Pre-Effective Amendment to Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3/A Amendment #2 to Form S-3 125 621K
2: EX-1 Underwriting Agreement 26 121K
3: EX-4.1 Subordinated Debenture Indenture 62 303K
4: EX-5 Opinion of Kelley Drye & Warren LLP 2 12K
6: EX-10.14 First Amendment to the Credit Agreement 10 18K
7: EX-10.15 Second Amendment to the Credit Agreement 6 14K
5: EX-10.3 Employee Stock Ownership Plan and Trust 69 139K
8: EX-23.1 Consent of Kpmg LLP 1 6K
9: EX-25 Statement of Eligibility 25 76K
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)
HSBC BANK USA
(Exact name of trustee as specified in its charter)
New York 16-1057879
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
national bank)
140 Broadway, New York, NY 10005-1180
(212) 658-1000 (Zip Code)
(Address of principle executive offices)
Warren L. Tischler
Senior Vice President
HSBC Bank USA
140 Broadway
New York, New York 10005-1180
Tel: (212) 658-5167
(Name, address and telephone number of agent for service)
STANDARD MOTOR PRODUCTS, INC.
(Exact name of obligor as specified in its charter)
New York 11-1362020
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
37-18 Northern Boulevard
Long Island City, New York 11101
(612) 903-7829 (Zip Code)
(Address of principal executive offices)
% Convertible Subordinated Debentures Due 2009
(Title of Indenture Securities)
1
General
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority
to which it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None
2
Item 16. List of Exhibits.
Exhibit
T1A(i)
- Copy of the Organization
Certificate of HSBC Bank USA as
amended on December 17, 1998.
T1A(ii)
- Certificate of the State of New
York Banking Department dated
December 31, 1993 as to the
authority of HSBC Bank USA to
commence business, as amended
effective on March 29, 1999.
T1A(iii)
- Not applicable.
T1A(iv)
- Copy of the existing By-Laws of
HSBC Bank USA as adopted on January
20, 1994 as amended on October 23,
1997.
T1A(v)
- Not applicable.
T1A(vi)
* - Consent of HSBC Bank USA required
by Section 321(b) of the Trust
Indenture Act of 1939.
T1A(vii) - Copy of the latest report of
condition of the trustee (March 31,
1999), published pursuant to law or
the requirement of its supervisory
or examining authority.
T1A(viii) - Not applicable.
T1A(ix) - Not applicable.
* Exhibits previously filed with the Securities and Exchange Commission
with Registration No. 33-53693 and incorporated herein by reference
thereto.
3
EXHIBIT T1A(i)
CERTIFICATE OF AMENDMENT
OF THE ORGANIZATION CERTIFICATE OF
MARINE MIDLAND BANK
UNDER SECTION 8005 OF THE BANKING LAW
1. The name of the corporation is Marine Midland Bank.
2. The Organization Certificate of Marine Midland Bank was filed by
the Superintendent of Banks on December 31, 1993, and amended effective February
28, 1997.
3. Section FIRST of the Organization Certificate of Marine Midland
Bank is hereby amended to read as follows:
FIRST. That the name by which the corporation is to be known is HSBC
Bank USA.
4. The foregoing amendment was authorized by the Board of Directors of
Marine Midland Bank at a regular meeting held on December 17, 1998, and by the
unanimous written consent of HSBC Americas, Inc., the sole shareholder of Marine
Midland Bank.
/s/ I. Malcolm Burnett
----------------------
I. Malcolm Burnett
President and Chief Executive Officer
/s/ Philip S. Toohey
--------------------
Philip S. Toohey
Secretary
4
STATE OF NEW YORK )
) SS.:
COUNTY OF ERIE )
On this 11th day of February 1999, before me personally came I. Malcolm
Burnett, to me known, who, being by me duly sworn, did depose and say that he
resides in East Aurora, New York, that he is President and Chief Executive
Officer of Marine Midland Bank, the corporation described in and which executed
the foregoing instrument; and that he signed his name thereto by order of the
Board of Directors of said corporation; and he verified that the information
contained therein is true.
Vicki L. Barbus /s/ Vicki L. Barbus
Notary Public, State of New York -------------------
Qualified in Erie County Notary Public
My Commission Expires December 14, 1999
STATE OF NEW YORK )
) SS.:
COUNTY OF ERIE )
On this 11th day of February, 1999, before me personally came Philip S.
