View:
Registration No. 333-_____
Filed with the Securities and Exchange Commission on November 30, 1999
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
CONTINENTAL AIRLINES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 74-2099724
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION)
1600 SMITH STREET, DEPT. HQSEO
HOUSTON, TEXAS 77002
(713) 324-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------------------
JEFFERY A. SMISEK, ESQ. COPIES OF CORRESPONDENCE TO:
EXECUTIVE VICE PRESIDENT, GENERAL
COUNSEL AND SECRETARY JOHN K. HOYNS, ESQ.
CONTINENTAL AIRLINES, INC. HUGHES HUBBARD & REED LLP
1600 SMITH STREET, DEPT. HQSEO ONE BATTERY PARK PLAZA
HOUSTON, TEXAS 77002 NEW YORK, NEW YORK 10004-1482
(713) 324-2950
(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 this registration statement becomes effective.
---------------------------
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. |_|
Pursuant to Rule 429 of the Rules and Regulations of the Securities and
Exchange Commission under the Securities Act of 1933, as amended, the form of
prospectus included in this registration statement also relates to an
aggregate remaining amount of $427,878,000 of pass through certificates
covered by such form of prospectus previously registered under the
registrant's registration statement on Form S-3 (File No. 333-61601).
EXHIBIT 5.1
HUGHES HUBBARD & REED LLP
- ------------------------- One Battery Park Plaza
New York, New York 10004-1482
Telephone: 212-837-6000
Facsimile: 212-422-4726
November 29, 1999
Continental Airlines, Inc.
1600 Smith Street
Houston, Texas 77002
Re: Continental Airlines, Inc.
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as your counsel in connection with the Registration
Statement on Form S-3 (the "Registration Statement") to be filed with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended (the "Act"), with respect to pass through certificates (the "Pass
Through Certificates") expected to be issued by one or more trusts (each, a
"Trust") to be formed by Continental Airlines, Inc. (the "Company"). Such
Trusts are expected to acquire certain equipment notes relating to aircraft
to be leased or owned by the Company. The Pass Through Certificates are
expected to be issued and sold from time to time pursuant to Rule 415 under
the Act for an aggregate initial offering price not to exceed $1,500,000,000
or the equivalent thereof in one or more foreign currencies or composite
currencies.
The Pass Through Certificates will be issued in one or more
series under the Pass Through Trust Agreement dated as of September 25, 1997,
between the Company and Wilmington Trust Company ("WTC"), the trustee
thereunder (the "Basic Pass Through Trust Agreement"), the form of which has
been filed as an exhibit to the Registration Statement, as supplemented by a
separate trust supplement (each, a "Trust Supplement") relating to each such
series.
We have examined the Certificate of Incorporation and By-Laws of
the Company and the Basic Pass Through Trust Agreement, and we have assumed
that the Basic Pass Through Trust Agreement was duly authorized, executed and
delivered by, and is the valid and binding obligation of, WTC, as trustee.
In addition, we have examined, and have relied as to matters of fact upon,
originals or copies, certified or otherwise identified to our satisfaction,
of such corporate records, agreements, documents and other instruments and
such certificates or comparable documents of public officials and of officers
HUGHES HUBBARD & REED LLP
- -------------------------
Page 2
and representatives of the Company, and have made such other and further
investigations as we have deemed relevant and necessary as a basis for the
opinion hereinafter set forth.
Based upon and subject to the foregoing, we are of the opinion
that, with respect to each series of Pass Through Certificates, when (i) the
applicable provisions of the Act and such "blue sky" or state securities laws
as may be applicable shall have been complied with, (ii) the Trust Supplement
relating to such series has been duly authorized and validly executed and
delivered by the Company and WTC, as trustee under the Basic Pass Through
Trust Agreement, (iii) the Board of Directors of the Company has taken all
necessary corporate action to approve the terms of the offering of such
series of Pass Through Certificates and related matters and (iv) the Pass
Through Certificates of such series have been duly executed, authenticated,
issued and delivered in accordance with the provisions of the Basic Pass
Through Trust Agreement, as supplemented by the related Trust Supplement, and
the applicable definitive purchase, underwriting or similar agreement
approved by the Board of Directors of the Company and upon payment of the
consideration therefor provided for therein, such series of Pass Through
Certificates will be legally issued and binding obligations of WTC, as
trustee of the applicable Trust.
