EXHIBIT 25.1
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) ______
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)
FLEMING COMPANIES, INC.
(Exact name of obligor as specified in its charter)
OKLAHOMA 48-0222760
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1945 Lakepointe Drive
Lewisville, Texas 75029
(Address of principal executive offices) (Zip Code)
9 7/8% SENIOR SUBORDINATED NOTES DUE 2012
(Title of indenture securities)
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 Rector
Street, New York, New York 10006 and Corning Tower, 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,
Registration Statement No. 33-7309).
Exhibit 2. Certificate of Authority of the Trustee to commence business
(incorporated herein by reference to Exhibit 2, Form T-1,
Registration Statement No. 33-7309).
Exhibit 3. Authorization of the Trustee to exercise corporate trust
powers (incorporated herein by reference to Exhibit 3, Form
T-1, Registration Statement No. 33-7309).
Exhibit 4. Existing By-Laws of the Trustee *
Exhibit 5. Not Applicable.
Exhibit 6. Consent of the Trustee (incorporated herein by reference to
Exhibit 6, Form T-1, Registration Statement No. 33-7309).
Exhibit 7. Report of Condition of the Trustee.*
Exhibit 8. Not Applicable.
Exhibit 9. Not Applicable
- ----------
* Filed Herewith
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939
the Trustee, Manufacturers and Traders Trust Company, a 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 11th day of July, 2002.
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ RUSSELL T. WHITLEY
-----------------------
Russell T. Whitley
Assistant Vice President
EXHIBIT 4
EXISTING BY-LAWS OF THE TRUSTEE
MANUFACTURERS AND TRADERS TRUST COMPANY
BYLAWS
(AS LAST AMENDED ON FEBRUARY 19, 2002)
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETING: The Annual Meeting of Manufacturers and
Traders Trust Company ("M&T Bank"), 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 M&T Bank or at such other place in the
City of Buffalo, New York on the third Tuesday of April 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 M&T Bank 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 Corporate 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
M&T Bank 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 the address as it appears on the record of stockholders
for each such stockholder, or, if such stockholder shall have filed with the
Corporate Secretary of M&T Bank a written request that notices be mailed to some
other address, then directed to 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
bylaws, the organization certificate, the terms of any agreement or instrument,
or law, M&T Bank 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 such
stockholder's 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 such stockholder.
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 M&T Bank 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 M&T Bank 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 M&T Bank 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 M&T Bank to one vote for
each share of stock having voting power standing in each such stockholder's name
on the record of stockholders on the record date fixed pursuant to Section 3 of
Article VI of these bylaws. 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 such stockholder's duly authorized attorney-in-fact and delivered
to the secretary of the meeting. No director, officer, clerk, teller or
bookkeeper of M&T Bank 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 bylaws, 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 M&T
Bank shall be eligible to act as an inspector of an election of directors of M&T
Bank. Each inspector, before entering upon the discharge of his or her 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 or her
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
SECTION 1. NUMBER AND QUALIFICATIONS: Unless otherwise permitted by
law, the number of directors of M&T Bank shall be not less than seven (7) nor
more than thirty (30), 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 at least one-half of them shall be citizens of the
United States 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 M&T Bank. Every director
shall be the beneficial owner of at least two thousand (2,000) shares, having an
aggregate par value of at least $1,000, of the capital stock of M&T Bank or of
the common stock of the holding company that directly or indirectly controls M&T
Bank, free from pledge, lien or charge.
SECTION 2. ELECTION AND TENURE OF OFFICE: Except as otherwise provided
by law or these bylaws, each director of M&T Bank 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 bylaws, shall
be deemed the annual meeting, and shall hold office until the next annual
meeting of stockholders and until his or her successor has been elected and
qualified. Each person who shall be elected a director of M&T Bank shall, before
participating in any
manner as a director of M&T Bank, qualify in the manner prescribed by law and
take and subscribe the oath prescribed by law.
SECTION 3. RESIGNATION: Any director of M&T Bank may resign at any time
by giving his or her resignation to the Chairman of the Board or the President
or the Corporate 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
M&T Bank 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 M&T Bank in any other capacity and
receiving compensation for such services.
SECTION 6. MEETINGS OF DIRECTORS: A regular meeting of the Board of
Directors shall be held at least six times each year, provided that during any
three consecutive calendar months the board shall meet at least once. 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. The Board of Directors shall, from time to time,
designate the place, date and hour for the holding of regular meetings but, in
the absence of any such designation, regular meetings of the Board of Directors
shall be held at the principal office of M&T Bank in the City of Buffalo, New
York, at 11:00 o'clock a.m., on the third Tuesday of each January, February,
April, July, September and October. No notice need be given of such regular
meetings except such notice as these bylaws 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 or her 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
Corporate 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 or her 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 facsimile or electronic mail to
his or her 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 or her. 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 bylaws.
