EXHIBIT 25.1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a Trustee Pursuant to
Section 305(b)(2) __
WILMINGTON TRUST COMPANY
(Exact name of Trustee as specified in its charter)
DELAWARE 51-0055023
(Jurisdiction of incorporation of (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
1100 NORTH MARKET STREET
WILMINGTON, DELAWARE 19890-0001
(302) 651-1000
(Address of principal executive offices, including zip code)
CAROLYN MCKINNEY AFSHAR
VICE PRESIDENT AND COUNSEL
WILMINGTON TRUST COMPANY
1100 NORTH MARKET STREET
WILMINGTON, DELAWARE 19890-0001
(302) 651-1360
(Name, address, including zip code, and telephone number, including area code,
of agent of service)
GREAT WOLF RESORTS, INC.
(Exact name of obligor as specified in its charter)
DELAWARE 51-0510250
(State or other jurisdiction or (I.R.S. Employer
incorporation or organization) Identification No.)
122 WEST WASHINGTON AVENUE
MADISON, WISCONSIN 53703
(Address of principal executive offices, including zip code)
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JUNIOR SUBORDINATED DEBENTURES
(Title of the indenture securities)
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ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Federal Deposit Insurance Corp. State Bank Commissioner
20 Exchange Place, Room 6014 555 East Loockerman Street, Suite 210
New York, New York 10005 Dover, Delaware 19901
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each affiliation:
Based upon an examination of the books and records of the trustee and
information available to the trustee, the obligor is not an affiliate of
the trustee.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of Eligibility and
Qualification.
- A copy of the Charter of Wilmington Trust Company (Exhibit 1), which
includes the certificate of authority of Wilmington Trust Company to
commence business (Exhibit 2) and the authorization of Wilmington
Trust Company to exercise corporate trust powers (Exhibit 3).
- A copy of the existing By-Laws of Wilmington Trust Company (Exhibit
4).
- Consent of Wilmington Trust Company required by Section 321(b) of the
Trust Indenture Act (Exhibit 6).
- A copy of the latest Report of Condition of Wilmington Trust Company
(Exhibit 7).
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, Wilmington Trust Company, a corporation organized and existing under
the laws of Delaware, 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 20th day of June, 2006.
[SEAL] WILMINGTON TRUST COMPANY
Attest: /s/ Christopher J. Monigle By: /s/ Patricia A. Evans
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Assistant Secretary Name: Patricia A. Evans
Title: Vice President
EXHIBIT 1
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is WILMINGTON TRUST
COMPANY whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the Corporation shall
require, to make by-laws not inconsistent with the Constitution
or laws of the United States or of this State, to discount bills,
notes or other evidences of debt, to receive deposits of money,
or securities for money, to buy gold and silver bullion and
foreign coins, to buy and sell bills of exchange, and generally
to use, exercise and enjoy all the powers, rights, privileges and
franchises incident to a corporation which are proper or
necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate
or interests therein, and to guarantee the holder of such
property, real or personal, against any claim or claims, adverse
to his interest therein, and to prepare and give certificates of
title for any lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its
branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property of
every sort and kind, from executors, administrators, guardians,
public officers, courts, receivers, assignees, trustees, and from
all fiduciaries, and from all other persons and individuals, and
from all corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other receptacles
for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act
as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in
conjunction with any other person or persons, corporation or
corporations.
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding places
of responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with
any other person, or persons, corporation, or corporations, or in
like manner become surety upon any bond, recognizance,
obligation, judgment, suit, order, or decree to be entered in any
court of record within the State of Delaware or elsewhere, or
which may now or hereafter be required by any law, judge, officer
or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity in the receiving, holding, managing, and
disposing of any and all estates and property, real, personal or
mixed, and to be appointed as such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons, corporations,
court, officer, or authority, in the State of Delaware or
elsewhere; and whenever this Corporation is so appointed by any
person, corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as security
for the performance of the duties devolving upon it by such
appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to
perform, or for the assumption of any responsibility the said
Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for,
and dispose of interest, dividends and income upon and from any
of the bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property, any and
all
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the rights, powers and privileges of individual owners thereof,
including the right to vote thereon; to invest and deal in and
with any of the moneys of the Corporation upon such securities
and in such manner as it may think fit and proper, and from time
to time to vary or realize such investments; to issue bonds and
secure the same by pledges or deeds of trust or mortgages of or
upon the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when the
Board of Directors shall determine, and in the promotion of its
said corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge, mortgage and convey real and personal property
of any name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred
by the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of
the world.
