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As filed with the Securities and Exchange
Commission on May 18 , 2005 Registration Nos.
333-102194
333-102194-01
333-102194-02
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. TWO
TO
FORM
S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF
1933
ITLA Capital Corporation | ITLA Capital Statutory Trust VI ITLA Capital Statutory Trust VII |
(Exact name of registrant as specified in
its charter) |
(Exact name of registrant as specified in
its charter) |
Delaware | Delaware Delaware |
(State or other jurisdiction of
incorporation or organization) |
(State or other jurisdiction of
incorporation or organization) |
95-4596322 | 16-1641858 16-1641860 |
(I.R.S. Employer Identification
No.) |
(I.R.S. Employer Identification
No.) |
888 Prospect
Street Suite 110 La Jolla, California 92037 (858)-551-0511 |
c/o ITLA Capital
Corporation 888 Prospect Street Suite 110 La Jolla, California 92037 (858)-551-0511 |
(Address, including zip code, and telephone
number, including area code, of registrant's principal executive
offices) |
(Address, including zip code, and telephone
number, including area code, of registrants' principal executive
offices) |
Copy to: | |
George W. Haligowski Chairman of the Board, President & Chief Executive Officer ITLA Capital Corporation 888 Prospect Street Suite 110 La Jolla, California 92037 (858)-551-0511 |
Dave M. Muchnikoff, P.C. Craig M. Scheer, P.C. Silver, Freedman & Taff, L.L.P. 1700 Wisconsin Avenue, N.W. Washington, D.C. 20007 (202) 295-4500 |
(Name, address, including zip code,
and telephone number, including area code, of agent for service) |
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement, as determined by market conditions and other factors.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [__]
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.[__]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [__]
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [__]
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED |
AMOUNT TO BE REGISTERED(1) |
PROPOSED MAXIMUM OFFERING PRICE PER UNIT(1)(2) |
PROPOSED MAXIMUM AGGREGATE OFFERING PRICE(1)(2) |
AMOUNT
OF REGISTRATION FEE(3) |
Debt Securities (4) | ||||
Preferred Stock (5) | ||||
Common Stock (6) | ||||
Depositary Shares (7) | ||||
Purchase Contracts(8) | ||||
Units(9) | ||||
Warrants (10) | ||||
Trust Preferred Securities of
ITLA Capital Statutory Trust VI and ITLA Capital Statutory Trust VII (11) |
||||
Junior Subordinated Debentures (11) | ||||
Guarantees of Trust Preferred Securities of ITLA Capital Statutory Trust VI and ITLA Capital Statutory Trust VII (11) (12) |
||||
Total | $500,000,000 | 100% | $500,000,000 | $46,000* |
* | Paid previously. |
(1) | In no event will the aggregate initial offering price of all securities issued exceed $500,000,000. The aggregate amount of common stock registered is further limited to that which is permissible under Rule 415(a)(4) under the Securities Act. The registered securities may be offered for U.S. dollars or the equivalent thereof in foreign currencies, currency units or composite currencies. The registered securities may be sold separately, together or as units with other registered securities. |
(2) | Certain information as to each class of securities to be registered is not specified, in accordance with General Instruction II.D. to Form S-3 under the Securities Act. |
(3) | The proposed maximum aggregate offering price has been estimated solely to calculate the registration fee under Rule 457(o) of the Securities Act. The proposed maximum aggregate offering price, with respect to debt securities, is calculated excluding accrued interest and accrued amortization of discount, if any, to the date of delivery. |
(4) | Subject to note (1) above, we are registering an indeterminate principal amount of debt securities (which may be senior or subordinated). If any debt securities are issued at an original issue discount, then the offering price may be increased to the extent not to exceed the proposed maximum aggregate offering price less the dollar amount of any securities previously issued. Also, in addition to any debt securities that may be issued directly under this registration statement, we are registering an indeterminate amount of debt securities as may be issued upon the conversion or exchange of other debt securities, preferred stock or depositary shares, for which no consideration will be received by us, or upon exercise of warrants registered hereby. |
(5) | Subject to note (1) above, we are registering an indeterminate number of shares of preferred stock as may be sold from time to time by us. We are also registering an indeterminate number of shares of preferred stock as shall be issuable upon exercise of warrants registered hereby. In addition, we are also registering such indeterminate number of shares of preferred stock, for which no consideration will be received by us, as may be issued upon conversion or exchange of debt securities of the Company. |
(6) | Subject to note (1) above, we are registering an indeterminate number of shares of common stock. We are also registering an indeterminate number of shares of common stock as may be issuable upon conversion of the debt securities or the preferred stock or upon exercise of warrants registered hereby. |
(7) | Such indeterminate number of depositary shares to be evidenced by depositary receipts, representing a fractional interest of a share of preferred stock. |
(8) | Subject to note (1) above, we are registering an indeterminate number of purchase contracts, which may require the holder thereof to purchase or sell: (i) our debt securities, common stock, preferred stock or depository shares; (ii) trust preferred securities issued by the Trusts; (iii) securities of an entity unaffiliated with us, a basket of those securities, an index or indices of those securities or any combination of the foregoing; (iv) currencies; or (v) commodities. |
(9) | Subject to note (1) above, we are registering an indeterminate number of units, which will be comprised of one or more of the securities registered hereby in any combination. |
(10) | Subject to note (1) above, we are registering an indeterminate number of warrants representing rights to purchase debt securities, shares of common stock or preferred stock registered hereby. |
(11) | Subject to note (1) above, we are registering an indeterminate principal amount of our junior subordinated debentures and an indeterminate number of trust preferred securities of ITLA Capital Statutory Trust VI and ITLA Capital Statutory Trust VII (the "Trusts") as may from time to time be issued at indeterminate prices. The junior subordinated debentures may be issued and sold to the Trusts, and the junior subordinated debentures may later be distributed to the holders of the trust preferred securities of the Trusts. |
(12) | We are also registering under this registration statement all other obligations that we may have with respect to the trust preferred securities issued by the Trusts, in each case as further described in the registration statement. No separate consideration will be received for any guarantee or any other such obligations. |
The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
PROSPECTUS
[ITLA Capital Corporation Logo]
May Offer -
Debt Securities
Common Stock
Preferred Stock
Depositary
Shares
Purchase Contracts
Units
Warrants
ITLA Capital Statutory Trust VI and
ITLA Capital Statutory
Trust VII
May Offer -
Trust Preferred Securities
guaranteed by ITLA Capital
Corporation
We and, in the case of the trust preferred securities, the applicable trust, may offer and sell from time to time up to $500,000,000 of the securities. The securities will be offered in amounts, at prices and on terms to be determined by market conditions at the time of offering.
This prospectus contains a general description of the securities that may be offered. The specific terms of the securities will be contained in one or more supplements to this prospectus. You should read this prospectus and any prospectus supplements carefully before you invest in the securities. This prospectus may not be used to consummate sales of securities unless accompanied by a prospectus supplement.
Our common stock is listed on The Nasdaq Stock Market under the symbol "ITLA."
These securities are not savings or deposit accounts or other obligations of any bank and the securities are not insured by the Bank Insurance Fund or Savings Association Insurance Fund of the Federal Deposit Insurance Corporation or any other governmental agency.
______________________________
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus or any accompanying prospectus supplement is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is ________ __, 2005
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS | 3 |
WHERE YOU CAN FIND MORE INFORMATION | 3 |
FORWARD-LOOKING STATEMENTS | 4 |
ITLA CAPITAL CORPORATION | 6 |
THE TRUSTS | 6 | RATIOS OF EARNINGS TO FIXED CHARGES | 7 |
USE OF PROCEEDS | 8 |
DESCRIPTION OF DEBT SECURITIES | 8 |
DESCRIPTION OF COMMON STOCK | 19 |
DESCRIPTION OF PREFERRED STOCK | 19 |
DESCRIPTION OF DEPOSITARY SHARES | 23 |
DESCRIPTION OF PURCHASE CONTRACTS | 26 |
DESCRIPTION OF UNITS | 27 |
DESCRIPTION OF WARRANTS | 28 |
DESCRIPTION OF CAPITAL STOCK | 30 |
DESCRIPTION OF TRUST PREFERRED SECURITIES | 33 |
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES | 35 |
DESCRIPTION OF TRUST PREFERRED SECURITIES GUARANTEES | 41 |
RELATIONSHIP AMONG THE TRUST PREFERRED
SECURITIES, THE JUNIOR SUBORDINATED DEBENTURES AND THE TRUST PREFERRED SECURITIES GUARANTEES |
44 |
PLAN OF DISTRIBUTION | 45 |
LEGAL MATTERS | 47 |
EXPERTS | 47 |
ABOUT THIS PROSPECTUS
This prospectus is a combined prospectus that is part of a registration statement that we and the trusts filed with the Securities and Exchange Commission, or SEC, utilizing a "shelf" registration process. Under this shelf registration process, we and, in the case of the trust preferred securities, the applicable trust, may sell the securities described in this prospectus in one or more offerings up to a total dollar amount of $500,000,000.
This prospectus provides you with a general description of the securities we and the trusts may offer. Each time we or the trusts sell securities, you will be provided with a prospectus supplement that will contain specific information about the terms of the offering and the securities. The prospectus supplement may also add, update or change information contained in this prospectus. Any statement that we or the trusts make in this prospectus will be modified or superseded by any inconsistent statement made by us or the trusts in a prospectus supplement. You should read both this prospectus and any prospectus supplement together with the additional information described below under "Where You Can Find More Information."
In this prospectus, the words "we," "our," and "us" refer to ITLA Capital Corporation and its subsidiaries unless we indicate otherwise, and the "trusts" refer to ITLA Capital Statutory Trust VI and ITLA Capital Statutory Trust VII.
WHERE YOU CAN FIND MORE INFORMATION
As required by the Securities Act of 1933, we and the trusts have filed a registration statement on Form S-3 relating to the securities offered by this prospectus with the SEC. This prospectus is a part of that registration statement, which includes additional information.
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public via the Internet at the SEC's web site at http://www.sec.gov. You may also read and copy any document we file with the SEC at its public reference facilities at 450 Fifth Street, N.W., Washington, D.C. 20549. You can also obtain copies of the documents at prescribed rates by writing to the Public Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference facilities.
We "incorporate by reference" into this prospectus the information we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus. Some information contained in this prospectus updates the information incorporated by reference, and information that we file subsequently with the SEC will automatically update this prospectus. In other words, in the case of a conflict or inconsistency between information set forth in this prospectus and information incorporated by reference into this prospectus, you should rely on the information contained in the document that was filed later. We incorporate by reference the documents listed below and any filings we make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 after the date of this prospectus and prior to the time that we sell all the securities offered by this prospectus or the time that we terminate this offering:
This incorporation by reference does not specifically incorporate by reference the information relating to the audit committee report (as permitted under Item 306 of Regulation S-K) or the board compensation committee report on executive compensation and performance graph (as permitted under Item 402(a)(8) of Regulation S-K) contained in any annual meeting proxy statement of ours incorporated into this prospectus by reference.
You may request a copy of these filings, in most cases without exhibits, at no cost, by writing or telephoning us at the following address: ITLA Capital Corporation, 888 Prospect Street, Suite 110, La Jolla, California 92037, Attention: Timothy M. Doyle, Senior Managing Director and Chief Financial Officer, telephone: (858) 551-0511.
___________________
No separate financial statements of the trusts have been included or incorporated by reference in this prospectus. We and the trusts do not consider such financial statements material to holders of trust preferred securities because:
See "The Trusts," "Description of Trust Preferred Securities" and "Description of Trust Preferred Securities Guarantees" in this prospectus.
You should rely only on the information provided in this prospectus and the prospectus supplement, as well as the information incorporated by reference. We have not authorized anyone to provide you with different information. We are not making an offer of these securities in any jurisdiction where the offer is not permitted. You should not assume that the information in this prospectus, the prospectus supplement or any documents incorporated by reference is accurate as of any date other than the date of the applicable document.
FORWARD-LOOKING STATEMENTS
This prospectus, supplements to this prospectus and the documents incorporated by reference contain certain forward-looking statements about our business, financial condition, results of operations and prospects. These statements may be made expressly in this document or may be incorporated by reference to other documents we have filed with the Securities and Exchange Commission. You can find many of these statements by looking for words such as "believes," "expects," "anticipates," "estimates," or similar expressions used in this prospectus, supplements to this prospectus or documents incorporated by reference.
These forward-looking statements are subject to numerous assumptions, risks and uncertainties. Factors which may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by us in those statements include, among others, the following:
Because such statements are subject to risks and uncertainties, actual results may differ materially from those expressed or implied by the forward- looking statements. You are cautioned not to place undue reliance on such statements, which speak only as of the date of this prospectus or supplements to this prospectus or, in the case of documents incorporated by reference, as of the date of such documents.
We do not undertake any responsibility to release publicly any revisions to these forward-looking statements to take into account events or circumstances that occur after the date of this prospectus or supplements to this prospectus. Additionally, we do not undertake any responsibility to update you on the occurrence of any unanticipated events which may cause actual results to differ from those expressed or implied by the forward-looking statements.
ITLA CAPITAL CORPORATION
ITLA Capital Corporation, a Delaware corporation, is the largest financial services company headquartered in San Diego County, California with consolidated assets of $2.4 billion, consolidated net loans of $1.9 billion, consolidated deposits of $1.5 billion and shareholders' equity of $194.0 million as of March 31, 2005. We conduct and manage our business principally through our wholly-owned subsidiary, Imperial Capital Bank, an institution with $2.4 billion in assets, with six retail branches located in California (Beverly Hills, Costa Mesa, Encino, Glendale, San Diego and San Francisco), and one branch located in Carson City, Nevada. Additionally, Imperial Capital Bank has twenty-six loan production offices serving the Western United States, the Southeast region, the Mid-Atlantic region, the Ohio Valley, the Metro New York area and New England. On January 1, 2003, Imperial Capital Bank converted from a California industrial bank to a California-chartered commercial bank, and ITLA Capital Corporation became a bank holding company. Imperial Capital Bank has been in business for 30 years. Our branch offices are primarily used for our deposit services and lending business. We are primarily engaged in:
We continuously evaluate business expansion opportunities, including acquisitions or joint ventures with companies that originate or purchase commercial and multi-family real estate loans as well as other types of secured commercial loans. In connection with this activity, we periodically have discussions with and receive financial information about other companies that may or may not lead to the acquisition of the company, a segment or division of that company, or a joint venture opportunity.
Our executive offices are located at 888 Prospect Street, Suite 110, La Jolla, California 92037 and our telephone number at that address is (858) 551-0511.
Information contained on our website should not be considered a part of this prospectus.
THE TRUSTS
Each trust is a statutory trust formed under Delaware law pursuant to a separate trust agreement executed by us, as sponsor for the trust, and the trustees of the trust and the filing of a certificate of trust with the Delaware Secretary of State.
Unless an accompanying prospectus supplement provides otherwise, each trust exists for the purposes of:
All of the common securities of each trust will be owned by us. The trust common securities will rank on a parity, and payments will be made thereon pro rata, with the trust preferred securities, except that upon the occurrence and continuance of an event of default under the applicable trust agreement, the rights of the holders of the applicable trust common securities to payment in respect of distributions and payments upon liquidation, redemption and otherwise will be subordinated to the rights of the holders of the applicable trust preferred securities.
We will acquire trust common securities having an aggregate liquidation amount equal to a minimum of 3% of the total capital of each trust. Each trust will have a term of at least 20 but not more than 50 years, but may terminate earlier as provided in the applicable trust agreement. Each trust's business and affairs will be conducted by the trustees. The holder of the trust common securities will be entitled to appoint, remove or replace any of, or increase or reduce the number of, the trustees of each trust. The duties and obligations of the trustees will be governed by the trust agreement. At least one of the trustees of each trust will be one of our employees or officers who will act as administrative trustee. One trustee of each trust will be a financial institution that is not affiliated with us, which will act as property trustee and as indenture trustee for the purposes of the Trust Indenture Act of 1939, as amended, pursuant to the terms set forth in a prospectus supplement. In addition, unless the property trustee maintains a principal place of business in the State of Delaware and otherwise meets the requirements of applicable law, one trustee of each trust will be a legal entity having a principal place of business in, or an individual resident of, the State of Delaware. We will pay all fees and expenses related to each trust and the offering of the trust preferred securities. Unless otherwise set forth in the prospectus supplement, the property trustee will be Wells Fargo Bank, N.A., and the Delaware trustee will be Wells Fargo Delaware Trust Company. The office of the Delaware trustee in the State of Delaware is 919 Market Street, 7th Floor, Wilmington, Delaware 19801. The principal place of business of each trust is c/o ITLA Capital Corporation, 888 Prospect Street, Suite 110, La Jolla, California 92037, and the telephone number of each trust is (858) 551-0511.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table contains our consolidated ratios of earnings to fixed charges for the periods indicated.
|
Three Months Ended March 31, | ||||||
2000
|
2001
|
2002
|
2003
|
2004
|
2004
|
2005
| |
Ratio of earnings to fixed charges: | |||||||
Including interest
on customer deposits |
1.43x | 1.44x | 1.80x | 2.31x | 2.22x | 3.46x | 1.65x |
Excluding interest
on customer deposits |
3.28x | 3.12x | 3.86x | 4.94x | 4.75x | 9.56x | 2.77x |
For purposes of this computation, the term "earnings" represents earnings from continuing operations before taxes and interest expense. Fixed charges, excluding interest on customer deposits, represents interest expense on Federal Home Loan Bank advances and other borrowed funds. Fixed charges, including interest on customer deposits, represent all of the foregoing items plus interest on deposits.
USE OF PROCEEDS
We will use the net proceeds from the sale of securities that we offer under this prospectus and any accompanying prospectus supplement for general corporate purposes and for any other purposes described in the relevant prospectus supplement. General corporate purposes may include working capital, capital expenditures, the repayment of indebtedness, investments in or extensions of credit to our subsidiaries, financing possible future acquisitions and repurchasing shares of our common stock. Pending these uses, we expect to invest the net proceeds in short-term investments and marketable securities.
DESCRIPTION OF DEBT SECURITIES
The following briefly summarizes the material provisions of the debt securities and the indentures under which the debt securities will be issued, other than pricing and related terms disclosed for a particular issuance in an accompanying prospectus supplement. You should read the more detailed provisions of the applicable indenture and supplemental indentures, if any, including the defined terms, for the provisions that may be important to you. The forms of indentures under which our debt securities will be issued have been filed as exhibits to the registration statement of which this prospectus forms a part. You should also read the particular terms of a series of debt securities, which will be described in more detail in an accompanying prospectus supplement. To the extent that any particular terms of the debt securities described in a prospectus supplement differ from any of the terms described in this prospectus, the terms described in the prospectus supplement will control.
Our junior subordinated debentures, which may be issued to a trust or a trustee of the trust in connection with the issuance of its trust securities, are described separately in this prospectus under "Description of Junior Subordinated Debentures." The discussion below pertains only to our senior debt securities and subordinated debt securities.
General
The debt securities will be either our senior debt securities or subordinated debt securities. We will issue our debt securities under one or more separate indentures between us and a trustee to be identified in an accompanying prospectus supplement. Senior debt securities will be issued under a senior indenture and subordinated debt securities will be issued under a subordinated indenture. Together the senior indenture and the subordinated indenture are referred to in this section as the "indentures." The indentures may be supplemented by one or more supplemental indentures.
We may issue the debt securities in one or more separate series of senior debt securities and subordinated debt securities. The senior debt securities will, unless otherwise stated in the applicable prospectus supplement, be unsecured and will have the same rank as all of our other unsecured and unsubordinated debt. The subordinated debt securities will be unsecured and will be subordinated and junior to all senior indebtedness, including senior debt securities.
The prospectus supplement relating to the particular series of debt securities being offered will specify the particular amounts, prices and terms of those debt securities. These terms will include:
Some of the debt securities may be issued as original issue discount debt securities. Original issue discount securities may bear no interest or bear interest at below-market rates and will be sold at a discount below their stated principal amount. The applicable prospectus supplement also will contain any special tax, accounting or other information relating to original issue discount securities or other kinds of debt securities that may be offered, including debt securities linked to an index.
Under the indentures, the terms of the debt securities of any series may differ and we may, without the consent of the holders of the debt securities of any series, reopen a previous series of debt securities and issue additional debt securities of that series or establish additional terms of that series.
Ranking of Debt Securities; Holding Company Structure
Senior Debt Securities. Payment of the principal of, premium, if any, and interest on senior debt securities will rank on a parity with all of our other unsecured and unsubordinated debt.
Subordinated Debt Securities. Payment of the principal of, premium, if any, and interest on subordinated debt securities will be junior in right of payment to the prior payment in full of all of our senior indebtedness, including senior debt securities. We will state in the applicable prospectus supplement relating to any subordinated debt securities the subordination terms of the securities as well as the aggregate amount of outstanding debt, as of the most recent practicable date, that by its terms would be senior to those subordinated debt securities. We will also state in that prospectus supplement limitations, if any, on the issuance of additional senior indebtedness.
Holding Company Structure. The debt securities will be our exclusive obligations. We are a holding company and substantially all of our consolidated assets are held by our subsidiaries. Accordingly, our cash flows and our ability to service our debt, including the debt securities, are dependent upon the results of operations of our subsidiaries and the distribution of funds by our subsidiaries to us. Various statutory and regulatory restrictions, however, limit directly or indirectly the amount of dividends our subsidiaries can pay, and also restrict certain subsidiaries from making investments in or loans to us.
Because we are a holding company, the debt securities will be effectively subordinated to all existing and future liabilities, including indebtedness, customer deposits, trade payables, guarantees and lease obligations, of our subsidiaries. Therefore, our rights and the rights of our creditors, including the holders of the debt securities, to participate in the assets of any subsidiary upon that subsidiary's liquidation or reorganization will be subject to the prior claims of the subsidiary's creditors and, if applicable, its depositors, except to the extent that we may ourselves be a creditor with recognized claims against the subsidiary, in which case our claims would still be effectively subordinate to any security interest in, or mortgages or other liens on, the assets of the subsidiary and would be subordinate to any indebtedness of the subsidiary senior to that held by us. If a receiver or conservator were appointed for Imperial Capital Bank, the Federal Deposit Insurance Act recognizes a priority in favor of the holders of withdrawable deposits (including the Federal Deposit Insurance Corporation as subrogee or transferee) over general creditors. Claims for customer deposits would have a priority over any claims that we may ourselves have as a creditor of Imperial Capital Bank. Unless otherwise specified in the applicable prospectus supplement, the indentures will not limit the amount of indebtedness or other liabilities that we and our subsidiaries may incur.
Subordinated Debt Securities Intended to Qualify as Tier 2 Capital
Unless otherwise stated in the applicable prospectus supplement, it is currently intended that the subordinated debt securities will qualify as Tier 2 Capital under the guidelines established by the Board of Governors of the Federal Reserve System for bank holding companies. The guidelines set forth specific criteria for subordinated debt to qualify as Tier 2 Capital. Among other things, the subordinated debt must:
See "--Events of Default; Limited Rights of Acceleration of Subordinated Debt Securities."
Payment and Paying Agents
Unless otherwise indicated in the applicable prospectus supplement, payment of the interest on any debt securities on any interest payment date will be made to the person in whose name those debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for that interest payment.
Principal of and any premium and interest on a particular series of debt securities will be payable at the office of the paying agents designated by us, except that unless otherwise indicated in the applicable prospectus supplement, interest payments may be made by check mailed to the holder. Unless otherwise indicated in the applicable prospectus supplement, the corporate trust office of the trustee in the City of New York will be designated as our sole paying agent for payments with respect to each series of debt securities. Any other paying agents initially designated by us for the debt securities of a particular series will be named in the applicable prospectus supplement. We will be required to maintain a paying agent in each place of payment for the debt securities of a particular series.
All moneys paid by us to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities which remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the security thereafter may look only to us for payment of these moneys.
Global Securities
We may issue a series of debt securities in whole or in part in the form of one or more global certificates that will be deposited with a depositary we will identify in a prospectus supplement. We may issue global debt securities in either temporary or definitive form. We will describe the specific terms of the depositary arrangement with respect to any series of debt securities in the prospectus supplement.
Unless and until it is exchanged in whole or in part for debt securities in definitive registered form, a registered global security may not be transferred except as a whole:
The prospectus supplement relating to a series of debt securities will describe the specific terms of the depositary arrangement involving any portion of the series represented by a registered global security.
We anticipate that the following provisions will generally apply to all depositary arrangements for debt securities:
The laws of some states may require that specified purchasers of securities take physical delivery of the securities in definitive form. These laws may limit the ability of those persons to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary for a registered global security, or its nominee, is the registered owner of that registered global security, the depositary or that nominee will be considered the sole owner or holder of the debt securities represented by the registered global security for all purposes under the indenture. Except as stated below, owners of beneficial interests in a registered global security:
Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for the registered global security and, if the person is not a participant, on the procedures of a participant through which the person owns its interest, to exercise any rights of a holder under the indenture.
We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the indenture, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take the action, and the participants would authorize beneficial owners owning through the participants to give or take the action or would otherwise act upon the instructions of beneficial owners holding through them.
We will make payments of principal and premium, if any, and interest, if any, on debt securities represented by a registered global security registered in the name of a depositary or its nominee to the depositary or its nominee as the registered owners of the registered global security. None of us, the trustee or any other of our agents or agents of the trustee will be responsible or liable for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
We expect that the depositary for any debt securities represented by a registered global security, upon receipt of any payments of principal and premium, if any, and interest, if any, in respect of the registered global security, will immediately credit participants' accounts with payments in amounts proportionate to their respective beneficial interests in the registered global security as shown on the records of the depositary. We also expect that standing customer instructions and customary practices will govern payments by participants to owners of beneficial interests in the registered global security held through the participants, as is now the case with the securities held for the accounts of customers in bearer form or registered in "street name." We also expect that any of these payments will be the responsibility of the participants.
If the depositary for any debt securities represented by a registered global security is at any time unwilling or unable to continue as depositary or stops being a clearing agency registered under the Securities Exchange Act of 1934, we will appoint an eligible successor depositary. If we fail to appoint an eligible successor depositary within 90 days, we will issue the debt securities in definitive form in exchange for the registered global security. In addition, we may at any time and in our sole discretion decide not to have any of the debt securities of a series represented by one or more registered global securities. In that event, we will issue debt securities of the series in a definitive form in exchange for all of the registered global securities representing the debt securities. The trustee will register any debt securities issued in definitive form in exchange for a registered global security in the name or names as the depositary, based upon instructions from its participants, will instruct the trustee.
Redemption and Repurchase
The debt securities of any series may be redeemable at our option, may be subject to mandatory redemption pursuant to a sinking fund or otherwise, or may be subject to repurchase by us at the option of the holders, in each case upon the terms, at the times and at the prices set forth in the applicable prospectus supplement. Unless otherwise stated in the applicable prospectus supplement, however, we currently do not intend to issue subordinated debt securities with redemption or repurchase features to the extent these features would prevent the subordinated debt securities from qualifying as Tier 2 Capital under the guidelines of the Board of Governors of the Federal Reserve System. See "--Subordinated Debt Securities Intended to Qualify as Tier 2 Capital."
Conversion or Exchange Rights
If debt securities may be convertible into or exchangeable for shares of our equity securities or other securities, the terms and conditions of conversion or exchange will be stated in the applicable prospectus supplement. The terms will include, among others, the following:
Absence of Limitation on Indebtedness and Liens; Absence of Event Risk Protection
Unless otherwise stated in the prospectus supplement relating to a series of debt securities, the indentures will not limit the amount of indebtedness, guarantees or other liabilities that we and our subsidiaries may incur and will not prohibit us and our subsidiaries from creating or assuming liens on our properties, including the capital stock of Imperial Capital Bank and our other subsidiaries. Unless otherwise provided in the related prospectus supplement, the indentures will not require us to maintain any financial ratios or specified levels of net worth, revenues, income, cash flow or liquidity, and will not contain provisions which would give holders of the debt securities the right to require us to repurchase their debt securities in the event we undergo a takeover, recapitalization or similar restructuring or change in control.
Merger, Consolidation or Sale of Assets
Under the terms of the indentures, we may consolidate or merge with another company, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all our assets to another company, if:
Upon any consolidation or merger of which we are not the surviving entity, or any sale, conveyance, transfer or other disposition, and upon the assumption by the successor entity by supplemental indenture of our payment obligations on the debt securities and our other obligations under the indenture, the successor entity will succeed to and be substituted for us, and may exercise every right and power of ours, under the indenture with the same effect as if the successor entity had been named as the issuer in the indenture and thereafter we will be released from our obligations under the indenture and the debt securities outstanding under the indenture.
Events of Default; Limited Rights of Acceleration of Subordinated Debt Securities
Unless otherwise provided for in the applicable prospectus supplement, the term "event of default," when used in the indentures may include any of the following:
Each indenture provides that, within 90 days after the occurrence of an uncured or unwaived event of default with respect to debt securities of any series, the trustee must provide notice of the default to the holders of the debt securities of that series. Each indenture provides, however, that except in the case of a default in payment of principal, premium, if any, interest, if any, or sinking fund payments, if any, the trustee may withhold this notice if the trustee determines in good faith that the withholding of the notice is in the best interests of the holders of the series of debt securities affected.
The senior indenture provides that if an event of default with respect to any series of debt securities issued the indenture shall have occurred and be continuing, unless the principal of all the debt securities of that series has already become due and payable, either the trustee or the holders of at least 25% in principal amount of the debt securities of that series then outstanding may declare the principal amount (or if any debt securities of that series are original issue discount securities, such lesser amount as may be specified in the terms of the debt securities) of all the debt securities of such series to be due and payable immediately, but upon certain conditions such declaration and its consequences may be rescinded and annulled by the holders of a majority in principal amount of the debt securities of such series then outstanding.
