SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
AMENDMENT NUMBER 1
TO 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)
__________________
Marine Midland Bank
(Exact name of trustee as specified in its charter)
16-1057879
(I.R.S. Employer
Identification No.)
140 Broadway, New York, N.Y. 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal executive offices)
Niagara Mohawk Power Corporation
(Exact name of obligor as specified in its charter)
New York 15-0265555
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
300 Erie Boulevard West
Syracuse, New York 13202
(315) 474-1511 (Zip Code)
(Address of principal executive offices)
First Mortgage Bonds
(Title of Indenture Securities)
General
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System, 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.
Item 16. List of Exhibits.
T1A(i) - Copy of the Organization Certificate of Marine Midland Bank.
T1A(ii) - Certificate of the State of New York Banking Department dated
December 31,1993 as to the authority of Marine Midland Bank to
commence business.
T1A(iii) - Not applicable.
T1A(iv) - Copy of the existing By-laws of Marine Midland Bank as adopted
on January 20,1994.
T1A(v) - Not applicable.
T1A(vi) - Consent of Marine Midland Bank required by Section 321(b) of
the Trust Indenture Act of 1939.
T1A(vii) - Copy of the latest report of condition of the trustee
(December 31,1993), published pursuant to law or the
requirement of its supervisory or examining authority.
T1A(viii) - Not applicable.
T1A(ix) - Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
Marine Midland Bank, a trust company organized under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of New
York and State of New York on the 10th day of February, 1994.
MARINE MIDLAND BANK
By: /s/ Metin Caner
--------------------------------
Metin Caner
Assistant Vice President
EXHIBIT T1A(i)
ORGANIZATION CERTIFICATE
of
"MARINE MIDLAND BANK"
We, the undersigned, all being of full age, all but one of us being
citizens of the United States and all of us being residents of the State of
New York, having associated ourselves together for the purpose of forming a
trust company under and pursuant to the Banking Law of the State of New York,
do hereby certify:
First. That the name by which the corporation is to be known is
Marine Midland Bank.
Second. That the place where its principal office is to be located
is Buffalo, New York.
Third. That the amount of its capital stock is to be One Hundred
Eighty-five Million and no/100 Dollars ($185,000,000.00) and the number of
shares into which such capital stock is to be divided is 1,850,000 with a par
value of $100.00 each.
Fourth. The shares are not to be classified as preferred and
common.
If the shares are to be so classified,
(a) The number and par value of shares to be included in each
class are as follows: not applicable.
(b) All the designations, preferences, privileges and voting
powers of the shares of each class, and the restrictions or
qualifications thereof are as follows: not applicable.
(c) The number of shares of common stock which are to be
reserved for issuance in exchange for preferred shares or otherwise to
replace any capital stock represented by preferred shares is none.
Fifth. The name, place of residence and citizenship of each
incorporator, and the number of shares subscribed for by each are:
No. of
Full Name Residence *Citizenship Shares
--------- --------- ------------ ------
James H. Cleave New York Canada 0
John M. Endries New York New York 0
Bernard J. Kennedy New York New York 0
Northrup R. Knox New York New York 0
Henry J. Nowak New York New York 0
- ------------------
* If a citizen of New York or a contiguous state, insert name of such
state.
Sixth. The term of existence of the corporation is to be
perpetual.
Seventh. The number of directors is to be not less than seven or
more than thirty.
Eighth. The names of the incorporators who shall be the directors
until the first annual meeting of stockholders are: James H. Cleave, John M.
Endries, Bernard J. Kennedy, Northrup R. Knox and Henry J. Nowak.
Ninth. The corporation is to exercise the powers conferred by
Section 100 of the Banking Law.
IN WITNESS WHEREOF, We have made, signed and acknowledged this
certificate in duplicate, this 16th day of September, 1993.
/s/ James H. Cleave
- -----------------------------
/s/ John M. Endries
- -----------------------------
/s/ Bernard J. Kennedy
- -----------------------------
/s/ Northrup R. Knox
- -----------------------------
/s/ Henry J. Nowak
- -----------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF ERIE )
On this 16th day of September, 1993, personally appeared before me
James H. Cleave, John M. Endries, Bernard J. Kennedy, Northrup R. Knox and
Henry J. Nowak, to me known to be the persons described in and who executed
the foregoing certificate and severally acknowledged that they executed the
same.
