EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
__________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
__________________________
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) _______
__________________________
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-3818954
(Jurisdiction of incorporation (I. R. S. Employer
if not a U. S. national bank) Identification Number)
114 West 47th Street 10036-1532
New York, New York (Zip Code)
(Address of principal
executive offices)
--------------------------
NEXTLINK Communications, L.L.C.
NEXTLINK Capital, Inc.
(Exact name of OBLIGOR as specified in its charter)
Washington 91-1678465
Washington 91-1716062
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
155 108th Avenue NE 98004
Bellevue, Washington
(Address of principal executive offices) (Zip code)
__________________________
12-1/2% Senior Notes due April 15, 2006
(Title of the indenture securities)
-2-
GENERAL
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.
Federal Reserve Bank of New York (2nd District), New York, New
York (Board of Governors of the Federal Reserve System).
Federal Deposit Insurance Corporation, Washington, D. C.
New York State Banking Department, Albany, New York
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH THE OBLIGOR
-----------------------------
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
3,4,5,6,7,8,9,10,11,12,13,14 and 15.
NEXTLINK Communications, L.L.C. and NEXTLINK Capital, Inc. is currently
not in default under any of its outstanding securities for which United
States Trust Company of New York is Trustee. Accordingly, responses to
Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of Form T-1 are not
required under General Instruction B.
-3-
16. LIST OF EXHIBITS
----------------
T-1.1 -- Organization Certificate, as amended, issued by the
State of New York Banking Department to transact business as a
Trust Company, is incorporated by reference to Exhibit T-1.1 to
Form T-1 filed on September 15, 1995 with the Commission pursuant
to the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990 (Registration No.
33-97056).
T-1.2 -- Included in Exhibit T-1.1.
T-1.3 -- Included in Exhibit T-1.1.
T-1.4 -- The By-Laws of United States Trust Company of New
York, as amended, is incorporated by reference to
Exhibit T-1.4 to Form T-1 filed on September 15, 1995
with the Commission pursuant to the Trust Indenture
Act of 1939, as amended by the Trust Indenture
Reform Act of 1990 (Registration No. 33-97056).
T-1.6 -- The consent of the trustee required by Section 321(b) of
the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990.
T-1.7 A copy of the latest report of condition of the trustee
pursuant to law or the requirements of its supervising or
examining authority.
NOTE
As of May 9, 1996, the trustee had 2,999,020 shares of Common Stock
outstanding, all of which are owned by its parent company, U. S. Trust
Corporation. The term "trustee" in Item 2, refers to each of United States
Trust Company of New York and its parent company, U. S. Trust Corporation.
In answering Item 2 in this statement of eligibility, as to matters
peculiarly within the knowledge of the obligor or its directors, the
trustee has relied upon information furnished to it by the obligor and will
rely on information to be furnished by the obligor and the trustee
disclaims responsibility for the accuracy or completeness of such
information.
_____________________
-4-
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, United States Trust Company of New York, a corporation organized
and existing 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 9th day of May, 1996.
UNITED STATES TRUST COMPANY OF
NEW YORK, Trustee
/s/ Patricia Stermer
By: _______________________________________
EXHIBIT T-1.1
STATE OF NEW YORK
Banking Department
Know all Men by these Presents, Whereas the organization certificate of
NEW U.S. TRUST COMPANY OF NEW YORK of New York, New York has heretofore been
duly approved and said NEW U.S. TRUST COMPANY OF NEW YORK has complied with the
provisions of Chapter 2 of the Consolidated Laws,
Note Therefore, I NEIL D. LEVIN, as Superintendent of Banks of the State
of New York, do hereby authorize the said NEW U.S. TRUST COMPANY OF NEW YORK to
transact the business of a Trust Company at 114 West 47th Street, Borough of
Manhattan, City of New York within this State.
In Witness Whereof, I have hereunto set my hand and affixed the official
seal of the Banking Department, this 30th day of August in the year one
thousand nine hundred and ninety-five.
Neil D. Levin
Superintendent of Banks
By: /s/ Carmine M. Tenga
----------------------------
Carmine M. Tenga
Deputy Superintendent
State of New York
Banking Department
I, CARMINE M. TENGA, Deputy Superintendent of Banks of the State of New
York, do hereby certify that I have caused the annexed copy of the Organization
Certificate for NEW U.S. TRUST COMPANY OF NEW YORK--filed in the Office of the
Superintendent of Banks on August 14, 1995, to be compared by a competent clerk
with the original on file in the Banking Department, and the same is a correct
copy of said certificate and of the whole thereof.
IN WITNESS WHEREOF, I have hereunto
set my hand and affixed the official seal of
the Banking Department at New York, NY,
this 25th day of August, 1995.
/s/ Carmine M. Tenga
-----------------------------------
Deputy Superintendent of Banks
ORGANIZATION CERTIFICATE
OF
"NEW U.S. TRUST COMPANY OF NEW YORK"
Received this 15th day of February, 1995.
