EXHIBIT 25
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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
Check if an application to determine eligibility of a Trustee
pursuant to Section 305(b)(2) X
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MANUFACTURERS AND TRADERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 00-0000000
(Jurisdiction of incorporation (I.R.S. employer
or organization if not a national bank) identification No.)
One M&T Xxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
(Address of principal executive offices) (Zip Code)
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TELMARK LLC
(Exact name of obligor as specified in its charter)
DELAWARE 00-0000000
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
(Address of principal executive offices) (Zip Code)
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SUBORDINATED DEBENTURES
(Title of indenture securities)
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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.
Superintendent of Banks of the State of New York, 0 Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 and Xxxxxx, XX 00000.
Federal Reserve Bank of New York, 00 Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000.
Xxxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxxxx, Xxxxxxxxxx, X.X.
00000.
(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 through 15 omitted pursuant to General Instruction B to Form T-1]
1
ITEM 16. LIST OF EXHIBITS
Exhibit 1. Organization Certificate of the Trustee as
now in effect.*
Exhibit 2. Certificate of Authority of the Trustee to
commence business (contained in Exhibit 1).
Exhibit 3. Authorization of the Trustee to exercise
corporate trust powers (contained in
Exhibit 1).
Exhibit 4. Existing By-Laws of the Trustee.*
Exhibit 5. Not Applicable.
Exhibit 6. Consent of the Trustee.*
Exhibit 7. Report of Condition of the Trustee.*
Exhibit 8. Not Applicable.
Exhibit 9. Not Applicable
* Filed Herewith
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Manufacturers and Traders Trust Company, a banking corporation
organized and existing under the laws of the State of New York, 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 Buffalo, and
State of New York, on the ____ day of September, 1999.
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
Assistant Vice President
2
EXHIBIT 1
ORGANIZATION CERTIFICATE OF THE TRUSTEE
RESTATED ORGANIZATION CERTIFICATE
OF
MANUFACTURERS AND TRADERS TRUST COMPANY
UNDER SECTION 8007 OF THE BANKING LAW
DATED: May 18, 1992
FILER: Xxxxxxx X. Xxxxxxx, Esq.
Senior Vice President, General Counsel and Secretary
Manufacturers and Traders Trust Company
Xxx X&X Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Exhibit 1, Page 1
RESTATED ORGANIZATION CERTIFICATE
OF
MANUFACTURERS AND TRADERS TRUST COMPANY
UNDER SECTION 8007 OF THE BANKING LAW
The undersigned, being, respectively, the Chairman of the Board, President
and Chief Executive Officer and the Senior Vice President, General Counsel and
Secretary of MANUFACTURERS AND TRADERS TRUST COMPANY, pursuant to Section 8007
of the Banking Law of the State of New York, do hereby restate, certify and set
forth as follows:
(1) The name of the corporation is MANUFACTURERS AND TRADERS TRUST COMPANY.
The name under which the corporation was originally incorporated was The
Fidelity Trust and Guaranty Company of Buffalo.
(2) The organization certificate of the corporation was filed in the Office
of the Superintendent of Banks of the State of New York on September 13, 1892,
and in the Office of the Clerk of Erie County, New York on September 14, 1892,
and the certificate of authorization of the Superintendent of Banks of the State
of New York was issued on June 27, 1893.
A first restated organization certificate of the corporation was approved
and filed in the Office of the Superintendent of Banks of the State of New York
on August 6, 1954. Such restated organization certificate was amended from time
to time thereafter.
A second restated organization certificate of the corporation was approved
and filed in the Office of the Superintendent of Banks of the State of New York
on February 26, 1991.
(3) The restated organization certificate is hereby further amended to
effect an amendment authorized by Section 8001 of the Banking Law in order to
increase the corporation's capital stock to $200,000,000 and to increase the par
value of all authorized shares, whether issued or unissued, to $40. In order to
effect such amendment, Article 3 of the corporation's organization certificate
is hereby amended in its entirety to read as follows:
"3. The amount of the corporation's capital stock is $200,000,000.
The number of shares into which such capital stock shall be divided
is 5,000,000 common shares of the par value of $40 per share."
(4) The text of the corporation's organization certificate, as amended
heretofore, is hereby restated without further change to read as hereinafter set
forth in full:
Exhibit 1, Page 2
ORGANIZATION CERTIFICATE
OF
MANUFACTURERS AND TRADERS TRUST COMPANY
1. The name by which the said corporation shall be known is MANUFACTURERS
AND TRADERS TRUST COMPANY.
2. The place where the principal office of the corporation is to be located
is the City of Buffalo, County of Erie and State of New York.
3. The amount of the corporation's capital stock is $200,000,000. The
number of shares into which such capital stock shall be divided is 5,000,000
common shares of the par value of $40 per share.
4. The number of directors which the corporation shall have shall be not
less than seven (7) nor more than thirty (30).
5. The term of existence of the corporation shall be perpetual.
6. The corporation shall exercise the fiduciary powers conferred by Section
100 of the Banking Law, as amended from time to time, in addition to the other
powers conferred upon banks and trust companies pursuant to the Banking Law or
other applicable law."
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(5) This restatement of the organization certificate was authorized
pursuant to Section 6015 of the Banking Law by the written consent, setting
forth the action taken, of the holder of all of the outstanding shares entitled
to vote thereon.
IN WITNESS WHEREOF, the undersigned have hereunto signed this Restated
Organization Certificate on May 18, 1992.