/s/ Helen Kujawa
--------------------------------
Notary Public
(Attach County Clerk's certificate
authenticating signature of Notary [NOTARIAL SEAL]
Public who takes acknowledgement)
Ninth. The corporation is to exercise the powers conferred by
Section 100 of the Banking Law.
IN WITNESS WHEREOF, We have made, signed and acknowledged this
certificate in duplicate, this 16th day of September, 1993.
/s/ James H. Cleave
- ------------------------------
/s/ John M. Endries
- ------------------------------
/s/ Bernard J. Kennedy
- ------------------------------
/s/ Northrup R. Knox
- ------------------------------
/s/ Henry J. Nowak
- ------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF ERIE )
I, David J. Swarts, Clerk of the County of Erie, and also Clerk of
the Supreme and County Courts for said County, the same being Courts of
Record, do hereby certify that HELEN KUJAWA, whose name is subscribed to the
deposition certificate of acknowledgement of proof of the annexed instrument,
was at the time of taking the same a NOTARY PUBLIC in and for the State of
New York, duly commissioned and sworn and qualified to act as such throughout
the State of New York; that pursuant to law a commission, or a certificate of
his appointment and qualifications and his autograph signature, have been
filed in my office; that as such Notary Public he was duly authorized by the
laws of the State of New York to administer oaths and affirmations to receive
and certify that acknowledgement of proof of deeds, mortgages, powers of
attorney and other written instruments for lands, tentaments and
heriditaments to be read in evidence or recorded in this State, to protect
notes and to take and certify affidavits and depositions; and that I am well
acquainted with the handwriting of such Notary Public, or have compared the
signature on the annexed instrument and with his autograph signature
deposited in my office, and believe that the signature is genuine.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
seal of said County and Courts at Buffalo, this 17th day of September, 1993.
[SEAL]
N.P. No. 7502 /s/ David S. Swarts
------------------------------
David J. Swarts
Clerk
ORGANIZATION CERTIFICATE
of
"MARINE MIDLAND BANK"
Received this _____ day of ______________, 19____.
Superintendent of Banks
Filed for examination this _____ day of ______________, 19____.
Superintendent of Banks
________________________ by the Banking Board at a meeting held on
the _____ day of ______________, 19____.
Secretary of the Banking Board
_____________________________________________________ this _____
day of ______________, 19____.
Superintendent of Banks
Filed in the office of _______________________________ this _____
day of ______________, 19____.
Recorded in the office of ____________________________ this _____
day of ______________, 19____.
EXHIBIT T1A(ii)
STATE OF NEW YORK
BANKING DEPARTMENT
KNOW ALL MEN BY THESE PRESENTS,
WHEREAS, the organization certificate of MARINE MIDLAND BANK of
Buffalo, New York has heretofore been duly approved and said MARINE MIDLAND
BANK has complied with the provisions of Chapter 2 of the Consolidated Laws,
in respect of the conversion of MARINE MIDLAND BANK, N.A. into a State trust
company under the name MARINE MIDLAND BANK,
NOW THEREFORE, I, DERICK D. CEPHAS, as Superintendent of Banks of
the State of New York, do hereby authorize the said MARINE MIDLAND BANK to
transact the business of a Trust Company at One Marine Midland Center,
Buffalo, Erie County, within this State.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
official seal of the Banking Department, this 31st day of December in the
year one thousand nine hundred and ninety-three.
[SEAL]
/s/ Derrick D. Cephas
-------------------------------
Superintendent
(Adopted January 20, 1994)
EXHIBIT T1A (iv)
BY-LAWS
of
MARINE MIDLAND BANK
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1.1 Annual Meeting. The annual meeting of the
stockholders for the election of directors and the transaction of such other
business as may properly come before the meeting shall be held in April each
year at the office of the Bank, One Marine Midland Center, City of Buffalo,
State of New York.
Section 1.2 Special Meetings. Except as otherwise specifically
provided by statute, special meetings of the stockholders may be called for
any purpose at any time by the Board of Directors, the Chairman of the Board,
the President, the Chief Executive Officer or the Secretary at such place and
time and on such day as may be designated in the notice of meeting. Business
transacted at all special meetings of stockholders shall be confined to the
purposes stated in the notice of meeting.
Section 1.3 Quorum. The holders of a majority of the stock issued
and outstanding, and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of
stockholders, unless otherwise provided by law.