(2) To acquire the good will, rights, property and franchises and
to undertake the whole or any part of the assets and liabilities
of any person, firm, association or corporation, and to pay for
the same in cash, stock of this Corporation, bonds or otherwise;
to hold or in any manner to dispose of the whole or any part of
the property so purchased; to conduct in any lawful manner the
whole or any part of any business so acquired, and to exercise
all the powers necessary or convenient in and about the conduct
and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and,
without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent
as natural persons might or could do, to purchase or otherwise
acquire, to hold, own, to mortgage, sell, convey or otherwise
dispose of, real and personal property, of every class and
description, in any State, District, Territory or Colony of the
United States, and in any foreign country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any
other clause of this or any other paragraph in this charter, but
that the objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as independent
objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time
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to time be determined by the Board of Directors each of said series to
be distinctly designated. All shares of any one series of Preferred
Stock shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers and the preferences
and relative, participating, optional and other special rights of each
such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at
any time outstanding; and, subject to the provisions of subparagraph 1
of Paragraph (c) of this Article FOURTH, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution
or resolutions adopted prior to the issuance of any shares of a
particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special
rights, and the qualifications, limitations and restrictions of such
series, including, but without limiting the generality of the
foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of the
Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall
be paid, the extent of the preference or relation, if any, of
such dividends to the dividends payable on any other class or
classes, or series of the same or other class of stock and
whether such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares
of any other class or classes or of any series of the same or any
other class or classes of stock of the Corporation and the terms
and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and the
time or times at which, and the terms and conditions on which,
Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under
such circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article FOURTH), if any, shall have been met and
after the Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the
provisions of section (b) of this Article FOURTH), and subject further
to any conditions which may be fixed in accordance with the provisions
of section (b) of this Article FOURTH, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
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(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b) of
this Article FOURTH), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to receive all of the remaining assets of the
Corporation, tangible and intangible, of whatever kind available
for distribution to stockholders ratably in proportion to the
number of shares of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted by
the Board of Directors pursuant to section (b) of this Article
Fourth, each holder of Common Stock shall have one vote in
respect of each share of Common Stock held on all matters voted
upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be
as fixed from time to time by the Board of Directors in the resolution
or resolutions adopted pursuant to authority granted in section (b) of
this Article FOURTH and the consent, by class or series vote or
otherwise, of the holders of such of the series of Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such other
series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this Article FOURTH
that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of
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Directors. The number of directors constituting the entire Board shall
be not less than five nor more than twenty-five as fixed from time to
time by vote of a majority of the whole Board, provided, however, that
the number of directors shall not be reduced so as to shorten the term
of any director at the time in office, and provided further, that the
number of directors constituting the whole Board shall be twenty-four
until otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen
and until his successor shall be elected and qualified. No decrease in
the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the By-Laws of the Corporation),
any director or the entire Board of Directors of the Corporation may
be removed at any time without cause, but only by the affirmative vote
of the holders of two-thirds or more of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election
of directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than 14 days nor
more than 50 days prior to any meeting of the stockholders called for
the election of directors; provided, however, that if less than 21
days' notice of the meeting is given to stockholders, such written
notice shall be delivered or mailed, as prescribed, to the Secretary
of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of such nominee and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
SIXTH: - The Directors shall choose such officers, agents and servants
as may be provided in the By-Laws as they may from time to time find
necessary or proper.
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SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers
which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the
world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by
a vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may
be adopted only by the affirmative vote of the holders of two-thirds
or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered
for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside of the
State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b) and
(c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any other
corporation (whether or not itself an Interested Stockholder),
which, after such merger or consolidation, would be an Affiliate
(as hereinafter defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
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(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to in
any one or more of clauses (A) through (E) of paragraph 1 of
the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business
combination and such business combination shall require only
such affirmative vote as is required by law and any other
provisions of the Charter or Act of Incorporation or By-Laws
if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual, firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote
on such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by
any Interested Stockholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting
Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own, directly
or indirectly, or
(B) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange
8
rights, warrants or options, or otherwise, or (ii) the right
to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by
any other person with which such first mentioned person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority
of any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as in effect on December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty
to determine for the purposes of this Article FIFTEENTH on
the basis of information known to them, (1) the number of
Voting Shares beneficially owned by any person (2) whether a
person is an Affiliate or Associate of another, (3) whether
a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of
section (c), or (4) whether the assets subject to any
business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of
at least two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be required
to amend, alter or repeal any provision of Articles FIFTH, THIRTEENTH,
FIFTEENTH or SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be
amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or
omission occurring prior to the time of such repeal or
modification."