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /S/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Chairman of the Board, President
and Chief Executive Officer
By: /S/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
Senior Vice President, General Counsel
and Secretary
Exhibit 1, Page 3
STATE OF NEW YORK )
) SS.:
COUNTY OF ERIE )
Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx, being first duly sworn,
depose and say that they are, respectively, the Chairman of the Board, President
and Chief Executive Officer and Senior Vice President, General Counsel and
Secretary of MANUFACTURERS AND TRADERS TRUST COMPANY, that they have read the
foregoing certificate and know the contents thereof and that the statements
therein contained are trust.
/S/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
/S/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
Sworn to before me the 18th day of May, 1992.
/S/ XXXX XXXXX XXXXX
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Notary Public
Xxxx Xxxxx Xxxxx
Notary Public, State of New York
No. 4991329
Qualified in Erie County
Commission Expires February 3, 1994
Exhibit 1, Page 4
EXHIBIT 4
BY-LAWS OF THE TRUSTEE
BY-LAWS
of
MANUFACTURERS AND TRADERS TRUST COMPANY
ARTICLE I
MEETINGS OF STOCKHOLDERS
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SECTION 1. ANNUAL MEETING: The Annual Meeting of the Corporation, for the
election of directors and for transaction of such other business as may be set
forth in the notice of meeting, shall be held at the principal office of the
Corporation or at such other place in the City of Buffalo, New York at 10:30
a.m. in the forenoon on the third Tuesday of March in each year, or on such date
and at such time as the Board of Directors shall determine.
SECTION 2. SPECIAL MEETINGS: Special meetings of the stockholders may be
called to be held at the principal office of the Corporation or elsewhere within
the State of New York at any time by the Board of Directors or the Chairman of
the Board or the President, and shall be called by the Chairman of the Board or
the President or the Secretary or an Assistant Secretary at the request in
writing of five or more members of the Board of Directors, or at the request in
writing of the holders of record of at least 25% of the outstanding shares of
the Corporation entitled to vote. Such request shall state the purpose or
purposes for which the meeting is to be called.
SECTION 3. NOTICE OF MEETINGS: Written notice of each meeting of the
stockholders shall be given by depositing in the United States mail, postage
prepaid, not less than 10 nor more than 50 days before such meeting, a copy of
the notice of such meeting directed to each stockholder of record entitled to
vote at the meeting, at his address as it appears on the record of stockholders,
or, if he shall have filed with the Secretary of the Corporation a written
request that notices to him be mailed to some other address, then directed to
him at such other address. The notice shall state the place, date and hour of
the meeting, the purpose or purposes for which the meeting is called and, unless
it is the annual meeting, indicate that the notice is being issued by or at the
direction of the person or persons calling the meeting. If action is proposed to
be taken at any meeting which would, if taken, entitle dissenting stockholders
to receive payment for their shares, the notice shall include a statement of
that purpose and to that effect. At each meeting of stockholders only such
business may be transacted which is related to the purpose or purposes set forth
in the notice of meeting.
Exhibit 4, Page 1
SECTION 4. WAIVER OF NOTICE: Whenever under any provisions of these
by-laws, the organization certificate, the terms of any agreement or instrument,
or law, the Corporation or the Board of Directors or any committee thereof is
authorized to take any action after notice to any person or persons or after the
lapse of a prescribed period of time, such action may be taken without notice
and without the lapse of such period of time, if at any time before or after
such action is completed the person or persons entitled to such notice or
entitled to participate in the action to be taken or, in the case of a
stockholder, by his attorney-in-fact, submit a signed waiver of notice of such
requirements. The attendance of any stockholder at any meeting, in person or by
proxy, without protesting prior to the conclusion the lack of notice of such
meeting, shall constitute a waiver of notice by him.
SECTION 5. PROCEDURE: At every meeting of stockholders the order of
business and all other matters of procedure may be determined by the person
presiding at the meeting.
SECTION 6. LIST OF STOCKHOLDERS: A list of stockholders as of the record
date, certified by the officer of the Corporation responsible for its
preparation or by a transfer agent, shall be produced at any meeting of
stockholders upon the request thereat or prior thereto of any stockholder. If
the right to vote at any meeting is challenged, the inspectors of election, or
person presiding thereat, shall require such list of stockholders to be produced
as evidence of the right of the persons challenged to vote at such meeting, and
all persons who appear from such list to be stockholders entitled to vote
thereat may vote at such meeting.
SECTION 7. QUORUM: At all meetings of the stockholders of the Corporation a
quorum must be present for the transaction of business and, except as otherwise
provided by law, a quorum shall consist of the holders of record of not less
than a majority of the outstanding shares of the Corporation entitled to vote
thereat, present either in person or by proxy. When a quorum is once present to
organize a meeting of the stockholders, it is not broken by the subsequent
withdrawal of any stockholders.
SECTION 8. ADJOURNMENTS: The stockholders entitled to vote who are present
in person or by proxy at any meeting of stockholders, whether or not a quorum
shall be present or represented at the meeting, shall have power by a majority
vote to adjourn the meeting from time to time without further notice other than
announcement at the meeting. At any adjourned meeting at which a quorum shall be
present in person or by proxy any business may be transacted that might have
been transacted on the original date of the meeting, and the stockholders
entitled to vote at the meeting on the original date (whether or not they were
present thereat), and no others, shall be entitled to vote at such adjourned
meeting.