Section 1.4 Voting.
a. At any meeting of the stockholders each stockholder may vote in
person or by proxy duly authorized in writing. Each stockholder shall at
every meeting of stockholders be entitled to one vote for each share of stock
held by such stockholder. A majority of the votes cast shall decide every
question or matter submitted to the stockholders at any meeting, unless
otherwise provided by law or by the Organization Certificate.
b. Any action required to be taken at an annual or special meeting
of stockholders may be taken without a meeting by written consent setting
forth the action and signed by the holders of all of outstanding shares
entitled to vote thereon.
Section 1.5 Notice of Meeting. Written notice of each meeting of
stockholders stating the place, date and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called
and the person or persons calling the meeting, shall be delivered personally
or shall be mailed postage prepaid to each stockholder entitled to vote at
such meeting, directed to the stockholder at his or her address as it appears
on the records of the Bank, not less than ten or more than 50 days before the
date of the meeting.
ARTICLE II
DIRECTORS
Section 2.1 Board of Directors. The Board of Directors (the
"Board") shall have power to manage and administer the business and affairs
of the Bank and, except as expressly limited by law, all corporate powers of
the Bank shall be vested in and may be exercised by the Board unless such
powers are required by statute, the Organization Certificate or these By-Laws
to be exercised by the stockholders.
Section 2.2 Number and Term. The Board shall consist of not less
than seven or more than thirty directors, the exact number within such
minimum and maximum limits to be fixed and determined from time to time by
resolution of a majority of the entire Board or by resolution of the
stockholders at any meeting of stockholders. Unless sooner removed or
disqualified, each director shall hold office until the next annual meeting
of the stockholders and until the director's successor has been elected and
qualified.
Section 2.3 Organization Meeting. At its first meeting after each
annual meeting of stockholders, the Board shall choose a Chairman of the
Board, a President and a Chief Executive Officer from its own members and
otherwise organize the new Board and appoint officers of the Bank for the
succeeding year.
Section 2.4 Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the Board and of stockholders and perform
such duties as shall be assigned from time to time by the Board. In the
absence of the Chairman of the Executive Committee, the Chairman of the Board
shall act as Chairman of the Executive Committee. Except as may be otherwise
provided by the By-Laws or the Board, the Chairman of the Board shall be a
member ex officio of all committees authorized by these By-Laws or the Board.
The Chairman of the Board shall be kept informed by the executive officers
about the affairs of the Bank.
Section 2.5 Regular Meetings. The regular meetings of the Board
shall be held each month at the time and location designated by the Board.
No notice of a regular meeting shall be required if the meeting is held
according to a schedule of regular meetings approved by the Board.
Section 2.6 Special Meetings. Special meetings of the Board may
be called by the Chairman of the Board, the President, the Chief Executive
Officer or the Secretary or at the written request of any three or more
directors. Each member of the Board shall be given notice stating the time
and place of each such special meeting by telegram, telephone or similar
electronic means or in person at least one day prior to such meeting, or by
mail at least three days prior.
Section 2.7 Quorum. One third of the entire Board shall
constitute a quorum at any meeting, except when otherwise provided by law.
If a quorum is not present at any meeting, a majority of the directors
present may adjourn the meeting, and the meeting may be held, as adjourned,
without further notice provided that a quorum is then present. The act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board, unless otherwise specifically provided by
statute, the Organization Certificate or these By-Laws.
Section 2.8 Vacancies. When any vacancy occurs among the
directors, the remaining members of the Board may appoint a director to fill
each such vacancy at any regular meeting of the Board or at a special meeting
called for that purpose. Any director so appointed shall hold office until
the next annual meeting of the stockholders and until the director's
successor has been elected and qualified, unless sooner displaced.
Section 2.9 Removal of Directors. Any director may be removed
either with or without cause, at any time, by a vote of the holders of a
majority of the shares of the Bank at any meeting of stockholders called for
that purpose. A director may be removed for cause by vote of a majority of
the entire Board.
Section 2.10 Compensation of Directors. The Board shall fix the
amounts to be paid directors for their services as directors and for their
attendance at the meetings of the Board or of committees or otherwise. No
director who receives a salary from the Bank shall receive any fee for
attending meetings of the Board or of any of its committees.