/s/
-------------------------
Deputy Superintendent of Banks
Filed for examination this 21st day of February, 1995.
/s/
--------------------------
Deputy Superintendent of Banks
Conditionally approved by the Banking Board,
at a meeting held on the 2nd day of March, 1995.
/s/
---------------------------
Secretary of the Banking Board
Approved and filed
this 14th day of August, 1995.
/s/
--------------------------
Deputy Superintendent of Banks
Filed in the office of
-----------------------------------------
this ________ day of _________, 1995.
--------------------------------------
Recorded in the office of
------------------------------------
this ________ day of _________, 1995.
==========================================
ORGANIZATION CERTIFICATE
OF
New U.S. Trust Company of New York
We, the undersigned all being of full age, all of us being citizens of
the United States and five 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 New U.S.
Trust Company of New York.
SECOND. That the place where its principal office is to be located is
114 West 47th Street, New York, NY 10036.
THIRD. That the amount of its capital stock is to be Fourteen million,
nine hundred ninety-five thousand, one hundred and forty-five Dollars
($14,995,145) and the number of shares into which such capital stock is to be
divided is 2,999,029 with a par value of $5 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:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(b) All the designations, preferences, privileges and voting powers of
the shares of each class, and the restrictions or qualifications thereof are as
follows:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
*/ Of the total capital stock, 100 shares are issued and outstanding, and the
- - balance of the shares are being held in reserve and will be issued
immediately after the transfer of the assets and liabilities from United
States Trust Company of New York to New U.S. Trust Company of New York.
BY-LAWS
OF
NEW U.S. TRUST COMPANY OF NEW YORK
ARTICLE I
Stockholders
------------
SECTION 1.1. Annual Election of Directors. The annual election of
-----------------------------
Directors of New U.S. Trust Company of New York (the "Trust Company") shall be
held at the principal office of the Trust Company in the City of New York within
the first four months of each calendar year at such time as may be designated by
the Board of Directors (the "Board").
SECTION 1.2. Special Meetings of Stockholders. Special meetings of
---------------------------------
stockholders may be called by the Board, the Chairman of the Board (the
"Chairman"). Such meetings shall be held at such time and at such place, within
or without the State of New York, as the Board or the officer calling the
meeting may designate.
SECTION 1.3. Notice and Record Date. The Secretary shall, not less than
-----------------------
ten nor more than fifty days before each annual election of Directors and any
special meeting of stockholders, give written notice of such annual election or
special meeting to the stockholders entitled to vote thereat, directed to each
such stockholder at his address as it appears on the record of stockholders, or
at such address as such stockholder may have filed with the Secretary, and
stating the date, hour and place of the annual election or special meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called and that the notice is being issued by or at the direction of the
person or persons calling the meeting. For the purpose of determining the
stockholders entitled to notice of or to vote at any election of Directors or
meeting of stockholders or any adjournment thereof, or for the purpose of
determining stockholders entitled to receive payment of any dividend or the
allotment of any rights, or for the purpose of any other action, the Board may
fix, in advance, a date as the record date for any such determination of
stockholders. Such date shall not be more than fifty days nor less than ten days
before the date
of such election or meeting, nor more than fifty days prior to any other action.
SECTION 1.4. Voting; Proxies. Each stockholder of record shall be entitled to
---------------
one vote for each share of capital stock standing in his name on the record of
stockholders. Every stockholder entitled to vote may authorize another person or
persons to act for him by proxy. Every proxy must be signed by the stockholder
or his attorney-in-fact and filed with the Secretary.
SECTION 1.5. Quorum and Vote of Stockholders. The holders of a majority of
--------------------------------
the shares entitled to vote thereat shall constitute a quorum at any annual
election of Directors or special meeting of stockholders. At all special
meetings of stockholders, a quorum being present, all matters, except as
otherwise provided by law, shall be authorized by a majority of the votes cast
at the meeting by the stockholders entitled to vote thereon. When a quorum is
once present to organize a meeting, it is not broken by the subsequent
withdrawal of any stockholders. The stockholders present may adjourn the meeting
despite the absence of a quorum.
ARTICLE II
Board of Directors
-------------------
SECTION 2.1. Number. The affairs of the Trust Company shall be managed by
------
the Board, consisting of such number of Directors, not less than thirteen nor
more than thirty, as may from time to time be fixed by resolution adopted by a
majority of the Directors then in office.
SECTION 2.2. Qualifications. No person shall be eligible for election or
---------------
qualified to remain in office as a Director who shall have attained the age of
seventy-two years, and any Director in office shall retire as such upon
attaining the age of seventy-two years.