SECTION 9. VOTING; PROXIES: Each stockholder of record entitled to vote
shall be entitled at every meeting of stockholders of the Corporation to one
vote for each share of stock having voting power standing in his name on the
record of stockholders on the record date fixed pursuant to Section 3 of Article
VI of these by-laws. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent without a meeting may do so either
in person or by proxy appointed by instrument executed in writing by such
stockholder or his duly authorized attorney-in-fact and delivered to the
secretary of the meeting. No director, officer, clerk, teller or bookkeeper of
the Corporation shall act as proxy at any meeting. No proxy shall be valid after
the expiration of 11 months from the date of its execution unless otherwise
Exhibit 4, Page 2
provided in the proxy. Every proxy shall be revocable at the pleasure of the
stockholder executing it except as otherwise provided by law. Directors elected
at any meeting of the stockholders shall be elected by a plurality of the votes
cast. All other corporate action to be taken by vote of the stockholders shall,
except as otherwise provided by law or these by-laws, be authorized by a
majority of the votes cast. The vote for directors shall be by ballot, but
otherwise the vote upon any question before a meeting shall not be by ballot
unless the person presiding at such meeting shall so direct or any stockholder,
present in person or by proxy and entitled to vote thereon, shall so demand.
SECTION 10. APPOINTMENT OF INSPECTORS OF ELECTION: The Board of Directors
may, in advance of any meeting of the stockholders, appoint one or more
inspectors to act at the meeting or any adjournment thereof. If inspectors are
not so appointed in advance of the meeting, the person presiding at such meeting
may, and on the request of any stockholder entitled to vote thereat shall,
appoint one or more inspectors. In case any inspector appointed fails to appear
or act, the vacancy may be filled by appointment made by the Board of Directors
in advance of the meeting or at the meeting by the person presiding thereat. No
director, officer or candidate for the office of director of the Corporation
shall be eligible to act as an inspector of an election of directors of the
Corporation. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
SECTION 11. DUTIES OF INSPECTORS OF ELECTION: The inspectors of election
shall determine the number of shares outstanding and entitled to vote, the
shares represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine the result,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders.
ARTICLE II
DIRECTORS
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SECTION 1. NUMBER AND QUALIFICATIONS: The number of directors of the
Corporation shall be not less than seven (7) nor more than twenty-five (25),
with the exact number to be fixed from time to time by resolution of a majority
of the directors, provided that the number of directors shall not be reduced so
as to shorten the term of any director at the time in office. If the number of
directors be increased at any time, within the limits above set forth, the
vacancy or vacancies in the board arising from such increase shall be filled as
provided in Section 4 of this Article II. Each such vacancy, and each reduction
in the number of directors, shall be reported to the Superintendent of Banks in
the manner prescribed by law. All of the directors shall be of full age, and all
except three of them shall be citizens of the United States, and at least
one-third of them shall be citizens and residents of the State of New York and
at least three-fourths of them shall be citizens and residents of the State of
New York or a contiguous state, at the time of their election and during their
continuance in office, unless otherwise permitted by law. No more than one-third
of the directors shall be active officers or employees of the Corporation. Every
director shall be a stockholder of the Corporation or of any company owning more
than 80% of the capital stock of such Corporation, owning in his own right, free
Exhibit 4, Page 3
from pledge, lien or charge, shares of capital stock of such Corporation or of
such company, at least ten (10) in number and having an aggregate par value of
at least $1,000.
SECTION 2. ELECTION AND TENURE OF OFFICE: Except as otherwise provided by
law or these by-laws, each director of the Corporation shall be elected at an
annual meeting of the stockholders or at any meeting of the stockholders held in
lieu of such annual meeting, which meeting, for the purposes of these by-laws,
shall be deemed the annual meeting, and shall hold office until the next annual
meeting of stockholders and until his successor has been elected and qualified.
Each person who shall be elected a director of the Corporation shall, before
participating in any manner as a director of the Corporation, qualify in the
manner prescribed by law and take and subscribe the oath prescribed by law.
SECTION 3. RESIGNATION: Any director of the Corporation may resign at any
time by giving his resignation to the Chairman of the Board or the President or
the Secretary. Such resignation shall take effect at the time specified therein;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 4. VACANCIES: Except as hereinafter provided, all vacancies in the
office of director shall be filled by election by the stockholders entitled to
vote at any meeting of the stockholders notice of which shall have referred to
the proposed election. Vacancies not exceeding one-third of the entire board may
be filled by the affirmative vote of a majority of the directors then in office,
and the directors so elected shall hold office for the balance of the unexpired
term; or two vacancies may, with the consent of the Superintendent of Banks of
the State of New York, be left unfilled until the next annual election. Each
vacancy in the office of director and each election by the Board of Directors to
fill any such vacancy shall be reported to the Superintendent of Banks in the
manner provided by law.
SECTION 5. DIRECTORS' FEES: Directors, including salaried officers of the
Corporation who are directors, may receive a fee for their services as directors
and traveling and other out-of-pocket expenses incurred in attending any regular
or special meeting of the board. The fee may be a fixed sum for attending each
meeting of the Board of Directors or a fixed sum paid monthly, quarterly, or
semiannually, irrespective of the number of meetings attended or not attended.
The amount of the fee and the basis on which it shall be paid shall be
determined by resolution of the Board of Directors. Nothing herein contained
shall preclude any director from serving the Corporation in any other capacity
and receiving compensation for such services.