Toohey, to me known, who, being by me duly sworn, did depose and say that he
resides in Orchard Park, New York, that he is Executive Vice President, General
Counsel and Secretary of Maxine Midland Bank, the corporation described in and
which executed the foregoing instrument; and that he signed his name thereto by
order of the Board of Directors of said corporation; and he verified that the
information contained therein is true.
Vicki L. Barbus /s/ Vicki L. Barbus
Notary Public, State of New York -------------------
Qualified in Erie County Notary Public
My Commission Expires December 14, 1999
5
[seal] STATE OF NEW YORK
BANKING DEPARTMENT
Know all Men by these Presents, Whereas, the organization certificate
of MARINE MIDLAND BANK of Buffalo, New York has heretofore been duly approved
and said MARINE MIDLAND BANK has complied with the provisions of Chapter 2 of
the Consolidated Laws, in respect of the conversion of MARINE MIDLAND BANK, N.A.
into a state trust company under the name MARINE MIDLAND BANK,
Now Therefore, I, DERRICK D. CEPHAS, as Superintendent of Banks of the
State of New York, do hereby authorize the said MARINE MIDLAND BANK to transact
the business of a Trust Company at One Marine Midland Center, Buffalo, Erie
County within this State.
[seal] In Witness Whereof, I have hereunto set my
hand and affixed the official seal of the
Banking Department, this 31st day of
December in the year one thousand nine
hundred and ninety-three.
/s/ Derrick D. Cephas
---------------------
Superintendent
6
STATE OF NEW YORK
BANKING DEPARTMENT
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York, DO
HEREBY APPROVE the annexed certificate entitled "Certificate of Amendment of the
Organization Certificate of MARINE MIDLAND BANK under Section 8005 of the
Banking Law" dated February 28, 1997, providing for increase of capital stock
from $185,000,000 to $225,000,000.
IN WITNESS WHEREOF, I have hereunto set my
hand and affixed the official seal of the
Banking Department at New York, New York,
this 28th day of February, 1997.
/s/ Manuel Kursky
-----------------
Deputy Superintendent of Banks
7
ORGANIZATION CERTIFICATE
OF
Marine Midland Bank
We, the undersigned all being of full age, all but one of us being
citizens of the United States and all of us being residents of the State of New
York, having associated ourselves together for the purpose of forming a trust
company under and pursuant to the Banking Law of the State of New York, do
hereby certify:
First. That the name by which the corporation is to be known is Marine
Midland Bank
Second. That the place where its principal office is to be located is
Buffalo, New York
Third. That the amount of its capital stock is to be One Hundred
Eighty-five Million and no/100 Dollars ($185,000,000.00) and the number of
shares into which such capital stock is to be divided is 1,850,000 with a par
value of $100.00 each.
Fourth. The shares are not to be classified as preferred and common.
If the shares are to be so classified,
(a) The number and par value of shares to be included in
each class are as follows:
not applicable
(b) All the designations, preferences, privileges and
voting powers of the shares of each class, and the
restrictions or qualifications thereof are as follows:
not applicable
[attach additional pages if required]
8
(c) The number of shares of common stock which are to be reserved for
issuance in exchange for preferred shares or otherwise to replace any
capital stock represented by preferred shares is none
Fifth. The name, place of residence and citizenship of each incorporator,
and the number of shares subscribed for by each are:
[Download Table]
Full name Residence *Citizenship No. of Shares
James H. Cleave New York Canada 0
John M. Endries New York New York 0
Bernard J. Kennedy New York New York 0
Northrup R. Knox New York New York 0
Henry J. Nowak New York New York 0
*If a citizen of New York or a contiguous state, insert name of each state.
Sixth. The term of existence of the corporation is to be perpetual
Seventh. The number of directors is to be not less than seven or more
than thirty
Eighth. The names of the incorporators who shall be the directors
until the first annual meeting of stockholders are:
James H. Cleave John M. Endries
Bernard J. Kennedy Northrup R. Knox Henry J. Nowak
9
Ninth. The corporation is to exercise the powers conferred by Section 100
of the Banking Law.
IN WITNESS WHEREOF, We have made, signed and acknowledged this certificate
in duplicate this 16th day of September 1993
/s/ James H. Cleave
/s/ John M. Endries
/s/ Bernard J. Kennedy
/s/ Northrop R. Knox
/s/ Henry J. Nowak
STATE OF NEW YORK )
) SS.:
COUNTY OF ERIE )
On this 16th day of September 1993 personally appeared before me James H.