Section 2.11 Action by the Board. Except as otherwise provided by
law, corporate action to be taken by the Board shall mean such action at a
meeting of the Board or the Executive Committee of the Board. Any one or
more members of the Board or any committee may participate in a meeting of
the 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 by such means shall
constitute presence in person at a meeting.
Section 2.12 Waiver of Notice. Notice of a meeting need not be
given to any director who submits a signed waiver of notice before or after
the meeting or who attends the meeting without protesting the lack of such
notice prior to or at the commencement of the meeting.
Section 2.13 Advisory and Regional Boards. The Board, the
Chairman of the Board, the President, the Chief Executive Officer or any
Regional President may establish Advisory Boards or Regional Boards and
committees thereof for any one or more of the Bank's regions, offices, or
departments and make or authorize appointments to be made thereto.
Appointees to such boards and committees need not be stockholders, directors
or officers of the Bank, and they shall have and perform only such functions
as may be assigned to them by, shall serve at the pleasure of, and shall be
compensated by fees fixed by the Board, the Chairman of the Board, the
President, the Chief Executive Officer or the Regional President making the
appointment.
ARTICLE III
COMMITTEES OF THE BOARD
Section 3.1 Executive Committee.
a. There shall be an Executive Committee which shall be composed
of at least five members elected by the Board from among its members at its
first meeting following the annual meeting of stockholders to serve for the
ensuing year and shall include the Chairman of the Board, the President, the
Chief Executive Officer and the Chairman of the Executive Committee, all of
which offices may be held by one person. The Chairman of the Board may
appoint one or more directors as alternate members to serve in place of any
absent members of the Executive Committee. Any vacancy in the Executive
Committee shall be filled by the Board, but until its next regular Board
meeting may be filled temporarily by the Chairman of the Board.
b. The Executive Committee shall possess and exercise all of the
powers of the Board except (i) when the latter is in session and (ii) as
provided otherwise in the New York Banking Law.
Section 3.2 Chairman of the Executive Committee. The Board shall
appoint one of its members to be Chairman of the Executive Committee. The
Chairman of the Board, the President or the Chief Executive Officer may at
the same time be appointed Chairman of the Executive Committee. The Chairman
of the Executive Committee shall preside at all meetings of the Executive
Committee, and the Chairman of the Executive Committee shall, in the absence
of the Chairman of the Board, the President and the Chief Executive Officer,
preside at all meetings of stockholders and the Board. The Chairman of the
Executive Committee shall also perform such other duties and be vested with
such other powers as may from time to time be conferred upon him or her by
these By-Laws or as shall be assigned to him or her from time to time by the
Board or the Chief Executive Officer.
Section 3.3 Meetings of the Executive Committee. Meetings of the
Executive Committee may be called by the Chairman of the Board, the Chairman
of the Executive Committee, the President, the Chief Executive Officer or the
Secretary and may be held at any place and at any time designated in the
notice thereof. Each member of the Executive Committee shall be given notice
stating the time and place of each such meeting, by telegram, telephone or
similar electronic means or in person at least one day prior to such meeting,
or by mail at least three days prior.
Section 3.4 Examining Committee. The Board shall designate an
Examining Committee, which shall hold office until the next annual meeting of
the Board following the annual meeting of stockholders, consisting of not
less than three of its members, other than officers of the Bank, and whose
duty it shall be to make an examination at least once during each calendar
year and within 15 months of the last such examination into the affairs of
the Bank including the administration of fiduciary powers, or cause suitable
examinations to be made by auditors responsible only to the Board and to
report the result of such examination in writing to the Board. Such report
shall state whether the Bank is in a sound condition, whether adequate
internal controls and procedures are being maintained and shall recommend to
the Board such changes in the manner of conducting the affairs of the Bank as
shall be deemed advisable. The Committee shall at such time ascertain
whether the Bank's fiduciary responsibilities have been administered in
accordance with law and sound fiduciary principles.
Section 3.5 Other Committees. The Board may appoint, from time to
time, from its own members, committees of the Board of three or more persons,
for such purposes and with such powers as the Board may determine.
ARTICLE IV
OFFICERS
Section 4.1 Appointment of Officers. At its annual meeting
following the annual meeting of stockholders, the Board shall appoint from
among its members a Chairman of the Board, a President, a Chief Executive
Officer and a Secretary. The Chairman of the Board or the President may also
be appointed as the Chief Executive Officer. At such meeting, the Board
shall also appoint one or more Vice Presidents, and may at such meeting or at
other meetings of the Board appoint such other officers as it may determine
from time to time. The Board may also authorize a committee of the Board to
appoint such officers as are not required to be appointed by the Board at a
meeting.