Unless otherwise stated in the applicable prospectus supplement, no event of default described in the first, second, third, fourth or sixth bullet points above will permit acceleration of the payment of the principal of the subordinated debt securities. Unless otherwise stated in the applicable prospectus supplement, the subordinated indenture will provide that, if an event of default described under the fifth bullet point above shall have occurred and be continuing, unless the principal amount of all the debt securities of a particular series has already become due and payable, either the trustee or the holders of at least 25% in principal amount of the subordinated debt securities of any series then outstanding may declare the principal amount (or if any subordinated debt securities of such series are original issue discount securities, such lesser amount as may be specified in the terms of the securities) of all the subordinated debt securities of such series to be due and payable immediately, but upon certain conditions such declaration and its consequences may be rescinded and annulled by the holders of a majority in principal amount of the subordinated debt securities of such series then outstanding.
As described in the preceding paragraph, unless otherwise stated in the applicable prospectus supplement, there will be no right of acceleration with respect to the subordinated debt securities of any series in the case of, among other things, (1) a default in the payment of the principal of, or premium, if any, or interest, if any, on, or sinking fund payments, if any, with respect to, the subordinated debt securities of that series or (2) a default in the performance of any other covenant of ours in the subordinated indenture or the subordinated debt securities of that series. In the case of a default in the payment of principal of, or premium, if any, or interest, if any, on any subordinated debt securities of any series, the subordinated indenture trustee, subject to certain limitations and conditions, may institute a judicial proceeding for the collection thereof. The limitation on acceleration described above is intended to permit the subordinated debt securities to qualify as Tier 2 Capital under the guidelines established by the Board of Governors of the Federal Reserve System for bank holding companies.
Subject to the provisions of Trust Indenture Act requiring each trustee, during the continuance of an event of default under the relevant indenture, to act with the requisite standard of care, a trustee is under no obligation to exercise any of its rights or powers under the relevant indenture at the request or direction of any of the holders of debt securities of any series unless the holders have offered the trustee reasonable indemnity. Subject to the foregoing, holders of a majority in principal amount of the then outstanding debt securities of any series issued under an indenture will have the right, subject to certain limitations, to direct the time, method and place of conducting any proceeding for any remedy available to the trustee under the indenture with respect to that series. Each indenture requires us to file annually with the relevant trustee a certificate as to whether we are in default under the terms of the indenture.
No holder of any debt securities will have any right to institute any proceeding with respect to the indenture or for any remedy under the indenture, unless:
These limitations do not apply to a suit instituted by a holder of a debt security for enforcement of payment of the principal or interest on the debt security on or after the respective due dates expressed in the debt security.
Discharge, Defeasance and Covenant Defeasance
Discharge. We may be permitted under the applicable indenture to discharge specific obligations to holders of any series of debt securities (1) that have not already been delivered to the applicable trustee for cancellation and (2) that either have become due and payable or will, within one year, become due and payable or scheduled for redemption, by irrevocably depositing with the applicable trustee, in trust, money or funds certified to be sufficient to pay when due, whether at maturity, upon redemption or otherwise, the principal of, and premium, if any, on and interest on the debt securities.
Legal Defeasance and Covenant Defeasance. If the provisions in the indenture relating to legal defeasance and covenant defeasance are made applicable to a particular series of debt securities issued under that indenture, we may elect either:
We may effect defeasance and covenant defeasance only if, among other things:
Modification of the Indentures
Except as provided in the applicable prospectus supplement, each indenture provides that we and the trustee may enter into supplemental indentures without the consent of the holders of debt securities to:
Each indenture also provides that we and the trustee may, with the consent of the holders of not less than a majority in aggregate principal amount of the series of debt securities affected then outstanding, add any provisions to, or change in any manner, eliminate or modify in any way the provisions of, the indenture or modify in any manner the rights of the holders of the debt securities of that series. We and the trustee may not, however, without the consent of the holder of each outstanding debt security affected, among other things:
In addition, any reduction in the percentage of principal amount of debt securities, the holders of which are required to consent to any amendment, modification or waiver under the applicable indenture, will require the affirmative consent of at least the percentage of principal amount of debt securities which would originally have been required to make the amendment, modification or waiver effective.
Concerning the Trustees
Each trustee will have and be subject to all the duties and responsibilities specified with respect to an indenture trustee under the Trust Indenture Act. Subject to these provisions, each trustee is under no obligation to exercise any of the powers vested in it by the indenture at the request of any holder of the debt securities, unless offered reasonable indemnity by the holder against the costs, expenses and liabilities which might be incurred thereby. Each trustee is not required to expend or risk its own funds or otherwise incur personal financial liability in the performance of its duties if the trustee reasonably believes that repayment or adequate indemnity is not reasonably assured to it.
Governing Law
The indentures and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
DESCRIPTION OF COMMON STOCK
We may issue, either separately or together with other securities, shares of common stock. Upon our receipt of the full specified purchase price therefor, the common stock issued will be fully paid and nonassessable. A prospectus supplement relating to an offering of common stock, or other securities convertible or exchangeable for, or exercisable into, common stock, will describe the relevant offering terms, including the number of shares offered, the initial offering price, and market price and dividend information, as well as, if applicable, information on other related securities. For more information about our common stock, see "Description of Capital Stock" below.
DESCRIPTION OF PREFERRED STOCK
The following briefly summarizes the material terms of our preferred stock, other than pricing and related terms disclosed for a particular issuance in an accompanying prospectus supplement. Upon our receipt of the full specified purchase price therefor, the preferred stock issued will be fully paid and nonassessable. You should read the particular terms of any series of preferred stock we offer in any prospectus supplement relating to that series, together with the more detailed provisions of our certificate of incorporation and the statement with respect to shares relating to each particular series of preferred stock for provisions that may be important to you. The statement with respect to shares relating to each particular series of preferred stock offered by an accompanying prospectus supplement and this prospectus will be filed as an exhibit to a document incorporated by reference into the registration statement of which this prospectus forms a part. The prospectus supplement will also state whether any of the terms summarized below do not apply to the series of preferred stock being offered. For more information about our preferred stock, see "Description of Capital Stock" below.
General
Under our certificate of incorporation, our board of directors is authorized to issue shares of preferred stock in one or more series, and to establish from time to time a series of preferred stock with the following terms specified:
Prior to the issuance of any series of preferred stock, our board of directors will adopt resolutions creating and designating the series as a series of preferred stock and the resolutions will be included in a certificate of designation as to that series as an amendment to our certificate of incorporation. We refer you to the applicable prospectus supplement for any series of preferred stock offered by us for specific terms, including the following:
The transfer agent, registrar, dividend disbursing agent and redemption agent for shares of each series of preferred stock will be named in the prospectus supplement relating to that series.
Rank
Unless otherwise specified in the prospectus supplement relating to the shares of any series of preferred stock, such shares will rank on an equal basis with each other series of preferred stock and prior to our common stock as to dividends and distributions of assets.
Dividend, Repurchase and Redemption Restrictions
We are a holding company and substantially all of our consolidated assets are held by our subsidiaries. Our cash flow and ability to pay dividends on and to redeem or repurchase our securities, including preferred stock, are dependent upon the results of operations of our subsidiaries and the distribution of funds by our subsidiaries to us. In addition, as a bank holding company, various regulatory restrictions limit directly or indirectly the amount of dividends we may pay as well as the repurchase or redemption of our capital stock. See "Description of Debt Securities--Ranking of Debt Securities; Holding Company Structure" and the discussion contained in our Annual Report on Form 10-K for the year ended December 31, 2004 under "Regulation--Holding Company Regulation-Dividends," and "Regulation--Holding Company Regulation-Repurchase or Redemption of Equity Securities."
Dividends
Unless the particular prospectus supplement states otherwise, holders of each series of preferred stock will be entitled to receive cash dividends, when, as and if declared by our board of directors out of funds legally available for dividends. The rates and dates of payment of dividends will be set forth in the prospectus supplement relating to each series of preferred stock. Dividends will be payable to holders of record of preferred stock as they appear on our books or, if applicable, the records of the preferred stock depositary referred to below under "Description of Depositary Shares," on the record dates fixed by our board of directors. Dividends on any series of preferred stock may be cumulative or noncumulative.
We generally may not declare, pay or set apart for payment, cash or other non-stock dividends or other payments on a particular series of preferred stock unless full dividends on any other series of preferred stock that ranks on an equal or senior basis have been paid or sufficient funds have been set apart for payment for:
Partial dividends declared on shares of a particular series of preferred stock and any other series of preferred stock ranking on an equal basis as to dividends will be declared pro rata. A pro rata declaration means that the ratio of dividends declared per share to accrued dividends per share will be the same for all such series of preferred stock.
Similarly, we generally may not declare, pay or set apart for payment cash or other non-stock dividends or make other payments on the common stock or any of our other stock ranking junior to a particular series of preferred stock unless full dividends on that series of preferred stock have been paid or set apart for payment for:
Conversion and Exchange
The prospectus supplement for any series of preferred stock will state the terms, if any, on which shares of that series are convertible into or exchangeable for shares of our common stock.
Redemption
If so specified in the applicable prospectus supplement, a series of preferred stock may be redeemable, in whole or in part, at our option or at the option of the holder of the stock, or may be mandatorily redeemed, in each case upon the terms, at the times and at the prices set forth in the applicable prospectus supplement. Any partial redemptions of preferred stock will be made in a way that our board of directors decides is equitable.
Unless we default in the payment of the redemption price, dividends will cease to accrue after the redemption date on shares of preferred stock called for redemption and all rights of holders of those shares will terminate except for the right to receive the redemption price.
Any shares of preferred stock that we redeem will be restored to the status of authorized but unissued shares.
Liquidation Preference
Upon our voluntary or involuntary liquidation, dissolution or winding up, holders of each series of preferred stock will be entitled to receive distributions upon liquidation in the amount set forth in the prospectus supplement relating to such series of preferred stock, plus an amount equal to any accrued and unpaid dividends. The distributions will be made before any distribution is made on any securities ranking junior to that series of preferred stock with respect to liquidation, including common stock, and after distributions are made on any securities ranking senior to that series of preferred stock with respect to liquidation.
If the liquidation amounts payable relating to the preferred stock of any series and any other securities ranking on a parity regarding liquidation rights are not paid in full, the holders of the preferred stock of such series and such other securities will share in any such distribution of our available assets on a ratable basis in proportion to the full liquidation preferences. Holders of such series of preferred stock will not be entitled to any other amounts from us after they have received their full liquidation preference.
Voting Rights
The holders of shares of preferred stock will have no voting rights, except as otherwise stated in the prospectus supplement or as required by applicable law.
Under the Delaware General Corporation Law, holders of all outstanding shares of preferred stock will be entitled to vote as a separate class on a proposed amendment to our certificate of incorporation if the amendment would:
If, however, a proposed amendment would change the powers, preferences or special rights of one or more series of preferred stock so as to affect the holders of that series adversely, but would not adversely affect all series of preferred stock, then only the holders of the shares of the series adversely affected will have the right to vote on the amendment as separate class.
DESCRIPTION OF DEPOSITARY SHARES
We may offer depositary shares, which will be evidenced by depositary receipts, representing fractional interests in shares of preferred stock of any series. In connection with the issuance of any depositary shares, we will enter into a deposit agreement with a bank or trust company, as depositary, which will be named in the applicable prospectus supplement. The following briefly summarizes the material provisions of the deposit agreement and of the depositary shares and depositary receipts, other than pricing and related terms disclosed for a particular issuance in an accompanying prospectus supplement. This description is not complete and is subject to, and qualified in its entirety by reference to, all provisions of the deposit agreement, depositary shares and depositary receipts. You should read the particular terms of any depositary shares and any depositary receipts that we offer and any deposit agreement relating to a particular series of preferred stock described in more detail in a prospectus supplement. The prospectus supplement will also state whether any of the generalized provisions summarized below do not apply to the depositary shares or depositary receipts being offered. A copy of the form of deposit agreement, including the form of depositary receipt, has been filed as an exhibit to the registration statement of which this prospectus forms a part.
General
We may, at our option, elect to offer fractional shares of preferred stock, rather than full shares of preferred stock. In such event, we will issue receipts for depositary shares, each of which will represent a fraction of a share of a particular series of preferred stock.
The shares of any series of preferred stock represented by depositary shares will be deposited under a deposit agreement between us and a bank or trust company we select and that has its principal office in the United States and a combined capital and surplus of at least $50,000,000, as preferred stock depositary. Each owner of a depositary share will be entitled to all the rights and preferences of the underlying preferred stock, including any dividend, voting, redemption, conversion and liquidation rights described in the particular prospectus supplement, in proportion to the applicable fraction of a share of preferred stock represented by such depositary share.
The depositary shares will be evidenced by depositary receipts issued pursuant to the deposit agreement. Depositary receipts will be distributed to those persons purchasing the fractional shares of preferred stock in accordance with the terms of the applicable prospectus supplement.
Dividends and Other Distributions
The preferred stock depositary will distribute all cash dividends or other cash distributions received in respect of the deposited preferred stock to the record holders of depositary shares relating to the preferred stock in proportion to the number of depositary shares owned by the holders.
In the case of a distribution other than in cash, the preferred stock depositary will distribute any property received by it other than cash to the record holders of depositary shares entitled to receive it. If the preferred stock depositary determines that it is not feasible to make such a distribution, it may, with our approval, sell the property and distribute the net proceeds from the sale to the holders of the depositary shares.
The amounts distributed in any such distribution, whether in cash or otherwise, will be reduced by any amount required to be withheld by us or the preferred stock depositary on account of taxes.
Withdrawal of Preferred Stock
When a holder surrenders depositary receipts at the office of the preferred stock depositary maintained for that purpose, and pays any necessary taxes, charges or other fees, the holder will be entitled to receive the number of whole shares of the related series of preferred stock, and any money or other property, if any, represented by the holder's depositary shares. Once a holder exchanges depositary shares for whole shares of preferred stock, that holder generally cannot "re-deposit" these shares of preferred stock with the preferred stock depositary, or exchange them for depositary shares. If a holder delivers depositary receipts that represent a number of depositary shares that exceeds the number of whole shares of related preferred stock the holder seeks to withdraw, the depositary will issue a new depositary receipt to the holder that evidences the excess number of depositary shares.
Redemption, Conversion and Exchange of Preferred Stock
If a series of preferred stock represented by depositary shares is to be redeemed, the depositary shares will be redeemed from the proceeds received by the preferred stock depositary resulting from the redemption, in whole or in part, of that series of preferred stock. The depositary shares will be redeemed by the preferred stock depositary at a price per depositary share equal to the applicable fraction of the redemption price per share payable in respect of the shares of preferred stock redeemed.
Whenever we redeem shares of preferred stock held by the preferred stock depositary, the preferred stock depositary will redeem as of the same date the number of depositary shares representing shares of preferred stock redeemed. If fewer than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by the preferred stock depositary by lot or ratably or by any other equitable method, in each case as we may determine.
If a series of preferred stock represented by depositary shares is to be converted or exchanged, the holder of depositary receipts representing the shares of preferred stock being converted or exchanged will have the right or obligation to convert or exchange the depositary shares evidenced by the depositary receipts.
After the redemption, conversion or exchange date, the depositary shares called for redemption, conversion or exchange will no longer be outstanding. When the depositary shares are no longer outstanding, all rights of the holders will end, except the right to receive money, securities or other property payable upon redemption, conversion or exchange.
Voting Deposited Preferred Stock
Upon receipt of notice of any meeting at which the holders of any series of deposited preferred stock are entitled to vote, the preferred stock depositary will mail the information contained in the notice of meeting to the record holders of the depositary receipts evidencing the depositary shares relating to that series of preferred stock. Each record holder of the depositary receipts on the record date will be entitled to instruct the preferred stock depositary to vote the amount of the preferred stock represented by the holder's depositary shares. The preferred stock depositary will try, if practical, to vote the amount of such series of preferred stock represented by such depositary shares in accordance with such instructions.
We will agree to take all reasonable actions that the preferred stock depositary determines are necessary to enable the preferred stock depositary to vote as instructed. The preferred stock depositary will abstain from voting shares of any series of preferred stock held by it for which it does not receive specific instructions from the holders of depositary shares representing those preferred shares.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement may at any time be amended by agreement between us and the preferred stock depositary. However, any amendment that materially and adversely alters any existing right of the holders of depositary receipts will not be effective unless the amendment has been approved by the holders of depositary receipts representing at least a majority of the depositary shares then outstanding. Every holder of an outstanding depositary receipt at the time any such amendment becomes effective will be deemed, by continuing to hold the depositary receipt, to consent and agree to the amendment and to be bound by the deposit agreement, as amended.
We may direct the preferred stock depositary to terminate the deposit agreement at any time by mailing notice of termination to the record holders of the depositary receipts then outstanding at least 30 days prior to the date fixed for termination. Upon termination, the preferred stock depositary will deliver to each holder of depositary receipts, upon surrender of those receipts, such number of whole shares of the series of preferred stock represented by the depositary shares together with cash in lieu of any fractional shares, to the extent we have deposited cash for payment in lieu of fractional shares with the preferred stock depositary. In addition, the deposit agreement will automatically terminate if:
Charges of Preferred Stock Depositary; Taxes and Other Governmental Charges
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We also will pay charges of the preferred stock depositary in connection with the initial deposit of preferred stock and any redemption of preferred stock. Holders of depositary receipts will pay other transfer and other taxes and governmental charges and such other charges, including a fee for the withdrawal of shares of preferred stock upon surrender of depositary receipts, as are expressly provided in the deposit agreement to be for their accounts.
Prospective purchasers of depositary shares should be aware that special tax, accounting and other issues may be applicable to instruments such as depositary shares.
Resignation and Removal of Depositary
The preferred stock depositary may resign at any time by delivering to us notice of its intent to do so, and we may at any time remove the preferred stock depositary, any such resignation or removal to take effect upon the appointment of a successor preferred stock depositary and its acceptance of such appointment. The successor preferred stock depositary must be appointed within 90 days after delivery of the notice of resignation or removal and must be a bank or trust company, or an affiliate of a bank or trust company, having its principal office in the United States and having a combined capital and surplus of at least $50,000,000.
Miscellaneous
The preferred stock depositary will forward all reports and communications from us which are delivered to the preferred stock depositary and which we are required to furnish to the holders of the deposited preferred stock.
Neither we nor the preferred stock depositary will be liable if we are or the preferred stock depositary is prevented or delayed by law or any circumstances beyond our or its control in performing our or its obligations under the deposit agreement. Our obligations and the obligations of the preferred stock depositary under the deposit agreement will be limited to performance in good faith of the duties under the deposit agreement and we and the preferred stock depositary will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares, depositary receipts or shares of preferred stock unless satisfactory indemnity is furnished. We and the preferred stock depositary may rely upon written advice of counsel or accountants, or upon information provided by holders of depositary receipts or other persons believed to be competent and on documents believed to be genuine.
We may issue purchase contracts, including purchase contracts issued as part of a unit with one or more other securities, for the purchase or sale of:
The price of our debt securities, the price per share of our common stock, preferred stock or depositary shares, or the price of the other securities, currencies or commodities that are the subject of the contract, as applicable, may be fixed at the time the purchase contracts are issued or may be determined by reference to a specific formula contained in the purchase contracts. We may issue purchase contracts in such amounts and in as many distinct series as we wish.
The applicable prospectus supplement may contain, where applicable, the following information about the purchase contracts issued under it:
The applicable prospectus supplement will describe the terms of any purchase contracts. The preceding description and any description of purchase contracts in the applicable prospectus supplement does not purport to be complete and is subject to and is qualified in its entirety by reference to the purchase contract agreement and, if applicable, collateral arrangements and depositary arrangements relating to such purchase contracts.
We may issue units comprised of one or more of the other securities described in this prospectus in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
The applicable prospectus supplement may describe:
The preceding description and any description of units in the applicable prospectus supplement does not purport to be complete and is subject to and is qualified in its entirety by reference to the unit agreement and, if applicable, collateral arrangements and depositary arrangements relating to such units.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of common stock, preferred stock and debt securities. Warrants may be issued separately or together with common stock, preferred stock or debt securities offered by any prospectus supplement and may be attached to or separate from common stock, preferred stock or debt securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent, all as set forth in the prospectus supplement relating to the particular issue of offered warrants. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders of warrants or beneficial owners of warrants. A copy of the form of warrant agreement to be entered into with respect to a particular offering of warrants, including the form of warrant certificate representing the warrants, has been filed as an exhibit to the registration statement of which this prospectus forms a part. The following summaries of certain provisions of the forms of warrant agreements and warrant certificates do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the warrant agreements and the warrant certificates.
General
If warrants are offered, the applicable prospectus supplement will describe the terms of such warrants, including, in the case of warrants for the purchase of debt securities, the following where applicable:
In the case of warrants for the purchase of common stock or preferred stock, the applicable prospectus supplement will describe the terms of such warrants, including the following where applicable:
Warrant certificates may be exchanged for new warrant certificates of different denominations, may be presented for registration of transfer, and may be exercised at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Prior to the exercise of any warrant to purchase debt securities, holders of such warrants will not have any of the rights of holders of the debt securities purchasable upon such exercise, including the right to receive payments of principal of, premium, if any, or interest, if any, on the debt securities purchasable upon such exercise or to enforce covenants in the applicable indenture. Prior to the exercise of any warrants to purchase preferred stock or common stock, holders of such warrants will not have any rights of holders of the preferred stock or common stock purchasable upon such exercise, including the right to receive payments of dividends, if any, on the preferred stock or common stock purchasable upon such exercise or to exercise any applicable right to vote.
Exercise of Warrants
Each warrant will entitle its holder to purchase such principal amount of debt securities or shares of common stock or preferred stock, as the case may be, at an exercise price as shall in each case be set forth in, or calculable, from the prospectus supplement relating to the offered warrants. After the close of business on the expiration date of the warrants (or such later date to which the expiration date may be extended by us), unexercised warrants will become void.
Warrants may be exercised by delivering to the warrant agent payment as provided in the applicable prospectus supplement of the amount required to purchase the debt securities, preferred stock or common stock, as the case may be, purchasable upon exercise together with such other information and forms as may be required by the terms of the warrants. Upon receipt of such payment, together with such other information and properly completed forms as may be required for exercise, at the principal office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will, as soon as practicable, issue and deliver the debt securities, preferred stock or common stock, as the case may be, purchasable upon the exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, a new warrant certificate will be issued for the remaining amount of warrants.
Amendments and Supplements to Warrant Agreements
The warrant agreements may be amended or supplemented without the consent of the holders of the warrants issued under the warrant agreements to effect changes that do not materially and adversely affect the interests of the holders of the warrants.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of:
As of March 31, 2005, there were 5,776,242 shares of our common stock issued and outstanding and no shares of our preferred stock issued and outstanding.
The following summary of certain provisions of the common stock, preferred stock and our certificate of incorporation and by-laws does not purport to be complete and is qualified in its entirety by reference to our certificate of incorporation and by-laws, copies of which have been incorporated by reference into the registration statement of which this prospectus is a part.
Common Stock
The holders of our common stock are entitled to one vote per share on all matters voted on by stockholders, including elections of directors, and, except as otherwise required by law or provided by the express provisions of any series of our preferred stock, the holders of such shares exclusively possess all voting power. There is no cumulative voting in the election of directors, and no holder of common stock is entitled as such, as a matter of right, to subscribe for or purchase any shares of common stock or preferred stock. Subject to the preferential rights of any outstanding series of preferred stock, the holders of common stock are entitled to receive ratably such dividends as may be declared from time to time by our board of directors from funds legally available for dividends. In the event we undergo a liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in all assets remaining after payment or provision for liabilities and amounts owing in respect of any outstanding preferred stock. Our common stock represents non-withdrawable capital, is not of an insurable type and is not insured by the Federal Deposit Insurance Corporation or any other governmental agency or instrumentality.
We are a holding company, and substantially all of our consolidated assets are held by our subsidiaries. Our cash flow and ability to pay dividends on our common stock are dependent upon the results of operations of our subsidiaries and the distribution of funds by our subsidiaries to us. In addition, as a bank holding company, various regulatory restrictions limit directly or indirectly the amount of dividends we can pay as well as the repurchase or redemption of our capital stock. See "Description of Debt Securities--Ranking of Debt Securities; Holding Company Structure " and the discussion contained in our Annual Report on Form 10-K for the year ended December 31, 2004 under "Regulation--Holding Company Regulation-Dividends," and "Regulation--Holding Company Regulation-Repurchase or Redemption of Equity Securities."
The transfer agent for our common stock is U.S. Stock Transfer Corporation.
Preferred Stock
We may issue preferred stock from time to time in one or more series. Subject to limitations prescribed by Delaware law and our certificate of incorporation, our board of directors is authorized to fix the number of shares constituting each series of preferred stock and the rights and preferences of each series of preferred stock. Preferred stock may rank prior to common stock with respect to the payment of dividends and distributions upon our liquidation, dissolution or winding up and may have full or limited voting rights. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, adversely, affect the voting power of the holders of common stock and, under certain circumstances, make it more difficult for a third party to gain control of us and could have the effect of delaying or preventing a merger, tender offer or other attempted takeover of our company. No holder of preferred stock will be entitled, as a matter of right, to subscribe for or purchase any shares of preferred stock or common stock.
Anti-takeover Provisions
Delaware Law. Section 203 of the Delaware General Corporation Law provides that if a person acquires 15% or more of the stock of a Delaware corporation, thereby becoming an "interested stockholder" (for purposes of Section 203), that person may not engage in certain business combinations with the corporation for a period of three years unless one of the following three exceptions applies:
A Delaware corporation may elect not to be governed by Section 203. We have not made such an election and accordingly are subject to Section 203.
Certificate of Incorporation and By-laws. Several provisions of our certificate of incorporation and by-laws may have the effect of deterring a takeover of our company. These provisions include:
Any one or more of these provisions could make it more difficult for a third party to gain control of us, and could have the effect of delaying or preventing a merger, tender offer or other attempted takeover of our company.
DESCRIPTION OF TRUST PREFERRED SECURITIES
The trust agreement pursuant to which each trust is organized will be replaced by an amended and restated trust agreement, which will authorize the trustees of the trust to issue on behalf of the trust one series of trust preferred securities and one series of trust common securities. The trust preferred securities will be issued to the public pursuant to the registration statement of which this prospectus forms a part, and the trust common securities will be issued directly or indirectly to us. A form of amended and restated trust agreement for each trust has been filed as an exhibit to the registration statement of which this prospectus forms a part.
The following description of the trust preferred securities sets forth certain general terms and provisions of the trust preferred securities and the trust agreement to which any prospectus supplement may relate. Certain other specific terms of the trust preferred securities and trust agreement will be described in the applicable prospectus supplement. To the extent that any particular terms of any trust preferred securities or trust agreement described in a prospectus supplement differ from any of the terms described in this prospectus, then the terms described in this prospectus will be deemed to have been superseded by the prospectus supplement.
The trust preferred securities will have such terms, including distributions, redemption, voting, conversion, liquidation rights and such other preferred, deferred or other special rights or such restrictions as are set forth in the applicable trust agreement or made part of the trust agreement by the Trust Indenture Act. You should see the applicable prospectus supplement relating to the trust preferred securities of each trust for specific terms, including:
Certain federal income tax considerations applicable to an investment in trust preferred securities will be described in the related prospectus supplement.
In connection with the issuance of trust preferred securities, each trust will also issue one series of trust common securities having such terms, including distribution, conversion, redemption, voting, and liquidation rights or such restrictions as are set forth in the trust agreement. Except as otherwise provided in the prospectus supplement relating to the trust preferred securities, the terms of the trust common securities issued by a trust will be substantially identical to the terms of the trust preferred securities issued by the trust, and the trust common securities will rank on a parity, and payments will be made on the trust common securities pro rata, with the trust preferred securities, except that, upon an event of default under the trust agreement, the rights of the holders of the trust common securities to payment in respect of distributions and payments upon liquidation, redemption and otherwise will be subordinated to the rights of the holders of the trust preferred securities. Except in certain limited circumstances, the trust common securities will also carry the right to vote and appoint, remove or replace any of the trustees of the related trust which issued the trust common securities. All of the trust common securities of each trust will be directly or indirectly owned by us.
In connection with the issuance of trust preferred securities by a trust, the trust will purchase junior subordinated debentures from us. The ability of the trust to make distributions and other payments on the trust preferred securities will depend upon the receipt by the trust of interest and other payments made by us on the junior subordinated debentures. The junior subordinated debentures will be our exclusive obligations and, because we are a holding company and substantially all of our consolidated assets are held by our subsidiaries, our cash flow and ability to service our debt, including the junior subordinated debentures, will be dependent upon the results of operations of our subsidiaries and the distribution of funds to us by our subsidiaries. In addition, because we are a holding company, the junior subordinated debentures will be effectively subordinated to all existing and future liabilities of our subsidiaries. See "Description of Debt Securities--Ranking of Debt Securities; Holding Company Structure."
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
Concurrently with the issuance of preferred securities by a trust, that trust will invest the proceeds from the sale of the trust preferred securities in junior subordinated debentures issued by us. We will issue the junior subordinated debentures pursuant to a junior subordinated indenture between us and a trustee to be named in the applicable prospectus supplement.
Below is a summary of the general terms of the junior subordinated debentures in which the trusts will invest the proceeds from the issuance and sale of the trust securities. We will describe the particular terms of the junior subordinated debentures in the prospectus supplement relating to the trust preferred securities being offered. The form of junior subordinated indenture is filed as an exhibit to the registration statement of which this prospectus forms a part.
General
The junior subordinated debentures will be issued as our unsecured debt. The junior subordinated debentures will be fully subordinated to all of our senior indebtedness. The specific terms of the subordination will be as described in the prospectus supplement relating to the particular trust preferred securities being offered.