SECTION 6. MEETINGS OF DIRECTORS: A regular meeting of the Board of
Directors shall be held at least once in each month. The first meeting of the
Board of Directors after each annual meeting of the stockholders shall be held
immediately after the adjournment of such annual meeting and shall constitute
the regular meeting of the Board of Directors for the month in which such first
meeting is held. No notice of such first meeting shall be necessary. The Board
of Directors may, at any time and from time to time, by resolution designate the
place, date and hour for the holding of a regular meeting but, in the absence of
any such designation, regular meetings of the Board of Directors shall be held
at the principal office of the Corporation in the City of Buffalo, New York, at
11:30 o'clock a.m., on the Thursday following the first Tuesday of each month.
If that day be a legal holiday in any month, the meeting shall be held at the
same hour on the next following business day, other than Saturday. No notice
Exhibit 4, Page 4
need be given of such regular meetings except such notice as these by-laws or
the Board of Directors by resolution may require. Special meetings of the Board
of Directors shall be held at such times and at such places as the Board of
Directors or the Chairman of the Board or, in his absence, the President, may
determine, and shall also be held upon the request of any 4 directors made in
writing to the Chairman of the Board or the President.
SECTION 7. NOTICE OF SPECIAL MEETINGS OF THE BOARD OF DIRECTORS: Notice of
each special meeting of the Board of Directors stating the time and place
thereof, shall be given by the Chairman of the Board, the President, the
Secretary, or an Assistant Secretary, or by any member of the board to each
member of the board not less than 3 days before the meeting by depositing the
same in the United States mail, postage prepaid, addressed to each member of the
board at his residence or usual place of business, or not less than 1 day before
the meeting by telephoning or by delivering the same to each member of the board
personally, or by sending the same by telegraph to his residence or usual place
of business. Notice of a meeting need not be given to any director who submits a
signed waiver of notice whether before or after the meeting, or who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to him. The notice of any special meeting of the Board of Directors need
not specify the purpose or purposes for which the meeting is called, except as
provided in Article IX of these by-laws.
SECTION 8. QUORUM: At all meetings of the Board of Directors, except as
otherwise provided by law or these by-laws, a quorum shall be required for the
transaction of business and shall consist of not less than one-third of the
entire board, and the vote of a majority of the directors present shall decide
any question which may come before the meeting. A majority of the directors
present at any meeting, although less than a quorum, may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum is present.
SECTION 9. MEETINGS BY CONFERENCE TELEPHONE: Any one or more members of the
Board of Directors or any committee thereof may participate in a meeting of such
board or committee by means of a conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear each other
at the same time. Participation in a meeting by such means shall constitute
presence in person at such meeting.
SECTION 10. PROCEDURE: The order of business and all other matters of
procedure at every meeting of directors may be determined by the person
presiding at the meeting.
ARTICLE III
COMMITTEES
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SECTION 1. EXECUTIVE COMMITTEE: The Board of Directors shall, by resolution
adopted by a majority of the entire board, designate from among its members an
Executive Committee consisting of five or more directors. The Board of Directors
may designate one or more directors as alternate members of the Executive
Committee, who may replace any absent member or members of the Executive
Committee at any meeting thereof. In the interim between meetings of the Board
of Directors, the Executive Committee shall have all the authority of the Board
of Directors except as otherwise provided by law. All acts done and powers and
authority
Exhibit 4, Page 5
conferred by the Executive Committee from time to time within the scope of its
authority shall be, and may be deemed to be, and may be certified as being, the
act and under the authority of the Board of Directors. The Chairman of the
Board, or the President in the absence of the Chairman of the Board, shall
preside at all meetings of the Executive Committee. The Executive Committee
shall elect from its members a chairman to preside at any meeting of the
Executive Committee at which the Chairman of the Board and the President shall
be absent. Four members of the Executive Committee shall constitute a quorum for
the transaction of business.
SECTION 2. EXAMINING COMMITTEE: The Board of Directors shall, by
resolution adopted by a majority of the entire board, designate from among its
members an Examining Committee consisting of not less than 3 directors to
examine fully the books, papers and affairs of the Corporation, and the loans
and discounts thereof, as provided by law. The Examining Committee shall have
the power to employ such assistants as it may deem necessary to enable it to
perform its duties.
SECTION 3. OTHER COMMITTEES: The Board of Directors may from time to
time, by resolution or resolutions, appoint or provide for one or more other
committees consisting of such directors, officers, or other persons as the board
may determine. Each committee, to the extent provided in said resolution or
resolutions, shall have such powers and functions in the management of the
Corporation as may be lawfully delegated by the Board of Directors in the
interim between meetings of the board. Each committee shall have such name as
may be provided from time to time in said resolution or resolutions, and shall
serve at the pleasure of the Board of Directors.
SECTION 4. MINUTES OF MEETINGS OF COMMITTEES: The Executive Committee, the
Examining Committee, and each other committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors at the next meeting
thereof, or as soon thereafter as may be practicable under the circumstances.
