurred
in defending any action, suit or proceeding to all persons entitled to
indemnification under this Section 1.
SECTION 2. PAYMENTS
Notwithstanding Section 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 associated regulations; 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.
AMENDMENTS
These Bylaws, or any of them, may be added to, altered, amended or repealed by
the Board at any regular or special meeting of the Board.
ARTICLE X.
GOVERNING LAW
This Association designates the Ohio Business Corporation Act, as amended from
time to time, as the governing law for its corporate governance procedures, to
the extent not inconsistent with Federal banking statutes and regulations.
31
Exhibit 6
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CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned, U.S. BANK 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: November 13, 2001
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Richard H Prokosch
----------------------
Richard H Prokosch
Vice President
By: /s/ Julie Eddington
-------------------
Julie Eddington
Assistant Vice President
32
Exhibit 7
---------
U.S. Bank National Association
Statement of Financial Condition
As of 6/30/2001
($000's)
6/30/2001
---------
Assets
Cash and Due From Depository Institutions $ 3,561,101
Federal Reserve Stock 0
Securities 4,731,459
Federal Funds 1,058,080
Loans & Lease Financing Receivables 62,250,889
Fixed Assets 558,051
Intangible Assets 5,316,987
Other Assets 2,975,129
-----------
Total Assets $80,451,696
Liabilities
Deposits $52,892,333
Fed Funds 1,342,118
Treasury Demand Notes 0
Trading Liabilities 90,576
Other Borrowed Money 11,563,493
Acceptances 138,422
Subordinated Notes and Debentures 2,430,442
Other Liabilities 1,542,375
-----------
Total Liabilities $69,999,759
Equity
Minority Interest in Subsidiaries $ 766,058
Common and Preferred Stock 321,551
Surplus 6,094,941
Undivided Profits 3,269,387
-----------
Total Equity Capital $10,451,937
Total Liabilities and Equity Capital $80,451,696
- --------------------------------------------------------------------------------
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
U.S. Bank National Association
By: /s/ Richard H Prokosch
-----------------------
Vice President
Date: November 13, 2001
33