The prospectus supplement relating to the particular series of trust preferred securities being offered will also describe the terms of the related junior subordinated debentures, which may include:
Payment
We will pay or deliver principal and any premium and interest in the manner, at the places and subject to the restrictions set forth in the junior subordinated indenture and the applicable prospectus supplement. At our option, we may pay any interest by check mailed to the holders of registered junior subordinated debentures at their registered address.
Limitations on Transactions
We will be restricted from making certain payments (as described below) if an event of default has occurred and is continuing under the junior subordinated indenture, if we choose to defer payment of interest on the junior subordinated debentures by extending the interest payment period as provided in the junior subordinated indenture, or if we are in default with respect to our obligations under the trust preferred securities guarantee relating to a trust.
If any of these events occur, we will not:
Subordination
The junior subordinated debentures will be unsecured and will be subordinated and junior in right of payment to all of our senior indebtedness to the extent described in the applicable prospectus supplement. The junior subordinated debentures purchased by each trust will be of equal priority to the junior subordinated debentures purchased by any other trust.
Consolidation, Merger, Sale of Assets and Other Transactions
The junior subordinated indenture provides that we may not consolidate with or merge into any other entity or convey or transfer our properties and assets substantially as an entirety to any entity, and no entity may be consolidated with or merged into us or sell, convey, transfer or otherwise dispose of its assets substantially as an entirety to us, unless:
Debenture Events of Default
The junior subordinated indenture provides that any one or more of the following events with respect to the junior subordinated debentures that has occurred and is continuing constitutes an event of default under the junior subordinated indenture:
The holders of a majority of the aggregate outstanding principal amount of the junior subordinated debentures will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the indenture trustee or exercise any trust or power conferred on the indenture trustee. The indenture trustee, or the holders of at least 25% in aggregate outstanding principal amount of the junior subordinated debentures, will be entitled to declare the principal due and payable immediately upon an event of default under the junior subordinated indenture. The holders of a majority of the outstanding principal amount of the junior subordinated debentures will be entitled to rescind and annul the declaration and waive the default if the default has been cured and a sum sufficient to pay all matured installments of interest and principal due otherwise than by acceleration has been deposited with the indenture trustee. In the event the junior subordinated debentures are held by the trust, this waiver will not be effective without the consent of a majority in liquidation preference of the related trust securities. Should the holders of the junior subordinated debentures fail to annul the declaration and waive the default, the holders of at least a majority in aggregate liquidation amount of the related trust preferred securities will have this right.
If an event of default under the junior subordinated indenture has occurred and is continuing, the property trustee will have the right to declare the principal of and the interest on the junior subordinated debentures, and any other amounts payable under the junior subordinated indenture, to be immediately due and payable and to enforce its other rights as a creditor with respect to the junior subordinated debentures.
We are required to file annually with the indenture trustee a certificate as to whether or not we are in compliance with all of the conditions and covenants applicable to us under the junior subordinated indenture.
Additional Sums to be Paid as a Result of Additional Taxes
If, at any time a trust is required to pay any additional taxes, duties, assessments or other governmental charges of whatever nature, other than withholding taxes, imposed by the United States, or any other taxing authority, we will pay as additional interest on the junior subordinated debentures any amounts which may be required so that the net amounts received and retained by a trust after paying any additional taxes, duties, assessments or other governmental charges will not be less than the amounts a trust and the property trustee would have received had the additional taxes, duties, assessments or other governmental charges not been imposed.
Distribution Upon Liquidation
Under certain circumstances and with the approval of the Federal Reserve Board (upon our becoming a bank holding company and if this approval is then required by law or regulation), the junior subordinated debentures may be distributed to the holders of the trust preferred securities in liquidation of a trust after satisfaction of the liabilities to creditors of the affected trust. If this occurs, we will use our best efforts to list the junior subordinated debentures so affected on the national securities exchange or national quotation system on which the preferred securities are then listed, if any. There can be no assurances as to the market price of any junior subordinated debentures that may be distributed to the holders of the trust preferred securities so affected.
Modification of the Junior Subordinated Indenture
We and the indenture trustee may, from time to time, without the consent of the holders of junior subordinated debentures, amend, waive our rights under or supplement the junior subordinated indenture for purposes which do not materially adversely affect the rights of the holders of the junior subordinated debentures. Other changes may be made by us and the indenture trustee with the consent of the holders of a majority in principal amount of the junior subordinated debentures. However, without the consent of the holders of each outstanding junior subordinated debenture, no modification may:
As long as any preferred securities issued by a trust holding junior subordinated debentures remain outstanding, no modification of the junior subordinated indenture may be made that requires the consent of the holders of the junior subordinated debentures, no termination of the junior subordinated indenture may occur, and no waiver of any event of default under the junior subordinated indenture may be effective, without the prior consent of the holders of a majority of the aggregate liquidation amount of the trust preferred securities.
Satisfaction and Discharge
The junior subordinated indenture will, with certain exceptions, cease to be of further effect and we will be deemed to have satisfied and discharged our obligations under the junior subordinated indenture when all junior subordinated debentures not previously delivered to the indenture trustee for cancellation:
We may still be required to provide officers' certificates and opinions of counsel any pay fees and expenses due after these events occur.
Governing Law
The junior subordinated indenture and the junior subordinated debentures will be governed by, and construed in accordance with, the laws of the State of New York.
Information Concerning the Indenture Trustee
The indenture trustee is subject to all the duties and responsibilities specified with respect to an indenture trustee under the Trust Indenture Act. Subject to these provisions, the indenture trustee is under no obligation to exercise any of the powers vested in it by the junior subordinated indenture at the request of any holder of junior subordinated debentures, unless offered reasonable security or indemnity by the holder against the costs, expenses, and liabilities which might be incurred. The indenture trustee is not required to expend or risk its own funds or otherwise incur personal financial liability in the performance of its duties if the indenture trustee reasonably believes that repayment or adequate indemnity is not reasonably assured to it.
Miscellaneous
In the event junior subordinated debentures are issued to a trust or a trustee of the trust in connection with the issuance of trust securities by that trust, we will agree in the junior subordinated indenture, for so long as the trust securities remain outstanding:
DESCRIPTION OF TRUST PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the trust preferred securities guarantees which we will execute and deliver, from time to time, for the benefit of the holders of trust preferred securities. The applicable prospectus supplement will describe any significant differences between the actual terms of the trust preferred securities guarantees and the summary below. The following summary does not purport to be complete and is subject in all respects to the provisions of, and is qualified in its entirety by reference to, the trust preferred securities guarantee, the form of which for each trust has been filed as an exhibit to the registration statement of which this prospectus forms a part.
General
Under each trust preferred securities guarantee, we will agree to pay in full on a subordinated basis, to the extent described in each trust preferred securities guarantee agreement, the guarantee payments (as defined below) to the holders of the trust preferred securities, as and when due, regardless of any defense, right of set-off or counterclaim that the applicable trust may have or assert other than the defense of payment.
The following payments with respect to the trust preferred securities are called the "guarantee payments" and, to the extent not paid or made by the applicable trust and to the extent that the trust has funds available for those distributions, will be subject to the trust preferred securities guarantee:
We may satisfy our obligations to make a guarantee payment by making a direct payment of the required amounts to the holders of the related trust preferred securities or by causing the applicable trust to pay the amounts to the holders.
Each trust preferred securities guarantee agreement is a guarantee, on a subordinated basis, of the guarantee payments, but the guarantee only applies to the extent the applicable trust has funds available for those distributions. If we do not make interest payments on the junior subordinated debentures purchased by the applicable trust, that trust will not have funds available to make the distributions and will not pay distributions on the corresponding trust preferred securities.
Amendments
Except with respect to any changes which do not adversely affect the rights of holders of trust preferred securities, in which case no consent will be required, the trust preferred securities guarantees may be amended only with the prior approval of the holders of not less than a majority in aggregate liquidation amount of the applicable outstanding trust preferred securities.
Termination of the Trust Preferred Securities Guarantees
Each of the trust preferred securities guarantees will terminate and be of no further force and effect upon:
If at any time any holder of the trust preferred securities must restore payment of any sums paid under the trust preferred securities or a trust preferred securities guarantee, the corresponding guarantee will continue to be effective or will be reinstated with respect to such amounts.
Events of Default; Remedies
An event of default under a trust preferred securities guarantee agreement will occur upon our failure to make a required guarantee payment or to perform any other obligations under such guarantee. The holders of a majority in aggregate liquidation amount of the trust preferred securities so affected will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the guarantee trustee in respect of the applicable trust preferred securities guarantee and may direct the exercise of any power conferred upon the guarantee trustee under the applicable trust preferred securities guarantee agreement.
Any holder of trust preferred securities may institute and prosecute a legal proceeding directly against us to enforce its rights under the applicable trust preferred securities guarantee without first instituting a legal proceeding against the corresponding trust, the guarantee trustee or any other person or entity.
We are required to provide to the guarantee trustee annually a certificate as to whether or not we are in compliance with all of the conditions and covenants applicable to us under the trust preferred securities guarantee agreement.
Status of the Trust Preferred Securities Guarantees
The trust preferred securities guarantees will constitute our unsecured obligations that rank subordinate and junior in right of payment to all of our senior and subordinated debt in the same manner as the junior subordinated debentures. Except as may be described in the applicable prospectus supplement, our ability to incur additional indebtedness will not limited by any trust preferred securities guarantee.
Each trust preferred securities guarantee constitutes a guarantee of payment and not of collection. If we fail to make guarantee payments when required, holders of the applicable trust preferred securities may institute a legal proceeding directly against us to enforce their rights under the applicable trust preferred securities guarantee without first instituting a legal proceeding against any other person or entity.
The trust preferred securities guarantees will not be discharged except by payment of the guarantee payments in full to the extent not paid by the applicable trust or upon distribution of the junior subordinated debentures to the corresponding holders of the trust preferred securities. Because we are a holding company, our right to participate in any distribution of assets of any subsidiary upon the subsidiary's liquidation or reorganization or otherwise is subject to the prior claims of creditors of that subsidiary, except to the extent we may be recognized as a creditor of that subsidiary. Our obligations under the trust preferred securities guarantees, therefore, will be effectively subordinated to all existing and future liabilities of our subsidiaries, and claimants should look only to our assets for payments under the trust preferred securities guarantees.
Information Concerning the Guarantee Trustee
The guarantee trustee, other than during the occurrence and continuance of our default in performance of a trust preferred securities guarantee, undertakes to perform only those duties as are specifically set forth in that trust preferred securities guarantee. When an event of default has occurred and is continuing, the guarantee trustee must exercise the same degree of care and skill as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to these provisions, the guarantee trustee will be under no obligation to exercise any of the powers vested in it by the trust preferred securities guarantee at the request of any holder of any related trust preferred securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that might be incurred thereby.
Expense Agreement
We will, pursuant to an agreement as to expenses and liabilities entered into by us and each trust under the applicable trust agreement, irrevocably and unconditionally guarantee to each person or entity to whom the trust becomes indebted or liable, the full payment of any costs, expenses or liabilities of the trust, other than obligations of such trust to pay to the holders of the applicable trust preferred securities or other similar interests in the trust of the amounts due to the holders pursuant to the terms of the trust preferred securities or other similar interests, as the case may be. Third party creditors of a trust may proceed directly against us under the expense agreement, regardless of whether they had notice of the expense agreement.
Governing Law
The trust preferred securities guarantees will be governed by and construed in accordance with the laws of the State of New York.
RELATIONSHIP AMONG THE TRUST PREFERRED
SECURITIES,
THE JUNIOR SUBORDINATED DEBENTURES AND
THE TRUST PREFERRED
SECURITIES GUARANTEES
Full and Unconditional Guarantee
We will irrevocably guarantee, as and to the extent described in this prospectus and the applicable prospectus supplement, payments of distributions and other amounts due on the trust preferred securities, to the extent the applicable trust has funds available for the payment of these amounts. We and the applicable trust believe that, taken together, our obligations under the junior subordinated debentures, the junior subordinated indenture, the applicable trust agreement, the applicable expense agreement and the applicable trust preferred guarantee agreement will provide, in the aggregate, a full, irrevocable and unconditional guarantee, on a subordinated basis, of payment of distributions and other amounts due on the applicable trust preferred securities. No single document standing alone or operating in conjunction with fewer than all of the other documents will constitute a guarantee. It is only the combined operation of these documents that has the effect of providing a full, irrevocable and unconditional guarantee of the obligations of the applicable trust under the applicable trust preferred securities.
If and to the extent that we do not make payments on the junior subordinated debentures, the applicable trust will not pay distributions or other amounts due on its trust preferred securities. The applicable trust preferred securities guarantee does not cover payment of distributions when the applicable trust does not have sufficient funds to pay the distributions. In this event, the remedy of a holder of trust preferred securities is to institute a legal proceeding directly against us for enforcement of payment of the distributions to the holder. Our obligations under the guarantees will be subordinated and junior in right of payment to all of our other indebtedness.
Sufficiency of Payments
As long as payments of interest and other payments are made when due on the junior subordinated debentures purchased by a trust, those payments will be sufficient to cover distributions and other payments due on the trust preferred securities issued by that trust, primarily because:
Enforcement Rights of Holders of Trust Preferred Securities
A holder of any trust preferred security will be entitled to institute a legal proceeding directly against us to enforce its rights under the applicable trust preferred securities guarantee without first instituting a legal proceeding against the applicable guarantee trustee, the applicable trust or any other person. A default or event of default under any of our senior or subordinated debt would not constitute a default or event of default under the applicable trust agreement. In the event, however, of payment defaults under, or acceleration of, our senior or subordinated debt, the subordination provisions of the applicable junior subordinated indenture will provide that no payments may be made in respect of the applicable junior subordinated debentures until the obligations have been paid in full or any payment default has been cured or waived. Failure to make required payments on the junior subordinated debentures would constitute an event of default under the applicable trust agreement.
Limited Purpose of Trusts
The trust preferred securities will evidence preferred undivided beneficial interests in the assets of the corresponding trust. The trusts exist for the exclusive purposes of issuing the trust securities, investing the proceeds thereof in junior subordinated debentures and engaging only in those other activities necessary, advisable or incidental thereto. A principal difference between the rights of a holder of a trust preferred security and the rights of a holder of a junior subordinated debenture is that a holder of a junior subordinated debenture will be entitled to receive from us the principal amount of and interest accrued on the junior subordinated debenture, while a holder of trust preferred securities will be entitled to receive distributions from the corresponding trust (or from us under the corresponding trust preferred securities guarantee) if and to the extent the trust has funds available for the payment of such distributions.
Rights Upon Termination
Upon any voluntary or involuntary termination, winding-up or liquidation of a trust involving a liquidation of the junior subordinated debentures, the holders of the related trust preferred securities will be entitled to receive, out of assets held by the trust, the liquidation distribution in cash.
Upon our voluntary or involuntary liquidation or bankruptcy, the property trustee, as holder of the debentures, would be a subordinated creditor of ours. Therefore, the property trustee would be subordinated in right of payment to all of our senior and subordinated debt, but would be entitled to receive payment in full of principal and interest before any of our stockholders receive payments or distributions. Since we will be the guarantor under the applicable trust preferred securities guarantee and will agree to pay for all costs, expenses and liabilities of the trusts other than the obligations of the trusts to pay to holders of the trust preferred securities the amounts due to the holders pursuant to the terms of the trust preferred securities, the positions of a holder of trust preferred securities and a holder of the junior subordinated debentures relative to our other creditors and to our stockholders in the event of liquidation or bankruptcy are expected to be substantially the same.
PLAN OF DISTRIBUTION
We and the trusts may sell the securities being offered pursuant to this prospectus directly to purchasers, to or through underwriters, through dealers or agents, or through a combination of these methods. The prospectus supplement with respect to the securities being offered will set forth the terms of the offering, including the names of the underwriters, dealers or agents, if any, the purchase price, the net proceeds to us and the trusts, as applicable, any underwriting discounts and other items constituting underwriters' compensation, and the public offering price and any discounts or concessions allowed or reallowed or paid to dealers and any securities exchange or automated quotation system on which the offered securities may be listed.
If underwriters are used in an offering, we and any trust selling securities will execute an underwriting agreement with the underwriters and will specify the name of each underwriter and the terms of the transaction, including any underwriting discounts and other terms constituting compensation of the underwriters and any dealers, in a prospectus supplement. If an underwriting syndicate is used, the managing underwriter(s) will be specified on the cover of the prospectus supplement. If underwriters are used in the sale, the offered securities will be acquired by the underwriters for their own accounts and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. Unless otherwise set forth in the prospectus supplement, the obligations of the underwriters to purchase the offered securities will be subject to conditions precedent and the underwriters will be obligated to purchase all of the offered securities if any are purchased.
If dealers are used in an offering, we and any trust offering securities will sell the securities to the dealers as principals. The dealers then may resell the securities to the public at varying prices which they determine at the time of resale. The names of the dealers and the terms of the transaction will be specified in a prospectus supplement.
The securities may be sold directly by us or the trusts, or through agents we or the trusts may designate. If agents are used in an offering, the names of the agents and the terms of the agency will be specified in a prospectus supplement. Unless otherwise indicated in a prospectus supplement, the agents will act on a best-efforts basis for the period of their appointment.
Dealers and agents named in a prospectus supplement may be deemed to be underwriters (within the meaning of the Securities Act of 1933) of the securities described in that prospectus supplement. In addition, we or the trusts may sell securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act of 1933 with respect to any resales of the securities.
Underwriters, dealers and agents may be entitled to indemnification by us against specific civil liabilities, including liabilities under the Securities Act of 1933, or to contribution with respect to payments which the underwriters or agents may be required to make in respect thereof, under underwriting or other agreements. Certain underwriters, dealers or agents and their associates may engage in transactions with, and perform services for us in the ordinary course of business.
If so indicated in a prospectus supplement, we or the trusts will authorize underwriters or other persons acting as our agents to solicit offers by institutional investors to purchase securities pursuant to contracts providing for payment and delivery on a future date. We may enter contracts with commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutional investors. The obligations of any institutional investor will be subject to the condition that its purchase of the offered securities will not be illegal, at the time of delivery. The underwriters and other agents will not be responsible for the validity or performance of contracts.
Each series of securities will be a new issue of securities and will have no established trading market other than our common stock, which is listed on The Nasdaq Stock Market. We will apply to have all shares of common stock sold pursuant to a prospectus supplement approved for listing on The Nasdaq Stock Market. Any underwriters to whom securities are sold for public offering and sale may make a market in the securities, but these underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The securities other than the common stock may or may not be listed on a national securities exchange or The Nasdaq Stock Market or other automated quotation system.
LEGAL MATTERS
Our legal counsel, Silver, Freedman & Taff, L.L.P., Washington, D.C., will pass upon certain legal matters in connection with the offered securities. Any underwriters will be advised about other issues relating to any offering by their own legal counsel. Certain legal matters with respect to the trusts and the trust preferred securities of the trusts will be passed upon by Richards, Layton & Finger, P.A., special Delaware counsel to us and the trust.
EXPERTS
The consolidated financial statements of ITLA Capital Corporation appearing in ITLA Capital Corporation's Annual Report (Form 10-K) for the year ended December 31, 2004 and ITLA Capital Corporation management's assessment of the effectiveness of internal control over financial reporting as of December 31, 2004 included therein, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon included therein and incorporated herein by reference. Such consolidated financial statements and management's assessment are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
$500,000,000
ITLA Capital Corporation
[Logo]
Debt Securities
Common Stock
Preferred Stock
Depositary
Shares
Purchase Contracts
Units
Warrants
ITLA Capital Statutory Trust VI
ITLA Capital Statutory Trust
VII
Trust Preferred Securities
guaranteed by ITLA Capital
Corporation
______________________________________
Prospectus
______________________________________
_______ __, 2005
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses, all of which will be paid by ITLA Capital Corporation, a Delaware corporation (the "Company"), to be incurred in connection with the registration and sale of the securities covered by this Registration Statement.
SEC registration fee | $46,000 |
|
Blue Sky fees and expenses | 10,000 |
|
Rating agency fees |
200,000 |
|
Legal fees and expenses | 250,000 |
|
Accounting fees and expenses | 200,000 |
|
Trustee fees and expenses | 50,000 |
|
Printing and engraving fees and expenses | 100,000 |
|
Miscellaneous | 200,000
|
|
Total |
$1,056,000 |
All of the above amounts, other than the SEC registration fee, are estimates.
Item 15. Indemnification of Directors and Officers
Article ELEVENTH of the Company's Certificate of Incorporation provides for indemnification of directors and officers of the Registrant against any and all liabilities, judgments, fines and reasonable settlements, costs, expenses and attorneys' fees incurred in any actual, threatened or potential proceeding, except to the extent that such indemnification is limited by Delaware law and such law cannot be varied by contract or bylaw. Article ELEVENTH also provides for the authority to purchase insurance with respect thereto.
Section 145 of the General Corporation Law of the State of Delaware authorizes a corporation's board of directors to grant indemnity under certain circumstances to directors and officers, when made, or threatened to be made, parties to certain proceedings by reason of such status with the corporation, against judgments, fines, settlements and expenses, including attorneys' fees. In addition, under certain circumstances such persons may be indemnified against expenses actually and reasonably incurred in defense of a proceeding by or on behalf of the corporation. Similarly, the corporation, under certain circumstances, is authorized to indemnify directors and officers of other corporations or enterprises who are serving as such at the request of the corporation, when such persons are made, or threatened to be made, parties to certain proceedings by reason of such status, against judgments, fines, settlements and expenses, including attorneys' fees; and under certain circumstances, such persons may be indemnified against expenses actually and reasonably incurred in connection with the defense or settlement of a proceeding by or in the right of such other corporation or enterprise. Indemnification is permitted where such person (i) was acting in good faith, (ii) was acting in a manner he reasonably believed to be in or not opposed to the best interests of the corporation or other corporation or enterprise, as appropriate, (iii) with respect to a criminal proceeding, had no reasonable cause to believe his conduct was unlawful, and (iv) was not adjudged to be liable to the corporation or other corporation or enterprise (unless the court where the proceeding was brought determines that such person is fairly and reasonably entitled to indemnity).
Unless ordered by a court, indemnification may be made only following a determination that such indemnification is permissible because the person being indemnified has met the requisite standard of conduct. Such determination may be made (i) by a majority vote of the directors who are not parties to such proceeding, even though less than a quorum; or (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum; or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion; or (iv) by the stockholders.
Section 145 also permits expenses incurred by directors and officers in defending a proceeding to be paid by the corporation in advance of the final disposition of such proceeding upon the receipt of an undertaking by the director or officer to repay such amount if it is ultimately determined that he is not entitled to be indemnified by the corporation against such expenses.
Item 16. Exhibits
EXHIBIT NO. | DESCRIPTION |
1.1 | Form of Underwriting Agreement for Equity Securities* |
1.2 | Form of Underwriting Agreement for Debt Securities* |
1.3 | Form of Underwriting Agreement for Trust Preferred Securities* |
4.1 | Certificate of Incorporation of the Company (filed as an exhibit to the Company's Registration Statement on Form S-4 filed on May 10, 1996 (Registration No. 333-03551) and incorporated herein by reference) |
4.2 | Bylaws of the Company, as amended (filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2000 (File No. 0-26960) and incorporated herein by reference) |
4.3 | Form of Senior Indenture* |
4.4 | Form of Subordinated Indenture* |
4.5 | Form of Senior Debt Securities* |
4.6 | Form of Subordinated Debt Securities* |
4.7 | Form of Certificate of Designation for preferred stock(1) |
4.8 | Form of Deposit Agreement (together with Depositary Receipt)* |
4.9 | Form of Warrant Agreement (together with form of Warrant Certificate)* |
4.10 | Certificate of Trust of ITLA Capital Statutory Trust VI* |
4.11 | Certificate of Trust of ITLA Capital Statutory Trust VII* |
4.12 | Trust Agreement for ITLA Capital Statutory Trust VI* |
4.13 | Trust Agreement for ITLA Capital Statutory Trust VII* |
4.14 | Form of Amended and Restated Trust Agreement for ITLA Capital Statutory Trust VI* |
4.15 | Form of Amended and Restated Trust Agreement for ITLA Capital Statutory Trust VII* |
4.16 | Form of Junior Subordinated Indenture* |
4.17 | Form of Preferred Securities Guarantee Agreement for ITLA Capital Statutory Trust VI* |
4.18 | Form of Preferred Securities Guarantee Agreement for ITLA Capital Statutory Trust VII* |
4.19 | Form of Purchase Contract(1) |
4.20 | Form of Unit Agreement, including form of Unit Certificate(1) |
5.1 | Opinion of Silver, Freedman & Taff, L.L.P. as to the
legality of the securities being registered other than the trust preferred
securities* |
EXHIBIT NO. | DESCRIPTION |
5.2 | Opinion of Richards, Layton & Finger, P.A. as to the legality of the trust preferred securities to be issued by ITLA Capital Statutory Trust VI and ITLA Capital Statutory Trust VII* |
12.1 | Computation of Ratio of Earnings to Fixed Charges |
23.1 | Consent of Ernst & Young LLP |
23.2 | Consent of Silver, Freedman & Taff, L.L.P. (see Exhibit 5.1)* |
23.3 | Consent of Richards, Layton & Finger, P.A. (see Exhibit 5.2)* |
24.1 | Powers of attorney* |
25.1 | Form T-1 Statement of Eligibility of Trustee under the Senior Indenture(2) |
25.2 | Form T-1 Statement of Eligibility of Trustee under the Subordinated Indenture(2) |
25.3 | Form T-1 Statement of Eligibility of Trustee under the Junior Subordinated Indenture |
25.4 | Form T-1 Statement of Eligibility of Trustee with respect to the Amended and Restated Trust Agreement for ITLA Capital Statutory Trust VI |
25.5 | Form T-1 Statement of Eligibility of Trustee with respect to the Amended and Restated Trust Agreement for ITLA Capital Statutory Trust VII |
25.6 | Form T-1 Statement of Eligibility of Trustee with respect to the Preferred Securities Guarantee Agreement for ITLA Capital Statutory Trust VI |
25.7 | Form T-1 Statement of Eligibility of Trustee with respect to the Preferred Securities Guarantee Agreement for ITLA Capital Statutory Trust VII |
________________________________
* Filed previously.
(1) To be filed as an exhibit to a document to be incorporated by
reference in this Registration Statement.
(2) To be filed in accordance with Section
305(b)(2) under the Trust Indenture Act of 1939.
(b) Financial Statement Schedules:
Not Applicable.
Item 17. Undertakings.
(a) The undersigned registrants hereby undertake:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
|
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933; | ||
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more |
than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
and |
(iii) To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration
statement; |
provided, however, that the undertakings set
forth in clauses (i) and (ii) above do not apply if the information
required to be included in a post-effective amendment by those clauses is
contained in periodic reports filed by the Company pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
|
(2)
That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. |
(3)
To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering. |
(b) The registrants hereby undertake that:
(1)
For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
a registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrants pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this registration statement as of the time it was declared
effective. |
(2) For purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(c) The undersigned registrants hereby undertake that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(d) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrants pursuant to the provisions set forth in Item 15, or otherwise, the registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(e) The undersigned registrants hereby undertake to file an application for the purpose of determining the eligibility of the trustees to act under subsection (a) of Section 310 of the Trust Indenture Act ("Act") in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, ITLA Capital Corporation certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of La Jolla, State of California, on May 18 , 2005.
ITLA CAPITAL CORPORATION
| ||
By: | /s/ Timothy M. Doyle
Timothy M. Doyle Senior Managing Director and Chief Financial Officer |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on May 18 , 2005.
Signature | Title | |
*
George W. Haligowski |
Director, Chairman, President and Chief Executive Officer (Principal Executive Officer) | |
/s/ Timothy M. Doyle
Timothy M. Doyle |
Senior Managing Director and Chief Financial Officer (Principal Financial and Principal Accounting Officer) | |
*
Norval L. Bruce |
Director | |
*
Jeffrey L. Lipscomb |
Director | |
*
Preston Martin |
Director |
Signature | Title | |
*
Sandor X. Mayuga |
Director | |
*
Hirotaka Oribe |
Director | |
*
Robert R. Reed |
Director | |
Signature | ||
/s/ Timothy M. Doyle
*Timothy M. Doyle, attorney-in-fact |
Pursuant to the requirements of the Securities Act of 1933, ITLA Capital Statutory Trust VI certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of La Jolla, State of California, on May 18 , 2005.
ITLA CAPITAL STATUTORY TRUST
VI | ||
By: | ITLA Capital Corporation, as Sponsor | |
By: | /s/ Timothy M. Doyle
Timothy M. Doyle Senior Managing Director and Chief Financial Officer |
Pursuant to the requirements of the Securities Act of 1933, ITLA Capital Statutory Trust VII certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of La Jolla, State of California, on May 18 , 2005.