SECTION 2.3. Classification and Term. The Board shall be classified into
------------------------
three classes as nearly equal as may be, with the terms of office of one class
expiring each year on the date of the annual election of Directors. At each
annual election of Directors, the successors to the Directors of the class whose
term expires in that year shall be elected Directors for a term of three years,
but each
Director, of whatever class, shall hold office until his successor shall have
been elected and shall qualify. In case of any increase in the number of
Directors, the Board shall designate the class or classes in which the
additional Directors shall be included, but the additional Directors shall be so
apportioned among the classes as to make all classes as nearly equal in number
as possible.
SECTION 2.4. Election. The Directors to be elected at any annual
---------
election of Directors shall be elected by a plurality of the votes cast by the
holders of shares entitled to vote in the election. Every election of Directors
shall be by ballot.
SECTION 2.5. Regular Meetings of the Board. Regular monthly meetings of
------------------------------
the Board shall be held at least ten times a year provided, however, that during
any three consecutive calendar months the Board shall meet at least twice at
such time and at such place, within or without the State of New York, as may be
fixed by the Board from time to time. Within fifteen days after the annual
election of Directors, the Board shall hold a regular meeting, which shall be
designated as the Annual Meeting of the Board for the election of officers as
provided in Section 6.1 and for the transaction of other business. No notice
need be given for regular meetings of the Board.
SECTION 2.6. Special Meetings of the Board. Special meetings of the
------------------------------
Board may be called at any time by the Chairman, the President or a Vice
Chairman, and the Secretary shall call a special meeting at the written request
of any three Directors. The Secretary shall give notice of the date, hour and
place (which may be within or without the State of New York) of any special
meeting by mailing or delivering the same at least two days before the meeting,
or by telegraphing or telephoning the same at least one day before the meeting,
to each Director.
SECTION 2.7. Quorum and Voting. One-third of the entire Board, but in no
------------------
event less than five Directors, shall constitute a quorum for the transaction of
business and, except as otherwise required by law, the vote of a majority of the
Directors present at the time of the vote, if a quorum is then present, shall be
the act of the Board.
SECTION 2.8. Meetings by Telephone. Any one or more members of the Board
----------------------
or any committee thereof may participate in a meeting of such Board or committee
by means
of a conference telephone or similar communications equipment allowing all
persons participating in the meeting to hear each other at the same time.
Participating by such means shall constitute presence in person at a meeting.
The minutes of such meeting shall indicate which members participated by
telephone or similar communications equipment.
SECTION 2.9. Vacancies. Vacancies (including vacancies resulting from an
----------
increase in the number of Directors) shall be filled for the unexpired term by
election by the stockholders, except that vacancies not exceeding one-third of
the entire Board may be filled for the unexpired term by the affirmative vote of
a majority of the Directors then in office.
SECTION 2.10. Reports and Minutes. At each regular meeting of the Board
--------------------
there shall be submitted a report of the business of the Trust Company and such
other reports as may be required by law or by regulatory authorities. Regular
minutes of the proceedings of the Board shall be kept and shall be open for
inspection by any Director.
SECTION 2.11. Honorary Directors. The Board may appoint any former
-------------------
Director to be an Honorary Director to remain so at the pleasure of the Board.
Honorary Directors may be invited to attend and participate in discussions at
meetings of the Board or any committee of the Board, but shall not be entitled
to vote or be eligible to serve as a member of any committee of the Board. Each
Honorary Director shall receive such reasonable compensation as the Board may
fix from time to time.
SECTION 2.12. Compensation of Directors. Directors who are not officers
--------------------------
of the Trust Company shall be entitled to such compensation for their services
as Directors or as members of any committee, and shall be entitled to such fees
for attendance at meetings of the Board or of committees, as the Board may fix
from time to time. Nothing herein shall preclude any Director from serving the
Trust Company is any other capacity and receiving compensation therefor.
ARTICLE III
Executive Committee
-------------------
SECTION 3.1. Membership and Authority. The Board by resolution adopted by a
------------------------
majority of the entire Board, may designate from among its members an Executive
Committee, consisting of not less than five Directors, including the Chief
Executive Officer, which shall have all the authority of the Board when the
Board is not in session, except as may be otherwise provided by law or limited
by a resolution of the Board. The Executive Committee shall designate one of its
members to preside at meetings of the Committee. The Board may designate one or
more Directors as alternate members of the Executive Committee who may replace
any absent members at any meeting of such Committee. The Executive Committee
shall serve at the pleasure of the Board.
SECTION 3.2. Regular Meetings. Regular meetings of the Executive Committee
----------------
shall be held at such time and at such place, within or without the State of New
York, as the Committee may fix from time to time, and no notice thereof need be
given. The Executive Committee shall meet at least once in each thirty day
period during which the Board does not meet.
SECTION 3.3. Special Meetings. Special meetings of the Executive Committee
----------------
may be called at any time by the Chairman or the President or, in their absence
a Vice Chairman, and shall be called upon the written request of any two members
of the Committee. Notice of special meeting shall be given as provided in
Section 2.6 for special meetings of the Board.
