Exhibit 25.1
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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)__
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MANUFACTURERS AND TRADERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 16-0538020
(Jurisdiction of incorporation (I.R.S. employer
or organization if not a national bank) identification No.)
One M&T Plaza
Buffalo, New York 14240-2399
(Address of principal executive offices) (Zip Code)
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EXTENDED STAY AMERICA, INC.
(Exact name of obligor as specified in its charter)
DELAWARE 36-3996573
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
450 Las Olas Boulevard, Suite 1000
Ft. Lauderdale, Florida 33301
(Address of principal executive offices) (Zip Code)
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7 7/8 SENIOR SUBORDINATED NOTES Due 2011
(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, 2 World
Trade Center, New York, New York 10047 and Albany, New York
12203.
Federal Reserve Bank of New York, 33 Liberty Street, New York,
New York 10045.
Federal Deposit Insurance Corporation, Washington, D.C. 20429.
(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]
Item 16. List of Exhibits
Exhibit 1. Organization Certificate of the Trustee as now in effect
(incorporated herein by reference to Exhibit 1, Form T-1, filed as
Exhibit 25.1 to Registration Statement No. 333-75673).
Exhibit 2. Certificate of Authority of the Trustee to commence business
(incorporated herein by reference to Exhibit 2, Form T-1, filed as
Exhibit 25.1 Registration Statement No. 333-75673).
Exhibit 3. Authorization of the Trustee to exercise corporate trust powers
(incorporated herein by reference to Exhibit 3, Form T-1, filed as
Exhibit 25.1 Registration Statement No. 333-75673).
Exhibit 4. Existing By-Laws of the Trustee.*
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Exhibit 5. Not Applicable.
Exhibit 6. Consent of the Trustee (incorporated herein by reference to
Exhibit 6, Form T-1, filed as Exhibit 25.1 Registration Statement
No. 333-75673).
Exhibit 7. Report of Condition of the Trustee.*
Exhibit 8. Not Applicable.
Exhibit 9. Not Applicable
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* Filed Herewith
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939
the Trustee, Manufacturers and Traders Trust Company, a trust company 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 July, 2001.
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ RUSSELL T. WHITLEY
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Russell T. Whitley
Assistant Vice President
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EXHIBIT 4
BYLAWS OF THE TRUSTEE
BY-LAWS
of
MANUFACTURERS AND TRADERS TRUST COMPANY
(as last amended on February 15, 2000)
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.
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
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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,
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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 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
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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 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.
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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
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
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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 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
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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
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Section 1. Officers: The Board of Directors shall annually, at the
first meeting (the "Annual Reorganization Meeting") of the board after the
Annual Meeting of Stockholders, elect from its own number a Chairman of the
Board, one or more Vice Chairmen, 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
Chairman of the Board or the President, as designated by the Board of Directors.
At the Annual Reorganization Meeting, the Board of Directors shall also reelect
all of the then officers of M&T Bank until the next Annual Reorganization
Meeting. In the interim between Annual Reorganization Meetings, the Board of
Directors or the Executive Committee may also from time to time elect or appoint
such additional officers to the rank of Vice President, including (without
limitation as to title or number) one or more Vice Presidents, Administrative
Vice Presidents, Senior Vice Presidents and Executive Vice Presidents; and, the
head of the Human Resources Department of M&T Bank or his designee or designees,
may appoint officers below the rank of Vice President, including (without
limitation as to title or number) one or more Banking Officers, Assistant Vice
Presidents, Assistant Secretaries, Assistant Treasurers and Assistant Auditors.
Each such person elected or appointed by the Board of Directors, the Executive
Committee, or the head of the Human Resources Department of M&T Bank or his
designee or designees, in between Annual Reorganization Meetings shall, unless
otherwise determined by the Board or Directors, the Executive Committee or the
head of the Human Resources Department of M&T Bank or his designee or designees,
hold office until the next Annual Reorganization Meeting.
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
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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 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,
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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
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other duties as the Board of Directors, the Chairman of the Board or the
President shall prescribe.
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
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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 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
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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.
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.
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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
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
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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
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:
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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.
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.
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EXHIBIT 7
REPORT OF CONDITION OF THE TRUSTEE
MANUFACTURERS AND TRADERS TRUST COMPANY
---------------------------------------
CONDENSED CONSOLIDATED BALANCE SHEET
In thousands March 31, 2001
- --------------------------------------------------------------------------------
ASSETS
Cash and due from banks $ 691,092
Money-market assets 112,252
Investment securities
Available for sale (cost: $3,144,745) 3,175,735
Held to maturity (market value: $102,200) 101,641
-----------
Total investment securities 3,277,376
-----------
Loan and leases, net of unearned discount 23,435,680
Allowance for credit losses (394,877)
-----------
Loan and leases, net 23,040,803
Other assets 2,916,768
-----------
Total assets $30,038,291
===========
LIABILITIES
Deposits
Non-interest-bearing $ 3,300,817
Interest-bearing 17,025,036
-----------
Total deposits 20,325,853
Borrowings 5,989,906
Accrued interest and other liabilities 485,909
Total liabilities 26,801,668
-----------
STOCKHOLDER'S EQUITY 3,236,623
-----------
Total liabilities and stockholder's equity $30,038,291
===========
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