ITLA CAPITAL STATUTORY TRUST
VII | ||
By: | ITLA Capital Corporation, as Sponsor | |
By: | /s/ Timothy M. Doyle
Timothy M. Doyle Senior Managing Director and Chief Financial Officer |
EXHIBIT INDEX
EXHIBIT NO. | DESCRIPTION |
1.1 | Form of Underwriting Agreement for Equity Securities* |
1.2 | Form of Underwriting Agreement for Debt Securities* |
1.3 | Form of Underwriting Agreement for Trust Preferred Securities* |
4.1 | Certificate of Incorporation of the Company (filed as an exhibit to the Company's Registration Statement on Form S-4 filed on May 10, 1996 (Registration No. 333-03551) and incorporated herein by reference) |
4.2 | Bylaws of the Company, as amended (filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2000 (File No. 0-26960) and incorporated herein by reference) |
4.3 | Form of Senior Indenture* |
4.4 | Form of Subordinated Indenture* |
4.5 | Form of Senior Debt Securities* |
4.6 | Form of Subordinated Debt Securities* |
4.7 | Form of Certificate of Designation for preferred stock(1) |
4.8 | Form of Deposit Agreement (together with Depositary Receipt)* |
4.9 | Form of Warrant Agreement (together with form of Warrant Certificate)* |
4.10 | Certificate of Trust of ITLA Capital Statutory Trust VI* |
4.11 | Certificate of Trust of ITLA Capital Statutory Trust VII* |
4.12 | Trust Agreement for ITLA Capital Statutory Trust VI* |
4.13 | Trust Agreement for ITLA Capital Statutory Trust VII* |
4.14 | Form of Amended and Restated Trust Agreement for ITLA Capital Statutory Trust VI* |
4.15 | Form of Amended and Restated Trust Agreement for ITLA Capital Statutory Trust VII* |
4.16 | Form of Junior Subordinated Indenture* |
4.17 | Form of Preferred Securities Guarantee Agreement for ITLA Capital Statutory Trust VI* |
4.18 | Form of Preferred Securities Guarantee Agreement for ITLA Capital Statutory Trust VII* |
4.19 | Form of Purchase Contract(1) |
4.20 | Form of Unit Agreement, including form of Unit Certificate(1) |
5.1 | Opinion of Silver, Freedman & Taff, L.L.P. as to the legality of the securities being registered other than the trust preferred securities* |
5.2 | Opinion of Richards, Layton & Finger, P.A. as to the legality of the trust preferred securities to be issued by ITLA Capital Statutory Trust VI and ITLA Capital Statutory Trust VII* |
12.1 | Computation of Ratio of Earnings to Fixed Charges |
23.1 | Consent of Ernst & Young LLP |
23.2 | Consent of Silver, Freedman & Taff, L.L.P. (see Exhibit 5.1)* |
23.3 | Consent of Richards, Layton & Finger, P.A. (see Exhibit 5.2)* |
24.1 | Powers of attorney* |
25.1 | Form T-1 Statement of Eligibility of Trustee under the Senior Indenture(2) |
25.2 | Form T-1 Statement of Eligibility of Trustee under the
Subordinated
Indenture(2) |
EXHIBIT NO. | DESCRIPTION |
25.3 | Form T-1 Statement of Eligibility of Trustee under the Junior Subordinated Indenture |
25.4 | Form T-1 Statement of Eligibility of Trustee with respect to the Amended and Restated Trust Agreement for ITLA Capital Statutory Trust VI |
25.5 | Form T-1 Statement of Eligibility of Trustee with respect to the Amended and Restated Trust Agreement for ITLA Capital Statutory Trust VII |
25.6 | Form T-1 Statement of Eligibility of Trustee with respect to the Preferred Securities Guarantee Agreement for ITLA Capital Statutory Trust VI |
25.7 | Form T-1 Statement of Eligibility of Trustee with respect to the Preferred Securities Guarantee Agreement for ITLA Capital Statutory Trust VII |
* Filed previously.
(1) To be filed
as an exhibit to a document to be incorporated by reference in this Registration
Statement.
(2) To be filed in accordance with Section 305(b)(2) under the Trust
Indenture Act of 1939.
EXHIBIT 12.1
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
Three Months | |||||||
Ended March 31, |
For the year ended December 31, | ||||||
2005 |
2004 |
2004 |
2003 |
2002 |
2001 |
2000 | |
Income before income taxes, | |||||||
extraordinary item and cumulative effect of | |||||||
accounting changes | $9,753 | $22,522 | $50,573 | $48,580 | $32,793 | $29,544 | $30,019 |
Income tax expense | 4,102 | 8,738 | 19,948 | 18,946 | 12,788 | 11,393 | 11,880 |
Net income | 5,651 | 13,784 | 30,625 | 29,634 | 20,005 | 18,151 | 18,139 |
Fixed charges: | |||||||
FHLB borrowings | 3,832 | 1,081 | 7,272 | 5,175 | 5,672 | 4,790 | 1,773 |
Collateralized mortgage obligations | 0 | 62 | 71 | 1,076 | 2,301 | 6,209 | 10,901 |
Junior subordinated debentures | 1,680 | 1,489 | 6,159 | 0 | 0 | 0 | 0 |
Minority interest in income of subsidiary | 0 |
0 |
0 |
6,083 |
3,481 |
2,967 |
478 |
Total fixed charges | 5,152 | 2,632 | 13,502 | 12,334 | 11,454 | 13,966 | 13,152 |
Earnings (for ratio calculation) | 15,265 | 25,154 | 64,075 | 60,914 | 44,247 | 43,510 | 43,171 |
Ratio of earnings to fixed charges | 2.77x | 9.56x | 4.75x | 4.94x | 3.86x | 3.12x | 3.28x |
Including Interest on Deposits
Three Months | |||||||
Ended March 31, |
For the year ended December 31, | ||||||
2005 |
2004 |
2004 |
2003 |
2002 |
2001 |
2000 | |
Income before income taxes, | |||||||
extraordinary item and cumulative effect of | |||||||
accounting changes | $9,753 | $22,522 | $50,573 | $48,580 | $32,793 | $29,544 | $30,019 |
Income tax expense | 4,102 | 8,738 | 19,948 | 18,946 | 12,788 | 11,393 | 11,880 |
Net income | 5,651 | 13,784 | 30,625 | 29,634 | 20,005 | 18,151 | 18,139 |
Fixed charges: | |||||||
Deposit Accounts | 9,498 | 6,514 | 27,916 | 24,616 | 29,349 | 52,864 | 55,968 |
FHLB borrowings and other borrowings | 3,832 | 1,081 | 7,272 | 5,175 | 5,672 | 4,790 | 1,773 |
Collateralized mortgage obligations | 0 | 62 | 71 | 1,076 | 2,301 | 6,209 | 10,901 |
Junior subordinated debentures | 1,680 | 1,489 | 6,159 | 0 | 0 | 0 | 0 |
Minority interest in income of subsidiary | 0 |
0 |
0 |
6,083 |
3,481 |
2,967 |
478 |
Total fixed charges | 15,010 | 9,146 | 41,418 | 36,950 | 40,803 | 66,830 | 69,120 |
Earnings (for ratio calculation) | 24,763 | 31,668 | 91,991 | 85,530 | 73,596 | 96,374 | 99,139 |
Ratio of earnings to fixed charges | 1.65x | 3.46x | 2.22x | 2.31x | 1.80x | 1.44x | 1.43x |
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption "Experts" in Amendment No. 2 to the Registration Statement (Form S-3 Nos. 333-102194, 333-102194-01 and 333-102194-02) and related Prospectus of ITLA Capital Corporation for the registration of $500,0000,000 in securities and to the incorporation by reference therein of our reports dated March 8, 2005, with respect to the consolidated financial statements of ITLA Capital Corporation, ITLA Capital Corporation management's assessment of the effectiveness of internal control over financial reporting and the effectiveness of internal control over financial reporting of ITLA Capital Corporation, included in its Annual Report (Form 10-K) for the year ended December 31, 2004, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Los Angeles, California
May 12, 2005
EXHIBIT 25.3
==========================================================================Not Applicable (State of incorporation if not a U.S. national bank) |
94-1347393 I.R.S. employer identification no.) |
919 Market St., Suite 701 Wilmington, DE (Address of principal executive offices) |
19801 (Zip code) |
Delaware (State or other jurisdiction of incorporation or organization) |
95-4596322 (I.R.S. employer identification no.) |
(a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency, Treasury Department Washington, D.C. 20230 Federal Deposit Insurance Corporation Washington, D.C. 20429 Federal Reserve Bank of San Francisco San Francisco, CA 94120 |
(b) | Whether it is authorized to exercise corporate trust powers. |
Exhibit 1. | A copy of the Articles of Association of the trustee now in effect. |
Exhibit 2. | A copy of the Comptroller of the Currency Certificate of Corporate Existence and Fiduciary Powers for Wells Fargo
Bank, National Association, dated February 4, 2004. |
Exhibit 3. | A copy of the authorization of the trustee to exercise corporate trust powers. (See Exhibit 2.) |
Exhibit 4. | Copy of By-laws of the trustee as now in effect. |
Exhibit 5. | Not applicable. |
Exhibit 6. | The consents of United States institutional trustees required by Section 321(b) of the Act. |
Exhibit 7. | Attached is a copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. |
Exhibit 8. | Not applicable. |
Exhibit 9. | Not applicable. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 18thday of May, 2005.
WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
By: | \s\ Edward L. Truitt Jr. | |
Name: | Edward L. Truitt Jr. Title: Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION
OF
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Effective as of February 20, 2004)
ARTICLE I - NAME
The title of this Association shall be Wells Fargo Bank, National Association. The Association may also use the abbreviation Wells Fargo Bank, N.A.
ARTICLE II - OFFICES
1. Main Office. The main office of this Association shall be in the City of Sioux Falls, County of Minnehaha, State of South Dakota. The Board of Directors shall have the power to change the location of the main office to any other place within the limits of the City of Sioux Falls, without the approval of the shareholders but subject to the approval of the Comptroller of the Currency.
2. Branch Offices. The Board of Directors shall have the power to establish or change the location of any branch or branches of this Association to any other location, without the approval of the shareholders but subject to the approval of the Comptroller of the Currency.
3. Conduct of Business. The general business of the Association shall be conducted at its main office and its branches.
ARTICLE III - BOARD OF DIRECTORS
1. Number. The Board of Directors of this Association shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full Board of Directors or by resolution of the shareholders at any annual or special meeting thereof.
2. Qualification. Each director, during the full term of his or her directorship, shall own a minimum of $1,000 par value of stock of this Association or an equivalent interest, as determined by the Comptroller of the Currency, in any company which has control over this Association within the meaning of Section 2 of the Bank Holding Company Act of 1956.
3. Vacancy. The Board of Directors, by the vote of a majority of the full Board, may, between annual meetings of shareholders, fill vacancies created by the death, incapacity or resignation of any director and by the vote of a majority of the full Board may also, between annual meetings of shareholders, increase the membership of the Board by not more than four members and by like vote appoint qualified persons to fill the vacancies created thereby; provided, however, that at no time shall there be more than twenty-five directors of this Association; and provided further, however, that not more than two members may be added to the Board of Directors in the event that the total number of directors last elected by shareholders was fifteen or less.
4. Appointment of Officers. The Board of Directors shall appoint one of its members President of this Association, who shall act as Chairman of the Board, unless the Board appoints another director to act as Chairman. In the event the Board of Directors shall appoint a President and a Chairman, the Board shall designate which person shall act as the chief executive officer of this Association. The Board of Directors shall have the power to appoint one or more Vice Presidents and to appoint a Cashier and such other officers and employees as may be required to transact the business of this Association.
5. Powers. The Board of Directors shall have the power to define the duties of the officers and employees of this Association; to fix the salaries to be paid to them; to dismiss them; to require bonds from them and to fix the penalty thereof; to regulate the manner in which the increase of the capital of this Association shall be made; to manage and administer the business and affairs of this Association; to make all Bylaws that it may be lawful for them to make; and generally to do and perform all acts that it may be legal for a Board of Directors to do and perform.
ARTICLE IV - MEETINGS OF SHAREHOLDERS
1. Annual Meeting. The annual meeting of the shareholders for the election of directors and the transaction of whatever other business may be brought before said meeting shall be held at the main office, or such other place as the Board of Directors may designate, on the day of each year specified therefor in the Bylaws, but if no election is held on that day, it may be held on any subsequent day according to the provisions of law; and all elections shall be held according to such lawful regulations as may be prescribed by the Board of Directors.
2. Special Meetings. The Board of Directors, the Chairman, the President, or any one or more shareholders owning, in the aggregate, not less than 25 percent of the stock of this Association, may call a special meeting of shareholders at any time.
3. Notice of Meetings. Unless otherwise provided by the laws of the United States, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least ten days prior to the date of such meeting to each shareholder of record at his or her address as shown upon the books of this Association.
4 Written Consents. Any action required or permitted to be taken at an annual or special meeting of the shareholders of the Association may be taken without prior written notice and without any meeting if such action is taken by written action, containing a waiver of notice, signed by all of the shareholders entitled to vote on that action.
ARTICLE V - CAPITAL
1. Capitalization. The amount of authorized capital stock of this Association shall be $1,122,000,000, divided into 112,200,000 shares of common stock of the par value of Ten Dollars ($10.00) each; but said capital stock may be increased or decreased from time to time, in accordance with the provisions of the laws of the United States.
2. Voting Rights. Each holder of common stock of the Association shall be entitled to vote on all matters, one vote for each share of common stock held by such holder. No holder of shares of the capital stock of any class of this Association shall have any pre-emptive or preferential right of subscription to any shares of any class of stock of this Association, whether now or hereafter authorized, or to any obligations convertible into stock of this Association, issued or sold, nor any right of subscription to any thereof other than such, if any, as the Board of Directors, in its discretion, may from time to time determine and at such price as the Board of Directors may from time to time fix.
3. Debt Obligations. The Association, at any time and from time to time, may authorize and issue debt obligations, whether or nor subordinated, without the approval of the shareholders.
ARTICLE VI - PERPETUAL EXISTENCE
The corporate existence of this Association shall continue until terminated in accordance with the laws of the United States.
ARTICLE VII - INDEMNIFICATION
To the extent permitted by 12 CFR 7.2014 and consistent with the requirements of 12 USC 1828(k) and the implementing regulations thereunder:
(a) Elimination of Certain Liability of Directors. A director of the Association shall not be personally liable to the Association or its shareholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Association or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit.
(b)(1) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Association or is or was serving at the request of the Association as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action or inaction in an official capacity as a director, officer, employee, or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Association to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Association to provide broader
indemnification rights than said law permitted the Association to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that the Association shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Association. The right to indemnification conferred in this paragraph (b) shall be a contract right and shall include the right to be paid by the Association the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment of such expenses incurred by a director of officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Association of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director of officer is not entitled to be indemnified under this paragraph (b) or otherwise. The Association may, by action of its Board of Directors, provide indemnification to employees and agents of the Association with the same scope and effect as the foregoing indemnification of directors and officers.
(2) Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this paragraph (b) shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Articles of Association, by-law, agreement, vote of shareholders or disinterested directors or otherwise.
(3) Insurance. The Association may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Association or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Association would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.
ARTICLE VIII - AMENDMENT
These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of this Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of holders of such greater amount.
Exhibit 2
Certificate of Corporate Existence and Fiduciary Powers
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that: | |
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and control of all records pertaining to the chartering of all National Bank Associations. | |
2. "Wells Fargo Bank, National Association," San Francisco, California, (Charter No. 1741) is a National Banking Association formed under the laws of the United States and is authorized thereunder to transact the business of banking and exercise Fiduciary Powers on the date of this Certificate. |
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the Treasury Department in the City of Washington and District of Columbia, this February 4, 2004. John D. Hawke, Jr. Comptroller of the Currency |
Exhibit 4
BY-LAWS
OF
WELLS FARGO BANK, NATIONAL ASSOCIATION
(As amended February 20, 2004)
ARTICLE I
Meetings of Shareholders
Section 1.1 Annual Meeting. The regular annual meeting of the shareholders for the election of directors and the transaction of whatever other business may properly come before the meeting shall be held at the main office of the Association in Sioux Falls, South Dakota, or such other place as the Board of Directors may designate, at 2:00 p.m., on the second Thursday of January in each year. If for any cause the annual meeting of shareholders for the election of directors is not held on the date fixed in this by-law, such meeting may be held at some other time designated by the Board of Directors, notice thereof having been given in accordance with the requirements of 12 U.S.C. §75, and the meeting conducted according to the provisions of these by-laws.
Section 1.2 Special Meetings. Except as otherwise specifically provided by statute, special meetings of shareholders may be called for any purpose at any time by the Board of Directors, the Chairman of the Board, if any, the President, or any one or more shareholders owning in the aggregate not less than twenty-five percent of the then outstanding shares, as provided in Article IV of the Articles of Association.
Section 1.3 Notice of Meetings. A notice of each annual or special shareholders' meeting, setting forth the time, place, and purpose of the meeting, shall be given, by first-class mail, postage prepaid, to each shareholder of record at least ten days prior to the date on which such meeting is to be held; but any failure to mail such notice of any annual meeting, or any irregularity therein, shall not affect the validity of such annual meeting or of any of the proceedings thereat. Notwithstanding anything in these by-laws to the contrary, a valid shareholders' meeting may be held without notice whenever notice thereof shall be waived in writing by all shareholders, or whenever all shareholders shall be present or represented at the meeting.
Section 1.4 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 the shareholders for the transaction of business,
and may transact any business except such as may, under the provisions of law, the
Articles of Association, or these by-laws, require the vote of holders of a greater number
of shares. If, however, such majority shall not be present or represented at any meeting of
the shareholders, the shareholders entitled to vote thereat, present in person or by proxy,
shall have power to adjourn the meeting from time to
Section 1.5 Proxies and Voting Rights. At each meeting of the shareholders, each shareholder having the right to vote shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such shareholder, which proxy shall be valid for that meeting or any adjournments thereof, shall be dated, and shall be filed with the records of the meeting. No officer or employee of this Association may act as proxy. Each shareholder shall have one vote for each share of stock having voting power which is registered in his name on the books of the Association. Voting for the election of directors and voting upon any other matter which may be brought before any shareholders' meeting may, but need not, be by ballot, unless voting by ballot be requested by a shareholder present at the meeting.
Section 1.6 Proceedings and Record. The Chairman of the Board, if any, shall preside at all meetings of the shareholders or, in case of his absence or inability to act, the President or, in case of the absence or inability to act of both of them, any Vice President may preside at any such meeting. The presiding officer shall appoint a person to act as secretary of each shareholders' meeting; provided, however, that the shareholders may appoint some other person to preside at their meetings or to act as secretary thereof. A record of all business transacted shall be made of each shareholders' meeting showing, among other things, the names of the shareholders present and the number of shares of stock held by each, the names of the shareholders represented by proxy and the number of shares held by each, the names of the proxies, the number of shares voted on each motion or resolution and the number of shares voted for each candidate for director. This record shall be entered in the minute book of the Association and shall be subscribed by the secretary of the meeting.
Section 1.7 Action Without a Meeting. Any action required or permitted to be taken at a meeting of the shareholders of the Association may be taken without a meeting by written action signed by all of the shareholders entitled to vote on that action.
ARTICLE II
Directors
Section 2.1 Board of Directors. The Board of Directors (hereinafter referred to as the "Board") shall have power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2 Number and Qualifications. The Board shall consist of not less than five nor more than twenty-five persons, 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 full Board or by resolution of the shareholders at any meeting thereof; provided, however, that a majority of the full Board may not increase the number of directors to a number which (i) exceeds by more than two the number of directors last elected by shareholders where such number was fifteen or less; and (ii) exceeds by more than four the number of directors last elected by shareholders where such number was sixteen or more, but in no event shall the number of directors exceed twenty-five.
Each director shall, during the full term of his directorship, be a citizen of the United States. Each director, during the full term of his directorship, shall own a minimum of $1,000 par value of stock of this Association or an equivalent interest, as determined by the Comptroller of the Currency, in any company which has control over this Association within the meaning of Section 2 of the Bank Holding Company Act of 1956, as amended.
Section 2.3 Organization Meeting. A meeting of the newly elected Board shall be held, without notice, immediately following the adjournment of the annual meeting of the shareholders, or at such other time and at such place to which said meeting may be adjourned. No business shall be transacted at any such meeting until a majority of the directors elected shall have taken an oath of office as prescribed by law, and no director elected shall participate in the business transacted at any such meeting of the Board until he shall have taken said oath. If at any such meeting there is not a quorum of the directors present who shall have taken the oath of office, the members present may adjourn the meeting from time to time until a quorum is secured. At such meeting of the newly elected Board, if a quorum is present, the directors may elect officers for the ensuing year and transact any and all business which may be brought before them.
Section 2.4 Regular Meetings. The regular meetings of the Board may be held at such time and place as shall from time to time be determined by the Board. When any regular meeting of the Board falls upon a holiday, the meeting shall be held on the next banking business day.
Section 2.5 Special Meetings. Special meetings of the Board may be called by the Chairman of the Board, the President or the Secretary, and shall be called at the request of one-third or more of the directors.
Section 2.6 Notice of Meetings. Each member of the Board shall be given not less than one day's notice by telephone, facsimile, letter, electronic mail or in person, stating the time and place of any regular or special meeting; such notice may, but need not, state the purpose of said meeting. Notwithstanding anything in these by-laws to the contrary, a valid directors' meeting may be held without notice whenever notice thereof shall be waived in writing by all of the directors, or whenever all of the directors are present at the meeting.
Section 2.7 Quorum and Voting. A majority of the directors shall constitute a quorum at all directors' meetings. Except where the vote of a greater number of directors is required by the Articles of Association, these by-laws or under provisions of law, the vote of a majority of the directors at a meeting at which a quorum is present shall be sufficient to transact business.
Section 2.8 Proceedings and Record. The Chairman of the Board, if such officer shall have been designated by the Board, shall preside at all meetings thereof, and in his absence or inability to act (or if there shall be no Chairman of the Board) the President, and in his absence or inability to act any other director appointed chairman of the meeting pro tempore, shall preside at meetings of the directors. The Secretary, or any other person appointed by the Board, shall act as secretary of the Board and shall keep accurate minutes of all meetings.
Section 2.9 Electronic Communications. A conference among directors by any means of communication through which the directors may simultaneously hear each other during the conference constitutes a Board meeting, if the same notice is given of the conference as would be required for a meeting, and if the number of directors participating in the conference would be sufficient to constitute a quorum at a meeting. A director may participate in a regular or special Board meeting by any means of communication through which the director, other directors so participating and all directors physically present at the meeting may simultaneously hear each other during the meeting. Participation in a meeting by any means referred to in this Section 2.9 constitutes presence in person at the meeting.
Section 2.10 Action Without a Meeting. Any action required or permitted to be taken at a meeting of the Board of the Association may be taken without a meeting by written action signed by all of the directors.
Section 2.11 Vacancies. Any vacancy in the Board may be filled by appointment at any regular or special meeting of the Board by the remaining directors in accordance with the laws of the United States or by action of the shareholders in accordance with Article I of these by-laws. Any director so appointed shall hold his place until the next election.
ARTICLE III
Committees of the Board
Section 3.1 Executive Committee. The Board may appoint annually or more
often an Executive Committee consisting of two or more directors. In the event an
Executive Committee is appointed, the Executive Committee shall have the power to
approve, review, and delegate authority to make loans and otherwise extend credit and to
purchase and sell bills, notes, bonds, debentures and other legal investments and
Section 3.2 Trust Committees. The Board shall appoint a Trust Audit Committee which shall, at least once during each calendar year, make suitable audits of the Trust Department or cause suitable audits to be made by auditors responsible only to the Board and at such time shall ascertain and report to the Board whether said Department has been administered in accordance with applicable laws and regulations and sound fiduciary principles. Every report to the Board under this section, together with the action taken thereon, shall be noted in the minutes of the Board. The Board shall from time to time appoint such other committees of such membership and with such powers and duties as it is required to appoint under the provisions of Regulation 9 issued by the Comptroller of the Currency relating to the trust powers of national banks, or any amendments thereto, and may appoint such other committees of such membership and with such powers and duties as the Board may provide and as are permitted by said Regulation 9, or any amendments thereto.
Section 3.3 Other Committees. The Board, by a majority vote of the whole Board, may create from its own members or (to the extent permitted by applicable statutes, laws and regulations) from its own members and/or officers or employees of the Association such other committees as it may from time to time deem necessary, and may designate the name and term of existence and prescribe the duties thereof.
Section 3.4 Proceedings and Record. Each committee appointed by the Board
may hold regular meetings at such time or times as may be fixed by the Board or by the
committee itself. Special meetings of any committee may be called by the chairman or
vice chairman or any two members thereof. The Board may, at the time of the
appointment of any committee, designate alternate or advisory members, designate its
chairman, vice chairman, and secretary, or any one or more thereof, and the committee
itself may appoint such of said officers as have not been so designated by the Board if
they deem such appointment necessary or advisable. The secretary may but need not be a
member of the committee. The Board may at any time prescribe or change the number of
members whose presence is required to constitute a quorum at any or all meetings of a
committee. The quorum so prescribed need not be a majority of the members of the
committee. If no quorum is prescribed by the Board, the presence of a majority of the
members of the committee shall be required to constitute a quorum. Each committee
shall keep such records of its meetings and proceedings as may be required by law or
applicable regulations and may keep such additional records of its meetings and
proceedings as it deems necessary or advisable, and each committee may make such rules
of procedure for the conduct of its own meetings and the method of discharge of its duties
as it deems advisable. Each committee appointed by
ARTICLE IV
Officers and Employees
Section 4.1 Appointment of Officers. The Board shall appoint a President, one or more Vice Presidents and a Secretary and may appoint a Chairman of the Board and such other officers as from time to time may appear to the Board to be required or desirable to transact the business of the Association. Only directors shall be eligible for appointment as President or Chairman of the Board. If a director other than the President is appointed Chairman of the Board, the Board shall designate either of these two officers as the chief executive officer of this Association. Any officer designated by the Director of Human Resources as the head of a business or staff group may appoint officers at the rank of Senior Vice President, Managing Director or below, and any such designated officer may delegate this authority to another officer.
Section 4.2 Tenure of Office. Officers shall hold their respective offices for the current year for which they are appointed unless they resign, become disqualified or are removed. Any officer appointed by the Board may be removed at any time by the affirmative vote of a majority of the full Board or in accordance with authority granted by the Board. Any officer appointed by another officer may be removed at any time by the filing of a written notice by the appointing officer with the Secretary. During the year between its organization meetings, the Board may appoint additional officers and shall promptly fill any vacancy occurring in any office required to be filled.
Section 4.3 Chief Executive Officer. The chief executive officer shall supervise the carrying out of policies adopted or approved by the Board, shall have general executive powers as well as the specific powers conferred by these by-laws, and shall also have and may exercise such further powers and duties as from time to time may be conferred upon or assigned to him or her by the Board.
Section 4.4 Secretary. The Secretary shall attend to the giving of all notices required by these by-laws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of all transactions of the Association; 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.
Section 4.5 General Authority and Duties. Officers shall have the general powers and duties customarily vested in the office of such officers of a corporation and shall also exercise such powers and perform such duties as may be prescribed by the Articles of Association, by these by-laws, or by the laws or regulations governing the conduct of the business of national banking associations, and shall exercise such other powers and perform such other duties not inconsistent with the Articles of Association, these by-laws or laws or regulations as may be conferred upon or assigned to them by the Board or the chief executive officer.
Section 4.6 Employees and Agents. Subject to the authority of the Board, the chief executive officer, or any other officer of the Association authorized by him or by the Board, may appoint or dismiss all or any employees and agents and prescribe their duties and the conditions of their employment, and from time to time fix their compensation.
Section 4.7 Bonds of Officers and Employees. The officers and employees of this Association shall give bond with security to be approved by the Board in such penal sum as the Board shall require, as a condition for the faithful and honest discharge of their respective duties and for the faithful application and accounting of all monies, funds and other property which may come into their possession or may be entrusted to their care or placed in their hands. In the discretion of the Board in lieu of having individual bonds for each officer and employee, there may be substituted for the bonds provided for herein a blanket bond covering all officers and employees providing coverage in such amounts and containing such conditions and stipulations as shall be approved by the chief executive officer of this Association or his delegate but subject to the supervision and control of the Board.
ARTICLE V
Stock and Stock Certificates
Section 5.1 Transfers. Shares of stock shall be transferable only on the books of the Association upon surrender of the certificate for cancellation, and a transfer book shall be kept in which all transfers of stock shall be recorded.
Section 5.2 Stock Certificates. Certificates of stock shall be signed by the Chairman of the Board, if any, the President or a Vice President and the Secretary or any other officer appointed by the Board for that purpose, and shall be sealed with the corporate seal. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed, and shall meet the requirements of 12 U.S.C. §52, as amended.
Section 5.3 Dividends. Transfers of stock shall not be suspended preparatory to
the declaration of dividends and, unless an agreement to the contrary shall be expressed in
the assignments, dividends shall be
Section 5.4 Lost Certificates. In the event of loss or destruction of a certificate of stock, a new certificate may be issued in its place upon proof of such loss or destruction and upon receipt of an acceptable bond or agreement of indemnity as may be required by the Board.
ARTICLE VI
Corporate Seal
Section 6.1 Form. The corporate seal of the Association shall have inscribed thereon the name of the Association.
Section 6.2 Authority to Impress. The Chairman of the Board, if any, the President, the Secretary, any Assistant Secretary or other officer designated by the Board shall have authority to impress or affix the corporate seal to any document requiring such seal, and to attest the same.
ARTICLE VII
Miscellaneous Provisions
Section 7.1 Banking Hours. The days and hours during which this Association shall be open for business shall be fixed from time to time by the Board, the Chairman of the Board, if any, or the President, consistent with national and state laws governing banking and business transactions.
Section 7.2 Execution of Written Instruments. The execution, acknowledgement,
verification, delivery or acceptance on behalf of this Association of agreements,
instruments, and other documents relating to or affecting the property or business and
affairs of this Association, or of this Association when acting in any representative or
fiduciary capacity, shall be binding upon this Association if signed on its behalf by (i) any
two of the following officers: the Chairman of the Board, if any, the President, any Vice
Chairman, any Executive Vice President or any Senior Managing Director or (ii) any one
of the foregoing officers signing jointly with any Managing Director or any Senior Vice
President. Whenever any other officer or person shall be authorized to execute any
agreement, instrument or other document by resolution of the Board of Directors, or by
the chief executive officer, or by any officer or committee designated by the chief
executive officer, or by any two of the
Section 7.3 Records. The Articles of Association, these by-laws, and any amendments thereto, and the proceedings of all regular and special meetings of the directors and of the shareholders shall be recorded in appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the person appointed to act as secretary of the meeting.