Section 4.2 Duties of President. In the absence of the Chairman
of the Board, the President shall preside at all meetings of the Board and of
stockholders and in the absence of the Chairman of the Executive Committee
and the Chairman of the Board shall preside at all meetings of the Executive
Committee. Except as may be otherwise provided by the By-Laws or the Board,
the President shall be a member ex officio of all committees authorized by
these By-Laws or the Board. The President shall have general executive
powers, shall participate actively in all major policy decisions and shall
have and may exercise any and all other powers and duties pertaining by law,
regulation or practice to the Office of President or imposed by these By-
Laws. The President shall also have and may exercise such further powers and
duties as from time to time may be conferred or assigned by the Board or the
Chief Executive Officer.
Section 4.3 Duties of Chief Executive Officer. The Chief
Executive Officer shall exercise general supervision over the policies and
business affairs of the Bank and the carrying out of the policies adopted or
approved by the Board. Except as otherwise provided by these By-Laws, the
Chief Executive Officer shall have the power to determine the duties of the
officers of the Bank and to employ and discharge officers and employees.
Except as otherwise provided by the By-Laws or the Board, the Chief Executive
Officer shall be a member ex officio of all committees authorized by these
By-Laws or created by the Board. In the absence of the Chairman of the Board
and the President, the Chief Executive Officer shall preside at all meetings
of the Board and of stockholders.
Section 4.4 Duties of Vice Presidents. Each Vice President shall
have such titles, seniority, powers and duties as may be assigned by the
Board, a committee of the Board, the President or the Chief Executive
Officer.
Section 4.5 Secretary. The Secretary shall be Secretary of the
Board and of the Bank and shall keep accurate minutes of all meetings of
stockholders and of the Board. The Secretary shall attend to the giving of
all notices required to be given by these By-Laws; shall be custodian of the
corporate seal, records, documents and papers of the Bank; shall provide for
the keeping of proper records of all transactions of the Bank; shall have and
may exercise any and all other powers and duties pertaining by law,
regulation or practice to the office of Secretary or imposed by these By-
Laws; and shall also perform such other duties as may be assigned from time
to time by the Board, the president or the Chief Executive Officer.
Section 4.6 Other Officers. The President or the Chief Executive
Officer or his or her designee may appoint all officers whose appointment
does not require approval by the Board or a committee of the Board and assign
to them such titles as from time to time may appear to be required or
desirable to transact the business of the Bank. Each such officer shall have
such powers and duties as may be assigned by the Board, the president or the
Chief Executive Officer.
Section 4.7 Tenure of Office. The Chairman of the Board, the
President, the Chief Executive Officer, the Chairman of the Executive
Committee, the Secretary and the Vice Presidents shall hold office for the
current year for which the Board was elected and until their successors have
been appointed and qualified, unless they shall resign, become disqualified
or be removed. All other officers shall hold office until their successors
have been appointed and qualify, unless they shall resign, become
disqualified or be removed. The Board shall have the power to remove the
Chairman of the Board, the President, the Chief Executive Officer, the
Chairman of the Executive Committee and the Secretary. The Board or the
Chief Executive Officer or his or her designee shall have the power to remove
all other officers and employees. Any vacancy occurring in the offices of
Chairman of the Board, President or Chief Executive Officer shall be filled
promptly by the Board.
Section 4.8 Compensation. The Board shall by resolution determine
from time to time the officers whose compensation will require approval by
the Board or a committee of the Board. The Chief Executive Officer shall fix
the compensation of all officers and employees whose compensation does not
require approval by the Board or a committee of the Board.
Section 4.9 Auditor. The Board or the Chief Executive Officer
shall appoint an officer to fill the position of Auditor for the Bank and
assign to such officer such title as is deemed appropriate. The Auditor
shall perform all duties incident to the audit of all departments and offices
and of all affairs of the Bank. The Auditor shall be responsible to the
Chief Executive Officer. The Auditor may at any time report to the Board any
matter concerning the affairs of the Bank that, in the Auditor's judgment,
should be brought to its attention.
Section 4.10 Regional Presidents. The Board may appoint one or
more Regional Presidents. Each Regional President shall have such powers and
duties as may be assigned by the Board or the Chief Executive Officer.