SECTION 8. QUORUM: At all meetings of the Board of Directors, except as
otherwise provided by law or these bylaws, a quorum shall be required for the
transaction of business and shall consist of not less than one-third of the
entire board, and the vote of a majority of the directors present shall decide
any question which may come before the meeting. A majority of the directors
present at any meeting, although less than a quorum, may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum is present.
SECTION 9. MEETINGS BY CONFERENCE TELEPHONE: Any one or more members of
the Board of Directors or any committee thereof may participate in a meeting of
such board or committee by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation in a meeting by such means shall
constitute presence in person at such meeting.
SECTION 10. PROCEDURE: The order of business and all other matters of
procedure at every meeting of directors may be determined by the person
presiding at the meeting.
ARTICLE III
COMMITTEES
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 M&T Bank, 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 M&T Bank
as may be lawfully delegated by the Board of Directors in the interim between
meetings of the board. Each committee shall have such name as may be provided
from time to time in said resolution or resolutions, and shall serve at the
pleasure of the Board of Directors.
SECTION 4. MINUTES OF MEETINGS OF COMMITTEES: The Executive Committee,
the Examining Committee, and each other committee shall keep regular minutes of
its proceedings and report the same to the Board of Directors at the next
meeting thereof, or as soon thereafter as may be practicable under the
circumstances.
SECTION 5. FEES TO MEMBERS OF COMMITTEES: Members of committees,
including salaried officers of M&T Bank 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 M&T Bank in any other capacity and receiving compensation for such
services.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS: The Board of Directors shall annually, at the
first meeting (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 Corporate 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 or her 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 or her 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 or her 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 Corporate Secretary, the Treasurer, and the Auditor
shall, unless otherwise determined by the Board of Directors, hold office until
the first meeting of the board following the next annual meeting of stockholders
and until their successors have been elected and qualified. Each additional
officer appointed or elected by the Board of Directors, or by the Executive
Committee, shall hold office for such term as shall be determined from time to
time by the Board of Directors or the Executive Committee. Any officer, however,
may be removed at any time by the Board of Directors, or his or her 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 M&T Bank's affairs and shall exercise general
supervision over all activities of M&T Bank. The Chief Executive Officer shall
have the power to appoint or hire, to remove, and to determine the compensation
of, all employees of M&T Bank 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 or she 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 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 M&T Bank, shall have and exercise general
authority with respect thereto, shall perform all duties and exercise all powers
generally incident to this office and shall perform such additional duties and
be vested with such additional powers as shall be assigned 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, the President shall have the powers and exercise the duties of the
Chairman of the Board, 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 individuals may be designated by the Board of
Directors as "Executive Vice President," "Senior Vice President,"
"Administrative Vice President" or "Vice 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 CORPORATE SECRETARY AND ASSISTANT SECRETARIES: The
Corporate Secretary shall issue notices of all meetings of stockholders, the
Board of Directors and the Executive Committee, where notices of such meetings
are required by law or these bylaws. He or she 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 or she shall affix
the corporate seal to and sign such instruments as require the seal and his or
her signature and shall perform such other duties as usually pertain to this
office or as are properly required by the Board of Directors, the Chairman of
the Board or the President.
The Assistant Secretaries may, in the absence or disability of the
Corporate Secretary or at his or her request, perform the duties and exercise
the powers of the Corporate 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 M&T Bank. He or she shall,
whenever required by the Board of Directors, present a statement of the business
of M&T Bank, a balance sheet thereof as of the end of the last preceding month
or such other date as may be so required. He or she shall make and sign such
reports, statements and instruments as may be required by the Board of Directors
or the President or by law and shall perform such other duties as usually
pertain to this office or as are properly required 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 or her 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 or she 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 or she 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 M&T Bank which he or she 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 M&T Bank to the
directors' Examining Committee whenever he or she 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 M&T Bank.
The Assistant Auditors may, in the absence or disability of the
Auditor, or at his or her request, perform the duties and exercise the powers of
the Auditor, and shall perform such other duties as the Board of Directors, the
Chairman of the Board or the President shall prescribe.
SECTION 10. OTHER OFFICERS: All other officers that may be 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 or her designee or designees 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, except as the law may otherwise require.
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
Corporate 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 M&T Bank, 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 bylaws,
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 M&T Bank. 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, any Banking Officer, the
Corporate 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 M&T Bank in
its corporate or in any trust or fiduciary capacity;
To sign the name of M&T Bank and affix its seal, or cause the
same to be affixed, to deeds, mortgages, satisfactions, assignments,
releases, proxies, powers of attorney, trust agreements, and all other
instruments, documents or papers necessary for the conduct of the
business of M&T Bank, 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 M&T Bank, 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 M&T Bank 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 M&T Bank 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 M&T Bank to give a bond to M&T Bank, conditional upon the
faithful performance of his or her 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 M&T
Bank, whether or not then in office, each director and officer of a subsidiary
that M&T Bank directly or indirectly owns more than 50% of the voting securities
of, whether or not then in office, and any person whose testator or intestate
was such a director or officer, shall be indemnified by M&T Bank for the defense
of, or in connection with, any threatened, pending or completed actions or
proceedings and appeals therein, whether civil, criminal, governmental,
administrative or investigative, in accordance with and to the fullest extent
permitted by the Banking Law of the State of New York or other applicable law,
as such law now exists or may hereafter be amended; provided, however, that M&T
Bank 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 M&T Bank 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 M&T Bank 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 bylaws, 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 M&T Bank or otherwise, his or her costs and expenses
incurred therein or in connection therewith or any part thereof.