Section 7.4 Fiscal Year. The fiscal year of the Association shall be the calendar year.
Section 7.5 Corporate Governance Procedures. In accordance with 12 C.F.R. Section 7.2000, to the extent not inconsistent with applicable federal banking statutes or regulations or bank safety and soundness, this Association designates and elects to follow the corporate governance procedures of the Delaware General Corporation Law, as amended from time to time.
Section 7.6 Indemnification. The Association may make or agree to make indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. Section 1813(u), for an administrative proceeding or civil action initiated by any federal banking agency, that are reasonable and consistent with the requirements of 12 U.S.C. Section 1828(k) and its implementing regulations.
The Association may indemnify an institution-affiliated party for damages and expenses, including the advancement of expenses and legal fees, in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, in accordance with the provisions set forth in the Association's Articles of Association, which provisions are in accordance with the Delaware General Corporation Law, provided such payments are consistent with safe and sound banking practices.
Section 7.7. Ownership Interests in Other Entities. With respect to any corporation, limited liability company, partnership or any other legal entity in which the Bank has or may acquire an ownership interest, the Chairman of the Board, if any, the President, the Chief Financial Officer or the Treasurer, acting alone, or any other officer or officers appointed from time to time by the Board of Directors or the Executive Committee thereof, may (a) personally authorize, sign and deliver on behalf of the Bank or authorize another person to sign and deliver on behalf of the Bank (i) any proxy, written consent, ballot or other similar instrument solicited by the entity from its owners, (ii) any stock power, assignment, bill of sale or other instrument transferring all or any part of the Bank's ownership of the entity or any agreement, instrument or other document relating thereto, (iii) any purchase of stock or other ownership interest in or contribution to the capital of such entity or any agreement, instrument or other document authorizing or evidencing the same and (iv) any agreement, consent, waiver or other document or instrument sought by the entity or an owner from the owners of the entity and (b) without limiting the generality of the foregoing, personally take, or authorize another person to take, any other action on behalf of the Bank as an owner of such entity.
ARTICLE VIII
By-Laws
Section 8.1 Inspection. A copy of these by-laws, with all amendments thereto, shall at all times be kept in a convenient place at the main office of the Association, and shall be open for inspection to all shareholders during banking hours.
Section 8.2 Amendments. These by-laws may be changed or amended at any regular or special meeting of the Board by a vote of a majority of the full Board or at any regular or special meeting of shareholders by the vote of the holders of a majority of the stock issued and outstanding and entitled to vote thereat.
Exhibit 6
May 18 , 2005WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
By: | \s\ Edward L. Truitt Jr. | |
Name: | Edward L. Truitt Jr. Title: Vice President |
Exhibit 7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business March 31, 2005 , filed in accordance with 12 U.S.C. §161 for National Banks.
Dollar Amounts | ||||
In Millions | ||||
ASSETS | ||||
Cash and balances due from depository institutions: | ||||
Noninterest-bearing balances and currency and coin | $ 13,089 | |||
Interest-bearing balances | 2,119 | |||
Securities: | ||||
Held-to-maturity securities | 0 | |||
Available-for-sale securities | 25,486 | |||
Federal funds sold and securities purchased under agreements to resell: | ||||
Federal funds sold in domestic offices | 3,066 | |||
Securities purchased under agreements to resell | 915 | |||
Loans and lease financing receivables: | ||||
Loans and leases held for sale | 38,833 | |||
Loans and leases, net of unearned income | 243,507 | |||
LESS: Allowance for loan and lease losses | 2,367 | |||
Loans and leases, net of unearned income and allowance | 241,140 | |||
Trading Assets | 6,010 | |||
Premises and fixed assets (including capitalized leases) | 3,453 | |||
Other real estate owned | 130 | |||
Investments in unconsolidated subsidiaries and associated companies | 321 | |||
Customers' liability to this bank on acceptances outstanding | 93 | |||
Intangible assets: | ||||
Goodwill | 8,612 | |||
Other intangible assets | 9,619 | |||
Other assets | 14,541 | |||
Total assets | $367,427 |
Dollar Amounts | ||||
In Millions | ||||
LIABILITIES | ||||
Deposits: | ||||
In domestic offices | $260,205 | |||
Noninterest-bearing | 78,724 | |||
Interest-bearing | 181,481 | |||
In foreign offices, Edge and Agreement subsidiaries, and IBFs | 19,915 | |||
Noninterest-bearing | 6 | |||
Interest-bearing | 19,909 | |||
Federal funds purchased and securities sold under agreements to repurchase: | ||||
Federal funds purchased in domestic offices | 11,391 | |||
Securities sold under agreements to repurchase | 3,347 | |||
Trading liabilities | 4,996 | |||
Other borrowed money | ||||
(includes mortgage indebtedness and obligations under capitalized leases) | 14,191 | |||
Bank's liability on acceptances executed and outstanding | 93 | |||
Subordinated notes and debentures | 7,606 | |||
Other liabilities | 12,350 | |||
Total liabilities | $334,094 | |||
Minority interest in consolidated subsidiaries | 52 | |||
EQUITY CAPITAL | ||||
Perpetual preferred stock and related surplus | 0 | |||
Common stock | 520 | |||
Surplus (exclude all surplus related to preferred stock) | 24,521 | |||
Retained earnings | 7,788 | |||
Accumulated other comprehensive income | 452 | |||
Other equity capital components | 0 | |||
Total equity capital | 33,281 | |||
Total liabilities, minority interest, and equity capital | $367,427 |
Karen B. Martin Vice President |
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
Howard Atkins
Carrie Tolstedt Directors
Pat Callahan
EXHIBIT 25.4
==========================================================================Not Applicable (State of incorporation if not a U.S. national bank) |
94-1347393 I.R.S. employer identification no.) |
919 Market St., Suite 701 Wilmington, DE (Address of principal executive offices) |
19801 (Zip code) |
Delaware (State or other jurisdiction of incorporation or organization) |
16-1641858 (I.R.S. employer identification no.) |
(a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency, Treasury Department Washington, D.C. 20230 Federal Deposit Insurance Corporation Washington, D.C. 20429 Federal Reserve Bank of San Francisco San Francisco, CA 94120 |
(b) | Whether it is authorized to exercise corporate trust powers. |
Exhibit 1. | A copy of the Articles of Association of the trustee now in effect. |
Exhibit 2. | A copy of the Comptroller of the Currency Certificate of Corporate Existence and Fiduciary Powers for Wells Fargo
Bank, National Association, dated February 4, 2004. |
Exhibit 3. | A copy of the authorization of the trustee to exercise corporate trust powers. (See Exhibit 2.) |
Exhibit 4. | Copy of By-laws of the trustee as now in effect. |
Exhibit 5. | Not applicable. |
Exhibit 6. | The consents of United States institutional trustees required by Section 321(b) of the Act. |
Exhibit 7. | Attached is a copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. |
Exhibit 8. | Not applicable. |
Exhibit 9. | Not applicable. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 18thday of May, 2005.
WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
By: | \s\ Edward L. Truitt Jr. | |
Name: | Edward L. Truitt Jr. Title: Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION
OF
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Effective as of February 20, 2004)
ARTICLE I - NAME
The title of this Association shall be Wells Fargo Bank, National Association. The Association may also use the abbreviation Wells Fargo Bank, N.A.
ARTICLE II - OFFICES
1. Main Office. The main office of this Association shall be in the City of Sioux Falls, County of Minnehaha, State of South Dakota. The Board of Directors shall have the power to change the location of the main office to any other place within the limits of the City of Sioux Falls, without the approval of the shareholders but subject to the approval of the Comptroller of the Currency.
2. Branch Offices. The Board of Directors shall have the power to establish or change the location of any branch or branches of this Association to any other location, without the approval of the shareholders but subject to the approval of the Comptroller of the Currency.
3. Conduct of Business. The general business of the Association shall be conducted at its main office and its branches.
ARTICLE III - BOARD OF DIRECTORS
1. Number. The Board of Directors of this Association shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full Board of Directors or by resolution of the shareholders at any annual or special meeting thereof.
2. Qualification. Each director, during the full term of his or her directorship, shall own a minimum of $1,000 par value of stock of this Association or an equivalent interest, as determined by the Comptroller of the Currency, in any company which has control over this Association within the meaning of Section 2 of the Bank Holding Company Act of 1956.
3. Vacancy. The Board of Directors, by the vote of a majority of the full Board, may, between annual meetings of shareholders, fill vacancies created by the death, incapacity or resignation of any director and by the vote of a majority of the full Board may also, between annual meetings of shareholders, increase the membership of the Board by not more than four members and by like vote appoint qualified persons to fill the vacancies created thereby; provided, however, that at no time shall there be more than twenty-five directors of this Association; and provided further, however, that not more than two members may be added to the Board of Directors in the event that the total number of directors last elected by shareholders was fifteen or less.
4. Appointment of Officers. The Board of Directors shall appoint one of its members President of this Association, who shall act as Chairman of the Board, unless the Board appoints another director to act as Chairman. In the event the Board of Directors shall appoint a President and a Chairman, the Board shall designate which person shall act as the chief executive officer of this Association. The Board of Directors shall have the power to appoint one or more Vice Presidents and to appoint a Cashier and such other officers and employees as may be required to transact the business of this Association.
5. Powers. The Board of Directors shall have the power to define the duties of the officers and employees of this Association; to fix the salaries to be paid to them; to dismiss them; to require bonds from them and to fix the penalty thereof; to regulate the manner in which the increase of the capital of this Association shall be made; to manage and administer the business and affairs of this Association; to make all Bylaws that it may be lawful for them to make; and generally to do and perform all acts that it may be legal for a Board of Directors to do and perform.
ARTICLE IV - MEETINGS OF SHAREHOLDERS
1. Annual Meeting. The annual meeting of the shareholders for the election of directors and the transaction of whatever other business may be brought before said meeting shall be held at the main office, or such other place as the Board of Directors may designate, on the day of each year specified therefor in the Bylaws, but if no election is held on that day, it may be held on any subsequent day according to the provisions of law; and all elections shall be held according to such lawful regulations as may be prescribed by the Board of Directors.
2. Special Meetings. The Board of Directors, the Chairman, the President, or any one or more shareholders owning, in the aggregate, not less than 25 percent of the stock of this Association, may call a special meeting of shareholders at any time.
3. Notice of Meetings. Unless otherwise provided by the laws of the United States, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least ten days prior to the date of such meeting to each shareholder of record at his or her address as shown upon the books of this Association.
4 Written Consents. Any action required or permitted to be taken at an annual or special meeting of the shareholders of the Association may be taken without prior written notice and without any meeting if such action is taken by written action, containing a waiver of notice, signed by all of the shareholders entitled to vote on that action.
ARTICLE V - CAPITAL
1. Capitalization. The amount of authorized capital stock of this Association shall be $1,122,000,000, divided into 112,200,000 shares of common stock of the par value of Ten Dollars ($10.00) each; but said capital stock may be increased or decreased from time to time, in accordance with the provisions of the laws of the United States.
2. Voting Rights. Each holder of common stock of the Association shall be entitled to vote on all matters, one vote for each share of common stock held by such holder. No holder of shares of the capital stock of any class of this Association shall have any pre-emptive or preferential right of subscription to any shares of any class of stock of this Association, whether now or hereafter authorized, or to any obligations convertible into stock of this Association, issued or sold, nor any right of subscription to any thereof other than such, if any, as the Board of Directors, in its discretion, may from time to time determine and at such price as the Board of Directors may from time to time fix.
3. Debt Obligations. The Association, at any time and from time to time, may authorize and issue debt obligations, whether or nor subordinated, without the approval of the shareholders.
ARTICLE VI - PERPETUAL EXISTENCE
The corporate existence of this Association shall continue until terminated in accordance with the laws of the United States.
ARTICLE VII - INDEMNIFICATION
To the extent permitted by 12 CFR 7.2014 and consistent with the requirements of 12 USC 1828(k) and the implementing regulations thereunder:
(a) Elimination of Certain Liability of Directors. A director of the Association shall not be personally liable to the Association or its shareholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Association or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit.
(b)(1) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Association or is or was serving at the request of the Association as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action or inaction in an official capacity as a director, officer, employee, or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Association to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Association to provide broader
indemnification rights than said law permitted the Association to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that the Association shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Association. The right to indemnification conferred in this paragraph (b) shall be a contract right and shall include the right to be paid by the Association the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment of such expenses incurred by a director of officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Association of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director of officer is not entitled to be indemnified under this paragraph (b) or otherwise. The Association may, by action of its Board of Directors, provide indemnification to employees and agents of the Association with the same scope and effect as the foregoing indemnification of directors and officers.
(2) Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this paragraph (b) shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Articles of Association, by-law, agreement, vote of shareholders or disinterested directors or otherwise.
(3) Insurance. The Association may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Association or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Association would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.
ARTICLE VIII - AMENDMENT
These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of this Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of holders of such greater amount.
Exhibit 2
Certificate of Corporate Existence and Fiduciary Powers
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that: | |
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and control of all records pertaining to the chartering of all National Bank Associations. | |
2. "Wells Fargo Bank, National Association," San Francisco, California, (Charter No. 1741) is a National Banking Association formed under the laws of the United States and is authorized thereunder to transact the business of banking and exercise Fiduciary Powers on the date of this Certificate. |
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the Treasury Department in the City of Washington and District of Columbia, this February 4, 2004. John D. Hawke, Jr. Comptroller of the Currency |
Exhibit 4
BY-LAWS
OF
WELLS FARGO BANK, NATIONAL ASSOCIATION
(As amended February 20, 2004)
ARTICLE I
Meetings of Shareholders
Section 1.1 Annual Meeting. The regular annual meeting of the shareholders for the election of directors and the transaction of whatever other business may properly come before the meeting shall be held at the main office of the Association in Sioux Falls, South Dakota, or such other place as the Board of Directors may designate, at 2:00 p.m., on the second Thursday of January in each year. If for any cause the annual meeting of shareholders for the election of directors is not held on the date fixed in this by-law, such meeting may be held at some other time designated by the Board of Directors, notice thereof having been given in accordance with the requirements of 12 U.S.C. §75, and the meeting conducted according to the provisions of these by-laws.
Section 1.2 Special Meetings. Except as otherwise specifically provided by statute, special meetings of shareholders may be called for any purpose at any time by the Board of Directors, the Chairman of the Board, if any, the President, or any one or more shareholders owning in the aggregate not less than twenty-five percent of the then outstanding shares, as provided in Article IV of the Articles of Association.
Section 1.3 Notice of Meetings. A notice of each annual or special shareholders' meeting, setting forth the time, place, and purpose of the meeting, shall be given, by first-class mail, postage prepaid, to each shareholder of record at least ten days prior to the date on which such meeting is to be held; but any failure to mail such notice of any annual meeting, or any irregularity therein, shall not affect the validity of such annual meeting or of any of the proceedings thereat. Notwithstanding anything in these by-laws to the contrary, a valid shareholders' meeting may be held without notice whenever notice thereof shall be waived in writing by all shareholders, or whenever all shareholders shall be present or represented at the meeting.
Section 1.4 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 the shareholders for the transaction of business,
and may transact any business except such as may, under the provisions of law, the
Articles of Association, or these by-laws, require the vote of holders of a greater number
of shares. If, however, such majority shall not be present or represented at any meeting of
the shareholders, the shareholders entitled to vote thereat, present in person or by proxy,
shall have power to adjourn the meeting from time to
Section 1.5 Proxies and Voting Rights. At each meeting of the shareholders, each shareholder having the right to vote shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such shareholder, which proxy shall be valid for that meeting or any adjournments thereof, shall be dated, and shall be filed with the records of the meeting. No officer or employee of this Association may act as proxy. Each shareholder shall have one vote for each share of stock having voting power which is registered in his name on the books of the Association. Voting for the election of directors and voting upon any other matter which may be brought before any shareholders' meeting may, but need not, be by ballot, unless voting by ballot be requested by a shareholder present at the meeting.
Section 1.6 Proceedings and Record. The Chairman of the Board, if any, shall preside at all meetings of the shareholders or, in case of his absence or inability to act, the President or, in case of the absence or inability to act of both of them, any Vice President may preside at any such meeting. The presiding officer shall appoint a person to act as secretary of each shareholders' meeting; provided, however, that the shareholders may appoint some other person to preside at their meetings or to act as secretary thereof. A record of all business transacted shall be made of each shareholders' meeting showing, among other things, the names of the shareholders present and the number of shares of stock held by each, the names of the shareholders represented by proxy and the number of shares held by each, the names of the proxies, the number of shares voted on each motion or resolution and the number of shares voted for each candidate for director. This record shall be entered in the minute book of the Association and shall be subscribed by the secretary of the meeting.
Section 1.7 Action Without a Meeting. Any action required or permitted to be taken at a meeting of the shareholders of the Association may be taken without a meeting by written action signed by all of the shareholders entitled to vote on that action.
ARTICLE II
Directors
Section 2.1 Board of Directors. The Board of Directors (hereinafter referred to as the "Board") shall have power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2 Number and Qualifications. The Board shall consist of not less than five nor more than twenty-five persons, 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 full Board or by resolution of the shareholders at any meeting thereof; provided, however, that a majority of the full Board may not increase the number of directors to a number which (i) exceeds by more than two the number of directors last elected by shareholders where such number was fifteen or less; and (ii) exceeds by more than four the number of directors last elected by shareholders where such number was sixteen or more, but in no event shall the number of directors exceed twenty-five.
Each director shall, during the full term of his directorship, be a citizen of the United States. Each director, during the full term of his directorship, shall own a minimum of $1,000 par value of stock of this Association or an equivalent interest, as determined by the Comptroller of the Currency, in any company which has control over this Association within the meaning of Section 2 of the Bank Holding Company Act of 1956, as amended.
Section 2.3 Organization Meeting. A meeting of the newly elected Board shall be held, without notice, immediately following the adjournment of the annual meeting of the shareholders, or at such other time and at such place to which said meeting may be adjourned. No business shall be transacted at any such meeting until a majority of the directors elected shall have taken an oath of office as prescribed by law, and no director elected shall participate in the business transacted at any such meeting of the Board until he shall have taken said oath. If at any such meeting there is not a quorum of the directors present who shall have taken the oath of office, the members present may adjourn the meeting from time to time until a quorum is secured. At such meeting of the newly elected Board, if a quorum is present, the directors may elect officers for the ensuing year and transact any and all business which may be brought before them.
Section 2.4 Regular Meetings. The regular meetings of the Board may be held at such time and place as shall from time to time be determined by the Board. When any regular meeting of the Board falls upon a holiday, the meeting shall be held on the next banking business day.
Section 2.5 Special Meetings. Special meetings of the Board may be called by the Chairman of the Board, the President or the Secretary, and shall be called at the request of one-third or more of the directors.
Section 2.6 Notice of Meetings. Each member of the Board shall be given not less than one day's notice by telephone, facsimile, letter, electronic mail or in person, stating the time and place of any regular or special meeting; such notice may, but need not, state the purpose of said meeting. Notwithstanding anything in these by-laws to the contrary, a valid directors' meeting may be held without notice whenever notice thereof shall be waived in writing by all of the directors, or whenever all of the directors are present at the meeting.
Section 2.7 Quorum and Voting. A majority of the directors shall constitute a quorum at all directors' meetings. Except where the vote of a greater number of directors is required by the Articles of Association, these by-laws or under provisions of law, the vote of a majority of the directors at a meeting at which a quorum is present shall be sufficient to transact business.
Section 2.8 Proceedings and Record. The Chairman of the Board, if such officer shall have been designated by the Board, shall preside at all meetings thereof, and in his absence or inability to act (or if there shall be no Chairman of the Board) the President, and in his absence or inability to act any other director appointed chairman of the meeting pro tempore, shall preside at meetings of the directors. The Secretary, or any other person appointed by the Board, shall act as secretary of the Board and shall keep accurate minutes of all meetings.
Section 2.9 Electronic Communications. A conference among directors by any means of communication through which the directors may simultaneously hear each other during the conference constitutes a Board meeting, if the same notice is given of the conference as would be required for a meeting, and if the number of directors participating in the conference would be sufficient to constitute a quorum at a meeting. A director may participate in a regular or special Board meeting by any means of communication through which the director, other directors so participating and all directors physically present at the meeting may simultaneously hear each other during the meeting. Participation in a meeting by any means referred to in this Section 2.9 constitutes presence in person at the meeting.
Section 2.10 Action Without a Meeting. Any action required or permitted to be taken at a meeting of the Board of the Association may be taken without a meeting by written action signed by all of the directors.
Section 2.11 Vacancies. Any vacancy in the Board may be filled by appointment at any regular or special meeting of the Board by the remaining directors in accordance with the laws of the United States or by action of the shareholders in accordance with Article I of these by-laws. Any director so appointed shall hold his place until the next election.
ARTICLE III
Committees of the Board
Section 3.1 Executive Committee. The Board may appoint annually or more
often an Executive Committee consisting of two or more directors. In the event an
Executive Committee is appointed, the Executive Committee shall have the power to
approve, review, and delegate authority to make loans and otherwise extend credit and to
purchase and sell bills, notes, bonds, debentures and other legal investments and
Section 3.2 Trust Committees. The Board shall appoint a Trust Audit Committee which shall, at least once during each calendar year, make suitable audits of the Trust Department or cause suitable audits to be made by auditors responsible only to the Board and at such time shall ascertain and report to the Board whether said Department has been administered in accordance with applicable laws and regulations and sound fiduciary principles. Every report to the Board under this section, together with the action taken thereon, shall be noted in the minutes of the Board. The Board shall from time to time appoint such other committees of such membership and with such powers and duties as it is required to appoint under the provisions of Regulation 9 issued by the Comptroller of the Currency relating to the trust powers of national banks, or any amendments thereto, and may appoint such other committees of such membership and with such powers and duties as the Board may provide and as are permitted by said Regulation 9, or any amendments thereto.
Section 3.3 Other Committees. The Board, by a majority vote of the whole Board, may create from its own members or (to the extent permitted by applicable statutes, laws and regulations) from its own members and/or officers or employees of the Association such other committees as it may from time to time deem necessary, and may designate the name and term of existence and prescribe the duties thereof.
Section 3.4 Proceedings and Record. Each committee appointed by the Board
may hold regular meetings at such time or times as may be fixed by the Board or by the
committee itself. Special meetings of any committee may be called by the chairman or
vice chairman or any two members thereof. The Board may, at the time of the
appointment of any committee, designate alternate or advisory members, designate its
chairman, vice chairman, and secretary, or any one or more thereof, and the committee
itself may appoint such of said officers as have not been so designated by the Board if
they deem such appointment necessary or advisable. The secretary may but need not be a
member of the committee. The Board may at any time prescribe or change the number of
members whose presence is required to constitute a quorum at any or all meetings of a
committee. The quorum so prescribed need not be a majority of the members of the
committee. If no quorum is prescribed by the Board, the presence of a majority of the
members of the committee shall be required to constitute a quorum. Each committee
shall keep such records of its meetings and proceedings as may be required by law or
applicable regulations and may keep such additional records of its meetings and
proceedings as it deems necessary or advisable, and each committee may make such rules
of procedure for the conduct of its own meetings and the method of discharge of its duties
as it deems advisable. Each committee appointed by
ARTICLE IV
Officers and Employees
Section 4.1 Appointment of Officers. The Board shall appoint a President, one or more Vice Presidents and a Secretary and may appoint a Chairman of the Board and such other officers as from time to time may appear to the Board to be required or desirable to transact the business of the Association. Only directors shall be eligible for appointment as President or Chairman of the Board. If a director other than the President is appointed Chairman of the Board, the Board shall designate either of these two officers as the chief executive officer of this Association. Any officer designated by the Director of Human Resources as the head of a business or staff group may appoint officers at the rank of Senior Vice President, Managing Director or below, and any such designated officer may delegate this authority to another officer.
Section 4.2 Tenure of Office. Officers shall hold their respective offices for the current year for which they are appointed unless they resign, become disqualified or are removed. Any officer appointed by the Board may be removed at any time by the affirmative vote of a majority of the full Board or in accordance with authority granted by the Board. Any officer appointed by another officer may be removed at any time by the filing of a written notice by the appointing officer with the Secretary. During the year between its organization meetings, the Board may appoint additional officers and shall promptly fill any vacancy occurring in any office required to be filled.
Section 4.3 Chief Executive Officer. The chief executive officer shall supervise the carrying out of policies adopted or approved by the Board, shall have general executive powers as well as the specific powers conferred by these by-laws, and shall also have and may exercise such further powers and duties as from time to time may be conferred upon or assigned to him or her by the Board.
Section 4.4 Secretary. The Secretary shall attend to the giving of all notices required by these by-laws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of all transactions of the Association; 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.
Section 4.5 General Authority and Duties. Officers shall have the general powers and duties customarily vested in the office of such officers of a corporation and shall also exercise such powers and perform such duties as may be prescribed by the Articles of Association, by these by-laws, or by the laws or regulations governing the conduct of the business of national banking associations, and shall exercise such other powers and perform such other duties not inconsistent with the Articles of Association, these by-laws or laws or regulations as may be conferred upon or assigned to them by the Board or the chief executive officer.
Section 4.6 Employees and Agents. Subject to the authority of the Board, the chief executive officer, or any other officer of the Association authorized by him or by the Board, may appoint or dismiss all or any employees and agents and prescribe their duties and the conditions of their employment, and from time to time fix their compensation.
Section 4.7 Bonds of Officers and Employees. The officers and employees of this Association shall give bond with security to be approved by the Board in such penal sum as the Board shall require, as a condition for the faithful and honest discharge of their respective duties and for the faithful application and accounting of all monies, funds and other property which may come into their possession or may be entrusted to their care or placed in their hands. In the discretion of the Board in lieu of having individual bonds for each officer and employee, there may be substituted for the bonds provided for herein a blanket bond covering all officers and employees providing coverage in such amounts and containing such conditions and stipulations as shall be approved by the chief executive officer of this Association or his delegate but subject to the supervision and control of the Board.
ARTICLE V
Stock and Stock Certificates
Section 5.1 Transfers. Shares of stock shall be transferable only on the books of the Association upon surrender of the certificate for cancellation, and a transfer book shall be kept in which all transfers of stock shall be recorded.
Section 5.2 Stock Certificates. Certificates of stock shall be signed by the Chairman of the Board, if any, the President or a Vice President and the Secretary or any other officer appointed by the Board for that purpose, and shall be sealed with the corporate seal. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed, and shall meet the requirements of 12 U.S.C. §52, as amended.
Section 5.3 Dividends. Transfers of stock shall not be suspended preparatory to
the declaration of dividends and, unless an agreement to the contrary shall be expressed in
the assignments, dividends shall be
Section 5.4 Lost Certificates. In the event of loss or destruction of a certificate of stock, a new certificate may be issued in its place upon proof of such loss or destruction and upon receipt of an acceptable bond or agreement of indemnity as may be required by the Board.
ARTICLE VI
Corporate Seal
Section 6.1 Form. The corporate seal of the Association shall have inscribed thereon the name of the Association.
Section 6.2 Authority to Impress. The Chairman of the Board, if any, the President, the Secretary, any Assistant Secretary or other officer designated by the Board shall have authority to impress or affix the corporate seal to any document requiring such seal, and to attest the same.
ARTICLE VII
Miscellaneous Provisions
Section 7.1 Banking Hours. The days and hours during which this Association shall be open for business shall be fixed from time to time by the Board, the Chairman of the Board, if any, or the President, consistent with national and state laws governing banking and business transactions.
Section 7.2 Execution of Written Instruments. The execution, acknowledgement,
verification, delivery or acceptance on behalf of this Association of agreements,
instruments, and other documents relating to or affecting the property or business and
affairs of this Association, or of this Association when acting in any representative or
fiduciary capacity, shall be binding upon this Association if signed on its behalf by (i) any
two of the following officers: the Chairman of the Board, if any, the President, any Vice
Chairman, any Executive Vice President or any Senior Managing Director or (ii) any one
of the foregoing officers signing jointly with any Managing Director or any Senior Vice
President. Whenever any other officer or person shall be authorized to execute any
agreement, instrument or other document by resolution of the Board of Directors, or by
the chief executive officer, or by any officer or committee designated by the chief
executive officer, or by any two of the
Section 7.3 Records. The Articles of Association, these by-laws, and any amendments thereto, and the proceedings of all regular and special meetings of the directors and of the shareholders shall be recorded in appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the person appointed to act as secretary of the meeting.
Section 7.4 Fiscal Year. The fiscal year of the Association shall be the calendar year.
Section 7.5 Corporate Governance Procedures. In accordance with 12 C.F.R. Section 7.2000, to the extent not inconsistent with applicable federal banking statutes or regulations or bank safety and soundness, this Association designates and elects to follow the corporate governance procedures of the Delaware General Corporation Law, as amended from time to time.
Section 7.6 Indemnification. The Association may make or agree to make indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. Section 1813(u), for an administrative proceeding or civil action initiated by any federal banking agency, that are reasonable and consistent with the requirements of 12 U.S.C. Section 1828(k) and its implementing regulations.
The Association may indemnify an institution-affiliated party for damages and expenses, including the advancement of expenses and legal fees, in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, in accordance with the provisions set forth in the Association's Articles of Association, which provisions are in accordance with the Delaware General Corporation Law, provided such payments are consistent with safe and sound banking practices.