9
EXHIBIT 4
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON DECEMBER 16, 2004
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE 1
STOCKHOLDERS' MEETINGS
Section 1. Annual Meeting. The annual meeting of stockholders shall be held
on the third Thursday in April each year at the principal office at the Company
or at such other date, time or place as may be designated by resolution by the
Board of Directors.
Section 2. Special Meetings. Special meetings of stockholders may be called
at any time by the Board of Directors, the Chairman of the Board, the Chief
Executive Officer or the President.
Section 3. Notice. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before said meeting,
at his last known address, a written or printed notice fixing the time and place
of such meeting.
Section 4. Quorum. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a smaller number of shares may adjourn from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each share of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE 2
DIRECTORS
Section 1. Management. The affairs and business of the Company shall be
managed by or under the direction of the Board of Directors.
Section 2. Number. The authorized number of directors that shall constitute
the Board of Directors shall be fixed from time to time by or pursuant to a
resolution passed by a majority of the Board of Directors within the parameters
set by the Charter of the Company. No more than two directors may also be
employees of the Company or any affiliate thereof.
Section 3. Qualification. In addition to any other provisions of these
Bylaws, to be qualified for nomination for election or appointment to the Board
of Directors, a person must have not attained the age of sixty-nine years at the
time of such election or appointment, provided however, the Nominating and
Corporate Governance Committee may waive such qualification as to a particular
candidate otherwise qualified to serve as a director upon a good faith
determination by such committee that such a waiver is in the best interests of
the Company and its stockholders. The Chairman of the Board and the Chief
Executive Officer shall not be qualified to continue to serve as directors upon
the termination of their service in those offices for any reason.
Section 4. Meetings. The Board of Directors shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Board of Directors, the Chief Executive Officer or the President.
Section 5. Special Meetings. Special meetings of the Board of Directors may
be called at any time by the Chairman of the Board, the Chief Executive Officer
or the President, and shall be called upon the written request of a majority of
the directors.
Section 6. Quorum. A majority of the directors elected and qualified shall
be necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 7. Notice. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 8. Vacancies. In the event of the death, resignation, removal,
inability to act or disqualification of any director, the Board of Directors,
although less than a quorum, shall have the right to elect the successor who
shall hold office for the remainder of the full term of the class of directors
in which the vacancy occurred, and until such director's successor shall have
been duly elected and qualified.
Section 9. Organization Meeting. The Board of Directors at its first
meeting after its election by the stockholders shall appoint an Audit Committee,
a Compensation Committee and a Nominating and Corporate Governance Committee,
and shall elect from its own members a Chairman of the Board, a Chief Executive
Officer and a President, who may be the same person. The Board of Directors
shall also elect at such meeting a Secretary and a Chief Financial Officer, who
may be the same person, and may appoint at any time such committees as it may
deem advisable. The Board of Directors may also elect at such meeting one or
more Associate Directors. The Board of Directors, or a committee designated by
the Board of Directors may elect or appoint such other officers as they may deem
advisable.
Section 10. Removal. The Board of Directors may at any time remove, with or
without cause, any member of any committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 11. Responsibility of Officers. The Board of Directors may
designate an officer to be in charge of such departments or divisions of the
Company as it may deem advisable.
Section 12. Participation in Meetings. The Board of Directors or any
committee of the Board of Directors may participate in a meeting of the Board of
Directors or such committee, as the case may be, by conference telephone, video
facilities or other communications equipment. Any action required or permitted
to be taken at any meeting of the Board of Directors or any committee thereof
may be taken without a meeting if all of the members of the Board of Directors
or the committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of the Board of Directors or such
committee.
ARTICLE 3
COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. Audit Committee.
(A) The Audit Committee shall be composed of not more than five (5)
members, who shall be selected by the Board of Directors from its own members,
none of whom shall be an officer or employee of the Company, and shall hold
office at the pleasure of the Board.
(B) The Audit Committee shall have general supervision over the Audit
Services Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Services Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor employed
for that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever its
Chairperson, the Chairman of the Board, the Chief Executive Officer, the
President or a majority of the Committee's members shall deem it to be proper
for the transaction of its business. A majority of the Committee's members shall
constitute a quorum for the transaction of business. The acts of the majority at
a meeting at which a quorum is present shall constitute action by the Committee.
Section 2. Compensation Committee.