ARTICLE V
FIDUCIARY POWERS
Section 5.10 Fiduciary Responsibility. The Board shall appoint an
officer or officers or a committee or committees of this Bank whose duties
shall be to manage, supervise and direct the fiduciary activities of the Bank
as assigned by the Board. Such officer or committee shall do or cause to be
done all things necessary or proper in carrying on the assigned activities in
accordance with provisions of law and applicable regulations and shall act
pursuant to opinion of counsel where such opinion is deemed necessary.
Opinions of counsel shall be retained on file in connection with all
important matters pertaining to fiduciary activities. The officer or
committee shall be responsible for all assets and documents held by the Bank
in connection with fiduciary matters assigned by the Board.
Section 5.11 Fiduciary Files. Files shall be maintained
containing all fiduciary records necessary to assure that fiduciary
responsibilities have been properly undertaken and discharged.
Section 5.12 Fiduciary Investments. Funds held in a fiduciary
capacity shall be invested in accordance with the instrument establishing the
fiduciary relationship and applicable law. Where such instrument does not
specify the character and class of investments to be made and does not vest
in the Bank a discretion in the matter, funds held pursuant to such
instrument shall be invested in investments in which corporate fiduciaries
may invest under applicable law.
ARTICLE VI
STOCK AND STOCK CERTIFICATES
Section 6.1 Transfers. Shares of the stock of the Bank shall be
transferable on the books of the Bank, only by the person named in the
certificate or by an attorney, lawfully constituted in writing, and upon
surrender of the certificate therefor. Every person becoming a stockholder
by such transfer shall, in proportion to his or her shares, succeed to all
rights of the prior holder of such shares.
Section 6.2 Stock Certificates. The certificates of stock of the
Bank shall be numbered and shall be entered in the books of the Bank as they
are issued. They shall exhibit the holder's name and number of shares and
shall be signed by the Chairman of the Board, the President, the Chief
Executive Officer or any Vice President and by the Secretary or an Assistant
Secretary.
ARTICLE VII
CORPORATE SEAL
Section 7.1 Corporate Seal. The Chairman of the Board, the
President, the Chief Executive Officer, the Secretary or any Assistant
Secretary, a Vice President or Assistant Vice President or other officer
designated by the Board or the Chief Executive Officer or his or her designee
shall have authority to affix the corporate seal to any document requiring
such seal and to attest the same. Such seal shall be substantially in the
following form:
(impression)
( of )
( seal )
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Fiscal Year. The fiscal year of the Bank shall be the
calendar year.
Section 8.2 Execution of Instruments.
a. All agreements, indentures, mortgages, deeds, conveyances,
transfers, certificates, declarations, receipts, discharges, releases,
satisfactions, settlements, petitions, schedules, accounts, affidavits,
bonds, undertakings, proxies and other instruments or documents may be
signed, executed, acknowledged, verified, delivered or accepted in behalf of
the Bank or in connection with the exercise of the fiduciary powers of the
Bank, by the Chairman of the Board, the President, the Chief Executive
Officer, the Secretary or any other officer or employee (other than the
Auditor) designated by the Board or the Chief Executive Officer or his or her
designee. Any such instruments may also be executed, acknowledged, verified,
delivered or accepted in behalf of the Bank in such other manner and by such
other officers as the Board may from time to time direct. The provisions of
this Section 8.2 are supplementary to any other provision of these By-Laws.
b. When required, the Secretary or any officer or agent designated
by the Board or the Chief Executive Officer or his designee shall countersign
and certify all bonds or certificates issued by the Bank as trustee, transfer
agent, registrar or depository. The Chief Executive Officer or any officer
designated by the Board or the Chief Executive Officer or his or her designee
shall have the power to accept in behalf of the Bank any guardianship,
receivership, executorship or other special or general trust permitted by
law. Each of the foregoing authorizations shall be at the pleasure of the
Board, and each such authorization by the Chief Executive Officer or his or
her designee also shall be at the pleasure of the Chief Executive Officer.
Section 8.3 Records. The By-Laws and the proceedings of all
meetings of the stockholders, the Board and standing committees of the Board
shall be recorded in appropriate minute books provided for the purpose. The
minutes of each meeting shall be signed by the Secretary or other officer
appointed to act as secretary of the meeting.