Cleave, John M. Endries, Bernard J. Kennedy, Northrup R. Knox, Henry J. Nowak to
me known to be the persons described in and who executed the foregoing
certificate, and severally acknowledged that they executed the same.
[Download Table]
/s/ Helen Kujawa
Attach County Clerk's certificate HELEN KUJAWA No. 4884275
authenticating signature of Notary Public who Notary Public, State of New York
takes acknowledgment. Qualified in Erie County
My Commission Expires March 9, 1995
10
Ninth. The corporation is to exercise the powers conferred by Section 100
of the Banking Law.
IN WITNESS WHEREOF, We have made, signed and acknowledged this certificate
in duplicate this 16th day of September 1993
/s/ James H. Cleave
/s/ John M. Endries
/s/ Bernard J. Kennedy
/s/ Northrop R. Knox
/s/ Henry J. Nowak
STATE OF NEW YORK )
) SS.:
COUNTY OF ERIE )
On this 16th day of September 1993 personally appeared before me James H.
Cleave, John M. Endries, Bernard J. Kennedy, Northrup R. Knox, Henry J. Nowak.
[seal]
[Download Table]
STATE OF NEW YORK, I, David J. Swarts, Clerk of the County of Erie and
COUNTY OF ERIE ss also Clerk of the Superior and County Courts for said
[seal] County, the same being Courts of Record, do hereby
certify that
/s/ Helen Kujawa
----------------
whose name is subscribed to the deposition,
certificate of acknowledgement of proof of the
annexed instrument, was at the time of taking the
same a NOTARY PUBLIC in and for the State of New York
duly commissioned and sworn and qualified to act as
such throughout the State of New York; that pursuant
to law a commission, or a certificate of his
appointment and qualifications and his autograph
signature have been filed in my office; that as such
Notary Public he was duly authorized by the laws of
the State of New York to administer oaths and
affirmations to receive and certify the
acknowledgement of proof of deeds, mortgages, powers
of attorney and other written instruments for lands,
tenements and hereditaments to be read in evidence or
recorded in this State, to protect notes and to take
and certify affidavits and depositions; and that I am
well acquainted with the handwriting of such Notary
Public, or have compared the signature on the annexed
instrument with his autograph signature deposited in
my office, and believe that the signature is genuine.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said
County and Courts at Buffalo, this 17 day of September 1993. NP No. 7502
/s/ David J. Swarts
-------------------
David J. Swarts
Clerk
11
ORGANIZATION CERTIFICATE
OF
"Marine Midland Bank
___________________________________"
Received this______day of
_______________________________19__
___________________________________
Superintendent of Banks
Filed for examination this ________
day of_______________________ 19__
___________________________________
Superintendent of Banks
_____________by the Banking Board,
at a meeting held on the _________
day of_______________________ 19__
___________________________________
Secretary of the Banking Board
___________________________________
this _______ day of ________, 19__
___________________________________
Superintendent of Banks
Filed in the office of
___________________________________
this________day of___________19__
___________________________________
Recorded in the office of
___________________________________
this________day of___________19__
12
EXHIBIT T1A(ii)
STATE OF NEW YORK
BANKING DEPARTMENT
I, ROBERT H. McCORMICK, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed certificate entitled "Certificate of Amendment of
the Organization Certificate of MARINE MIDLAND BANK under Section 8005 of the
Banking Law" dated February 11, 1999, providing for a change of name from MARINE
MIDLAND BANK to HSBC BANK USA effective March 29, 1999.
WITNESS, my hand and official seal of the Banking Department at the City of New
York,
this 4th day of March in the Year of our Lord
one thousand nine hundred and ninety-nine.
/s/ Robert H. McCormick
-----------------------
13
Exhibit T1A(iv)
(Adopted January 20, 1994;
Amended October 23, 1997;
Name Changed March 29, 1999)
BY-LAWS
Of
HSBC BANK USA
(Formerly known as MARINE MIDLAND BANK)
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1.1. ANNUAL MEETING.
The annual meeting of the stockholders for the election of
directors and the transaction of such other business as may properly come before
the meeting shall be held in April each year at the office of the Bank, One HSBC
Center, City of Buffalo, State of New York.
Section 1.2. SPECIAL MEETINGS.
Except as otherwise specifically provided by statute, special
meetings of the stockholders may be called for any purpose at any time by the
Board of Directors, the Chairman of the Board, the President, the Chief
Executive Officer or the Secretary at such place and time and on such day as may
be designated in the notice of meeting. Business transacted at all special
meetings of stockholders shall be confined to the purposes stated in the notice
of meeting.