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State
of New York, the federal law of the United States and the Delaware General
Corporation Law. We have assumed that each Trust Supplement will be governed
by the laws of the State of New York.
We hereby consent to the filing of this opinion as an exhibit to
said Registration Statement and we further consent to the use of our name in
the Registration Statement under the caption "Legal Opinions". In giving
this consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Act, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Hughes Hubbard & Reed LLP
EXHIBIT 12.1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Continental
Airlines, Inc. (the "Company") for the registration of $1,500,000,000 of Pass
Through Certificates and to the incorporation by reference therein of our
reports dated January 20, 1999 with respect to the consolidated financial
statements and schedule of the Company included in its Annual Report (Form 10-K)
for the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Houston, Texas
November 23, 1999
EXHIBIT 24.1
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Lawrence W. Kellner,
Jeffery A. Smisek, Jennifer L. Vogel and Scott R. Peterson, and each or any
of them, his or her true and lawful attorneys-in-fact and agents (with full
power to each of them to act alone), with full power of substitution and
resubstitution for him or her and in his or her name, place and stead in any
and all capacities, to sign the Registration Statement on Form S-3, or other
appropriate Form, relating to the offer of up to $1,500,000,000 aggregate
face amount of pass through certificates (collectively, the "Securities")
(which amount includes $427,878,000 unissued balance of pass through
certificates under a shelf registration statement of Continental Airlines,
Inc. that became effective on August 25, 1998), and any and all amendments
(including post-effective amendments) or supplements to such Registration
Statement, and to file the same, with all exhibits thereto and all documents
in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to
do and perform each and every act and thing requisite and necessary to be
done (with full power to each of them to act alone), as fully and to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Date: November 29, 1999
/S/ GORDON M. BETHUNE
----------------------------------------------
Gordon M. Bethune
Chairman of the Board, Chief Executive Officer
and Director
Continental Airlines, Inc.
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Jeffery A. Smisek,
Jennifer L. Vogel and Scott R. Peterson, and each or any of them, his or her
true and lawful attorneys-in-fact and agents (with full power to each of them
to act alone), with full power of substitution and resubstitution for him or
her and in his or her name, place and stead in any and all capacities, to
sign the Registration Statement on Form S-3, or other appropriate Form,
relating to the offer of up to $1,500,000,000 aggregate face amount of pass
through certificates (collectively, the "Securities") (which amount includes
$427,878,000 unissued balance of pass through certificates under a shelf
registration statement of Continental Airlines, Inc. that became effective on
August 25, 1998), and any and all amendments (including post-effective
amendments) or supplements to such Registration Statement, and to file the
same, with all exhibits thereto and all documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done (with full power
to each of them to act alone), as fully and to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Date: November 29, 1999
/S/ LAWRENCE W. KELLNER
----------------------------
Lawrence W. Kellner
Executive Vice President and
Chief Financial Officer
Continental Airlines, Inc.
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Lawrence W. Kellner,
Jeffery A. Smisek, Jennifer L. Vogel and Scott R. Peterson, and each or any
of them, his or her true and lawful attorneys-in-fact and agents (with full
power to each of them to act alone), with full power of substitution and
resubstitution for him or her and in his or her name, place and stead in any
and all capacities, to sign the Registration Statement on Form S-3, or other
appropriate Form, relating to the offer of up to $1,500,000,000 aggregate
face amount of pass through certificates (collectively, the "Securities")
(which amount includes $427,878,000 unissued balance of pass through
certificates under a shelf registration statement of Continental Airlines,
Inc. that became effective on August 25, 1998), and any and all amendments
(including post-effective amendments) or supplements to such Registration
Statement, and to file the same, with all exhibits thereto and all documents
in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to
do and perform each and every act and thing requisite and necessary to be
done (with full power to each of them to act alone), as fully and to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Date: November 29, 1999
/S/ CHRIS T. KENNY
-----------------------------------
Chris T. Kenny
Staff Vice President and Controller
Continental Airlines, Inc.