SECTION 3.4. Quorum and Voting. A majority of the members of the Executive
-----------------
Committee shall constitute a quorum for the transaction of business. The vote of
a majority of the members of the Committee present at the time of the vote, if a
quorum is then present, shall be the act of the Committee.
SECTION 3.5. Minutes. Regular minutes of the proceedings of the Executive
--------
Committee shall be kept and shall be open for inspection by any Director.
Minutes of the meetings of the Executive Committee held since the previous
meeting of the Board shall be submitted at the next regular meeting of the
Board.
ARTICLE IV
Examining and Audit Committee
-----------------------------
SECTION 4.1. Number and Election. The Board, by resolution adopted by a
--------------------
majority of the entire Board, may designate from among its members an Examining
and Audit Committee consisting of not less than three Directors who are not also
officers of the Trust Company, one of whom shall be designated by the Board as
Chairman of such Committee.
SECTION 4.2. Meetings. The Examining and Audit Committee shall meet at
---------
least four times each fiscal year and shall also meet at other times on call of
its Chairman.
SECTION 4.3. Duties and Powers. The Examining and Audit Committee shall
------------------
conduct examinations of the affairs of the Trust Company as required by law or
as directed by the Board and shall have supervision over the activities of the
Auditor. The Examining and Audit Committee shall review the examinations of the
Trust Company made by any regulatory authority and report to the Board on its
recommendations with respect thereto and shall report to the Board such other
matters as it deems advisable with respect to the Trust Company, its various
departments and the conduct of its affairs. In the performance of its duties,
the Examining and Audit Committee may employ or retain, from time to time, such
independent experts and assistance as it may find necessary or convenient.
ARTICLE V
Other Committees
----------------
The Board may appoint, from time to time, such other committees
consisting of Directors, officers or other persons and having such powers,
duties and functions in the management, or relating to the business and affairs,
of the Trust Company as the Board may determine. Each such committee shall serve
at the pleasure of the Board, or in the case of any committee appointed by the
Chief Executive Officer, at the pleasure of the Chief Executive Officer. A
majority of the members of any such committee may determine its rules of order
and procedure and the time and place of its meetings, unless the Board, or in
the case of a
committee appointed by the Chief Executive Officer, the Chief Executive Officer,
shall otherwise provide. The Board, or in the case of any committee appointed by
the Chief Executive Officer, the Chief Executive Officer, may fill any vacancy
in a committee and may designate one or more persons as alternate members of a
committee who may replace any absent member or members at any meeting of such
committee.
ARTICLE VI
Officers
--------
SECTION 6.1. Officers. The officers of the Trust Company shall be a
---------
Chairman of the Board, a President, one or more Vice Chairman of the Board, one
or more Vice Presidents (any one or more of whom may be designated Executive
Vice President, Senior Vice President or by some other special designation), a
Secretary, a Treasurer, a Comptroller and an Auditor. The Chairman, the
President, the Vice Chairman, Executive Vice Presidents (each of the foregoing
officers being referred to hereinafter as an "Executive Officer"), one or more
other Vice Presidents and such other officers, if any, as the Board may
determine, shall be elected by the Board at the Annual Meeting of the Board. The
Board shall from time to time appoint the other officers provided for in these
By-Laws and such additional officers as it may determine. In addition, the
Chairman, or in his absence the President, may appoint one or more Assistant
Vice Presidents, Assistant Secretaries, Assistant Treasurers, Assistant
Comptrollers or Assistant Auditors and other officers below the rank of Vice
President with such titles and duties as may be specified upon appointment.
Vacancies in the offices of any officers so elected or appointed shall be filled
in the manner prescribed in these By-Laws for election or appointment to such
offices.
SECTION 6.2. Chairman of the Board; President. The Chairman and the
---------------------------------
President shall be elected from among the members of the Board, and one of them
shall be designated by the Board as Chief Executive Officer. The Chief Executive
Officer shall have general supervision of the business and affairs of the Trust
Company which shall in every case be subject to the direction and control of the
Board. The Chairman, or in his absence the President, shall preside at all
meetings of the stockholders and of the Board.
SECTION 6.3. Duties of Officers. Officers shall participate in the
-------------------
management of the business and affairs of the Trust Company as directed, and in
the order of seniority as determined, by the Board. They shall perform such
duties as may be assigned to them by the Board, the Chief Executive Officer or
any officer authorized by the Board or the Chief Executive Officer to do so, or
as may be prescribed by law or by these By-Laws.
SECTION 6.4. Secretary. The Secretary shall keep the minutes of all meetings
---------
of the Board and of the Executive Committee, shall have custody of the corporate
seal, shall give notices of meetings required by these By-Laws, shall perform
such other duties as may be assigned to him from time to time by the Board or
the Chief Executive Officer and, in general, shall perform those duties incident
to the office of Secretary. In the absence of the Secretary, an Assistant
Secretary shall have the authority to perform the duties of the Secretary.