Section 1.3. QUORUM.
The holders of a majority of the stock issued and outstanding,
and entitled to vote thereat present in person or represented by proxy, shall
constitute a quorum at all meetings of stockholders, unless otherwise provided
by law.
Section 1.4. VOTING.
a. At any meeting of the stockholders each stockholder may vote in person or by
proxy duly authorized in writing. Each stockholder shall at every meeting of
stockholders be entitled to one vote for each share of stock held by such
stockholder. A majority of the votes cast shall decide every question or matter
submitted to the stockholders at any meeting, unless otherwise provided by law
or by the Organization Certificate.
b. Any action required to be taken at an annual or special meeting of
stockholders may be taken without a meeting by written consent setting forth the
action and signed by the holders of all of outstanding shares entitled to vote
thereon.
14
Section 1.5. NOTICE OF MEETING.
Written notice of each meeting of stockholders stating the
place, date and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called and the person or persons
calling the meeting., shall be delivered personally or shall be mailed postage
prepaid to each stockholder entitled to vote at such meeting, directed to the
stockholder at his or her address as it appears on the records of the Bank, not
less than ten or more than fifty days before the date of the meeting.
ARTICLE II
DIRECTORS
Section 2.1. BOARD OF DIRECTORS.
The Board of Directors (the "Board") shall have power to
manage and administer the business and affairs of the Bank and, except as
expressly limited by law, all corporate powers of the Bank shall be vested in
and may be exercised by the Board unless such powers are required by statute,
the Organization Certificate or these By-Laws to be exercised by the
stockholders.
Section 2.2. NUMBER AND TERM.
The Board shall consist of not less than seven or more than
thirty directors, the exact number within such minimum and maximum limits to be
fixed and determined from time to time by resolution of a majority of the entire
Board or by resolution of the stockholders at any meeting of stockholders.
Unless sooner removed or disqualified, each director shall hold office until the
next annual meeting of the stockholders and until the director's successor has
been elected and qualified.
Section 2.3. ORGANIZATION MEETING.
At its first meeting after each annual meeting of
stockholders, the Board shall choose a Chairman of the Board, a President and a
Chief Executive Officer from its own members and otherwise organize the new
Board and appoint officers of the Bank for the succeeding year.
Section 2.4. CHAIRMAN OF THE BOARD.
The Chairman of the Board shall preside at all meetings of the
Board and of stockholders and perform such duties as shall be assigned from time
to time by the Board. In the absence of the Chairman of the Executive Committee,
the Chairman of the Board shall act as Chairman of the Executive Committee.
Except as may be otherwise provided by the By-Laws or the Board, the Chairman of
the Board shall be a member ex officio of all committees authorized by these
By-Laws or the Board. The Chairman of the Board shall be kept informed by the
executive officers about the affairs of the Bank.
15
Section 2.5. REGULAR MEETINGS.
The regular meetings of the Board shall be held each month at
the time and location designated by the Board. No notice of a regular meeting
shall be required if the meeting is held according to a schedule of regular
meetings approved by the Board.
Section 2.6. SPECIAL MEETINGS.
Special meetings of the Board may be called by the Chairman of
the Board, the President, the Chief Executive Officer or the Secretary or at the
written request of any three or more directors. Each member of the Board shall
be given notice stating the time and place of each such special meeting by
telegram, telephone or similar electronic means or in person at least one day
prior to such meeting, or by mail at least three days prior.
Section 2.7. QUORUM.
One third of the entire Board shall constitute a quorum at any
meeting, except when otherwise provided by law. If a quorum is not present at
any meeting, a majority of the directors present may adjourn the meeting, and
the meeting may be held, as adjourned, without further notice provided that a
quorum is then present. The act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board, unless
otherwise specifically provided by statute, the Organization Certificate or
these By-Laws.
Section 2.8. VACANCIES.
When any vacancy occurs among the directors, the remaining
members of the Board may appoint a director to fill each such vacancy at any
regular meeting of the Board or at a special meeting called for that purpose.
Any director so appointed shall hold office until the next annual meeting of the
stockholders and until the director's successor has been elected and qualified,
unless sooner displaced.
Section 2.9. Removal of Directors
Any director may be removed either with or without cause, at
any time, by a vote of the holders of a majority of the shares of the Bank at
any meeting of stockholders called for that purpose. A director may be removed
for cause by vote of a majority of the entire Board.
Section 2.10. COMPENSATION OF DIRECTORS.