(A) The Compensation Committee shall be composed of not more than five
(5) members, who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer or employee of the Company, and shall
hold office at the pleasure of the Board of Directors.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning compensation, including salaries and employee
benefits.
(C) The Compensation Committee shall meet whenever and wherever its
Chairperson, the Chairman of the Board, the Chief Executive Officer, the
President or a majority of the Committee's members shall deem it to be proper
for the transaction of its business. A majority of the Committee's members shall
constitute a quorum for the transaction of business. The acts of the majority at
a meeting at which a quorum is present shall constitute action by the Committee.
SECTION 3. NOMINATING AND CORPORATE GOVERNANCE COMMITTEE.
(A) The Nominating and Corporate Governance Committee shall be
composed of not more than five members, who shall be selected by the Board of
Directors from its own members, none of whom shall be an officer or employee of
the Company, and shall hold office at the pleasure of the Board of Directors.
(B) The Nominating and Corporate Governance Committee shall provide
counsel and make recommendations to the Chairman of the Board and the full Board
with respect to the performance of the Chairman
of the Board and the Chief Executive Officer, candidates for membership on the
Board of Directors and its committees, matters of corporate governance,
succession planning for the Company's executive management and significant
shareholder relations issues.
(C) The Nominating and Corporate Governance Committee shall meet
whenever and wherever its Chairperson, the Chairman of the Board, the Chief
Executive Officer, the President, or a majority of the Committee's members shall
deem it to be proper for the transaction of its business. A majority of the
Committee's members shall constitute a quorum for the transaction of business.
The acts of the majority at a meeting at which a quorum is present shall
constitute action by the Committee.
Section 4. Other Committees. The Company may have such other committees
with such powers as the Board may designate from time to time by resolution or
by an amendment to these Bylaws.
Section 5. Associate Directors.
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve at the pleasure of the
Board of Directors.
(B) Associate directors shall be entitled to attend all meetings of
directors and participate in the discussion of all matters brought to the Board
of Directors, but will not have a right to vote.
Section 6. Absence or Disqualification of Any Member of a Committee. In the
absence or disqualification of any member of any committee created under Article
III of these Bylaws, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
ARTICLE 4
OFFICERS
Section 1. Chairman of the Board. The Chairman of the Board shall preside
at all meetings of the Board of Directors and shall have such further authority
and powers and shall perform such duties the Board of Directors may assign to
him from time to time.
Section 2. Chief Executive Officer. The Chief Executive Officer shall have
the powers and duties pertaining to the office of Chief Executive Officer
conferred or imposed upon him by statute, incident to his office or as the Board
of Directors may assign to him from time to time. In the absence of the Chairman
of the Board, the Chief Executive Officer shall have the powers and duties of
the Chairman of the Board.
Section 3. President. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon him by
statute, incident to his office or as the Board of Directors may assign to him
from time to time. In the absence of the Chairman of the Board and the Chief
Executive Officer, the President shall have the powers and duties of the
Chairman of the Board.
Section 4. Duties. The Chairman of the Board, the Chief Executive Officer
or the President, as designated by the Board of Directors, shall carry into
effect all legal directions of
the Board of Directors and shall at all times exercise general supervision over
the interest, affairs and operations of the Company and perform all duties
incident to his office.
Section 5. Vice Presidents. There may be one or more Vice Presidents,
however denominated by the Board of Directors, who may at any time perform all
of the duties of the Chairman of the Board, the Chief Executive Officer and/or
the President and such other powers and duties incident to their respective
offices or as the Board of Directors, the Chairman of the Board, the Chief
Executive Officer or the President or the officer in charge of the department or
division to which they are assigned may assign to them from time to time.
Section 6. Secretary. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
committees thereof, to the keeping of accurate minutes of all such meetings,
recording the same in the minute books of the Company and in general notifying
the Board of Directors of material matters affecting the Company on a timely
basis. In addition to the other notice requirements of these Bylaws and as may
be practicable under the circumstances, all such notices shall be in writing and
mailed well in advance of the scheduled date of any such meeting. He shall have
custody of the corporate seal, affix the same to any documents requiring such
corporate seal, attest the same and perform other duties incident to his office.
Section 7. Chief Financial Officer. The Chief Financial Officer shall have
general supervision over all assets and liabilities of the Company. He shall be
custodian of and responsible for all monies, funds and valuables of the Company
and for the keeping of proper records of the evidence of property or
indebtedness and of all transactions of the Company. He shall have general
supervision of the expenditures of the Company and periodically shall report to
the Board of Directors the condition of the Company, and perform such other
duties incident to his office or as the Board of Directors, the Chairman of the
Board, the Chief Executive Officer or the President may assign to him from time
to time.