SECTION 5. FEES TO MEMBERS OF COMMITTEES: Members of committees, including
salaried officers of the Corporation who are members of committees, may receive
a fee for their services as members of committees and traveling and other
out-of-pocket expenses incurred in attending any regular or special meeting of a
committee. The fee may be a fixed sum for attending each committee meeting or a
fixed sum paid monthly, quarterly, or semiannually, irrespective of the number
of meetings attended or not attended. The amount of the fee and the basis on
which it shall be paid shall be determined by resolution of the Board of
Directors. Nothing herein contained shall preclude any member of a committee
from serving the Corporation in any other capacity and receiving compensation
for such services.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS: The Board of Directors shall annually, at the first
meeting of the board after the Annual Meeting of Stockholders, elect from its
own number a Chairman of the Board and a President who may be one and the same
person, and appoint or elect one or more Vice Presidents, a Secretary, a
Treasurer, and an Auditor. The Chief Executive Officer shall be either the
Exhibit 4, Page 6
Chairman of the Board or the President, as designated by the Board of Directors.
The Board of Directors, or the Executive Committee, may also from time to time
elect or appoint such additional officers as it may determine, including
(without limitation as to title or number) one or more Trust Officers, Assistant
Vice Presidents, Assistant Secretaries, Assistant Treasurers, and Assistant
Auditors.
SECTION 2. TERM OF OFFICE: The Chairman of the Board, the President, each
Vice President, the Secretary, the Treasurer, and the Auditor shall, unless
otherwise determined by the Board of Directors, hold office until the first
meeting of the board following the next annual meeting of stockholders and until
their successors have been elected and qualified. Each additional officer
appointed or elected by the Board of Directors, or by the Executive Committee,
shall hold office for such term as shall be determined from time to time by the
Board of Directors or the Executive Committee. Any officer, however, may be
removed at any time by the Board of Directors, or his authority suspended by the
Board of Directors, with or without cause. If the office of any officer becomes
vacant for any reason, the Board of Directors shall have the power to fill such
vacancy.
SECTION 3. THE CHIEF EXECUTIVE OFFICER: The Chief Executive Officer shall,
under control of the Board of Directors and the Executive Committee, have the
general management of the Corporation's affairs and shall exercise general
supervision over all activities of the Corporation. The Chief Executive Officer
shall have the power to appoint or hire, to remove, and to determine the
compensation of, all employees of the Corporation who are not officers.
SECTION 4. THE CHAIRMAN OF THE BOARD: The Chairman of the Board shall
preside at all meetings of the stockholders and of the Board of Directors and
shall be entitled to vote upon all questions. If he is not the Chief Executive
Officer, the Chairman of the Board shall perform such additional duties and be
vested with such additional powers as shall be assigned to him from time to time
by the Board of Directors, the Executive Committee or the Chief Executive
Officer, and in the absence or incapacity of the Chief Executive Officer shall
have the powers and exercise the duties of that officer.
SECTION 5. THE PRESIDENT: The President, subject to the control and
direction of the Board of Directors, shall have immediate supervision over the
business, affairs, and properties of the Corporation, shall have and exercise
general authority with respect thereto, shall perform all duties and exercise
all powers generally incident to his office and shall perform such additional
duties and be vested with such additional powers as shall be assigned to him
from time to time by the Board of Directors, the Executive Committee, and if he
is not the Chief Executive Officer, by such officer. In the absence or
incapacity of the Chairman of the Board he shall have the powers and exercise
the duties of that officer, including the powers of Chief Executive Officer if
the Chairman of the Board is the Chief Executive Officer.
SECTION 6. THE VICE PRESIDENTS: The Vice Presidents shall have such powers
and perform such duties as may be assigned to them respectively by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President.
Any one or more of the Vice Presidents may be designated by the Board of
Directors as "Executive Vice President," "Senior Vice President," or "Assistant
to the President," or by such other title or titles as the Board of Directors
Exhibit 4, Page 7
may determine. In the absence or incapacity of both the Chairman of the Board
and the President, the Vice Presidents shall exercise the powers and perform the
duties of those officers in such order of precedence as shall be determined by
the Board of Directors, the Executive Committee, the Chairman of the Board or
the President.
SECTION 7. THE SECRETARY AND ASSISTANT SECRETARIES: The Secretary shall
issue notices of all meetings of stockholders, the Board of Directors and the
Executive Committee, where notices of such meetings are required by law or these
by-laws. He shall attend all meetings of stockholders, the Board of Directors
and the Executive Committee and keep the minutes thereof in proper books
provided for that purpose. He shall affix the corporate seal to and sign such
instruments as require the seal and his signature and shall perform such other
duties as usually pertain to his office or as are properly required of him by
the Board of Directors, the Chairman of the Board or the President.
The Assistant Secretaries may, in the absence or disability of the
Secretary or at his request, perform the duties and exercise the powers of the
Secretary, and shall perform such other duties as the Board of Directors, the
Chairman of the Board or the President shall prescribe.
SECTION 8. THE TREASURER AND ASSISTANT TREASURERS: The Treasurer shall keep
permanent records of the assets and liabilities and of all matters and
transactions bearing upon the financial affairs of the Corporation. He shall,
whenever required by the Board of Directors, present a statement of the business
of the Corporation, a balance sheet thereof as of the end of the last preceding
month or such other date as may be so required. He shall make and sign such
reports, statements and instruments as may be required of him by the Board of
Directors or the President or by law and shall perform such other duties as
usually pertain to his office or as are properly required of him by the Board of
Directors, the Chairman of the Board or the President.
The Assistant Treasurers may, in the absence or disability of the Treasurer
or at his request, perform the duties and exercise the powers of the Treasurer,
and shall perform such other duties as the Board of Directors, the Chairman of
the Board or the President shall prescribe.