The Board shall fix the amounts to be paid directors for their
services as directors and for their attendance at the meetings of the Board or
of committees or otherwise. No director who receives a salary from the Bank
shall receive any fee for attending meetings of the Board or of any of its
committees.
Section 2.11. ACTION BY THE BOARD.
Except as otherwise provided by law, corporate action to be
taken by the Board shall mean such action at a meeting of the Board or the
Executive Committee of the Board. Any
16
one or more members of the Board of any committee may participate in a meeting
of the Board or committee by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at a meeting.
Section 2.12. WAIVER OF NOTICE.
Notice of a meeting need not be given to any director who
submits a signed waiver of notice before or after the meeting or who attends the
meeting without protesting the lack of such notice prior to or at the
commencement of the meeting.
Section 2.13. ADVISORY AND REGIONAL BOARDS.
The Board, the Chairman of the Board, the President, the Chief
Executive Officer or any Regional President may establish Advisory Boards or
Regional Boards and committees thereof for any one or more of the Bank's
regions, offices, or departments and make or authorize appointments to be made
thereto. Appointees to such boards and committees need not be stockholders,
directors or officers of the Bank, and they shall have and perform only such
functions as may be assigned to them by, shall serve at the pleasure of, and
shall be compensated by fees fixed by the Board, the Chairman of the Board, the
President, the Chief Executive Officer or the Regional President making the
appointment.
ARTICLE III
COMMITTEES OF THE BOARD
Section 3.1. EXECUTIVE COMMITTEE.
a. There shall be an Executive Committee which shall be composed of at least
five members elected by the Board from among its members at its first meeting
following the annual meeting of stockholders to serve for the ensuing year and
shall include the Chairman of the Board, the President, the Chief Executive
Officer and the Chairman of the Executive Committee, all of which offices may be
held by one person. The Chairman of the Board may appoint one or more directors
as alternate members to serve in place of any absent members of the Executive
Committee. Any vacancy in the Executive Committee shall be filled by the Board,
but until its next regular Board meeting may be filled temporarily by the
Chairman of the Board.
b. The Executive Committee shall possess and exercise all of the powers of the
Board except (i) when the latter is in session and (ii) as provided otherwise in
the New York Banking Law.
Section 3.2. CHAIRMAN OF THE EXECUTIVE COMMITTEE.
The Board shall appoint one of its members to be Chairman of
the Executive Committee. The Chairman of the Board, the President or the Chief
Executive Officer may at the same time be appointed Chairman of the Executive
Committee. The Chairman of the Executive
17
Committee. The Chairman of the Board, the President or the Chief Executive
Officer may at the same time be appointed Chairman of the Executive Committee.
The Chairman of the Executive Committee shall preside at all meetings of the
Executive Committee, and the Chairman of the Executive Committee shall, in the
absence of the Chairman of the Board, the President and the Chief Executive
Officer, preside at all meetings of stockholders and the-Board. The Chairman of
the Executive Committee shall also perform such other duties and be vested with
such other powers as may from time to time be conferred upon him or her by these
By-Laws or as shall be assigned to him or her from time to time by the Board or
the Chief Executive Officer.
Section 3.3. MEETINGS OF THE EXECUTIVE COMMITTEE.
Meetings of the Executive Committee may be called by the
Chairman of the Board, the Chairman of the Executive Committee, the President,
the Chief Executive Officer or the Secretary and may be held at any place and at
any time designated in the notice thereof. Each member of the Executive
Committee shall be given notice stating the time and place of each such meeting,
by telegram, telephone or similar electronic means or in person at least one day
prior to such meeting, or by mail at least three days prior.
Section 3.4. EXAMINING COMMITTEE.
The Board shall designate an Examining Committee, which shall
hold office until the next annual meeting of the Board following the annual
meeting of stockholders, consisting of not less than three of its members, other
than officers of the Bank, and whose duty it shall be to make an examination at
least once during each calendar year and within 15 months of the last such
examination into the affairs of the Bank including the administration of
fiduciary powers, or cause suitable examinations to be made by auditors
responsible only to the Board and to report the result of such examination in
writing to the Board. Such report shall state whether the Bank is in a sound
condition, whether adequate internal controls and procedures are being
maintained and shall recommend to the Board such changes in the manner of
conducting the affairs of the Bank as shall be deemed advisable. The committee
shall at such time ascertain whether the Bank's fiduciary responsibilities have
been administered in accordance with law and sound fiduciary principles.