Section 7.7. Ownership Interests in Other Entities. With respect to any corporation, limited liability company, partnership or any other legal entity in which the Bank has or may acquire an ownership interest, the Chairman of the Board, if any, the President, the Chief Financial Officer or the Treasurer, acting alone, or any other officer or officers appointed from time to time by the Board of Directors or the Executive Committee thereof, may (a) personally authorize, sign and deliver on behalf of the Bank or authorize another person to sign and deliver on behalf of the Bank (i) any proxy, written consent, ballot or other similar instrument solicited by the entity from its owners, (ii) any stock power, assignment, bill of sale or other instrument transferring all or any part of the Bank's ownership of the entity or any agreement, instrument or other document relating thereto, (iii) any purchase of stock or other ownership interest in or contribution to the capital of such entity or any agreement, instrument or other document authorizing or evidencing the same and (iv) any agreement, consent, waiver or other document or instrument sought by the entity or an owner from the owners of the entity and (b) without limiting the generality of the foregoing, personally take, or authorize another person to take, any other action on behalf of the Bank as an owner of such entity.
ARTICLE VIII
By-Laws
Section 8.1 Inspection. A copy of these by-laws, with all amendments thereto, shall at all times be kept in a convenient place at the main office of the Association, and shall be open for inspection to all shareholders during banking hours.
Section 8.2 Amendments. These by-laws may be changed or amended at any regular or special meeting of the Board by a vote of a majority of the full Board or at any regular or special meeting of shareholders by the vote of the holders of a majority of the stock issued and outstanding and entitled to vote thereat.
Exhibit 6
May 18 , 2005WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
By: | \s\ Edward L. Truitt Jr. | |
Name: | Edward L. Truitt Jr. Title: Vice President |
Exhibit 7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business March 31, 2005 , filed in accordance with 12 U.S.C. §161 for National Banks.
Dollar Amounts | ||||
In Millions | ||||
ASSETS | ||||
Cash and balances due from depository institutions: | ||||
Noninterest-bearing balances and currency and coin | $ 13,089 | |||
Interest-bearing balances | 2,119 | |||
Securities: | ||||
Held-to-maturity securities | 0 | |||
Available-for-sale securities | 25,486 | |||
Federal funds sold and securities purchased under agreements to resell: | ||||
Federal funds sold in domestic offices | 3,066 | |||
Securities purchased under agreements to resell | 915 | |||
Loans and lease financing receivables: | ||||
Loans and leases held for sale | 38,833 | |||
Loans and leases, net of unearned income | 243,507 | |||
LESS: Allowance for loan and lease losses | 2,367 | |||
Loans and leases, net of unearned income and allowance | 241,140 | |||
Trading Assets | 6,010 | |||
Premises and fixed assets (including capitalized leases) | 3,453 | |||
Other real estate owned | 130 | |||
Investments in unconsolidated subsidiaries and associated companies | 321 | |||
Customers' liability to this bank on acceptances outstanding | 93 | |||
Intangible assets: | ||||
Goodwill | 8,612 | |||
Other intangible assets | 9,619 | |||
Other assets | 14,541 | |||
Total assets | $367,427 |
Dollar Amounts | ||||
In Millions | ||||
LIABILITIES | ||||
Deposits: | ||||
In domestic offices | $260,205 | |||
Noninterest-bearing | 78,724 | |||
Interest-bearing | 181,481 | |||
In foreign offices, Edge and Agreement subsidiaries, and IBFs | 19,915 | |||
Noninterest-bearing | 6 | |||
Interest-bearing | 19,909 | |||
Federal funds purchased and securities sold under agreements to repurchase: | ||||
Federal funds purchased in domestic offices | 11,391 | |||
Securities sold under agreements to repurchase | 3,347 | |||
Trading liabilities | 4,996 | |||
Other borrowed money | ||||
(includes mortgage indebtedness and obligations under capitalized leases) | 14,191 | |||
Bank's liability on acceptances executed and outstanding | 93 | |||
Subordinated notes and debentures | 7,606 | |||
Other liabilities | 12,350 | |||
Total liabilities | $334,094 | |||
Minority interest in consolidated subsidiaries | 52 | |||
EQUITY CAPITAL | ||||
Perpetual preferred stock and related surplus | 0 | |||
Common stock | 520 | |||
Surplus (exclude all surplus related to preferred stock) | 24,521 | |||
Retained earnings | 7,788 | |||
Accumulated other comprehensive income | 452 | |||
Other equity capital components | 0 | |||
Total equity capital | 33,281 | |||
Total liabilities, minority interest, and equity capital | $367,427 |
Karen B. Martin Vice President |
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
Howard Atkins
Carrie Tolstedt Directors
Pat Callahan
EXHIBIT 25.5
==========================================================================Not Applicable (State of incorporation if not a U.S. national bank) |
94-1347393 I.R.S. employer identification no.) |
919 Market St., Suite 701 Wilmington, DE (Address of principal executive offices) |
19801 (Zip code) |
Delaware (State or other jurisdiction of incorporation or organization) |
16-1641860 (I.R.S. employer identification no.) |
(a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency, Treasury Department Washington, D.C. 20230 Federal Deposit Insurance Corporation Washington, D.C. 20429 Federal Reserve Bank of San Francisco San Francisco, CA 94120 |
(b) | Whether it is authorized to exercise corporate trust powers. |
Exhibit 1. | A copy of the Articles of Association of the trustee now in effect. |
Exhibit 2. | A copy of the Comptroller of the Currency Certificate of Corporate Existence and Fiduciary Powers for Wells Fargo
Bank, National Association, dated February 4, 2004. |
Exhibit 3. | A copy of the authorization of the trustee to exercise corporate trust powers. (See Exhibit 2.) |
Exhibit 4. | Copy of By-laws of the trustee as now in effect. |
Exhibit 5. | Not applicable. |
Exhibit 6. | The consents of United States institutional trustees required by Section 321(b) of the Act. |
Exhibit 7. | Attached is a copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. |
Exhibit 8. | Not applicable. |
Exhibit 9. | Not applicable. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 18thday of May, 2005.
WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
By: | \s\ Edward L. Truitt Jr. | |
Name: | Edward L. Truitt Jr. Title: Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION
OF
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Effective as of February 20, 2004)
ARTICLE I - NAME
The title of this Association shall be Wells Fargo Bank, National Association. The Association may also use the abbreviation Wells Fargo Bank, N.A.
ARTICLE II - OFFICES
1. Main Office. The main office of this Association shall be in the City of Sioux Falls, County of Minnehaha, State of South Dakota. The Board of Directors shall have the power to change the location of the main office to any other place within the limits of the City of Sioux Falls, without the approval of the shareholders but subject to the approval of the Comptroller of the Currency.
2. Branch Offices. The Board of Directors shall have the power to establish or change the location of any branch or branches of this Association to any other location, without the approval of the shareholders but subject to the approval of the Comptroller of the Currency.
3. Conduct of Business. The general business of the Association shall be conducted at its main office and its branches.
ARTICLE III - BOARD OF DIRECTORS
1. Number. The Board of Directors of this Association shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full Board of Directors or by resolution of the shareholders at any annual or special meeting thereof.
2. Qualification. Each director, during the full term of his or her directorship, shall own a minimum of $1,000 par value of stock of this Association or an equivalent interest, as determined by the Comptroller of the Currency, in any company which has control over this Association within the meaning of Section 2 of the Bank Holding Company Act of 1956.
3. Vacancy. The Board of Directors, by the vote of a majority of the full Board, may, between annual meetings of shareholders, fill vacancies created by the death, incapacity or resignation of any director and by the vote of a majority of the full Board may also, between annual meetings of shareholders, increase the membership of the Board by not more than four members and by like vote appoint qualified persons to fill the vacancies created thereby; provided, however, that at no time shall there be more than twenty-five directors of this Association; and provided further, however, that not more than two members may be added to the Board of Directors in the event that the total number of directors last elected by shareholders was fifteen or less.
4. Appointment of Officers. The Board of Directors shall appoint one of its members President of this Association, who shall act as Chairman of the Board, unless the Board appoints another director to act as Chairman. In the event the Board of Directors shall appoint a President and a Chairman, the Board shall designate which person shall act as the chief executive officer of this Association. The Board of Directors shall have the power to appoint one or more Vice Presidents and to appoint a Cashier and such other officers and employees as may be required to transact the business of this Association.
5. Powers. The Board of Directors shall have the power to define the duties of the officers and employees of this Association; to fix the salaries to be paid to them; to dismiss them; to require bonds from them and to fix the penalty thereof; to regulate the manner in which the increase of the capital of this Association shall be made; to manage and administer the business and affairs of this Association; to make all Bylaws that it may be lawful for them to make; and generally to do and perform all acts that it may be legal for a Board of Directors to do and perform.
ARTICLE IV - MEETINGS OF SHAREHOLDERS
1. Annual Meeting. The annual meeting of the shareholders for the election of directors and the transaction of whatever other business may be brought before said meeting shall be held at the main office, or such other place as the Board of Directors may designate, on the day of each year specified therefor in the Bylaws, but if no election is held on that day, it may be held on any subsequent day according to the provisions of law; and all elections shall be held according to such lawful regulations as may be prescribed by the Board of Directors.
2. Special Meetings. The Board of Directors, the Chairman, the President, or any one or more shareholders owning, in the aggregate, not less than 25 percent of the stock of this Association, may call a special meeting of shareholders at any time.
3. Notice of Meetings. Unless otherwise provided by the laws of the United States, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least ten days prior to the date of such meeting to each shareholder of record at his or her address as shown upon the books of this Association.
4 Written Consents. Any action required or permitted to be taken at an annual or special meeting of the shareholders of the Association may be taken without prior written notice and without any meeting if such action is taken by written action, containing a waiver of notice, signed by all of the shareholders entitled to vote on that action.
ARTICLE V - CAPITAL
1. Capitalization. The amount of authorized capital stock of this Association shall be $1,122,000,000, divided into 112,200,000 shares of common stock of the par value of Ten Dollars ($10.00) each; but said capital stock may be increased or decreased from time to time, in accordance with the provisions of the laws of the United States.
2. Voting Rights. Each holder of common stock of the Association shall be entitled to vote on all matters, one vote for each share of common stock held by such holder. No holder of shares of the capital stock of any class of this Association shall have any pre-emptive or preferential right of subscription to any shares of any class of stock of this Association, whether now or hereafter authorized, or to any obligations convertible into stock of this Association, issued or sold, nor any right of subscription to any thereof other than such, if any, as the Board of Directors, in its discretion, may from time to time determine and at such price as the Board of Directors may from time to time fix.
3. Debt Obligations. The Association, at any time and from time to time, may authorize and issue debt obligations, whether or nor subordinated, without the approval of the shareholders.
ARTICLE VI - PERPETUAL EXISTENCE
The corporate existence of this Association shall continue until terminated in accordance with the laws of the United States.
ARTICLE VII - INDEMNIFICATION
To the extent permitted by 12 CFR 7.2014 and consistent with the requirements of 12 USC 1828(k) and the implementing regulations thereunder:
(a) Elimination of Certain Liability of Directors. A director of the Association shall not be personally liable to the Association or its shareholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Association or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit.
(b)(1) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Association or is or was serving at the request of the Association as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action or inaction in an official capacity as a director, officer, employee, or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Association to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Association to provide broader
indemnification rights than said law permitted the Association to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that the Association shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Association. The right to indemnification conferred in this paragraph (b) shall be a contract right and shall include the right to be paid by the Association the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment of such expenses incurred by a director of officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Association of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director of officer is not entitled to be indemnified under this paragraph (b) or otherwise. The Association may, by action of its Board of Directors, provide indemnification to employees and agents of the Association with the same scope and effect as the foregoing indemnification of directors and officers.
(2) Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this paragraph (b) shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Articles of Association, by-law, agreement, vote of shareholders or disinterested directors or otherwise.
(3) Insurance. The Association may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Association or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Association would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.
ARTICLE VIII - AMENDMENT
These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of this Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of holders of such greater amount.
Exhibit 2
Certificate of Corporate Existence and Fiduciary Powers
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that: | |
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and control of all records pertaining to the chartering of all National Bank Associations. | |
2. "Wells Fargo Bank, National Association," San Francisco, California, (Charter No. 1741) is a National Banking Association formed under the laws of the United States and is authorized thereunder to transact the business of banking and exercise Fiduciary Powers on the date of this Certificate. |
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the Treasury Department in the City of Washington and District of Columbia, this February 4, 2004. John D. Hawke, Jr. Comptroller of the Currency |
Exhibit 4
BY-LAWS
OF
WELLS FARGO BANK, NATIONAL ASSOCIATION
(As amended February 20, 2004)
ARTICLE I
Meetings of Shareholders
Section 1.1 Annual Meeting. The regular annual meeting of the shareholders for the election of directors and the transaction of whatever other business may properly come before the meeting shall be held at the main office of the Association in Sioux Falls, South Dakota, or such other place as the Board of Directors may designate, at 2:00 p.m., on the second Thursday of January in each year. If for any cause the annual meeting of shareholders for the election of directors is not held on the date fixed in this by-law, such meeting may be held at some other time designated by the Board of Directors, notice thereof having been given in accordance with the requirements of 12 U.S.C. §75, and the meeting conducted according to the provisions of these by-laws.
Section 1.2 Special Meetings. Except as otherwise specifically provided by statute, special meetings of shareholders may be called for any purpose at any time by the Board of Directors, the Chairman of the Board, if any, the President, or any one or more shareholders owning in the aggregate not less than twenty-five percent of the then outstanding shares, as provided in Article IV of the Articles of Association.
Section 1.3 Notice of Meetings. A notice of each annual or special shareholders' meeting, setting forth the time, place, and purpose of the meeting, shall be given, by first-class mail, postage prepaid, to each shareholder of record at least ten days prior to the date on which such meeting is to be held; but any failure to mail such notice of any annual meeting, or any irregularity therein, shall not affect the validity of such annual meeting or of any of the proceedings thereat. Notwithstanding anything in these by-laws to the contrary, a valid shareholders' meeting may be held without notice whenever notice thereof shall be waived in writing by all shareholders, or whenever all shareholders shall be present or represented at the meeting.
Section 1.4 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 the shareholders for the transaction of business,
and may transact any business except such as may, under the provisions of law, the
Articles of Association, or these by-laws, require the vote of holders of a greater number
of shares. If, however, such majority shall not be present or represented at any meeting of
the shareholders, the shareholders entitled to vote thereat, present in person or by proxy,
shall have power to adjourn the meeting from time to
Section 1.5 Proxies and Voting Rights. At each meeting of the shareholders, each shareholder having the right to vote shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such shareholder, which proxy shall be valid for that meeting or any adjournments thereof, shall be dated, and shall be filed with the records of the meeting. No officer or employee of this Association may act as proxy. Each shareholder shall have one vote for each share of stock having voting power which is registered in his name on the books of the Association. Voting for the election of directors and voting upon any other matter which may be brought before any shareholders' meeting may, but need not, be by ballot, unless voting by ballot be requested by a shareholder present at the meeting.
Section 1.6 Proceedings and Record. The Chairman of the Board, if any, shall preside at all meetings of the shareholders or, in case of his absence or inability to act, the President or, in case of the absence or inability to act of both of them, any Vice President may preside at any such meeting. The presiding officer shall appoint a person to act as secretary of each shareholders' meeting; provided, however, that the shareholders may appoint some other person to preside at their meetings or to act as secretary thereof. A record of all business transacted shall be made of each shareholders' meeting showing, among other things, the names of the shareholders present and the number of shares of stock held by each, the names of the shareholders represented by proxy and the number of shares held by each, the names of the proxies, the number of shares voted on each motion or resolution and the number of shares voted for each candidate for director. This record shall be entered in the minute book of the Association and shall be subscribed by the secretary of the meeting.
Section 1.7 Action Without a Meeting. Any action required or permitted to be taken at a meeting of the shareholders of the Association may be taken without a meeting by written action signed by all of the shareholders entitled to vote on that action.
ARTICLE II
Directors
Section 2.1 Board of Directors. The Board of Directors (hereinafter referred to as the "Board") shall have power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2 Number and Qualifications. The Board shall consist of not less than five nor more than twenty-five persons, 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 full Board or by resolution of the shareholders at any meeting thereof; provided, however, that a majority of the full Board may not increase the number of directors to a number which (i) exceeds by more than two the number of directors last elected by shareholders where such number was fifteen or less; and (ii) exceeds by more than four the number of directors last elected by shareholders where such number was sixteen or more, but in no event shall the number of directors exceed twenty-five.
Each director shall, during the full term of his directorship, be a citizen of the United States. Each director, during the full term of his directorship, shall own a minimum of $1,000 par value of stock of this Association or an equivalent interest, as determined by the Comptroller of the Currency, in any company which has control over this Association within the meaning of Section 2 of the Bank Holding Company Act of 1956, as amended.
Section 2.3 Organization Meeting. A meeting of the newly elected Board shall be held, without notice, immediately following the adjournment of the annual meeting of the shareholders, or at such other time and at such place to which said meeting may be adjourned. No business shall be transacted at any such meeting until a majority of the directors elected shall have taken an oath of office as prescribed by law, and no director elected shall participate in the business transacted at any such meeting of the Board until he shall have taken said oath. If at any such meeting there is not a quorum of the directors present who shall have taken the oath of office, the members present may adjourn the meeting from time to time until a quorum is secured. At such meeting of the newly elected Board, if a quorum is present, the directors may elect officers for the ensuing year and transact any and all business which may be brought before them.
Section 2.4 Regular Meetings. The regular meetings of the Board may be held at such time and place as shall from time to time be determined by the Board. When any regular meeting of the Board falls upon a holiday, the meeting shall be held on the next banking business day.
Section 2.5 Special Meetings. Special meetings of the Board may be called by the Chairman of the Board, the President or the Secretary, and shall be called at the request of one-third or more of the directors.
Section 2.6 Notice of Meetings. Each member of the Board shall be given not less than one day's notice by telephone, facsimile, letter, electronic mail or in person, stating the time and place of any regular or special meeting; such notice may, but need not, state the purpose of said meeting. Notwithstanding anything in these by-laws to the contrary, a valid directors' meeting may be held without notice whenever notice thereof shall be waived in writing by all of the directors, or whenever all of the directors are present at the meeting.
Section 2.7 Quorum and Voting. A majority of the directors shall constitute a quorum at all directors' meetings. Except where the vote of a greater number of directors is required by the Articles of Association, these by-laws or under provisions of law, the vote of a majority of the directors at a meeting at which a quorum is present shall be sufficient to transact business.
Section 2.8 Proceedings and Record. The Chairman of the Board, if such officer shall have been designated by the Board, shall preside at all meetings thereof, and in his absence or inability to act (or if there shall be no Chairman of the Board) the President, and in his absence or inability to act any other director appointed chairman of the meeting pro tempore, shall preside at meetings of the directors. The Secretary, or any other person appointed by the Board, shall act as secretary of the Board and shall keep accurate minutes of all meetings.
Section 2.9 Electronic Communications. A conference among directors by any means of communication through which the directors may simultaneously hear each other during the conference constitutes a Board meeting, if the same notice is given of the conference as would be required for a meeting, and if the number of directors participating in the conference would be sufficient to constitute a quorum at a meeting. A director may participate in a regular or special Board meeting by any means of communication through which the director, other directors so participating and all directors physically present at the meeting may simultaneously hear each other during the meeting. Participation in a meeting by any means referred to in this Section 2.9 constitutes presence in person at the meeting.
Section 2.10 Action Without a Meeting. Any action required or permitted to be taken at a meeting of the Board of the Association may be taken without a meeting by written action signed by all of the directors.
Section 2.11 Vacancies. Any vacancy in the Board may be filled by appointment at any regular or special meeting of the Board by the remaining directors in accordance with the laws of the United States or by action of the shareholders in accordance with Article I of these by-laws. Any director so appointed shall hold his place until the next election.
ARTICLE III
Committees of the Board
Section 3.1 Executive Committee. The Board may appoint annually or more
often an Executive Committee consisting of two or more directors. In the event an
Executive Committee is appointed, the Executive Committee shall have the power to
approve, review, and delegate authority to make loans and otherwise extend credit and to
purchase and sell bills, notes, bonds, debentures and other legal investments and
Section 3.2 Trust Committees. The Board shall appoint a Trust Audit Committee which shall, at least once during each calendar year, make suitable audits of the Trust Department or cause suitable audits to be made by auditors responsible only to the Board and at such time shall ascertain and report to the Board whether said Department has been administered in accordance with applicable laws and regulations and sound fiduciary principles. Every report to the Board under this section, together with the action taken thereon, shall be noted in the minutes of the Board. The Board shall from time to time appoint such other committees of such membership and with such powers and duties as it is required to appoint under the provisions of Regulation 9 issued by the Comptroller of the Currency relating to the trust powers of national banks, or any amendments thereto, and may appoint such other committees of such membership and with such powers and duties as the Board may provide and as are permitted by said Regulation 9, or any amendments thereto.
Section 3.3 Other Committees. The Board, by a majority vote of the whole Board, may create from its own members or (to the extent permitted by applicable statutes, laws and regulations) from its own members and/or officers or employees of the Association such other committees as it may from time to time deem necessary, and may designate the name and term of existence and prescribe the duties thereof.
Section 3.4 Proceedings and Record. Each committee appointed by the Board
may hold regular meetings at such time or times as may be fixed by the Board or by the
committee itself. Special meetings of any committee may be called by the chairman or
vice chairman or any two members thereof. The Board may, at the time of the
appointment of any committee, designate alternate or advisory members, designate its
chairman, vice chairman, and secretary, or any one or more thereof, and the committee
itself may appoint such of said officers as have not been so designated by the Board if
they deem such appointment necessary or advisable. The secretary may but need not be a
member of the committee. The Board may at any time prescribe or change the number of
members whose presence is required to constitute a quorum at any or all meetings of a
committee. The quorum so prescribed need not be a majority of the members of the
committee. If no quorum is prescribed by the Board, the presence of a majority of the
members of the committee shall be required to constitute a quorum. Each committee
shall keep such records of its meetings and proceedings as may be required by law or
applicable regulations and may keep such additional records of its meetings and
proceedings as it deems necessary or advisable, and each committee may make such rules
of procedure for the conduct of its own meetings and the method of discharge of its duties
as it deems advisable. Each committee appointed by
ARTICLE IV
Officers and Employees
Section 4.1 Appointment of Officers. The Board shall appoint a President, one or more Vice Presidents and a Secretary and may appoint a Chairman of the Board and such other officers as from time to time may appear to the Board to be required or desirable to transact the business of the Association. Only directors shall be eligible for appointment as President or Chairman of the Board. If a director other than the President is appointed Chairman of the Board, the Board shall designate either of these two officers as the chief executive officer of this Association. Any officer designated by the Director of Human Resources as the head of a business or staff group may appoint officers at the rank of Senior Vice President, Managing Director or below, and any such designated officer may delegate this authority to another officer.
Section 4.2 Tenure of Office. Officers shall hold their respective offices for the current year for which they are appointed unless they resign, become disqualified or are removed. Any officer appointed by the Board may be removed at any time by the affirmative vote of a majority of the full Board or in accordance with authority granted by the Board. Any officer appointed by another officer may be removed at any time by the filing of a written notice by the appointing officer with the Secretary. During the year between its organization meetings, the Board may appoint additional officers and shall promptly fill any vacancy occurring in any office required to be filled.
Section 4.3 Chief Executive Officer. The chief executive officer shall supervise the carrying out of policies adopted or approved by the Board, shall have general executive powers as well as the specific powers conferred by these by-laws, and shall also have and may exercise such further powers and duties as from time to time may be conferred upon or assigned to him or her by the Board.
Section 4.4 Secretary. The Secretary shall attend to the giving of all notices required by these by-laws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of all transactions of the Association; 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.
Section 4.5 General Authority and Duties. Officers shall have the general powers and duties customarily vested in the office of such officers of a corporation and shall also exercise such powers and perform such duties as may be prescribed by the Articles of Association, by these by-laws, or by the laws or regulations governing the conduct of the business of national banking associations, and shall exercise such other powers and perform such other duties not inconsistent with the Articles of Association, these by-laws or laws or regulations as may be conferred upon or assigned to them by the Board or the chief executive officer.
Section 4.6 Employees and Agents. Subject to the authority of the Board, the chief executive officer, or any other officer of the Association authorized by him or by the Board, may appoint or dismiss all or any employees and agents and prescribe their duties and the conditions of their employment, and from time to time fix their compensation.
Section 4.7 Bonds of Officers and Employees. The officers and employees of this Association shall give bond with security to be approved by the Board in such penal sum as the Board shall require, as a condition for the faithful and honest discharge of their respective duties and for the faithful application and accounting of all monies, funds and other property which may come into their possession or may be entrusted to their care or placed in their hands. In the discretion of the Board in lieu of having individual bonds for each officer and employee, there may be substituted for the bonds provided for herein a blanket bond covering all officers and employees providing coverage in such amounts and containing such conditions and stipulations as shall be approved by the chief executive officer of this Association or his delegate but subject to the supervision and control of the Board.
ARTICLE V
Stock and Stock Certificates
Section 5.1 Transfers. Shares of stock shall be transferable only on the books of the Association upon surrender of the certificate for cancellation, and a transfer book shall be kept in which all transfers of stock shall be recorded.
Section 5.2 Stock Certificates. Certificates of stock shall be signed by the Chairman of the Board, if any, the President or a Vice President and the Secretary or any other officer appointed by the Board for that purpose, and shall be sealed with the corporate seal. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed, and shall meet the requirements of 12 U.S.C. §52, as amended.
Section 5.3 Dividends. Transfers of stock shall not be suspended preparatory to
the declaration of dividends and, unless an agreement to the contrary shall be expressed in
the assignments, dividends shall be
Section 5.4 Lost Certificates. In the event of loss or destruction of a certificate of stock, a new certificate may be issued in its place upon proof of such loss or destruction and upon receipt of an acceptable bond or agreement of indemnity as may be required by the Board.
ARTICLE VI
Corporate Seal
Section 6.1 Form. The corporate seal of the Association shall have inscribed thereon the name of the Association.
Section 6.2 Authority to Impress. The Chairman of the Board, if any, the President, the Secretary, any Assistant Secretary or other officer designated by the Board shall have authority to impress or affix the corporate seal to any document requiring such seal, and to attest the same.
ARTICLE VII
Miscellaneous Provisions
Section 7.1 Banking Hours. The days and hours during which this Association shall be open for business shall be fixed from time to time by the Board, the Chairman of the Board, if any, or the President, consistent with national and state laws governing banking and business transactions.
Section 7.2 Execution of Written Instruments. The execution, acknowledgement,
verification, delivery or acceptance on behalf of this Association of agreements,
instruments, and other documents relating to or affecting the property or business and
affairs of this Association, or of this Association when acting in any representative or
fiduciary capacity, shall be binding upon this Association if signed on its behalf by (i) any
two of the following officers: the Chairman of the Board, if any, the President, any Vice
Chairman, any Executive Vice President or any Senior Managing Director or (ii) any one
of the foregoing officers signing jointly with any Managing Director or any Senior Vice
President. Whenever any other officer or person shall be authorized to execute any
agreement, instrument or other document by resolution of the Board of Directors, or by
the chief executive officer, or by any officer or committee designated by the chief
executive officer, or by any two of the
Section 7.3 Records. The Articles of Association, these by-laws, and any amendments thereto, and the proceedings of all regular and special meetings of the directors and of the shareholders shall be recorded in appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the person appointed to act as secretary of the meeting.
Section 7.4 Fiscal Year. The fiscal year of the Association shall be the calendar year.
Section 7.5 Corporate Governance Procedures. In accordance with 12 C.F.R. Section 7.2000, to the extent not inconsistent with applicable federal banking statutes or regulations or bank safety and soundness, this Association designates and elects to follow the corporate governance procedures of the Delaware General Corporation Law, as amended from time to time.
Section 7.6 Indemnification. The Association may make or agree to make indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. Section 1813(u), for an administrative proceeding or civil action initiated by any federal banking agency, that are reasonable and consistent with the requirements of 12 U.S.C. Section 1828(k) and its implementing regulations.
The Association may indemnify an institution-affiliated party for damages and expenses, including the advancement of expenses and legal fees, in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, in accordance with the provisions set forth in the Association's Articles of Association, which provisions are in accordance with the Delaware General Corporation Law, provided such payments are consistent with safe and sound banking practices.
Section 7.7. Ownership Interests in Other Entities. With respect to any corporation, limited liability company, partnership or any other legal entity in which the Bank has or may acquire an ownership interest, the Chairman of the Board, if any, the President, the Chief Financial Officer or the Treasurer, acting alone, or any other officer or officers appointed from time to time by the Board of Directors or the Executive Committee thereof, may (a) personally authorize, sign and deliver on behalf of the Bank or authorize another person to sign and deliver on behalf of the Bank (i) any proxy, written consent, ballot or other similar instrument solicited by the entity from its owners, (ii) any stock power, assignment, bill of sale or other instrument transferring all or any part of the Bank's ownership of the entity or any agreement, instrument or other document relating thereto, (iii) any purchase of stock or other ownership interest in or contribution to the capital of such entity or any agreement, instrument or other document authorizing or evidencing the same and (iv) any agreement, consent, waiver or other document or instrument sought by the entity or an owner from the owners of the entity and (b) without limiting the generality of the foregoing, personally take, or authorize another person to take, any other action on behalf of the Bank as an owner of such entity.
ARTICLE VIII
By-Laws
Section 8.1 Inspection. A copy of these by-laws, with all amendments thereto, shall at all times be kept in a convenient place at the main office of the Association, and shall be open for inspection to all shareholders during banking hours.
Section 8.2 Amendments. These by-laws may be changed or amended at any regular or special meeting of the Board by a vote of a majority of the full Board or at any regular or special meeting of shareholders by the vote of the holders of a majority of the stock issued and outstanding and entitled to vote thereat.
Exhibit 6
May 18 , 2005WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
By: | \s\ Edward L. Truitt Jr. | |
Name: | Edward L. Truitt Jr. Title: Vice President |
Exhibit 7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business March 31, 2005 , filed in accordance with 12 U.S.C. §161 for National Banks.