Section 8. Controller. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors or the Audit Committee at appropriate
times a report relating to the general condition and internal operations of the
Company and perform other duties incident to his office.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. Audit Officers. The officer designated by the Board of Directors
to be in charge of the Audit Services Division of the Company, with such title
as the Board of Directors shall prescribe, shall report to and be directly
responsible to the Audit Committee and the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Services
Division.
Section 10. Other Officers. There may be one or more officers, subordinate
in rank to all Vice Presidents with such functional titles as shall be
determined from time to time by the Board of Directors, who shall ex officio
hold the office of Assistant Secretary of the Company and who may perform such
duties as may be prescribed by the officer in charge of the department or
division to which they are assigned.
Section 11. Powers and Duties of Other Officers. The powers and duties of
all other officers of the Company shall be those usually pertaining to their
respective offices, subject to the direction of the Board of Directors, the
Chairman of the Board, the Chief Executive Officer or the President and the
officer in charge of the department or division to which they are assigned.
Section 12. Number of Offices. Any one or more offices of the Company may
be held by the same person, except that (A) no individual may hold more than one
of the offices of Chief Financial Officer, Controller or Audit Officer and (B)
none of the Chairman of the Board, the Chief Executive Officer or the President
may hold any office mentioned in Section 12(A).
ARTICLE 5
STOCK AND STOCK CERTIFICATES
Section 1. Transfer. Shares of stock shall be transferable on the books of
the Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificates. Every holder of stock shall be entitled to have a
certificate signed by or in the name of the Company by the Chairman of the
Board, the Chief Executive Officer or the President or a Vice President, and by
the Secretary or an Assistant Secretary, of the Company, certifying the number
of shares owned by him in the Company. The corporate seal affixed thereto, and
any of or all the signatures on the certificate, may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Company with the same effect as if he were such officer, transfer agent
or registrar at the date of issue. Duplicate certificates of stock shall be
issued only upon giving such security as may be satisfactory to the Board of
Directors.
Section 3. Record Date. The Board of Directors is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment of
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days preceding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE 6
SEAL
The corporate seal of the Company shall be in the following form:
Between two concentric circles the words "Wilmington Trust Company"
within the inner circle the words "Wilmington, Delaware."
ARTICLE 7
FISCAL YEAR
The fiscal year of the Company shall be the calendar year.
ARTICLE 8
EXECUTION OF INSTRUMENTS OF THE COMPANY
The Chairman of the Board, the Chief Executive Officer, the President or
any Vice President, however denominated by the Board of Directors, shall have
full power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power and
authority to attest and affix the corporate seal of the Company to any and all
deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors, and any and all such instruments
shall have the same force and validity as though expressly authorized by the
Board of Directors.
ARTICLE 9
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Directors and associate directors of the Company, other than salaried
officers of the Company, shall be paid such reasonable honoraria or fees for
attending meetings of the Board of Directors as the Board of Directors may from
time to time determine. Directors and associate directors who serve as members
of committees, other than salaried employees of the Company, shall be paid such
reasonable honoraria or fees for services as members of committees as the Board
of Directors shall from time to time determine and directors and associate
directors may be authorized by the Company to perform such special services as
the Board of Directors may from time to time determine in accordance with any
guidelines the Board of Directors may adopt for such services, and shall be paid
for such special services so performed reasonable compensation as may be
determined by the Board of Directors.
ARTICLE 10
INDEMNIFICATION
Section 1. Persons Covered. The Company shall indemnify and hold harmless,
to the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director or associate director of the Company, a member of an advisory board
the Board of Directors of the Company or any of its subsidiaries may appoint
from time to time or is or was serving at the request of the Company as a
director, officer, employee, fiduciary or agent of another corporation,
partnership, limited liability company, joint venture, trust, enterprise or
non-profit entity that is not a subsidiary or affiliate of the Company,
including service with respect to employee benefit plans, against all liability
and loss suffered and expenses reasonably incurred by such person. The Company
shall be required to indemnify such a person in connection with a proceeding
initiated by such person only if the proceeding was authorized by the Board of
Directors.
The Company may indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be amended,
any person who was or is made or threatened to be made a party or is otherwise
involved in any proceeding by reason of the fact that he, or a person for whom
he is the legal representative, is or was an officer, employee or agent of the
Company or a director, officer, employee or agent of a subsidiary or affiliate
of the Company, against all liability and loss suffered and expenses reasonably
incurred by such person. The Company may indemnify any such person 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.