Section 3.5. OTHER COMMITTEES.
The Board may appoint, from time to time, from its own
members, committees of the Board of three or more persons, for such purposes and
with such powers as the Board may determine.
ARTICLE IV
OFFICERS
Section 4.1. APPOINTMENT OF OFFICERS.
At its annual meeting following the annual meeting of
stockholders, the Board shall appoint from among its members a Chairman of the
Board, a President, a Chief Executive Officer and a Secretary. The Chairman of
the Board or the President may also be appointed as the Chief Executive Officer.
At such meeting, the Board shall also appoint one or more Vice
18
Presidents, and may at such meeting or at other meetings of the Board appoint
such other officers as it may determine from time to time. The Board may also
authorize a committee of the Board to appoint such officers as are not required
to be appointed by the Board at a meeting.
Section 4.2. DUTIES OF PRESIDENT.
In the absence of the Chairman of the Board, the President
shall preside at all meetings of the Board and of stockholders and in the
absence of the Chairman of the Executive Committee and the Chairman of the Board
shall preside at all meetings of the Executive Committee. Except as may be
otherwise provided by the By-Laws or the Board, the President shall be a member
ex officio of all committees authorized by these By-Laws of the Board. The
President shall have general executive powers, shall participate actively in all
major policy decisions and shall have and may exercise any and all other powers
and duties pertaining by law, regulation or practice to the Office of President
or imposed by these By-Laws. The President shall also have and may exercise such
further powers and duties as from time to time may be conferred or assigned by
the Board or the Chief Executive Officer.
Section 4.3. DUTIES OF CHIEF EXECUTIVE OFFICER.
The Chief Executive Officer shall exercise general supervision
over the policies and business affairs of the Bank and the carrying out of the
policies adopted or approved by the Board. Except as otherwise provided by these
By-Laws, the Chief Executive Officer shall have the power to determine the
duties of the officers of the Bank and to employ and discharge officers and
employees. Except as otherwise provided by the By-Laws or the Board, the Chief
Executive Officer shall be a member ex officio of all committees authorized by
these By-Laws or created by the Board. In the absence of the Chairman of the
Board and the President, the Chief Executive Officer shall preside at all
meetings of the Board and of stockholders.
Section 4.4. DUTIES OF VICE PRESIDENTS.
Each Vice President shall have such titles, seniority, powers
and duties as may be assigned by the Board, a committee of the Board, the
President or the Chief Executive Officer.
Section 4.5. SECRETARY.
The Secretary shall be Secretary of the Board and of the Bank
and shall keep accurate minutes of all meetings of stockholders and of the
Board. The Secretary shall attend to the giving of all notices required to be
given by these By-Laws; shall be custodian of the corporate seal, records,
documents and papers of the Bank; shall provide for the keeping of proper
records of all transactions of the Bank; shall have and may exercise any and all
other powers and duties pertaining by law, regulation or practice to the office
of Secretary or imposed by these By-Laws; and shall also perform such other
duties as may be assigned from time to time by the Board, the President or the
Chief Executive Officer.
Section 4.6. OTHER OFFICERS.
The President or the Chief Executive Officer or his or her
designee may appoint all officers whose appointment does not require approval by
the Board or a committee of the
19
Board and assign to them such titles as from time to time may appear to be
required or desirable to transact the business of the Bank. Each such officer
shall have such powers and duties as may be assigned by the Board, the President
or the Chief Executive Officer.
Section 4.7. TENURE OF OFFICE.
The Chairman of the Board, the President, the Chief Executive
Officer, the Chairman of the Executive Committee, the Secretary and the Vice
Presidents shall hold office for the current year for which the Board was
elected and until their successors have been appointed and qualified, unless
they shall resign, become disqualified or be removed. All other officers shall
hold office until their successors have been appointed and qualify, unless they
shall resign, become disqualified or be removed. All other officers shall hold
office until their successors have been appointed and qualify, unless they shall
resign, become disqualified or be removed. The Board shall have the power to
remove the Chairman of the Board, the President, the Chief Executive Officer,
the Chairman of the Executive Committee and the Secretary. The Board or the
Chief Executive Officer or his or her designee shall have the power to remove
all other officers and employees. Any vacancy occurring in the offices of
Chairman of the Board, President or Chief Executive Officer shall be filled
promptly by the Board.
Section 4.8. COMPENSATION.
The Board shall by resolution determine from time to time the
officers whose compensation will require approval by the Board or a committee of
the Board. The Chief Executive Officer shall fix the compensation of all
officers and employees whose compensation does not require approval by the Board
or a committee of the Board.