SECTION 5. SEVERABILITY: If this Article V or any part hereof shall be
held unenforceable in any respect by a court of competent jurisdiction, it shall
be deemed modified to the minimum extent necessary to make it enforceable, and
the remainder of this Article V shall remain fully enforceable.
ARTICLE VI
CAPITAL STOCK
SECTION 1. CERTIFICATES OF STOCK: The shares of stock of M&T Bank shall
be represented by certificates which shall be numbered and shall be entered in
the books of M&T Bank 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 Corporate Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer, and shall be sealed with the seal of M&T
Bank 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 M&T Bank 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 M&T Bank has
a transfer agent, or until registered by a registrar, if M&T Bank has a
registrar.
SECTION 2. TRANSFERS OF SHARES: Shares of stock shall be transferable
on the books of M&T Bank 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. M&T Bank 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 M&T Bank.
SECTION 3. FIXING OF RECORD DATE: The Board of Directors may fix, in
advance, a day and hour not more than 50 days nor less than 10 days before the
date on which any meeting of stockholders is to be held, as the time as of which
stockholders entitled to notice of and to vote at such meeting and at all
adjournments thereof shall be determined; and, in the event such record date and
time is fixed by the Board of Directors, no one other than the holders of record
on such date and time of stock entitled to notice of or to vote at such meeting
shall be entitled to notice of or to vote at such meeting or any adjournment
thereof. If a record date and time shall not be fixed by the Board of Directors
for the determination of stockholders entitled to notice of and to vote at any
meeting of stockholders, stockholders of record at the close of business on the
day next preceding the day on which notice of such meeting is given, and no
others, shall be entitled to notice of and to vote at such meeting or any
adjournment thereof. The Board of Directors may fix, in advance, a day and hour,
not exceeding 50 days preceding the date fixed for the payment of a dividend of
any kind or the allotment of any rights, as the record time for the
determination of the stockholders entitled to receive any such dividend or
rights, and in such case only stockholders of record at the time so fixed shall
be entitled to receive such dividend or rights.
SECTION 4. RECORD OF STOCKHOLDERS: M&T Bank 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 M&T Bank shall immediately notify M&T Bank 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 M&T Bank 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 M&T Bank shall be circular in
form, with the words "Manufacturers and Traders Trust Company" in the margin
thereof, and the numerals "1856" and the word "seal" and the numerals "1892" in
the center thereof. The seal on any corporate obligation for the payment of
money may be facsimile.
ARTICLE VIII
EMERGENCY OPERATIONS
Whenever the provisions of Article 7 of the New York State Defense
Emergency Act (L. 1961, c. 654) become operative by reason of an "acute
emergency," as defined in said Act, the following provision shall also become
operative:
1. If the Chief Executive Officer of M&T Bank shall not be available,
his or her powers and authority shall vest in and may be exercised by other
officers of M&T Bank 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 M&T Bank 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 M&T Bank shall be restored as
promptly as practicable.
ARTICLE IX
AMENDMENTS
SECTION 1. PROCEDURE FOR AMENDING BYLAWS: These bylaws 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 M&T Bank 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 bylaw 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 bylaw so adopted or amended or repealed, together with a concise
statement of the changes made.
EXHIBIT 7
REPORT OF CONDITION OF THE TRUSTEE
CONDENSED CONSOLIDATED BALANCE SHEET
<Table>
<Caption>
March 31
In thousands 2002
------------
Assets Cash and due from banks $ 696,000
Money-market assets 381,785
Investment securities
Available for sale (cost: $2,289,587) 2,302,663
Held to maturity (market value: $120,431) 119,722
Other (market value: $255,108) 255,108
------------
Total investment securities 2,677,493
------------
Loans and leases, net of unearned discount 24,677,616
Allowance for credit losses (428,925)
------------
Loans and leases, net 24,248,691
Other assets 2,666,498
------------
Total assets $ 30,670,467
============
Liabilities Deposits
Noninterest-bearing $ 3,582,703
Interest-bearing 17,656,449
------------
Total deposits 21,239,152
Short-term borrowings 2,142,870
Accrued interest and other liabilities 427,884
Long-term borrowings 3,689,707
------------
Total liabilities 27,499,613
------------
Stockholder's equity 3,170,854
------------
Total liabilities and stockholder's equity $ 30,670,467
============
</Table>