SECTION 9. THE AUDITOR: The Auditor shall be responsible to the Chairman of
the Board, the President and, through the directors' Examining Committee, to the
Board of Directors for the safety of all operations and for the systems of
internal audits and protective controls; he shall perform such other duties as
the Chairman of the Board or the President may prescribe and shall make such
examinations and reports as may be required by the directors' Examining
Committee. He shall have the duty to report to the Chairman of the Board and the
President on all matters concerning the safety of the operations of the
Corporation which he deems advisable or which the Chairman of the Board or the
President may request. In addition, the Auditor shall have the duty of reporting
independently of all officers of the Corporation to the directors' Examining
Committee whenever he deems it necessary or desirable to do so, but in any event
not less often than annually on all matters concerning the safety of the
operations of the Corporation.
The Assistant Auditors may, in the absence or disability of the Auditor, or
at his request, perform the duties and exercise the powers of the Auditor, and
shall perform such other duties as the Board of Directors, the Chairman of the
Board or the President shall prescribe.
Exhibit 4, Page 8
SECTION 10. OTHER OFFICERS: All other officers that may be elected or
appointed by the Board of Directors or the Executive Committee shall exercise
such powers and perform such duties as the Board of Directors, the Executive
Committee, the Chairman of the Board or the President shall prescribe.
SECTION 11. OFFICERS HOLDING TWO OR MORE OFFICES: Any two or more offices
may be held by the same person, except the offices of President and Secretary.
No officer shall execute or verify any instrument in more than one capacity if
such instrument be required by law or otherwise to be executed or verified by
any two or more officers.
SECTION 12. DUTIES OF OFFICERS MAY BE DELEGATED: In case of the absence or
disability of any officer of the Corporation, or in case of a vacancy in any
office or for any other reason that the Board of Directors, the Chairman of the
Board or the President may deem sufficient, the Board of Directors, the Chairman
of the Board or the President, except as otherwise provided by law or these
by-laws, may delegate, for the time being, the powers or duties of any officer
to any other officer or to any director.
SECTION 13. COMPENSATION OF OFFICERS: The Board of Directors shall
determine the compensation to be paid to the Chairman of the Board and the
President, respectively, and it may also determine the compensation to be paid
to any or all of the other officers of the Corporation. In the event and to the
extent that the Board of the Directors shall not exercise such discretionary
power the compensation to be paid to the other officers shall be determined by
the Chief Executive Officer.
SECTION 14. SPECIAL POWERS: The Chairman of the Board, the President, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer and any Trust Officer shall each have power and
authority:
To sign, countersign, certify, issue, assign, endorse,
transfer and/or deliver notes, checks, drafts, bills of
exchange, certificates of deposit, acceptances, letters of
credit, advices for the transfer or payment of funds, orders
for the sale and for delivery of securities, guarantees of
signatures, and all other instruments, documents and
writings in connection with the business of the Corporation
in its corporate or in any trust or fiduciary capacity;
To sign the name of the Corporation and affix its seal,
or cause the same to be affixed, to deeds, mortgages,
satisfactions, assignments, releases, proxies, powers of
attorney, trust agreements, and all other instruments,
documents or papers necessary for the conduct of the
business of the Corporation, either in its corporate
capacity or in any trust or fiduciary capacity;
To endorse, sell, assign, transfer and deliver any
stocks, bonds, mortgages, notes, certificates of interest,
certificates of indebtedness, certificates of deposit and
any evidences of indebtedness or of any rights or privileges
which now are or may hereafter be held by or stand in the
Exhibit 4, Page 9
name of the Corporation, either in its corporate capacity,
or in any fiduciary or trust capacity, and to execute
proxies, powers of attorney or other authority with respect
thereto;
To accept on behalf of the Corporation any
guardianship, receivership, executorship or any general or
special trust specified in the Banking Law of the State of
New York;
To authenticate or certificate any bonds, debentures,
notes, or other instruments issued under or in connection
with any mortgage, deed of trust or other agreement or
instrument under which the Corporation is acting as trustee
or in any other fiduciary capacity;
To sign, execute and deliver certificates, reports,
checks, orders, receipts, certificates of deposit, interim
certificates, and other documents in connection with its
duties and activities as registrar, transfer agent,
disbursing agent, fiscal agent, depositary, or in any other
corporate fiduciary capacity.
The powers and authority above conferred may at any time be modified,
changed, extended or revoked, and may be conferred in whole or in part on other
officers and employees by the Board of Directors or the Executive Committee.
SECTION 15. BONDS: The Board of Directors may require any officer, agent or
employee of the Corporation to give a bond to the Corporation, conditional upon
the faithful performance of his duties, with one or more sureties and in such
amount as may be satisfactory to the Board of Directors.
ARTICLE V
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. RIGHT OF INDEMNIFICATION: Each director and officer of the
Corporation, whether or not then in office, each director and officer of a
subsidiary of the Corporation, whether or not then in office, and any person
whose testator or intestate was such a director or officer, shall be indemnified
by the Corporation for the defense of, or in connection with, any threatened,
pending or completed actions or proceedings and appeals therein, whether civil,
criminal, governmental, administrative or investigative, in accordance with and
to the fullest extent permitted by the Banking Law of the State of New York or
other applicable law, as such law now exists or may hereafter be amended;
provided, however, that the Corporation shall provide indemnification in
connection with an action or proceeding (or part thereof) initiated by such a
director or officer only if such action or proceeding (or part thereof) was
authorized by the Board of Directors.