Section 4.9. AUDITOR.
The Board or the Chief Executive Officer shall appoint an
officer to fill the position of Auditor for the Bank and assign to such officer
such title as is deemed appropriate. The Auditor shall perform all duties
incident to the audit of all departments and offices and of all affairs of the
Bank. The Auditor shall be responsible to the Chief Executive Officer. The
Auditor may at any time report to the Board any matter concerning the affairs of
the Bank that, in the Auditor's judgment, should be brought to its attention.
Section 4.10. REGIONAL PRESIDENTS.
The Board may appoint one or more Regional Presidents. Each
Regional President shall have such powers and duties as may be assigned by the
Board or the Chief Executive Officer.
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ARTICLE V
FIDUCIARY POWERS
Section 5.1. FIDUCIARY RESPONSIBILITY.
The Board shall appoint an officer or officers or a committee
or committees of this Bank whose duties shall be to manage, supervise and direct
the fiduciary activities of the Bank as assigned by the Board. Such officer or
committee shall do or cause to be done all things necessary or proper in
carrying on the assigned activities in accordance with provisions of law and
applicable regulations and shall act pursuant to opinion of counsel where such
opinion is deemed necessary. Opinions of counsel shall be retained on file in
connection with all important matters pertaining to fiduciary activities. The
officer or committee shall be responsible for all assets and documents held by
the Bank in connection with fiduciary matters assigned by the Board.
Section 5.2. FIDUCIARY FILES.
Files shall be maintained containing all fiduciary records
necessary to assure that fiduciary responsibilities have been properly
undertaken and discharged.
Section 5.3. FIDUCIARY INVESTMENTS.
Funds held in a fiduciary capacity shall be invested in
accordance with the instrument establishing the fiduciary relationship and
applicable law. Where such instrument does not specify the character and class
of investments to be made and does not vest in the Bank a discretion in the
matter, funds held pursuant to such instrument shall be invested in investments
in which corporate fiduciaries may invest under applicable law.
ARTICLE VI
STOCK AND STOCK CERTIFICATES
Section 6.1. TRANSFERS.
Shares of the stock of the Bank shall be transferable on the
books of the Bank, only by the person named in the certificate or by an
attorney, lawfully constituted in writing, and upon surrender of the certificate
therefor. Every person becoming a stockholder by such transfer shall, in
proportion to his or her shares, succeed to all rights of the prior holder of
such shares.
Section 6.2. STOCK CERTIFICATES.
The certificates of stock of the Bank shall be numbered and
shall be entered in the books of the Bank as they are issued. They shall exhibit
the holder's name and number of shares and shall be signed by the Chairman of
the Board, the President, the Chief Executive Officer or any Vice President and
by the Secretary or an Assistant Secretary.
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ARTICLE VII
CORPORATE SEAL
Section 7.1. CORPORATE SEAL.
The Chairman of the Board, the President, the Chief Executive
Officer, the Secretary or any Assistant Secretary, a Vice President or Assistant
Vice President or other officer designated by the Board or the Chief Executive
Officer or his or her designee shall have authority to affix the corporate seal
to any document requiring such seal and to attest the same. Such seal shall be
substantially in the following form:
(impression of seal)
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1. FISCAL YEAR.
The fiscal year of the Bank shall be the calendar year.
Section 8.2. EXECUTION OF INSTRUMENTS.
a. All agreements, indentures, mortgages, deeds, conveyances, transfers,
certificates, declarations, receipts, discharges, releases, satisfactions,
settlements, petitions, schedules, accounts, affidavits, bonds, undertakings,
proxies and other instruments or documents may be signed, executed,
acknowledged, verified, delivered or accepted in behalf of the Bank or in
connection with the exercise of the fiduciary powers of the Bank, by the
Chairman of the Board, the President, the Chief Executive Officer, the Secretary
or any other officer, employee (other than the Auditor) or agent designated by
the Board or the Chief Executive Officer or his or her designee. Any such
instruments may also be executed, acknowledged, verified, delivered or accepted
in behalf of the Bank in such other manner and by such other officers as the
Board may from time to time direct. The provisions of this Section 8.2 are
supplementary to any other provision of these By-Laws.
b. When required, the Secretary or any officer or agent designated by the Board
or the Chief Executive Officer or his designee shall countersign and certify all
bonds or certificates issued by the Bank as trustee, transfer agent registrar or
depository. The Chief Executive Officer or any officer designated by the Board
or the Chief Executive Officer or his or her designee shall have the power to
accept in behalf of the Bank any guardianship, receivership, executorship or
other special or general trust permitted by law. Each of the foregoing
authorizations shall be at the pleasure of the Board, and each such
authorization by the Chief Executive Officer or his or her designee also shall
be at the pleasure of the Chief Executive Officer.