Section 2. Advance of Expenses. The Company shall pay the expenses incurred
in defending any proceeding involving a person who is or may be indemnified
pursuant to Section 1 in advance of its final disposition, provided, however,
that the payment of expenses incurred by such a person in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by that person to repay all amounts advanced if it should be ultimately
determined that the person is not entitled to be indemnified under this Article
10 or otherwise.
Section 3. Certain Rights. If a claim under this Article 10 for (A) payment
of expenses or (B) indemnification by a director, associate director, member of
an advisory board the Board of Directors of the Company or any of its
subsidiaries may appoint from time to time or a person who is or was serving at
the request of the Company as a director, officer, employee, fiduciary or agent
of another corporation, partnership, limited liability company, joint venture,
trust, enterprise or nonprofit entity that is not a subsidiary or affiliate of
the Company, including service with respect to employee benefit plans, is not
paid in full within sixty days after a written claim therefor has been received
by the Company, the claimant may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action, the Company shall have
the burden of proving that the claimant was not entitled to the requested
indemnification or payment of expenses under applicable law.
Section 4. Non-Exclusive. The rights conferred on any person by this
Article 10 shall not be exclusive of any other rights which such person may have
or hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 5. Reduction of Amount. The Company's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or nonprofit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit entity.
Section 6. Effect of Modification. Any amendment, repeal or modification of
the foregoing provisions of this Article 10 shall not adversely affect any right
or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such amendment, repeal or modification.
ARTICLE 11
AMENDMENTS TO THE BYLAWS
These Bylaws may be altered, amended or repealed, in whole or in part, and
any new Bylaw or Bylaws adopted at any regular or special meeting of the Board
of Directors by a vote of a majority of all the members of the Board of
Directors then in office.
ARTICLE 12
MISCELLANEOUS
Whenever used in these Bylaws, the singular shall include the plural, the
plural shall include the singular unless the context requires otherwise and the
use of either gender shall include both genders.
EXHIBIT 6
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon request therefor.
WILMINGTON TRUST COMPANY
Dated: June __, 2006 By: /s/
------------------------------------
Name: Patricia A. Evans
Title: Vice President
EXHIBIT 7
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been approved by
any state banking authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
REPORT OF CONDITION
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
Name of Bank City
in the State of DELAWARE, at the close of business on December 31, 2005.
Thousands
of dollars
----------
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins................ 242,974
Interest-bearing balances.......................................... 0
Held-to-maturity securities........................................... 2,263
Available-for-sale securities......................................... 1,544,051
Federal funds sold in domestic offices................................ 310,739
Securities purchased under agreements to resell....................... 14,128
Loans and lease financing receivables:
Loans and leases held for sale..................................... 0
Loans and leases, net of unearned income........................... 6,799,976
LESS: Allowance for loan and lease losses......................... 82,655
Loans and leases, net of unearned income, allowance, and reserve... 6,717,321
Assets held in trading accounts....................................... 0
Premises and fixed assets (including capitalized leases).............. 135,853
Other real estate owned............................................... 199
Investments in unconsolidated subsidiaries and associated companies... 2,545
Customers' liability to this bank on acceptances outstanding.......... 0
Intangible assets:
a. Goodwill........................................................ 1,923
b. Other intangible assets......................................... 6,600
Other assets.......................................................... 207,442
Total assets.......................................................... 9,186,038
CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices................................................... 7,081,644
Noninterest-bearing................................................ 988,301
Interest-bearing................................................... 6,093,343
Federal funds purchased in domestic offices........................... 454,938
Securities sold under agreements to repurchase........................ 364,013
Trading liabilities (from Schedule RC-D).............................. 0
Other borrowed money (includes mortgage indebtedness and obligations
under capitalized leases:.......................................... 396,467
Bank's liability on acceptances executed and outstanding.............. 0
Subordinated notes and debentures..................................... 0
Other liabilities (from Schedule RC-G)................................ 125,938
Total liabilities..................................................... 8,423,000
EQUITY CAPITAL
Perpetual preferred stock and related surplus......................... 0
Common Stock.......................................................... 500
Surplus (exclude all surplus related to preferred stock).............. 112,358
a. Retained earnings.................................................. 668,545
b. Accumulated other comprehensive income............................. (18,365)
Total equity capital.................................................. 763,038
Total liabilities, limited-life preferred stock, and equity capital... 9,186,038
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