Exhibit 4, Page 10
SECTION 2. ADVANCEMENT OF EXPENSES: Expenses incurred by a director or
officer in connection with any action or proceeding as to which indemnification
may be given under Section 1 of this Article V may be paid by the Corporation in
advance of the final disposition of such action or proceeding upon (a) receipt
of an undertaking by or on behalf of such director or officer to repay such
advancement in the event that such director or officer is ultimately found not
to be entitled to indemnification as authorized by this Article V and (b)
approval by the Board of Directors acting by a quorum consisting of directors
who are not parties to such action or proceeding or, if such a quorum is not
obtainable, then approval by stockholders. To the extent permitted by law, the
Board of Directors or, if applicable, the stockholders, shall not be required
under this Section 2, to find that the director or officer has met the
applicable standard of conduct provided by law for indemnification in connection
with such action or proceeding.
SECTION 3. AVAILABILITY AND INTERPRETATION: To the extent permitted under
applicable law, the rights of indemnification and to the advancement of expenses
provided in this Article V (a) shall be available with respect to events
occurring prior to the adoption of this Article V, (b) shall continue to exist
after any recision or restrictive amendment of this Article V with respect to
events occurring prior to such recision or amendment, (C) may be interpreted on
the basis of applicable law in effect at the time of the occurrence of the event
or events giving rise to the action or proceeding, or on the basis of applicable
law in effect at the time such rights are claimed, and (d) are in the nature of
contract rights which may be enforced in any court of competent jurisdiction as
if the Corporation and the director or officer for whom such rights are sought
were parties to a separate written agreement.
SECTION 4. OTHER RIGHTS: The rights of indemnification and to the
advancement of expenses provided in this Article V shall not be deemed exclusive
of any other rights to which any such director, officer or other person may now
or hereafter be otherwise entitled whether contained in the organization
certificate, these by-laws, a resolution of stockholders, a resolution of the
Board of Directors, or an agreement providing such indemnification, the creation
of such other rights being hereby expressly authorized. Without limiting the
generality of the foregoing, the rights of indemnification and to the
advancement of expenses provided in this Article V shall not be deemed exclusive
of any rights, pursuant to statute or otherwise, of any such director, officer
or other person in any such action or proceeding to have assessed or allowed in
his or her favor, against the Corporation or otherwise, his or her costs and
expenses incurred therein or in connection therewith or any part thereof.
SECTION 5. SEVERABILITY: If this Article V or any part hereof shall be held
unenforceable in any respect by a court of competent jurisdiction, it shall be
deemed modified to the minimum extent necessary to make it enforceable, and the
remainder of this Article V shall remain fully enforceable.
ARTICLE VI
CAPITAL STOCK
SECTION 1. CERTIFICATES OF STOCK: The shares of stock of the Corporation
shall be represented by certificates which shall be numbered and shall be
entered in the books of the Corporation as they are issued. Each stock
Exhibit 4, Page 11
certificate shall when issued state the name of the person or persons to whom
issued and the number of shares and shall be signed by the Chairman of the Board
or the President or a Vice President and by the Secretary or an Assistant
Secretary, or the Treasurer or an Assistant Treasurer, and shall be sealed with
the seal of the Corporation or a facsimile thereof. The signatures of the
officers upon a certificate may be facsimiles if the certificate is
countersigned by a transfer agent or registered by a registrar. In case any
officer who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer at the date of its issue. No certificate of stock shall be valid
until countersigned by a transfer agent if the Corporation has a transfer agent,
or until registered by a registrar, if the Corporation has a registrar.
SECTION 2. TRANSFERS OF SHARES: Shares of stock shall be transferable on
the books of the Corporation by the holder thereof, in person or by duly
authorized attorney, upon the surrender of the certificate representing the
shares to be transferred, properly endorsed. The Corporation shall be entitled
to treat the holder of record of any share or shares of stock as the owner
thereof and accordingly shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person
whether or not it shall have express or other notice thereof, save as
specifically provided by the laws of the State of New York. The Board of
Directors, to the extent permitted by law, shall have power and authority to
make all such rules and regulations as it may deem expedient concerning the
issue, transfer and registration of certificates of stock and may appoint one or
more transfer agents and registrars of the stock of the Corporation.
SECTION 3. FIXING OF RECORD DATE: The Board of Directors may fix, in
advance, a day and hour not more than 50 days before the date on which any
meeting of stockholders is to be held, as the time as of which stockholders
entitled to notice of and to vote at such meeting and at all adjournments
thereof shall be determined; and, in the event such record date and time is
fixed by the Board of Directors, no one other than the holders of record on such
date and time of stock entitled to notice of or to vote at such meeting shall be
entitled to notice of or to vote at such meeting or any adjournment thereof. If
a record date and time shall not be fixed by the Board of Directors for the
determination of stockholders entitled to notice of and to vote at any meeting
of stockholders, stockholders of record at the close of business on the day next
preceding the day on which notice of such meeting is given, and no others, shall
be entitled to notice of and to vote at such meeting or any adjournment thereof.
The Board of Directors may fix, in advance, a day and hour, not exceeding 50
days preceding the date fixed for the payment of a dividend of any kind or the
allotment of any rights, as the record time for the determination of the
stockholders entitled to receive any such dividend or rights, and in such case
only stockholders of record at the time so fixed shall be entitled to receive
such dividend or rights.