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Section 8.3. RECORDS.
The By-Laws and the proceedings of all meetings of the
stockholders, the Board and standing committees of the Board shall be recorded
in appropriate minute books provided for the purpose. The minutes of each
meeting shall be signed by the Secretary or other officer appointed to act as
secretary of the meeting.
Section 8.4. EMERGENCY OPERATIONS.
In the event of war or warlike damage or disaster of
sufficient severity to prevent the conduct and management of the affairs,
business and property of the Bank by its directors and officers as contemplated
by these By-Laws, any two or more available members of the then-incumbent
Executive Committee shall constitute a quorum of that committee for the full
conduct and management of the affairs, business and property of the Bank. In the
event of the unavailability at such time of a minimum of two members of the
then-incumbent Executive Committee, any three available directors shall
constitute the Executive Committee for the full conduct and management of the
affairs, business and property of the Bank. This by-law shall be subject to
implementation by resolutions of the Board passed from time to time for that
purpose, and any provisions of these By-Laws (other than this section) and any
resolutions which are contrary to the provisions of this section or to the
provisions of any such implementary resolutions shall be suspended until it
shall be determined by any interim Executive Committee acting under this section
that it shall be to the advantage of the Bank to resume the conduct and
management of its affairs, business and property under all of the other
provisions of these By-Laws.
Section 8.5. INDEMNIFICATION.
a. The Bank shall indemnify each person made or threatened to be made a party to
any action or proceeding, whether civil or criminal, by reason of the fact that
such person or such person's testator or intestate is or was a director or
officer of the Bank, or, while a director or officer, serves or served, at the
request of the Bank, any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, penalties, amounts paid in settlement and reasonable expenses, including
attorneys' fees, incurred in connection with such action or proceeding, or any
appeal therein, provided that no such indemnification shall be made if a
judgment or other final adjudication adverse to such director or officer
establishes that his or her acts were committed in bad faith or were the result
of active and deliberate dishonesty and were material to the cause of action so
adjudicated, or that he or she personally gained in fact a financial profit or
other advantage to which he or she was not legally entitled, and provided
further that no such indemnification shall be required with respect to any
settlement or other nonjudicated disposition of any threatened or pending action
or proceeding unless the Bank has given its prior consent to such settlement or
other disposition.
b. The Bank shall advance or promptly reimburse upon request any director or
officer seeking indemnification hereunder for all expenses, including attorneys'
fees reasonably incurred in defending any action or proceeding in advance or the
final disposition thereof upon receipt of an undertaking by or on behalf of such
person to repay such amount if such person is ultimately found not to be
entitled to indemnification or, where indemnification is granted, to the
23
extent the expenses so advanced or reimbursed exceed the amount to which such
person is entitled.
c. This Section 8.5 shall be given retroactive effect, and the full benefits
hereof shall be available in respect of any alleged or actual occurrences, acts
or failures to act prior to the date of the adoption of this Section 8.5. The
right to indemnification of advancement of expenses under this Section 8.5 shall
be a contract right.
Section 8.6. AMENDMENTS.
These By-Laws may be added to, amended, altered or repealed at
any regular meeting of the Board by a vote of a majority of the total number of
the directors, or at any meeting of stockholders, duly called and held, by a
majority of the stock represented at such meeting.
I, Helen Kujawa CERTIFY that I am the duly appointed Assistant
Corporate Secretary of HSBC Bank USA, formerly known as Marine Midland Bank,
and, as such officer, have access to its official records and the foregoing
By-Laws are the By-Laws of the Bank, and all of them are now lawfully in force
and effect.
IN TESTIMONY WHEREOF, I have hereunto affixed my official
signature and the seal of the Bank, in New York, on June 30, 1999.
[SEAL] /s/ Helen Kujawa
-----------------------------
Assistant Corporate Secretary
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HSBC Bank USA, a banking corporation and trust company organized under the laws
of the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York on the day ___of July, 1999.
HSBC BANK USA
By:_____________________________
James M. Foley
Assistant Vice President
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Dates Referenced Herein and Documents Incorporated by Reference
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