Dollar Amounts | ||||
In Millions | ||||
ASSETS | ||||
Cash and balances due from depository institutions: | ||||
Noninterest-bearing balances and currency and coin | $ 13,089 | |||
Interest-bearing balances | 2,119 | |||
Securities: | ||||
Held-to-maturity securities | 0 | |||
Available-for-sale securities | 25,486 | |||
Federal funds sold and securities purchased under agreements to resell: | ||||
Federal funds sold in domestic offices | 3,066 | |||
Securities purchased under agreements to resell | 915 | |||
Loans and lease financing receivables: | ||||
Loans and leases held for sale | 38,833 | |||
Loans and leases, net of unearned income | 243,507 | |||
LESS: Allowance for loan and lease losses | 2,367 | |||
Loans and leases, net of unearned income and allowance | 241,140 | |||
Trading Assets | 6,010 | |||
Premises and fixed assets (including capitalized leases) | 3,453 | |||
Other real estate owned | 130 | |||
Investments in unconsolidated subsidiaries and associated companies | 321 | |||
Customers' liability to this bank on acceptances outstanding | 93 | |||
Intangible assets: | ||||
Goodwill | 8,612 | |||
Other intangible assets | 9,619 | |||
Other assets | 14,541 | |||
Total assets | $367,427 |
Dollar Amounts | ||||
In Millions | ||||
LIABILITIES | ||||
Deposits: | ||||
In domestic offices | $260,205 | |||
Noninterest-bearing | 78,724 | |||
Interest-bearing | 181,481 | |||
In foreign offices, Edge and Agreement subsidiaries, and IBFs | 19,915 | |||
Noninterest-bearing | 6 | |||
Interest-bearing | 19,909 | |||
Federal funds purchased and securities sold under agreements to repurchase: | ||||
Federal funds purchased in domestic offices | 11,391 | |||
Securities sold under agreements to repurchase | 3,347 | |||
Trading liabilities | 4,996 | |||
Other borrowed money | ||||
(includes mortgage indebtedness and obligations under capitalized leases) | 14,191 | |||
Bank's liability on acceptances executed and outstanding | 93 | |||
Subordinated notes and debentures | 7,606 | |||
Other liabilities | 12,350 | |||
Total liabilities | $334,094 | |||
Minority interest in consolidated subsidiaries | 52 | |||
EQUITY CAPITAL | ||||
Perpetual preferred stock and related surplus | 0 | |||
Common stock | 520 | |||
Surplus (exclude all surplus related to preferred stock) | 24,521 | |||
Retained earnings | 7,788 | |||
Accumulated other comprehensive income | 452 | |||
Other equity capital components | 0 | |||
Total equity capital | 33,281 | |||
Total liabilities, minority interest, and equity capital | $367,427 |
Karen B. Martin Vice President |
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
Howard Atkins
Carrie Tolstedt Directors
Pat Callahan
EXHIBIT 25.6
==========================================================================Not Applicable (State of incorporation if not a U.S. national bank) |
94-1347393 I.R.S. employer identification no.) |
919 Market St., Suite 701 Wilmington, DE (Address of principal executive offices) |
19801 (Zip code) |
Delaware (State or other jurisdiction of incorporation or organization) |
95-4596322 (I.R.S. employer identification no.) |
(a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency, Treasury Department Washington, D.C. 20230 Federal Deposit Insurance Corporation Washington, D.C. 20429 Federal Reserve Bank of San Francisco San Francisco, CA 94120 |
(b) | Whether it is authorized to exercise corporate trust powers. |
Exhibit 1. | A copy of the Articles of Association of the trustee now in effect. |
Exhibit 2. | A copy of the Comptroller of the Currency Certificate of Corporate Existence and Fiduciary Powers for Wells Fargo
Bank, National Association, dated February 4, 2004. |
Exhibit 3. | A copy of the authorization of the trustee to exercise corporate trust powers. (See Exhibit 2.) |
Exhibit 4. | Copy of By-laws of the trustee as now in effect. |
Exhibit 5. | Not applicable. |
Exhibit 6. | The consents of United States institutional trustees required by Section 321(b) of the Act. |
Exhibit 7. | Attached is a copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. |
Exhibit 8. | Not applicable. |
Exhibit 9. | Not applicable. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 18thday of May, 2005.
WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
By: | \s\ Edward L. Truitt Jr. | |
Name: | Edward L. Truitt Jr. Title: Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION
OF
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Effective as of February 20, 2004)
ARTICLE I - NAME
The title of this Association shall be Wells Fargo Bank, National Association. The Association may also use the abbreviation Wells Fargo Bank, N.A.
ARTICLE II - OFFICES
1. Main Office. The main office of this Association shall be in the City of Sioux Falls, County of Minnehaha, State of South Dakota. The Board of Directors shall have the power to change the location of the main office to any other place within the limits of the City of Sioux Falls, without the approval of the shareholders but subject to the approval of the Comptroller of the Currency.
2. Branch Offices. The Board of Directors shall have the power to establish or change the location of any branch or branches of this Association to any other location, without the approval of the shareholders but subject to the approval of the Comptroller of the Currency.
3. Conduct of Business. The general business of the Association shall be conducted at its main office and its branches.
ARTICLE III - BOARD OF DIRECTORS
1. Number. The Board of Directors of this Association shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full Board of Directors or by resolution of the shareholders at any annual or special meeting thereof.
2. Qualification. Each director, during the full term of his or her directorship, shall own a minimum of $1,000 par value of stock of this Association or an equivalent interest, as determined by the Comptroller of the Currency, in any company which has control over this Association within the meaning of Section 2 of the Bank Holding Company Act of 1956.
3. Vacancy. The Board of Directors, by the vote of a majority of the full Board, may, between annual meetings of shareholders, fill vacancies created by the death, incapacity or resignation of any director and by the vote of a majority of the full Board may also, between annual meetings of shareholders, increase the membership of the Board by not more than four members and by like vote appoint qualified persons to fill the vacancies created thereby; provided, however, that at no time shall there be more than twenty-five directors of this Association; and provided further, however, that not more than two members may be added to the Board of Directors in the event that the total number of directors last elected by shareholders was fifteen or less.
4. Appointment of Officers. The Board of Directors shall appoint one of its members President of this Association, who shall act as Chairman of the Board, unless the Board appoints another director to act as Chairman. In the event the Board of Directors shall appoint a President and a Chairman, the Board shall designate which person shall act as the chief executive officer of this Association. The Board of Directors shall have the power to appoint one or more Vice Presidents and to appoint a Cashier and such other officers and employees as may be required to transact the business of this Association.
5. Powers. The Board of Directors shall have the power to define the duties of the officers and employees of this Association; to fix the salaries to be paid to them; to dismiss them; to require bonds from them and to fix the penalty thereof; to regulate the manner in which the increase of the capital of this Association shall be made; to manage and administer the business and affairs of this Association; to make all Bylaws that it may be lawful for them to make; and generally to do and perform all acts that it may be legal for a Board of Directors to do and perform.
ARTICLE IV - MEETINGS OF SHAREHOLDERS
1. Annual Meeting. The annual meeting of the shareholders for the election of directors and the transaction of whatever other business may be brought before said meeting shall be held at the main office, or such other place as the Board of Directors may designate, on the day of each year specified therefor in the Bylaws, but if no election is held on that day, it may be held on any subsequent day according to the provisions of law; and all elections shall be held according to such lawful regulations as may be prescribed by the Board of Directors.
2. Special Meetings. The Board of Directors, the Chairman, the President, or any one or more shareholders owning, in the aggregate, not less than 25 percent of the stock of this Association, may call a special meeting of shareholders at any time.
3. Notice of Meetings. Unless otherwise provided by the laws of the United States, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least ten days prior to the date of such meeting to each shareholder of record at his or her address as shown upon the books of this Association.
4 Written Consents. Any action required or permitted to be taken at an annual or special meeting of the shareholders of the Association may be taken without prior written notice and without any meeting if such action is taken by written action, containing a waiver of notice, signed by all of the shareholders entitled to vote on that action.
ARTICLE V - CAPITAL
1. Capitalization. The amount of authorized capital stock of this Association shall be $1,122,000,000, divided into 112,200,000 shares of common stock of the par value of Ten Dollars ($10.00) each; but said capital stock may be increased or decreased from time to time, in accordance with the provisions of the laws of the United States.
2. Voting Rights. Each holder of common stock of the Association shall be entitled to vote on all matters, one vote for each share of common stock held by such holder. No holder of shares of the capital stock of any class of this Association shall have any pre-emptive or preferential right of subscription to any shares of any class of stock of this Association, whether now or hereafter authorized, or to any obligations convertible into stock of this Association, issued or sold, nor any right of subscription to any thereof other than such, if any, as the Board of Directors, in its discretion, may from time to time determine and at such price as the Board of Directors may from time to time fix.
3. Debt Obligations. The Association, at any time and from time to time, may authorize and issue debt obligations, whether or nor subordinated, without the approval of the shareholders.
ARTICLE VI - PERPETUAL EXISTENCE
The corporate existence of this Association shall continue until terminated in accordance with the laws of the United States.
ARTICLE VII - INDEMNIFICATION
To the extent permitted by 12 CFR 7.2014 and consistent with the requirements of 12 USC 1828(k) and the implementing regulations thereunder:
(a) Elimination of Certain Liability of Directors. A director of the Association shall not be personally liable to the Association or its shareholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Association or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit.
(b)(1) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Association or is or was serving at the request of the Association as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action or inaction in an official capacity as a director, officer, employee, or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Association to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Association to provide broader
indemnification rights than said law permitted the Association to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that the Association shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Association. The right to indemnification conferred in this paragraph (b) shall be a contract right and shall include the right to be paid by the Association the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment of such expenses incurred by a director of officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Association of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director of officer is not entitled to be indemnified under this paragraph (b) or otherwise. The Association may, by action of its Board of Directors, provide indemnification to employees and agents of the Association with the same scope and effect as the foregoing indemnification of directors and officers.
(2) Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this paragraph (b) shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Articles of Association, by-law, agreement, vote of shareholders or disinterested directors or otherwise.
(3) Insurance. The Association may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Association or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Association would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.
ARTICLE VIII - AMENDMENT
These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of this Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of holders of such greater amount.
Exhibit 2
Certificate of Corporate Existence and Fiduciary Powers
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that: | |
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and control of all records pertaining to the chartering of all National Bank Associations. | |
2. "Wells Fargo Bank, National Association," San Francisco, California, (Charter No. 1741) is a National Banking Association formed under the laws of the United States and is authorized thereunder to transact the business of banking and exercise Fiduciary Powers on the date of this Certificate. |
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the Treasury Department in the City of Washington and District of Columbia, this February 4, 2004. John D. Hawke, Jr. Comptroller of the Currency |
Exhibit 4
BY-LAWS
OF
WELLS FARGO BANK, NATIONAL ASSOCIATION
(As amended February 20, 2004)
ARTICLE I
Meetings of Shareholders
Section 1.1 Annual Meeting. The regular annual meeting of the shareholders for the election of directors and the transaction of whatever other business may properly come before the meeting shall be held at the main office of the Association in Sioux Falls, South Dakota, or such other place as the Board of Directors may designate, at 2:00 p.m., on the second Thursday of January in each year. If for any cause the annual meeting of shareholders for the election of directors is not held on the date fixed in this by-law, such meeting may be held at some other time designated by the Board of Directors, notice thereof having been given in accordance with the requirements of 12 U.S.C. §75, and the meeting conducted according to the provisions of these by-laws.
Section 1.2 Special Meetings. Except as otherwise specifically provided by statute, special meetings of shareholders may be called for any purpose at any time by the Board of Directors, the Chairman of the Board, if any, the President, or any one or more shareholders owning in the aggregate not less than twenty-five percent of the then outstanding shares, as provided in Article IV of the Articles of Association.
Section 1.3 Notice of Meetings. A notice of each annual or special shareholders' meeting, setting forth the time, place, and purpose of the meeting, shall be given, by first-class mail, postage prepaid, to each shareholder of record at least ten days prior to the date on which such meeting is to be held; but any failure to mail such notice of any annual meeting, or any irregularity therein, shall not affect the validity of such annual meeting or of any of the proceedings thereat. Notwithstanding anything in these by-laws to the contrary, a valid shareholders' meeting may be held without notice whenever notice thereof shall be waived in writing by all shareholders, or whenever all shareholders shall be present or represented at the meeting.
Section 1.4 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 the shareholders for the transaction of business,
and may transact any business except such as may, under the provisions of law, the
Articles of Association, or these by-laws, require the vote of holders of a greater number
of shares. If, however, such majority shall not be present or represented at any meeting of
the shareholders, the shareholders entitled to vote thereat, present in person or by proxy,
shall have power to adjourn the meeting from time to
Section 1.5 Proxies and Voting Rights. At each meeting of the shareholders, each shareholder having the right to vote shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such shareholder, which proxy shall be valid for that meeting or any adjournments thereof, shall be dated, and shall be filed with the records of the meeting. No officer or employee of this Association may act as proxy. Each shareholder shall have one vote for each share of stock having voting power which is registered in his name on the books of the Association. Voting for the election of directors and voting upon any other matter which may be brought before any shareholders' meeting may, but need not, be by ballot, unless voting by ballot be requested by a shareholder present at the meeting.
Section 1.6 Proceedings and Record. The Chairman of the Board, if any, shall preside at all meetings of the shareholders or, in case of his absence or inability to act, the President or, in case of the absence or inability to act of both of them, any Vice President may preside at any such meeting. The presiding officer shall appoint a person to act as secretary of each shareholders' meeting; provided, however, that the shareholders may appoint some other person to preside at their meetings or to act as secretary thereof. A record of all business transacted shall be made of each shareholders' meeting showing, among other things, the names of the shareholders present and the number of shares of stock held by each, the names of the shareholders represented by proxy and the number of shares held by each, the names of the proxies, the number of shares voted on each motion or resolution and the number of shares voted for each candidate for director. This record shall be entered in the minute book of the Association and shall be subscribed by the secretary of the meeting.
Section 1.7 Action Without a Meeting. Any action required or permitted to be taken at a meeting of the shareholders of the Association may be taken without a meeting by written action signed by all of the shareholders entitled to vote on that action.
ARTICLE II
Directors
Section 2.1 Board of Directors. The Board of Directors (hereinafter referred to as the "Board") shall have power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2 Number and Qualifications. The Board shall consist of not less than five nor more than twenty-five persons, 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 full Board or by resolution of the shareholders at any meeting thereof; provided, however, that a majority of the full Board may not increase the number of directors to a number which (i) exceeds by more than two the number of directors last elected by shareholders where such number was fifteen or less; and (ii) exceeds by more than four the number of directors last elected by shareholders where such number was sixteen or more, but in no event shall the number of directors exceed twenty-five.
Each director shall, during the full term of his directorship, be a citizen of the United States. Each director, during the full term of his directorship, shall own a minimum of $1,000 par value of stock of this Association or an equivalent interest, as determined by the Comptroller of the Currency, in any company which has control over this Association within the meaning of Section 2 of the Bank Holding Company Act of 1956, as amended.
Section 2.3 Organization Meeting. A meeting of the newly elected Board shall be held, without notice, immediately following the adjournment of the annual meeting of the shareholders, or at such other time and at such place to which said meeting may be adjourned. No business shall be transacted at any such meeting until a majority of the directors elected shall have taken an oath of office as prescribed by law, and no director elected shall participate in the business transacted at any such meeting of the Board until he shall have taken said oath. If at any such meeting there is not a quorum of the directors present who shall have taken the oath of office, the members present may adjourn the meeting from time to time until a quorum is secured. At such meeting of the newly elected Board, if a quorum is present, the directors may elect officers for the ensuing year and transact any and all business which may be brought before them.
Section 2.4 Regular Meetings. The regular meetings of the Board may be held at such time and place as shall from time to time be determined by the Board. When any regular meeting of the Board falls upon a holiday, the meeting shall be held on the next banking business day.
Section 2.5 Special Meetings. Special meetings of the Board may be called by the Chairman of the Board, the President or the Secretary, and shall be called at the request of one-third or more of the directors.
Section 2.6 Notice of Meetings. Each member of the Board shall be given not less than one day's notice by telephone, facsimile, letter, electronic mail or in person, stating the time and place of any regular or special meeting; such notice may, but need not, state the purpose of said meeting. Notwithstanding anything in these by-laws to the contrary, a valid directors' meeting may be held without notice whenever notice thereof shall be waived in writing by all of the directors, or whenever all of the directors are present at the meeting.
Section 2.7 Quorum and Voting. A majority of the directors shall constitute a quorum at all directors' meetings. Except where the vote of a greater number of directors is required by the Articles of Association, these by-laws or under provisions of law, the vote of a majority of the directors at a meeting at which a quorum is present shall be sufficient to transact business.
Section 2.8 Proceedings and Record. The Chairman of the Board, if such officer shall have been designated by the Board, shall preside at all meetings thereof, and in his absence or inability to act (or if there shall be no Chairman of the Board) the President, and in his absence or inability to act any other director appointed chairman of the meeting pro tempore, shall preside at meetings of the directors. The Secretary, or any other person appointed by the Board, shall act as secretary of the Board and shall keep accurate minutes of all meetings.
Section 2.9 Electronic Communications. A conference among directors by any means of communication through which the directors may simultaneously hear each other during the conference constitutes a Board meeting, if the same notice is given of the conference as would be required for a meeting, and if the number of directors participating in the conference would be sufficient to constitute a quorum at a meeting. A director may participate in a regular or special Board meeting by any means of communication through which the director, other directors so participating and all directors physically present at the meeting may simultaneously hear each other during the meeting. Participation in a meeting by any means referred to in this Section 2.9 constitutes presence in person at the meeting.
Section 2.10 Action Without a Meeting. Any action required or permitted to be taken at a meeting of the Board of the Association may be taken without a meeting by written action signed by all of the directors.
Section 2.11 Vacancies. Any vacancy in the Board may be filled by appointment at any regular or special meeting of the Board by the remaining directors in accordance with the laws of the United States or by action of the shareholders in accordance with Article I of these by-laws. Any director so appointed shall hold his place until the next election.
ARTICLE III
Committees of the Board
Section 3.1 Executive Committee. The Board may appoint annually or more
often an Executive Committee consisting of two or more directors. In the event an
Executive Committee is appointed, the Executive Committee shall have the power to
approve, review, and delegate authority to make loans and otherwise extend credit and to
purchase and sell bills, notes, bonds, debentures and other legal investments and
Section 3.2 Trust Committees. The Board shall appoint a Trust Audit Committee which shall, at least once during each calendar year, make suitable audits of the Trust Department or cause suitable audits to be made by auditors responsible only to the Board and at such time shall ascertain and report to the Board whether said Department has been administered in accordance with applicable laws and regulations and sound fiduciary principles. Every report to the Board under this section, together with the action taken thereon, shall be noted in the minutes of the Board. The Board shall from time to time appoint such other committees of such membership and with such powers and duties as it is required to appoint under the provisions of Regulation 9 issued by the Comptroller of the Currency relating to the trust powers of national banks, or any amendments thereto, and may appoint such other committees of such membership and with such powers and duties as the Board may provide and as are permitted by said Regulation 9, or any amendments thereto.
Section 3.3 Other Committees. The Board, by a majority vote of the whole Board, may create from its own members or (to the extent permitted by applicable statutes, laws and regulations) from its own members and/or officers or employees of the Association such other committees as it may from time to time deem necessary, and may designate the name and term of existence and prescribe the duties thereof.
Section 3.4 Proceedings and Record. Each committee appointed by the Board
may hold regular meetings at such time or times as may be fixed by the Board or by the
committee itself. Special meetings of any committee may be called by the chairman or
vice chairman or any two members thereof. The Board may, at the time of the
appointment of any committee, designate alternate or advisory members, designate its
chairman, vice chairman, and secretary, or any one or more thereof, and the committee
itself may appoint such of said officers as have not been so designated by the Board if
they deem such appointment necessary or advisable. The secretary may but need not be a
member of the committee. The Board may at any time prescribe or change the number of
members whose presence is required to constitute a quorum at any or all meetings of a
committee. The quorum so prescribed need not be a majority of the members of the
committee. If no quorum is prescribed by the Board, the presence of a majority of the
members of the committee shall be required to constitute a quorum. Each committee
shall keep such records of its meetings and proceedings as may be required by law or
applicable regulations and may keep such additional records of its meetings and
proceedings as it deems necessary or advisable, and each committee may make such rules
of procedure for the conduct of its own meetings and the method of discharge of its duties
as it deems advisable. Each committee appointed by
ARTICLE IV
Officers and Employees
Section 4.1 Appointment of Officers. The Board shall appoint a President, one or more Vice Presidents and a Secretary and may appoint a Chairman of the Board and such other officers as from time to time may appear to the Board to be required or desirable to transact the business of the Association. Only directors shall be eligible for appointment as President or Chairman of the Board. If a director other than the President is appointed Chairman of the Board, the Board shall designate either of these two officers as the chief executive officer of this Association. Any officer designated by the Director of Human Resources as the head of a business or staff group may appoint officers at the rank of Senior Vice President, Managing Director or below, and any such designated officer may delegate this authority to another officer.
Section 4.2 Tenure of Office. Officers shall hold their respective offices for the current year for which they are appointed unless they resign, become disqualified or are removed. Any officer appointed by the Board may be removed at any time by the affirmative vote of a majority of the full Board or in accordance with authority granted by the Board. Any officer appointed by another officer may be removed at any time by the filing of a written notice by the appointing officer with the Secretary. During the year between its organization meetings, the Board may appoint additional officers and shall promptly fill any vacancy occurring in any office required to be filled.
Section 4.3 Chief Executive Officer. The chief executive officer shall supervise the carrying out of policies adopted or approved by the Board, shall have general executive powers as well as the specific powers conferred by these by-laws, and shall also have and may exercise such further powers and duties as from time to time may be conferred upon or assigned to him or her by the Board.
Section 4.4 Secretary. The Secretary shall attend to the giving of all notices required by these by-laws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of all transactions of the Association; 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.
Section 4.5 General Authority and Duties. Officers shall have the general powers and duties customarily vested in the office of such officers of a corporation and shall also exercise such powers and perform such duties as may be prescribed by the Articles of Association, by these by-laws, or by the laws or regulations governing the conduct of the business of national banking associations, and shall exercise such other powers and perform such other duties not inconsistent with the Articles of Association, these by-laws or laws or regulations as may be conferred upon or assigned to them by the Board or the chief executive officer.
Section 4.6 Employees and Agents. Subject to the authority of the Board, the chief executive officer, or any other officer of the Association authorized by him or by the Board, may appoint or dismiss all or any employees and agents and prescribe their duties and the conditions of their employment, and from time to time fix their compensation.
Section 4.7 Bonds of Officers and Employees. The officers and employees of this Association shall give bond with security to be approved by the Board in such penal sum as the Board shall require, as a condition for the faithful and honest discharge of their respective duties and for the faithful application and accounting of all monies, funds and other property which may come into their possession or may be entrusted to their care or placed in their hands. In the discretion of the Board in lieu of having individual bonds for each officer and employee, there may be substituted for the bonds provided for herein a blanket bond covering all officers and employees providing coverage in such amounts and containing such conditions and stipulations as shall be approved by the chief executive officer of this Association or his delegate but subject to the supervision and control of the Board.
ARTICLE V
Stock and Stock Certificates
Section 5.1 Transfers. Shares of stock shall be transferable only on the books of the Association upon surrender of the certificate for cancellation, and a transfer book shall be kept in which all transfers of stock shall be recorded.
Section 5.2 Stock Certificates. Certificates of stock shall be signed by the Chairman of the Board, if any, the President or a Vice President and the Secretary or any other officer appointed by the Board for that purpose, and shall be sealed with the corporate seal. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed, and shall meet the requirements of 12 U.S.C. §52, as amended.
Section 5.3 Dividends. Transfers of stock shall not be suspended preparatory to
the declaration of dividends and, unless an agreement to the contrary shall be expressed in
the assignments, dividends shall be
Section 5.4 Lost Certificates. In the event of loss or destruction of a certificate of stock, a new certificate may be issued in its place upon proof of such loss or destruction and upon receipt of an acceptable bond or agreement of indemnity as may be required by the Board.
ARTICLE VI
Corporate Seal
Section 6.1 Form. The corporate seal of the Association shall have inscribed thereon the name of the Association.
Section 6.2 Authority to Impress. The Chairman of the Board, if any, the President, the Secretary, any Assistant Secretary or other officer designated by the Board shall have authority to impress or affix the corporate seal to any document requiring such seal, and to attest the same.
ARTICLE VII
Miscellaneous Provisions
Section 7.1 Banking Hours. The days and hours during which this Association shall be open for business shall be fixed from time to time by the Board, the Chairman of the Board, if any, or the President, consistent with national and state laws governing banking and business transactions.
Section 7.2 Execution of Written Instruments. The execution, acknowledgement,
verification, delivery or acceptance on behalf of this Association of agreements,
instruments, and other documents relating to or affecting the property or business and
affairs of this Association, or of this Association when acting in any representative or
fiduciary capacity, shall be binding upon this Association if signed on its behalf by (i) any
two of the following officers: the Chairman of the Board, if any, the President, any Vice
Chairman, any Executive Vice President or any Senior Managing Director or (ii) any one
of the foregoing officers signing jointly with any Managing Director or any Senior Vice
President. Whenever any other officer or person shall be authorized to execute any
agreement, instrument or other document by resolution of the Board of Directors, or by
the chief executive officer, or by any officer or committee designated by the chief
executive officer, or by any two of the
Section 7.3 Records. The Articles of Association, these by-laws, and any amendments thereto, and the proceedings of all regular and special meetings of the directors and of the shareholders shall be recorded in appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the person appointed to act as secretary of the meeting.
Section 7.4 Fiscal Year. The fiscal year of the Association shall be the calendar year.
Section 7.5 Corporate Governance Procedures. In accordance with 12 C.F.R. Section 7.2000, to the extent not inconsistent with applicable federal banking statutes or regulations or bank safety and soundness, this Association designates and elects to follow the corporate governance procedures of the Delaware General Corporation Law, as amended from time to time.
Section 7.6 Indemnification. The Association may make or agree to make indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. Section 1813(u), for an administrative proceeding or civil action initiated by any federal banking agency, that are reasonable and consistent with the requirements of 12 U.S.C. Section 1828(k) and its implementing regulations.
The Association may indemnify an institution-affiliated party for damages and expenses, including the advancement of expenses and legal fees, in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, in accordance with the provisions set forth in the Association's Articles of Association, which provisions are in accordance with the Delaware General Corporation Law, provided such payments are consistent with safe and sound banking practices.
Section 7.7. Ownership Interests in Other Entities. With respect to any corporation, limited liability company, partnership or any other legal entity in which the Bank has or may acquire an ownership interest, the Chairman of the Board, if any, the President, the Chief Financial Officer or the Treasurer, acting alone, or any other officer or officers appointed from time to time by the Board of Directors or the Executive Committee thereof, may (a) personally authorize, sign and deliver on behalf of the Bank or authorize another person to sign and deliver on behalf of the Bank (i) any proxy, written consent, ballot or other similar instrument solicited by the entity from its owners, (ii) any stock power, assignment, bill of sale or other instrument transferring all or any part of the Bank's ownership of the entity or any agreement, instrument or other document relating thereto, (iii) any purchase of stock or other ownership interest in or contribution to the capital of such entity or any agreement, instrument or other document authorizing or evidencing the same and (iv) any agreement, consent, waiver or other document or instrument sought by the entity or an owner from the owners of the entity and (b) without limiting the generality of the foregoing, personally take, or authorize another person to take, any other action on behalf of the Bank as an owner of such entity.
ARTICLE VIII
By-Laws
Section 8.1 Inspection. A copy of these by-laws, with all amendments thereto, shall at all times be kept in a convenient place at the main office of the Association, and shall be open for inspection to all shareholders during banking hours.
Section 8.2 Amendments. These by-laws may be changed or amended at any regular or special meeting of the Board by a vote of a majority of the full Board or at any regular or special meeting of shareholders by the vote of the holders of a majority of the stock issued and outstanding and entitled to vote thereat.
Exhibit 6
May 18 , 2005WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
By: | \s\ Edward L. Truitt Jr. | |
Name: | Edward L. Truitt Jr. Title: Vice President |
Exhibit 7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business March 31, 2005 , filed in accordance with 12 U.S.C. §161 for National Banks.