SECTION 6.5. Treasurer. The Treasurer shall have responsibility for the care
----------
and custody of all monies, funds and other property of the Trust Company which
may come into his hands, shall perform such other duties as may be assigned to
him from time to time by the Board or the Chief Executive Officer and, in
general, shall perform those duties incident to the office of Treasurer.
In the absence of the Treasurer, an Assistant Treasurer shall have the authority
to perform the duties of the Treasurer.
SECTION 6.6. Comptroller. The Comptroller shall exercise general supervision
------------
over all accounting functions of the Trust Company, including preparation of its
required tax returns and reports to supervisory authorities. He shall be
responsible to the Chief Executive Officer and may report directly to the Board
or to the Executive Committee on such matters as in his judgment should be
brought to their attention. In the absence of the Comptroller, an Assistant
Comptroller shall have the authority to perform the duties of the Comptroller.
SECTION 6.7. Auditor. The Auditor shall exercise supervision over the
-------
Auditing Department, and shall review and evaluate all existing controls and
procedures and be responsible for reporting on the adequacy of controls, systems
and protective procedures and devices to insure the accuracy of records and the
safety of assets owned or managed by the Trust Company. He shall be responsible
to
16
the Chief Executive Officer and to the Board. The Auditor shall report directly
to the Board, the Executive Committee or the Examining and Audit Committee on
such matters as in his judgment should be brought to their attention.
SECTION 6.8. Removal of Officers. All officers may be removed, or their
-------------------
authority may be suspended, with or without cause, by the Board or the
Executive Committee, except that the Chairman and the President may be removed,
or their authority suspended, with or without cause, only by the Board. Officers
appointed by the Chairman or the President may be removed, or their authority
suspended, with or without cause, by the Chairman, or in his absence the
President.
SECTION 6.9. Agents and Employees. All other agents and employees of the
---------------------
Trust Company shall be appointed, their duties prescribed and their compensation
fixed, by the Chairman or the President, or any officer authorized to do so by
either of them.
ARTICLE VII
Signing Authorities
-------------------
Real property owned by the Trust Company in its own right shall not be
deeded, conveyed, mortgaged, assigned or transferred except when duly
authorized by a resolution of the Board.
Subject to the exceptions provided in the preceding and following
paragraphs, all checks, orders, contracts, leases, notes, drafts and other
documents and instruments in connection with the business of the Trust Company
may be signed by any Executive Officer of the Trust Company or by such other
officer, employee or agent thereunto authorized by resolution of the Board, or
in writing by the Chief Executive Officer, or by an officer or officers
designated by him subject to such restrictions as the Chief Executive Officer
shall prescribe.
Notwithstanding the foregoing, the Auditor shall have the power to sign
checks, vouchers, agreements or other documents or instruments on behalf of the
Trust Company, except that the Auditor is authorized to certify in the name of,
or on behalf of, the Trust Company, in its own right or in a fiduciary or
representative capacity, as to the
accuracy and completeness of any account, schedule of assets, or other document,
instrument or paper requiring such certification and to sign in the name of, or
on behalf of, the Trust Company reports and responses to any regulatory
authority.
ARTICLE VIII
Indemnification and Security
----------------------------
SECTION 8.1. Indemnification. The Trust Company shall indemnify any
person made or threatened to be made a party to any action or proceeding,
whether civil or criminal, and whether or not by or in the right of the Trust
Company or of any other corporation of any type or kind, whether or not formed
under any law of the State of New York, or any partnership, joint venture,
trust, employee benefit plan or other enterprise, by reason of the fact that
such person, his testator or intestate, is or was a Director or officer of the
Trust Company or served any other corporation of any type or kind, whether or
not formed under any law of the State of New York, or any partnership, joint
venture, trust, employee benefit plan or other enterprise in any capacity at the
request of the Trust Company, against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees, actually and
necessarily incurred as a result of such action or proceeding, or any appeal
therein, provided that (i) no indemnification may be made to or on behalf of any
person if a judgment or other final adjudication adverse to such person
establishes that his acts were committed in bad faith or were the result of
active and deliberate dishonesty and were material to the case of action so
adjudicated, or that he personally gained in fact a financial profit or other
advantage to which he was not legally entitled, (ii) no indemnification shall be
required in connection with the settlement of any pending or threatened action
or proceeding, or any other disposition thereof except a final adjudication,
unless the Trust Company has consented to such settlement or other disposition
and (iii) the Trust Company shall not be obligated to indemnify any person by
reason of the adoption of this Section 8.1 if and to the extent such person is
entitled to be indemnified under a policy of insurance as such policy would
apply in the absence of the adoption of this Section 8.1.