Section 8.4 Emergency Operations. In the event of war or warlike
damage or disaster of sufficient severity to prevent the conduct and
management of the affairs, business and property of the Bank by its directors
and officers as contemplated by these By-Laws, any two or more available
members of the then-incumbent Executive Committee shall constitute a quorum
of that committee for the full conduct and management of the affairs,
business and property of the Bank. In the event of the unavailability at
such time of a minimum of two members of the then-incumbent Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs, business and
property of the Bank. This by-law shall be subject to implementation by
resolutions of the Board passed from time to time for that purpose, and any
provisions of these By-Laws (other than this section) and any resolutions
which are contrary to the provisions of this section or to the provisions of
any such implementary resolutions shall be suspended until it shall be
determined by any interim Executive Committee acting under this section that
it shall be to the advantage of the Bank to resume the conduct and management
of its affairs, business and property under all of the other provisions of
these By-Laws.
Section 8.5 Indemnification.
a. The Bank shall indemnify each person made or threatened to be
made a party to any action or proceeding, whether civil or criminal, by
reason of the fact that such person or such person's testator or intestate is
or was a director or officer of the Bank, or, while a director or officer,
serves or served, at the request of the Bank, any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
in any capacity, against judgments, fines, penalties, amounts paid in
settlement and reasonable expenses, including attorney's fees, incurred in
connection with such action or proceeding, or any appeal therein, provided
that no such indemnification shall be made if a judgment or other final
adjudication adverse to such director or officer establishes that his or her
acts were committed in bad faith or were the result of active and deliberate
dishonesty and were material to the cause of action so adjudicated, or that
he or she personally gained in fact a financial profit or other advantage to
which he or she was not legally entitled, and provided further that no such
indemnification shall be required with respect to any settlement or other
nonjudicated disposition of any threatened or pending action or proceeding
unless the Bank has given its prior consent to such settlement or other
disposition.
b. The Bank shall advance or promptly reimburse upon request any
director or officer seeking indemnification hereunder for all expenses,
including attorneys' fees, reasonably incurred in defending any action or
proceeding in advance or the final disposition thereof upon receipt of an
undertaking by or on behalf of such person to repay such amount if such
person is ultimately found not to be entitled to indemnification or, where
indemnification is granted, to the extent the expenses so advanced or
reimbursed exceed the amount to which such person is entitled.
c. This Section 8.5 shall be given retroactive effect, and the
full benefits hereof shall be available in respect of any alleged or actual
occurrences, acts or failures to act prior to the date of the adoption of
this Section 8.5. The right to indemnification of advancement of expenses
under this Section 8.5 shall be a contract right.
Section 8.6 Amendments. These By-Laws may be added to, amended,
altered or repealed at any regular meeting of the Board by a vote of a
majority of the total number of the directors, or at any meeting or
stockholders, duly called and held, by a majority of the stock represented at
such meeting.
I, Helen Kujawa, CERTIFY that I am the duly appointed Secretary of
Marine Midland Bank and, as such officer, have access to its official records
and the foregoing By-Laws are the By-Laws of the Bank, and all of them are
now lawfully in force and effect.
IN TESTIMONY WHEREOF, I have hereunto affixed my official signature
and the seal of the Bank, in New York, on January 27, 1994.
/s/ Helen Kujawa
--------------------------------------
Assistant Corporate Secretary
[SEAL]
EXHIBIT T1A(vi)
Securities and Exchange Commission
Washington, D.C. 20549
Dear Sirs:
Pursuant to Section 321(b) of the Trust Indenture Act of 1939 and
subject to the qualifications and limitation of 321(b) and the other
provisions of the Trust Indenture Act of 1939, the undersigned Marine Midland
Bank consents that reports of examination by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Commission
upon request therefor.
Yours very truly,
MARINE MIDLAND BANK
By: /s/ Metin Caner
--------------------------------
(Metin Caner,
Assistant Vice President)
Attest:
By: /s/ Eileen M. Hughes
-------------------------
(Eileen M. Hughes,
Corporate Trust Officer)
EXHIBIT T1A(vii)
REPORT OF CONDITION
Consolidated Report of Condition of
Marine Midland Bank of Buffalo, New
York and Foreign and Domestic Subsid-
iaries, a member of the Federal Re-
serve System, at the close of bus-
iness on December 31, 1993, pub-
lished in accordance with a call made
by the Federal Reserve Bank of this
District pursuant to the provisions of
the Federal Reserve Act.