Dollar Amounts | ||||
In Millions | ||||
ASSETS | ||||
Cash and balances due from depository institutions: | ||||
Noninterest-bearing balances and currency and coin | $ 13,089 | |||
Interest-bearing balances | 2,119 | |||
Securities: | ||||
Held-to-maturity securities | 0 | |||
Available-for-sale securities | 25,486 | |||
Federal funds sold and securities purchased under agreements to resell: | ||||
Federal funds sold in domestic offices | 3,066 | |||
Securities purchased under agreements to resell | 915 | |||
Loans and lease financing receivables: | ||||
Loans and leases held for sale | 38,833 | |||
Loans and leases, net of unearned income | 243,507 | |||
LESS: Allowance for loan and lease losses | 2,367 | |||
Loans and leases, net of unearned income and allowance | 241,140 | |||
Trading Assets | 6,010 | |||
Premises and fixed assets (including capitalized leases) | 3,453 | |||
Other real estate owned | 130 | |||
Investments in unconsolidated subsidiaries and associated companies | 321 | |||
Customers' liability to this bank on acceptances outstanding | 93 | |||
Intangible assets: | ||||
Goodwill | 8,612 | |||
Other intangible assets | 9,619 | |||
Other assets | 14,541 | |||
Total assets | $367,427 |
Dollar Amounts | ||||
In Millions | ||||
LIABILITIES | ||||
Deposits: | ||||
In domestic offices | $260,205 | |||
Noninterest-bearing | 78,724 | |||
Interest-bearing | 181,481 | |||
In foreign offices, Edge and Agreement subsidiaries, and IBFs | 19,915 | |||
Noninterest-bearing | 6 | |||
Interest-bearing | 19,909 | |||
Federal funds purchased and securities sold under agreements to repurchase: | ||||
Federal funds purchased in domestic offices | 11,391 | |||
Securities sold under agreements to repurchase | 3,347 | |||
Trading liabilities | 4,996 | |||
Other borrowed money | ||||
(includes mortgage indebtedness and obligations under capitalized leases) | 14,191 | |||
Bank's liability on acceptances executed and outstanding | 93 | |||
Subordinated notes and debentures | 7,606 | |||
Other liabilities | 12,350 | |||
Total liabilities | $334,094 | |||
Minority interest in consolidated subsidiaries | 52 | |||
EQUITY CAPITAL | ||||
Perpetual preferred stock and related surplus | 0 | |||
Common stock | 520 | |||
Surplus (exclude all surplus related to preferred stock) | 24,521 | |||
Retained earnings | 7,788 | |||
Accumulated other comprehensive income | 452 | |||
Other equity capital components | 0 | |||
Total equity capital | 33,281 | |||
Total liabilities, minority interest, and equity capital | $367,427 |
Karen B. Martin Vice President |
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
Howard Atkins
Carrie Tolstedt Directors
Pat Callahan
EXHIBIT 25.7
==========================================================================Not Applicable (State of incorporation if not a U.S. national bank) |
94-1347393 I.R.S. employer identification no.) |
919 Market St., Suite 701 Wilmington, DE (Address of principal executive offices) |
19801 (Zip code) |
Delaware (State or other jurisdiction of incorporation or organization) |
95-4596322 (I.R.S. employer identification no.) |
(a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency, Treasury Department Washington, D.C. 20230 Federal Deposit Insurance Corporation Washington, D.C. 20429 Federal Reserve Bank of San Francisco San Francisco, CA 94120 |
(b) | Whether it is authorized to exercise corporate trust powers. |
Exhibit 1. | A copy of the Articles of Association of the trustee now in effect. |
Exhibit 2. | A copy of the Comptroller of the Currency Certificate of Corporate Existence and Fiduciary Powers for Wells Fargo
Bank, National Association, dated February 4, 2004. |
Exhibit 3. | A copy of the authorization of the trustee to exercise corporate trust powers. (See Exhibit 2.) |
Exhibit 4. | Copy of By-laws of the trustee as now in effect. |
Exhibit 5. | Not applicable. |
Exhibit 6. | The consents of United States institutional trustees required by Section 321(b) of the Act. |
Exhibit 7. | Attached is a copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. |
Exhibit 8. | Not applicable. |
Exhibit 9. | Not applicable. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 18thday of May, 2005.
WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
By: | \s\ Edward L. Truitt Jr. | |
Name: | Edward L. Truitt Jr. Title: Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION
OF
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Effective as of February 20, 2004)
ARTICLE I - NAME
The title of this Association shall be Wells Fargo Bank, National Association. The Association may also use the abbreviation Wells Fargo Bank, N.A.
ARTICLE II - OFFICES
1. Main Office. The main office of this Association shall be in the City of Sioux Falls, County of Minnehaha, State of South Dakota. The Board of Directors shall have the power to change the location of the main office to any other place within the limits of the City of Sioux Falls, without the approval of the shareholders but subject to the approval of the Comptroller of the Currency.
2. Branch Offices. The Board of Directors shall have the power to establish or change the location of any branch or branches of this Association to any other location, without the approval of the shareholders but subject to the approval of the Comptroller of the Currency.
3. Conduct of Business. The general business of the Association shall be conducted at its main office and its branches.
ARTICLE III - BOARD OF DIRECTORS
1. Number. The Board of Directors of this Association shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full Board of Directors or by resolution of the shareholders at any annual or special meeting thereof.
2. Qualification. Each director, during the full term of his or her directorship, shall own a minimum of $1,000 par value of stock of this Association or an equivalent interest, as determined by the Comptroller of the Currency, in any company which has control over this Association within the meaning of Section 2 of the Bank Holding Company Act of 1956.
3. Vacancy. The Board of Directors, by the vote of a majority of the full Board, may, between annual meetings of shareholders, fill vacancies created by the death, incapacity or resignation of any director and by the vote of a majority of the full Board may also, between annual meetings of shareholders, increase the membership of the Board by not more than four members and by like vote appoint qualified persons to fill the vacancies created thereby; provided, however, that at no time shall there be more than twenty-five directors of this Association; and provided further, however, that not more than two members may be added to the Board of Directors in the event that the total number of directors last elected by shareholders was fifteen or less.
4. Appointment of Officers. The Board of Directors shall appoint one of its members President of this Association, who shall act as Chairman of the Board, unless the Board appoints another director to act as Chairman. In the event the Board of Directors shall appoint a President and a Chairman, the Board shall designate which person shall act as the chief executive officer of this Association. The Board of Directors shall have the power to appoint one or more Vice Presidents and to appoint a Cashier and such other officers and employees as may be required to transact the business of this Association.
5. Powers. The Board of Directors shall have the power to define the duties of the officers and employees of this Association; to fix the salaries to be paid to them; to dismiss them; to require bonds from them and to fix the penalty thereof; to regulate the manner in which the increase of the capital of this Association shall be made; to manage and administer the business and affairs of this Association; to make all Bylaws that it may be lawful for them to make; and generally to do and perform all acts that it may be legal for a Board of Directors to do and perform.
ARTICLE IV - MEETINGS OF SHAREHOLDERS
1. Annual Meeting. The annual meeting of the shareholders for the election of directors and the transaction of whatever other business may be brought before said meeting shall be held at the main office, or such other place as the Board of Directors may designate, on the day of each year specified therefor in the Bylaws, but if no election is held on that day, it may be held on any subsequent day according to the provisions of law; and all elections shall be held according to such lawful regulations as may be prescribed by the Board of Directors.
2. Special Meetings. The Board of Directors, the Chairman, the President, or any one or more shareholders owning, in the aggregate, not less than 25 percent of the stock of this Association, may call a special meeting of shareholders at any time.
3. Notice of Meetings. Unless otherwise provided by the laws of the United States, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least ten days prior to the date of such meeting to each shareholder of record at his or her address as shown upon the books of this Association.
4 Written Consents. Any action required or permitted to be taken at an annual or special meeting of the shareholders of the Association may be taken without prior written notice and without any meeting if such action is taken by written action, containing a waiver of notice, signed by all of the shareholders entitled to vote on that action.
ARTICLE V - CAPITAL
1. Capitalization. The amount of authorized capital stock of this Association shall be $1,122,000,000, divided into 112,200,000 shares of common stock of the par value of Ten Dollars ($10.00) each; but said capital stock may be increased or decreased from time to time, in accordance with the provisions of the laws of the United States.
2. Voting Rights. Each holder of common stock of the Association shall be entitled to vote on all matters, one vote for each share of common stock held by such holder. No holder of shares of the capital stock of any class of this Association shall have any pre-emptive or preferential right of subscription to any shares of any class of stock of this Association, whether now or hereafter authorized, or to any obligations convertible into stock of this Association, issued or sold, nor any right of subscription to any thereof other than such, if any, as the Board of Directors, in its discretion, may from time to time determine and at such price as the Board of Directors may from time to time fix.
3. Debt Obligations. The Association, at any time and from time to time, may authorize and issue debt obligations, whether or nor subordinated, without the approval of the shareholders.
ARTICLE VI - PERPETUAL EXISTENCE
The corporate existence of this Association shall continue until terminated in accordance with the laws of the United States.
ARTICLE VII - INDEMNIFICATION
To the extent permitted by 12 CFR 7.2014 and consistent with the requirements of 12 USC 1828(k) and the implementing regulations thereunder:
(a) Elimination of Certain Liability of Directors. A director of the Association shall not be personally liable to the Association or its shareholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Association or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit.
(b)(1) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Association or is or was serving at the request of the Association as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action or inaction in an official capacity as a director, officer, employee, or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Association to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Association to provide broader
indemnification rights than said law permitted the Association to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that the Association shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Association. The right to indemnification conferred in this paragraph (b) shall be a contract right and shall include the right to be paid by the Association the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment of such expenses incurred by a director of officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Association of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director of officer is not entitled to be indemnified under this paragraph (b) or otherwise. The Association may, by action of its Board of Directors, provide indemnification to employees and agents of the Association with the same scope and effect as the foregoing indemnification of directors and officers.
(2) Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this paragraph (b) shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Articles of Association, by-law, agreement, vote of shareholders or disinterested directors or otherwise.
(3) Insurance. The Association may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Association or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Association would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.
ARTICLE VIII - AMENDMENT
These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of this Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of holders of such greater amount.
Exhibit 2
Certificate of Corporate Existence and Fiduciary Powers
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that: | |
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and control of all records pertaining to the chartering of all National Bank Associations. | |
2. "Wells Fargo Bank, National Association," San Francisco, California, (Charter No. 1741) is a National Banking Association formed under the laws of the United States and is authorized thereunder to transact the business of banking and exercise Fiduciary Powers on the date of this Certificate. |
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the Treasury Department in the City of Washington and District of Columbia, this February 4, 2004. John D. Hawke, Jr. Comptroller of the Currency |
Exhibit 4
BY-LAWS
OF
WELLS FARGO BANK, NATIONAL ASSOCIATION
(As amended February 20, 2004)
ARTICLE I
Meetings of Shareholders
Section 1.1 Annual Meeting. The regular annual meeting of the shareholders for the election of directors and the transaction of whatever other business may properly come before the meeting shall be held at the main office of the Association in Sioux Falls, South Dakota, or such other place as the Board of Directors may designate, at 2:00 p.m., on the second Thursday of January in each year. If for any cause the annual meeting of shareholders for the election of directors is not held on the date fixed in this by-law, such meeting may be held at some other time designated by the Board of Directors, notice thereof having been given in accordance with the requirements of 12 U.S.C. §75, and the meeting conducted according to the provisions of these by-laws.
Section 1.2 Special Meetings. Except as otherwise specifically provided by statute, special meetings of shareholders may be called for any purpose at any time by the Board of Directors, the Chairman of the Board, if any, the President, or any one or more shareholders owning in the aggregate not less than twenty-five percent of the then outstanding shares, as provided in Article IV of the Articles of Association.
Section 1.3 Notice of Meetings. A notice of each annual or special shareholders' meeting, setting forth the time, place, and purpose of the meeting, shall be given, by first-class mail, postage prepaid, to each shareholder of record at least ten days prior to the date on which such meeting is to be held; but any failure to mail such notice of any annual meeting, or any irregularity therein, shall not affect the validity of such annual meeting or of any of the proceedings thereat. Notwithstanding anything in these by-laws to the contrary, a valid shareholders' meeting may be held without notice whenever notice thereof shall be waived in writing by all shareholders, or whenever all shareholders shall be present or represented at the meeting.
Section 1.4 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 the shareholders for the transaction of business,
and may transact any business except such as may, under the provisions of law, the
Articles of Association, or these by-laws, require the vote of holders of a greater number
of shares. If, however, such majority shall not be present or represented at any meeting of
the shareholders, the shareholders entitled to vote thereat, present in person or by proxy,
shall have power to adjourn the meeting from time to
Section 1.5 Proxies and Voting Rights. At each meeting of the shareholders, each shareholder having the right to vote shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such shareholder, which proxy shall be valid for that meeting or any adjournments thereof, shall be dated, and shall be filed with the records of the meeting. No officer or employee of this Association may act as proxy. Each shareholder shall have one vote for each share of stock having voting power which is registered in his name on the books of the Association. Voting for the election of directors and voting upon any other matter which may be brought before any shareholders' meeting may, but need not, be by ballot, unless voting by ballot be requested by a shareholder present at the meeting.
Section 1.6 Proceedings and Record. The Chairman of the Board, if any, shall preside at all meetings of the shareholders or, in case of his absence or inability to act, the President or, in case of the absence or inability to act of both of them, any Vice President may preside at any such meeting. The presiding officer shall appoint a person to act as secretary of each shareholders' meeting; provided, however, that the shareholders may appoint some other person to preside at their meetings or to act as secretary thereof. A record of all business transacted shall be made of each shareholders' meeting showing, among other things, the names of the shareholders present and the number of shares of stock held by each, the names of the shareholders represented by proxy and the number of shares held by each, the names of the proxies, the number of shares voted on each motion or resolution and the number of shares voted for each candidate for director. This record shall be entered in the minute book of the Association and shall be subscribed by the secretary of the meeting.
Section 1.7 Action Without a Meeting. Any action required or permitted to be taken at a meeting of the shareholders of the Association may be taken without a meeting by written action signed by all of the shareholders entitled to vote on that action.
ARTICLE II
Directors
Section 2.1 Board of Directors. The Board of Directors (hereinafter referred to as the "Board") shall have power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2 Number and Qualifications. The Board shall consist of not less than five nor more than twenty-five persons, 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 full Board or by resolution of the shareholders at any meeting thereof; provided, however, that a majority of the full Board may not increase the number of directors to a number which (i) exceeds by more than two the number of directors last elected by shareholders where such number was fifteen or less; and (ii) exceeds by more than four the number of directors last elected by shareholders where such number was sixteen or more, but in no event shall the number of directors exceed twenty-five.
Each director shall, during the full term of his directorship, be a citizen of the United States. Each director, during the full term of his directorship, shall own a minimum of $1,000 par value of stock of this Association or an equivalent interest, as determined by the Comptroller of the Currency, in any company which has control over this Association within the meaning of Section 2 of the Bank Holding Company Act of 1956, as amended.
Section 2.3 Organization Meeting. A meeting of the newly elected Board shall be held, without notice, immediately following the adjournment of the annual meeting of the shareholders, or at such other time and at such place to which said meeting may be adjourned. No business shall be transacted at any such meeting until a majority of the directors elected shall have taken an oath of office as prescribed by law, and no director elected shall participate in the business transacted at any such meeting of the Board until he shall have taken said oath. If at any such meeting there is not a quorum of the directors present who shall have taken the oath of office, the members present may adjourn the meeting from time to time until a quorum is secured. At such meeting of the newly elected Board, if a quorum is present, the directors may elect officers for the ensuing year and transact any and all business which may be brought before them.
Section 2.4 Regular Meetings. The regular meetings of the Board may be held at such time and place as shall from time to time be determined by the Board. When any regular meeting of the Board falls upon a holiday, the meeting shall be held on the next banking business day.
Section 2.5 Special Meetings. Special meetings of the Board may be called by the Chairman of the Board, the President or the Secretary, and shall be called at the request of one-third or more of the directors.
Section 2.6 Notice of Meetings. Each member of the Board shall be given not less than one day's notice by telephone, facsimile, letter, electronic mail or in person, stating the time and place of any regular or special meeting; such notice may, but need not, state the purpose of said meeting. Notwithstanding anything in these by-laws to the contrary, a valid directors' meeting may be held without notice whenever notice thereof shall be waived in writing by all of the directors, or whenever all of the directors are present at the meeting.
Section 2.7 Quorum and Voting. A majority of the directors shall constitute a quorum at all directors' meetings. Except where the vote of a greater number of directors is required by the Articles of Association, these by-laws or under provisions of law, the vote of a majority of the directors at a meeting at which a quorum is present shall be sufficient to transact business.
Section 2.8 Proceedings and Record. The Chairman of the Board, if such officer shall have been designated by the Board, shall preside at all meetings thereof, and in his absence or inability to act (or if there shall be no Chairman of the Board) the President, and in his absence or inability to act any other director appointed chairman of the meeting pro tempore, shall preside at meetings of the directors. The Secretary, or any other person appointed by the Board, shall act as secretary of the Board and shall keep accurate minutes of all meetings.
Section 2.9 Electronic Communications. A conference among directors by any means of communication through which the directors may simultaneously hear each other during the conference constitutes a Board meeting, if the same notice is given of the conference as would be required for a meeting, and if the number of directors participating in the conference would be sufficient to constitute a quorum at a meeting. A director may participate in a regular or special Board meeting by any means of communication through which the director, other directors so participating and all directors physically present at the meeting may simultaneously hear each other during the meeting. Participation in a meeting by any means referred to in this Section 2.9 constitutes presence in person at the meeting.
Section 2.10 Action Without a Meeting. Any action required or permitted to be taken at a meeting of the Board of the Association may be taken without a meeting by written action signed by all of the directors.
Section 2.11 Vacancies. Any vacancy in the Board may be filled by appointment at any regular or special meeting of the Board by the remaining directors in accordance with the laws of the United States or by action of the shareholders in accordance with Article I of these by-laws. Any director so appointed shall hold his place until the next election.
ARTICLE III
Committees of the Board
Section 3.1 Executive Committee. The Board may appoint annually or more
often an Executive Committee consisting of two or more directors. In the event an
Executive Committee is appointed, the Executive Committee shall have the power to
approve, review, and delegate authority to make loans and otherwise extend credit and to
purchase and sell bills, notes, bonds, debentures and other legal investments and
Section 3.2 Trust Committees. The Board shall appoint a Trust Audit Committee which shall, at least once during each calendar year, make suitable audits of the Trust Department or cause suitable audits to be made by auditors responsible only to the Board and at such time shall ascertain and report to the Board whether said Department has been administered in accordance with applicable laws and regulations and sound fiduciary principles. Every report to the Board under this section, together with the action taken thereon, shall be noted in the minutes of the Board. The Board shall from time to time appoint such other committees of such membership and with such powers and duties as it is required to appoint under the provisions of Regulation 9 issued by the Comptroller of the Currency relating to the trust powers of national banks, or any amendments thereto, and may appoint such other committees of such membership and with such powers and duties as the Board may provide and as are permitted by said Regulation 9, or any amendments thereto.
Section 3.3 Other Committees. The Board, by a majority vote of the whole Board, may create from its own members or (to the extent permitted by applicable statutes, laws and regulations) from its own members and/or officers or employees of the Association such other committees as it may from time to time deem necessary, and may designate the name and term of existence and prescribe the duties thereof.
Section 3.4 Proceedings and Record. Each committee appointed by the Board
may hold regular meetings at such time or times as may be fixed by the Board or by the
committee itself. Special meetings of any committee may be called by the chairman or
vice chairman or any two members thereof. The Board may, at the time of the
appointment of any committee, designate alternate or advisory members, designate its
chairman, vice chairman, and secretary, or any one or more thereof, and the committee
itself may appoint such of said officers as have not been so designated by the Board if
they deem such appointment necessary or advisable. The secretary may but need not be a
member of the committee. The Board may at any time prescribe or change the number of
members whose presence is required to constitute a quorum at any or all meetings of a
committee. The quorum so prescribed need not be a majority of the members of the
committee. If no quorum is prescribed by the Board, the presence of a majority of the
members of the committee shall be required to constitute a quorum. Each committee
shall keep such records of its meetings and proceedings as may be required by law or
applicable regulations and may keep such additional records of its meetings and
proceedings as it deems necessary or advisable, and each committee may make such rules
of procedure for the conduct of its own meetings and the method of discharge of its duties
as it deems advisable. Each committee appointed by
ARTICLE IV
Officers and Employees
Section 4.1 Appointment of Officers. The Board shall appoint a President, one or more Vice Presidents and a Secretary and may appoint a Chairman of the Board and such other officers as from time to time may appear to the Board to be required or desirable to transact the business of the Association. Only directors shall be eligible for appointment as President or Chairman of the Board. If a director other than the President is appointed Chairman of the Board, the Board shall designate either of these two officers as the chief executive officer of this Association. Any officer designated by the Director of Human Resources as the head of a business or staff group may appoint officers at the rank of Senior Vice President, Managing Director or below, and any such designated officer may delegate this authority to another officer.
Section 4.2 Tenure of Office. Officers shall hold their respective offices for the current year for which they are appointed unless they resign, become disqualified or are removed. Any officer appointed by the Board may be removed at any time by the affirmative vote of a majority of the full Board or in accordance with authority granted by the Board. Any officer appointed by another officer may be removed at any time by the filing of a written notice by the appointing officer with the Secretary. During the year between its organization meetings, the Board may appoint additional officers and shall promptly fill any vacancy occurring in any office required to be filled.
Section 4.3 Chief Executive Officer. The chief executive officer shall supervise the carrying out of policies adopted or approved by the Board, shall have general executive powers as well as the specific powers conferred by these by-laws, and shall also have and may exercise such further powers and duties as from time to time may be conferred upon or assigned to him or her by the Board.
Section 4.4 Secretary. The Secretary shall attend to the giving of all notices required by these by-laws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of all transactions of the Association; 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.
Section 4.5 General Authority and Duties. Officers shall have the general powers and duties customarily vested in the office of such officers of a corporation and shall also exercise such powers and perform such duties as may be prescribed by the Articles of Association, by these by-laws, or by the laws or regulations governing the conduct of the business of national banking associations, and shall exercise such other powers and perform such other duties not inconsistent with the Articles of Association, these by-laws or laws or regulations as may be conferred upon or assigned to them by the Board or the chief executive officer.
Section 4.6 Employees and Agents. Subject to the authority of the Board, the chief executive officer, or any other officer of the Association authorized by him or by the Board, may appoint or dismiss all or any employees and agents and prescribe their duties and the conditions of their employment, and from time to time fix their compensation.
Section 4.7 Bonds of Officers and Employees. The officers and employees of this Association shall give bond with security to be approved by the Board in such penal sum as the Board shall require, as a condition for the faithful and honest discharge of their respective duties and for the faithful application and accounting of all monies, funds and other property which may come into their possession or may be entrusted to their care or placed in their hands. In the discretion of the Board in lieu of having individual bonds for each officer and employee, there may be substituted for the bonds provided for herein a blanket bond covering all officers and employees providing coverage in such amounts and containing such conditions and stipulations as shall be approved by the chief executive officer of this Association or his delegate but subject to the supervision and control of the Board.
ARTICLE V
Stock and Stock Certificates
Section 5.1 Transfers. Shares of stock shall be transferable only on the books of the Association upon surrender of the certificate for cancellation, and a transfer book shall be kept in which all transfers of stock shall be recorded.
Section 5.2 Stock Certificates. Certificates of stock shall be signed by the Chairman of the Board, if any, the President or a Vice President and the Secretary or any other officer appointed by the Board for that purpose, and shall be sealed with the corporate seal. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed, and shall meet the requirements of 12 U.S.C. §52, as amended.
Section 5.3 Dividends. Transfers of stock shall not be suspended preparatory to
the declaration of dividends and, unless an agreement to the contrary shall be expressed in
the assignments, dividends shall be
Section 5.4 Lost Certificates. In the event of loss or destruction of a certificate of stock, a new certificate may be issued in its place upon proof of such loss or destruction and upon receipt of an acceptable bond or agreement of indemnity as may be required by the Board.
ARTICLE VI
Corporate Seal
Section 6.1 Form. The corporate seal of the Association shall have inscribed thereon the name of the Association.
Section 6.2 Authority to Impress. The Chairman of the Board, if any, the President, the Secretary, any Assistant Secretary or other officer designated by the Board shall have authority to impress or affix the corporate seal to any document requiring such seal, and to attest the same.
ARTICLE VII
Miscellaneous Provisions
Section 7.1 Banking Hours. The days and hours during which this Association shall be open for business shall be fixed from time to time by the Board, the Chairman of the Board, if any, or the President, consistent with national and state laws governing banking and business transactions.
Section 7.2 Execution of Written Instruments. The execution, acknowledgement,
verification, delivery or acceptance on behalf of this Association of agreements,
instruments, and other documents relating to or affecting the property or business and
affairs of this Association, or of this Association when acting in any representative or
fiduciary capacity, shall be binding upon this Association if signed on its behalf by (i) any
two of the following officers: the Chairman of the Board, if any, the President, any Vice
Chairman, any Executive Vice President or any Senior Managing Director or (ii) any one
of the foregoing officers signing jointly with any Managing Director or any Senior Vice
President. Whenever any other officer or person shall be authorized to execute any
agreement, instrument or other document by resolution of the Board of Directors, or by
the chief executive officer, or by any officer or committee designated by the chief
executive officer, or by any two of the
Section 7.3 Records. The Articles of Association, these by-laws, and any amendments thereto, and the proceedings of all regular and special meetings of the directors and of the shareholders shall be recorded in appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the person appointed to act as secretary of the meeting.
Section 7.4 Fiscal Year. The fiscal year of the Association shall be the calendar year.
Section 7.5 Corporate Governance Procedures. In accordance with 12 C.F.R. Section 7.2000, to the extent not inconsistent with applicable federal banking statutes or regulations or bank safety and soundness, this Association designates and elects to follow the corporate governance procedures of the Delaware General Corporation Law, as amended from time to time.
Section 7.6 Indemnification. The Association may make or agree to make indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. Section 1813(u), for an administrative proceeding or civil action initiated by any federal banking agency, that are reasonable and consistent with the requirements of 12 U.S.C. Section 1828(k) and its implementing regulations.
The Association may indemnify an institution-affiliated party for damages and expenses, including the advancement of expenses and legal fees, in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, in accordance with the provisions set forth in the Association's Articles of Association, which provisions are in accordance with the Delaware General Corporation Law, provided such payments are consistent with safe and sound banking practices.
Section 7.7. Ownership Interests in Other Entities. With respect to any corporation, limited liability company, partnership or any other legal entity in which the Bank has or may acquire an ownership interest, the Chairman of the Board, if any, the President, the Chief Financial Officer or the Treasurer, acting alone, or any other officer or officers appointed from time to time by the Board of Directors or the Executive Committee thereof, may (a) personally authorize, sign and deliver on behalf of the Bank or authorize another person to sign and deliver on behalf of the Bank (i) any proxy, written consent, ballot or other similar instrument solicited by the entity from its owners, (ii) any stock power, assignment, bill of sale or other instrument transferring all or any part of the Bank's ownership of the entity or any agreement, instrument or other document relating thereto, (iii) any purchase of stock or other ownership interest in or contribution to the capital of such entity or any agreement, instrument or other document authorizing or evidencing the same and (iv) any agreement, consent, waiver or other document or instrument sought by the entity or an owner from the owners of the entity and (b) without limiting the generality of the foregoing, personally take, or authorize another person to take, any other action on behalf of the Bank as an owner of such entity.
ARTICLE VIII
By-Laws
Section 8.1 Inspection. A copy of these by-laws, with all amendments thereto, shall at all times be kept in a convenient place at the main office of the Association, and shall be open for inspection to all shareholders during banking hours.
Section 8.2 Amendments. These by-laws may be changed or amended at any regular or special meeting of the Board by a vote of a majority of the full Board or at any regular or special meeting of shareholders by the vote of the holders of a majority of the stock issued and outstanding and entitled to vote thereat.
Exhibit 6
May 18 , 2005WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
By: | \s\ Edward L. Truitt Jr. | |
Name: | Edward L. Truitt Jr. Title: Vice President |
Exhibit 7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business March 31, 2005 , filed in accordance with 12 U.S.C. §161 for National Banks.
Dollar Amounts | ||||
In Millions | ||||
ASSETS | ||||
Cash and balances due from depository institutions: | ||||
Noninterest-bearing balances and currency and coin | $ 13,089 | |||
Interest-bearing balances | 2,119 | |||
Securities: | ||||
Held-to-maturity securities | 0 | |||
Available-for-sale securities | 25,486 | |||
Federal funds sold and securities purchased under agreements to resell: | ||||
Federal funds sold in domestic offices | 3,066 | |||
Securities purchased under agreements to resell | 915 | |||
Loans and lease financing receivables: | ||||
Loans and leases held for sale | 38,833 | |||
Loans and leases, net of unearned income | 243,507 | |||
LESS: Allowance for loan and lease losses | 2,367 | |||
Loans and leases, net of unearned income and allowance | 241,140 | |||
Trading Assets | 6,010 | |||
Premises and fixed assets (including capitalized leases) | 3,453 | |||
Other real estate owned | 130 | |||
Investments in unconsolidated subsidiaries and associated companies | 321 | |||
Customers' liability to this bank on acceptances outstanding | 93 | |||
Intangible assets: | ||||
Goodwill | 8,612 | |||
Other intangible assets | 9,619 | |||
Other assets | 14,541 | |||
Total assets | $367,427 |
Dollar Amounts | ||||
In Millions | ||||
LIABILITIES | ||||
Deposits: | ||||
In domestic offices | $260,205 | |||
Noninterest-bearing | 78,724 | |||
Interest-bearing | 181,481 | |||
In foreign offices, Edge and Agreement subsidiaries, and IBFs | 19,915 | |||
Noninterest-bearing | 6 | |||
Interest-bearing | 19,909 | |||
Federal funds purchased and securities sold under agreements to repurchase: | ||||
Federal funds purchased in domestic offices | 11,391 | |||
Securities sold under agreements to repurchase | 3,347 | |||
Trading liabilities | 4,996 | |||
Other borrowed money | ||||
(includes mortgage indebtedness and obligations under capitalized leases) | 14,191 | |||
Bank's liability on acceptances executed and outstanding | 93 | |||
Subordinated notes and debentures | 7,606 | |||
Other liabilities | 12,350 | |||
Total liabilities | $334,094 | |||
Minority interest in consolidated subsidiaries | 52 | |||
EQUITY CAPITAL | ||||
Perpetual preferred stock and related surplus | 0 | |||
Common stock | 520 | |||
Surplus (exclude all surplus related to preferred stock) | 24,521 | |||
Retained earnings | 7,788 | |||
Accumulated other comprehensive income | 452 | |||
Other equity capital components | 0 | |||
Total equity capital | 33,281 | |||
Total liabilities, minority interest, and equity capital | $367,427 |
Karen B. Martin Vice President |
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
Howard Atkins
Carrie Tolstedt Directors
Pat Callahan