Reasonable expenses, including attorney's fees, incurred in defending
any action or proceeding, whether threatened or pending, shall be paid or
reimbursed by the Trust Company in advance of the final disposition thereof upon
receipt of an undertaking by or on behalf of the person seeking indemnification
to repay such amount to the Trust Company to the extent, if any, such person is
ultimately found not to be entitled to indemnification.
Notwithstanding any other provision hereof, no repeal of this Section
8.1, or amendment hereof or any other corporate action or agreement which
prohibits or otherwise limits the right of any person to indemnification or
advancement or reimbursement of expenses hereunder, shall be effective as to any
person until the 60th day following notice to such person of such action, and no
such repeal or amendment or other corporate action or agreement shall deprive
any person of any right hereunder arising out of any alleged or actual act or
omission occurring prior to such 60th day.
The Trust Company is hereby authorized, but shall not be required, to
enter into agreements with any of its Directors, officers or employees providing
for rights to indemnification and advancement and reimbursement of reasonable
expenses, including attorneys' fees, to the extent permitted by law, but the
Trust Company's failure to do so shall not in any manner affect or limit the
rights provided for by this Section 8.1 or otherwise.
For purposes of this Section 8.1, the term "Trust Company" shall include
any legal successor to the Trust Company, including any corporation which
acquires all or substantially all of the assets of the Trust Company in one or
more transactions. For purposes of this Section 8.1, the Trust Company shall be
deemed to have requested a person to serve an employee benefit plan where the
performance by such person of his duties to the Trust Company or any subsidiary
thereof also imposes duties on, or otherwise involves services by, such person
to the plan or participants or beneficiaries of the plan, and excise taxes
assessed on a person with respect to an employee benefit plan pursuant to
applicable law shall be considered fines.
The rights granted pursuant to or provided by the foregoing provision of
this Section 8.1 shall be in addition to and shall not be exclusive of any other
right to indemnification and expenses to which any person may
otherwise be entitled under any statute, rule, regulation, certificate of
incorporation or other organization certificate, by-law, agreement or
otherwise.
SECTION 8.2. Security. The Board may from time to time require any
---------
officer or employee to give security for the faithful performance of his duties.
ARTICLE IX
Capital Stock
-------------
SECTION 9.1. Certificates of Stock. Certificates of stock shall be
----------------------
signed by the Chairman, a Vice Chairman, the President or a Vice President and
the Secretary or an Assistant Secretary and may bear the seal of the Trust
Company or a facsimile thereof. Signatures 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 Trust Company with the same effect as it he were
such officer at the date of issue.
SECTION 9.2. Lost or Mutilated Certificates. In case any certificate for
-------------------------------
shares of stock of the Trust Company shall be destroyed, mutilated, lost or
stolen, the Trust Company may in its discretion issue a new certificate for a
like number of shares in replacement thereof. Before a new certificate is
issued, the applicant for a replacement certificate shall be required to furnish
evidence satisfactory to the Trust Company of the destruction, mutilation, loss
or theft of such stock certificate and indemnity acceptable to the Trust
Company, and in case of mutilation shall deposit the mutilated certificate with
the Trust Company.
ARTICLE X
Corporate Seal
--------------
The Board shall provide a corporate seal for the Trust Company which any
officer shall have the power to affix to papers requiring a seal to attest the
same.
ARTICLE XI
Fiscal Year
-----------
The fiscal year of the Trust Company shall begin on the first day of
January in each calendar year and end on the last year of December next
following.
ARTICLE XII
Amendment of By-Laws
--------------------
The By-Laws may be adopted, amended or repealed by the Board, or by vote
of the stockholders at the time entitled to vote in the election of any
Director. Any By-Law adopted by the Board may be amended or repealed by the
stockholders entitled to vote thereon.
State of New York
Banking Department
I, CARMINE M. TENGA, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE, the annexed certificate entitled "CERTIFICATE OF
AMENDMENT OF ORGANIZATION CERTIFICATE OF NEW U.S. TRUST COMPANY OF NEW YORK
UNDER SECTION 8005 OF THE BANKING LAW", dated August 29, 1995, providing for a
change of name from NEW U.S. TRUST COMPANY OF NEW YORK to UNITED STATES TRUST
COMPANY OF NEW YORK.
Witness, my hand and official seal of the Banking Department at the City
of New York, this 1st day of September in the Year of our Lord one thousand
nine hundred and ninety-five.
/s/ Carmine M. Tenga
-----------------------------------
Deputy Superintendent of Banks
CERTIFICATE OF AMENDMENT OF THE
ORGANIZATION CERTIFICATE OF
NEW U.S. TRUST COMPANY OF NEW YORK
UNDER SECTION 8005 OF THE BANKING LAW
1. The name of the corporation is New U.S. Trust Company of New York
(the "Corporation").