(Dollar Amounts in
Thousands)
ASSETS
Cash and balance due from
depositary institutions:
Noninterest-bearing balances
and currency and coin . . . . . . . . . . . . . . . . . $1,071,645
Interest-bearing balances . . . . . . . . . . . . . . . 1,492,007
Securities . . . . . . . . . . . . . . . . . . . . . . 1,919,704
Federal funds sold and
securities purchased under
agreements to resell in
domestic offices of the
bank and of its Edge and
Agreement subsidiaries, and
in IBF's
Federal funds sold . . . . . . . . . . . . . . . . . . . 357,000
Securities purchased
under agreements to resell . . . . . . . . . . . . . . . 593,002
Loans and lease financing
receivables:
Loans and leases, net of
unearned income . . . . . . . . . . . . . . . 9,930,891
LESS: Allowance for loan
and lease losses . . . . . . . . . . 342,089
LESS: Allocated transfer
risk reserve . . . . . . . . . . . . 0
Loans and lease, net of unearned
income, allowance, and reserve . . . . . . . . . . . . . 9,588,802
Assets held in trading accounts . . . . . . . . . . . . . . . 1,615,072
Premises and fixed assets
(including capitalized leases) . . . . . . . . . . . . . 193,194
Other real estate owned . . . . . . . . . . . . . . . . . . . 142,240
Investments in unconsolidated
subsidiaries and associated
companies . . . . . . . . . . . . . . . . . . . . . . 0
Customers' liability to this
bank on acceptances outstanding . . . . . . . . . . . . 15,007
Intangible assets . . . . . . . . . . . . . . . . . . . . . . 69,056
Other assets . . . . . . . . . . . . . . . . . . . . . . 428,500
-----------
Total assets . . . . . . . . . . . . . . . . . . . . . . 17,485,229
===========
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . 12,377,782
Noninterest-bearing . . . . . . . . . . . . . 3,259,659
Interest-bearing . . . . . . . . . . . . . . . 9,118,123
In foreign offices, Edge
and Agreement Subsid-
iaries, and IBF's . . . . . . . . . . . . . . . . . . . 1,002,884
Noninterest-bearing . . . . . . . . . . . . . 0
Interest-bearing . . . . . . . . . . . . . . . 1,002,884
Federal funds purchased
securities sold under
agreements to repurchase
in domestic offices of
the bank and of its Edge
and Agreement subsidiar-
ies, and in IBF's
Federal funds purchased . . . . . . . . . . . . . . . . 1,115,269
Securities sold under
agreements to repurchase . . . . . . . . . . . . . . . . 260,530
Demand notes issued to the U.S.
Treasury . . . . . . . . . . . . . . . . . . . . . . 300,000
Other borrowed money . . . . . . . . . . . . . . . . . . . . 510,549
Mortgage indebtedness and
obligations under capital-
ized leases . . . . . . . . . . . . . . . . . . . . . . 41,852
Bank's liability on acceptances
executed and outstanding . . . . . . . . . . . . . . . . 17,591
Subordinated notes and
debentures . . . . . . . . . . . . . . . . . . . . . . . 225,000
Other liabilities . . . . . . . . . . . . . . . . . . . . . . 317,656
-----------
Total Liabilities . . . . . . . . . . . . . . . . . . . . . . 16,169,113
Limited-Life preferred
stock and related surplus . . . . . . . . . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock
and related surplus . . . . . . . . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . 185,000
Surplus . . . . . . . . . . . . . . . . . . . . . . 1,182,745
Undivided profits and capital
reserves . . . . . . . . . . . . . . . . . . . . . . (51,629)
LESS: Net unrealized loss
on marketable equity
securities . . . . . . . . . . . . . . . . . . . . . . . 0
Cumulative foreign currency
translation adjustments . . . . . . . . . . . . . . . . 0
Total equity capital . . . . . . . . . . . . . . . . . . . . 1,316,116
------------
Total
Liabilities, limited-life
preferred stock and equity
capital . . . . . . . . . . . . . . . . . . . . . . 17,485,229
============
I, Gerald A. Ronning, Executive Vice President and Controller of
the above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
GERALD A. RONNING
We the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to the
best of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
James H. Cleave
Director
Bernard J. Kennedy
Director
Northrup R. Knox
Director