SECTION 4. RECORD OF STOCKHOLDERS: The Corporation shall keep at its office
in the State of New York, or at the office of its transfer agent or registrar in
this state, a record containing the names and addresses of all stockholders, the
number and class of shares held by each and the dates when they respectively
became the owner of record thereof.
SECTION 5. LOST STOCK CERTIFICATES: The holder of any certificate
representing shares of stock of the Corporation shall immediately notify the
Corporation of any mutilation, loss or destruction thereof, and the Board of
Exhibit 4, Page 12
Directors may in its discretion cause one or more new certificates for the same
number of shares in the aggregate to be issued to such holder upon the surrender
of the mutilated certificate, or, in case of loss or destruction of the
certificate, upon satisfactory proof of such loss or destruction and the deposit
of indemnity by way of bond or otherwise in such form and amount and with such
sureties or security as the Board of Directors may require to protect the
Corporation against loss or liability by reason of the issuance of such new
certificates; but the Board of Directors may in its discretion refuse to issue
such new certificates save upon the order of the court having jurisdiction in
such matters.
ARTICLE VII
CORPORATE SEAL
SECTION 1. FORM OF SEAL: The seal of the Corporation shall be circular in
form, with the words "Manufacturers and Traders Trust Company" in the margin
thereof, and the numerals "1856" and the word "seal" and the numerals "1892" in
the center thereof. The seal on any corporate obligation for the payment of
money may be facsimile.
ARTICLE VIII
EMERGENCY OPERATIONS
Whenever the provisions of Article 7 of the New York State Defense
Emergency Act (L. 1961, c. 654) become operative by reason of an "acute
emergency," as defined in said Act, the following provision shall also become
operative:
1. If the Chief Executive Officer of the Corporation shall not be
available, his powers and authority shall vest in and may be exercised by other
officers of the Corporation in the following order:
a. The Chairman of the Board;
b. The President;
c. The Executive Vice Presidents in the order of seniority determined
by length of service;
d. The Senior Vice Presidents in the order of seniority determined by
length of service;
e. A Vice President selected from and by those Vice Presidents who
shall be available.
2. The directors and acting directors present at any meeting held as
provided by statute may by resolution alter the foregoing order of succession or
designate the person from among the foregoing group who shall act as Chief
Executive Officer; provided, however, that the directors and acting directors
shall have no power to remove any officer or to fill any vacancy on a permanent
basis or to cause the Corporation to enter into any contract of employment for a
term of over one year.
Exhibit 4, Page 13
3. The directors and acting directors shall take such action as counsel may
advise in order that the normal operations of the Corporation shall be restored
as promptly as practicable.
ARTICLE IX
AMENDMENTS
SECTION 1. PROCEDURE FOR AMENDING BY-LAWS: These by-laws may be added to,
amended or repealed at any meeting of stockholders notice of which shall have
referred to the proposed action, by the vote of the holders of record of a
majority of the outstanding shares of the Corporation entitled to vote, or at
any meeting of the Board of Directors notice of which shall have referred to the
proposed action, by the vote of a majority of the Board of Directors; provided,
however, that if any by-law regulating an impending election of directors is
adopted or amended or repealed by the Board of Directors, there shall be set
forth in the notice of the next meeting of stockholders for the election of
directors the by-law so adopted or amended or repealed, together with a concise
statement of the changes made.
Exhibit 4, Page 14
EXHIBIT 6
CONSENT OF TRUSTEE
Manufacturers and Traders Trust Company hereby consents, in accordance with
the provisions of Section 321(b) of the Trust Indenture Act of 1939, 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.
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------------------
Xxxxxxx X. Xxxxxxx
Assistant Vice President
Exhibit 6, Page 1
EXHIBIT 7
REPORT OF CONDITION OF THE TRUSTEE
MANUFACTURERS AND TRADERS TRUST COMPANY
CONDENSED CONSOLIDATED BALANCE SHEET
June 30,
Dollars in thousands 1999
-----------------------------------------------------------------------------------------------------------------------
ASSETS Cash and due from banks $ 543,655
Money-market assets 868,446
Investment securities
Available for sale (cost: $1,792,980) 1,767,918
Held to maturity (market value: $85,985) 86,561
Other (market value: $111,707) 111,707
---------------------------------------------------------------------------------------------
Total investment securities 1,966,186
---------------------------------------------------------------------------------------------
Loan and leases, net of unearned discount 16,010,453
Allowance for possible credit losses (309,672)
---------------------------------------------------------------------------------------------
Loan and leases, net 15,700,781
Other assets 1,489,418
---------------------------------------------------------------------------------------------
Total assets $20,568,486
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LIABILITIES Deposits
Non-interest-bearing $2,199,370
Interest-bearing 12,174,387
---------------------------------------------------------------------------------------------
Total deposits 14,373,757
Short-term borrowings 1,964,301
Accrued interest and other liabilities 740,217
Long-term borrowings 1,502,541
---------------------------------------------------------------------------------------------
Total liabilities 18,580,816
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STOCKHOLDER'S EQUITY 1,987,670
---------------------------------------------------------------------------------------------
Total liabilities and stockholder's equity $20,568,486
-----------------------------------------------------------------------------------------------------------------------
Exhibit 7, Page 1