2. The organization certificate was filed by the Superintendent of Banks
on August 14, 1995.
3. Article First of the Organization Certificate, which now provides
that the Corporation's name is "New U.S. Trust Company of New York", is hereby
amended, effective upon the closing date of the transaction between U.S. Trust
Corporation ("USTC") and The Chase Manhattan Corporation ("Chase") pursuant to
which Chase will acquire the processing businesses of USTC, to read as follows:
"FIRST. That the name by which the corporation is to be known is United
States Trust Company of New York."
4. The foregoing amendment was authorized by vote of all the outstanding
shares of the Corporation on August 29, 1995, pursuant to Banking Law Section
6015.
IN WITNESS WHEREOF, we have made, signed and sealed on this 29 day of
August, 1995.
NEW U.S. TRUST COMPANY OF
NEW YORK,
by /s/
__________________________
Name: Jeffrey S. Maurer
Title: President
by
/s/
_________________________
Name: Carol A. Strickland
Title: Secretary
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
JEFFREY S. MAURER, being duly sworn, deposes and says that he is the
president of New U.S. Trust Company of New York and that he has read the
foregoing Certificate of Amendment of the Organization Certificate and knows the
contents thereof to be true.
/s/
---------------------------------
Jeffrey S. Maurer
Sworn to before me this
29th day of August, 1995
/s/ Edward R. Muirhead
- -------------------------
Notary Public
[copy cut off] 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
- ----------------- ----------- ------------ ------
Samuel C. Butler New York, NY New York 0
Antonia M. Grumbach New York, NY New York 0
Jeffery S. Maurer Great Neck, NY New York 0
H. Marshall Schwarz New York, NY New York 0
Frederick B. Taylor Purchase, NY 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 five nor more
than thirty.
EIGHTH. The names of the incorporators who shall be the directors until
the first annual meeting of stockholders are:
Samuel C. Butler Antonia M. Grumbach
- ------------------ --------------------- -------------------
Jeffery S. Maurer H. Marshall Schwarz Frederick B. Taylor
- ------------------ --------------------- -------------------
- ------------------ --------------------- -------------------
- ------------------ --------------------- -------------------
- ------------------ --------------------- -------------------
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 13th day of February 1995.
Samuel C. Butler
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
STATE OF NEW YORK |
| ss.:
County of New York |
On this 13th day of February 1995 personally appeared before me
Samuel C. Butler
- ------------------- ------------------- -------------------
- ------------------- ------------------- -------------------
- ------------------- ------------------- -------------------
- ------------------- ------------------- -------------------
- ------------------- ------------------- -------------------
- ------------------- ------------------- -------------------
to me known to be the persons described in and who executed the foregoing
certificate, and severally acknowledged that they executed the same.
/s/ Mary Ann Skobla
-------------------------------
(Attach County Clerk's certificate authenticating
signature of Notary Public who makes acknowledgements.)
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 13th day of February 1995.
Antonia M. Grumbach
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
STATE OF NEW YORK }
} ss.:
County of New York }
On this 13th day of February 1995 personally appeared before me
Antonia M. Grumbach
- ------------------- ------------------- -------------------
- ------------------- ------------------- -------------------
- ------------------- ------------------- -------------------
- ------------------- ------------------- -------------------
- ------------------- ------------------- -------------------
- ------------------- ------------------- -------------------
to me known to be the persons described in and who executed the foregoing
certificate, and severally acknowledged that they executed the same.
/s/ Elizabeth E. Shepp
-------------------------------
(Attach County Clerk's certificate authenticating
signature of Notary Public who makes acknowledgements.)
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 day of 19 .
/s/ Jefferey S. Maurer
/s/ H. Marshall Schwarz
/s/ Frederick B. Taylor
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
STATE OF NEW YORK }
} ss.:
County of }
On this 14th day of February 1995 personally appeared before me
Jeffery S. Maurer ------------------- -------------------
H. Marshall Schwarz ------------------- -------------------
Frederick B. Taylor ------------------- -------------------
- ------------------- ------------------- -------------------
- ------------------- ------------------- -------------------
- ------------------- ------------------- -------------------
- ------------------- ------------------- -------------------
to me known to be the persons described in and who executed the foregoing
certificate, and severally acknowledged that they executed the same.
/s/ Phyllis Goldberg
-------------------------------
(Attach County Clerk's certificate authenticating
signature of Notary Public who makes acknowledgements.)
State of New York )
) ss.: ---------------
County of New York )
I, NORMAN GOODMAN, County Clerk and Clerk of the Supreme Court of the
State of New York, in and for the County of New York, a Court of Record, having
by law a seal,
DO HEREBY CERTIFY pursuant to the Executive Law of the State of New
York, that
/s/
________________________________________________________________________________
whose name is subscribed to the annexed affidavit, deposition, certificate of
acknowledgement or proof, was at the time of taking the same a NOTARY PUBLIC in
and for the State of New York duly commissioned, sworn and qualified to act as
such; that pursuant to law, a commission or a certificate of his official
character, with his autograph signature has been filed in my office; that at
the time of taking such proof, acknowledgement or oath, he was duly authorized
to take the same; that I am well acquainted with the handwriting of such NOTARY
PUBLIC or have compared the signature on the annexed instrument with his
autograph signature deposited in my office, and I believe that such signature is
genuine.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my official seal
this
__________________________________
FEE PAID $3.00
/s/
--------------------------------------------
County Clerk and Clerk of the Supreme Court,
New York County
State of New York )
) ss.: ---------------
County of New York )
I, NORMAN GOODMAN, County Clerk and Clerk of the Supreme Court of the
State of New York, in and for the County of New York, a Court of Record, having
by law a seal,
DO HEREBY CERTIFY pursuant to the Executive Law of the State of New
York, that
/s/
________________________________________________________________________________
whose name is subscribed to the annexed affidavit, deposition, certificate of
acknowledgement or proof, was at the time of taking the same a NOTARY PUBLIC in
and for the State of New York duly commissioned, sworn and qualified to act as
such; that pursuant to law, a commission or a certificate of his official
character, with his autograph signature has been filed in my office; that at
the time of taking such proof, acknowledgement or oath, he was duly authorized
to take the same; that I am well acquainted with the handwriting of such NOTARY
PUBLIC or have compared the signature on the annexed instrument with his
autograph signature deposited in my office, and I believe that such signature is
genuine.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my official seal
this
__________________________________
FEE PAID $3.00
/s/
--------------------------------------------
County Clerk and Clerk of the Supreme Court,
New York County
State of New York )
) ss.: ---------------
County of New York )
I, GLORIA D'AMICO, Clerk of the County of Queens, and Clerk of the
Supreme Court in and for said county, the same being a court of record having a
seal, DO HEREBY CERTIFY THAT
/s/
- --------------------------------------------------------------------------------
whose name is subscribed to the annexed original instrument has been
commissioned and qualified
as a NOTARY PUBLIC ___________________________________________________________
- ------------------------------------------------------------------------------
and has filed his autograph signature in this office and that he/she was at the
time of taking such proof or acknowledgment or oath duly authorized by the laws
of the State of New York to take the same; that he is well acquainted with the
handwriting of such public officer or has compared the signature on the
certificate of proof or acknowledgment or oath with the autograph signature
filed in his office by such public officer, and he believes that the signature
on the original instrument is genuine.
IN WITNESS WHEREOF, I have hereunto set my hand and my official seal
this
__________________ day of _________________, 19 ____
/s/
----------------------------------------
County Clerk, Queens County
EXHIBIT T-1.6
-------------
The consent of the trustee required by Section 321(b) of the Act.
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
September 1, 1995
Securities and Exchange Commission
450 5th Street, N.W.
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, and subject to the
limitations set forth therein, United States Trust Company of New York ("U.S.
Trust") hereby consents that reports of examinations of U.S. Trust by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
/s/ Gerard F. Ganey
By: --------------------
S/Gerard F. Ganey
Senior Vice President
EXHIBIT T-1.7
UNITED STATES TRUST COMPANY OF NEW YORK
CONSOLIDATED STATEMENT OF CONDITION
DECEMBER 31, 1995
------------------------------------------
($ IN THOUSANDS)
ASSETS
- ------
Cash and Due from Banks $ 86,275
Short-Term Investments 50
Securities, Available for Sale 676,970
Loans 1,257,372
Less: Allowance for Credit Losses 13,254
----------
Net Loans 1,244,118
Premises and Equipment 57,692
Other Assets 129,999
----------
TOTAL ASSETS $2,195,104
==========
LIABILITIES
- -----------
Deposits:
Non-Interest Bearing $ 471,642
Interest Bearing 1,306,996
----------
Total Deposits 1,778,638
Short-Term Credit Facilities 114,789
Accounts Payable and Accrued Liabilities 146,307
----------
TOTAL LIABILITIES $2,039,734
==========
STOCKHOLDER'S EQUITY
- --------------------
Common Stock 14,995
Capital Surplus 41,944
Retained Earnings 96,878
Unrealized Gains on Securities Available
for Sale (Net of Taxes) 1,553
----------
TOTAL STOCKHOLDER'S EQUITY 155,370
----------
TOTAL LIABILITIES AND
STOCKHOLDER'S EQUITY $2,195,104
==========
I, Richard E. Brinkmann, Senior Vice President & Comptroller of the named bank
do hereby declare that this Statement of Condition has been prepared in
conformance with the instructions issued by the appropriate regulatory authority
and is true to the best of my knowledge and belief.
/s/ Richard E. Brinkmann
- -------------------------------
Signature of Officer
February 12, 1996
- -------------------------------
Date