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Lawrence W. Kellner,
Jeffery A. Smisek, Jennifer L. Vogel and Scott R. Peterson, and each or any of
them, his or her true and lawful attorneys-in-fact and agents (with full power
to each of them to act alone), with full power of substitution and
resubstitution for him or her and in his or her name, place and stead in any and
all capacities, to sign the Registration Statement on Form S-3, or other
appropriate Form, relating to the offer of up to $1,500,000,000 aggregate face
amount of pass through certificates (collectively, the "Securities") (which
amount includes $427,878,000 unissued balance of pass through certificates under
a shelf registration statement of Continental Airlines, Inc. that became
effective on August 25, 1998), and any and all amendments (including
post-effective amendments) or supplements to such Registration Statement, and to
file the same, with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done (with full power to each
of them to act alone), as fully and to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: November 29, 1999
/S/ GREGORY D. BRENNEMAN
-----------------------------------------------
Gregory D. Brenneman
President, Chief Operating Officer and Director
Continental Airlines, Inc.
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Lawrence W. Kellner,
Jeffery A. Smisek, Jennifer L. Vogel and Scott R. Peterson, and each or any
of them, his or her true and lawful attorneys-in-fact and agents (with full
power to each of them to act alone), with full power of substitution and
resubstitution for him or her and in his or her name, place and stead in any
and all capacities, to sign the Registration Statement on Form S-3, or other
appropriate Form, relating to the offer of up to $1,500,000,000 aggregate
face amount of pass through certificates (collectively, the "Securities")
(which amount includes $427,878,000 unissued balance of pass through
certificates under a shelf registration statement of Continental Airlines,
Inc. that became effective on August 25, 1998), and any and all amendments
(including post-effective amendments) or supplements to such Registration
Statement, and to file the same, with all exhibits thereto and all documents
in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to
do and perform each and every act and thing requisite and necessary to be
done (with full power to each of them to act alone), as fully and to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Date: November 29, 1999
/S/ DAVID BONDERMAN
--------------------------
David Bonderman
Director
Continental Airlines, Inc.
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Lawrence W. Kellner,
Jeffery A. Smisek, Jennifer L. Vogel and Scott R. Peterson, and each or any
of them, his or her true and lawful attorneys-in-fact and agents (with full
power to each of them to act alone), with full power of substitution and
resubstitution for him or her and in his or her name, place and stead in any
and all capacities, to sign the Registration Statement on Form S-3, or other
appropriate Form, relating to the offer of up to $1,500,000,000 aggregate
face amount of pass through certificates (collectively, the "Securities")
(which amount includes $427,878,000 unissued balance of pass through
certificates under a shelf registration statement of Continental Airlines,
Inc. that became effective on August 25, 1998), and any and all amendments
(including post-effective amendments) or supplements to such Registration
Statement, and to file the same, with all exhibits thereto and all documents
in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to
do and perform each and every act and thing requisite and necessary to be
done (with full power to each of them to act alone), as fully and to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Date: November 29, 1999
/S/ KIRBYJON H. CALDWELL
--------------------------
Kirbyjon H. Caldwell
Director
Continental Airlines, Inc.
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Lawrence W. Kellner,
Jeffery A. Smisek, Jennifer L. Vogel and Scott R. Peterson, and each or any
of them, his or her true and lawful attorneys-in-fact and agents (with full
power to each of them to act alone), with full power of substitution and
resubstitution for him or her and in his or her name, place and stead in any
and all capacities, to sign the Registration Statement on Form S-3, or other
appropriate Form, relating to the offer of up to $1,500,000,000 aggregate
face amount of pass through certificates (collectively, the "Securities")
(which amount includes $427,878,000 unissued balance of pass through
certificates under a shelf registration statement of Continental Airlines,
Inc. that became effective on August 25, 1998), and any and all amendments
(including post-effective amendments) or supplements to such Registration
Statement, and to file the same, with all exhibits thereto and all documents
in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to
do and perform each and every act and thing requisite and necessary to be
done (with full power to each of them to act alone), as fully and to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Date: November 29, 1999
/S/ PATRICK FOLEY
--------------------------
Patrick Foley
Director
Continental Airlines, Inc.
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Lawrence W. Kellner,
Jeffery A. Smisek, Jennifer L. Vogel and Scott R. Peterson, and each or any
of them, his or her true and lawful attorneys-in-fact and agents (with full
power to each of them to act alone), with full power of substitution and
resubstitution for him or her and in his or her name, place and stead in any
and all capacities, to sign the Registration Statement on Form S-3, or other
appropriate Form, relating to the offer of up to $1,500,000,000 aggregate
face amount of pass through certificates (collectively, the "Securities")
(which amount includes $427,878,000 unissued balance of pass through
certificates under a shelf registration statement of Continental Airlines,
Inc. that became effective on August 25, 1998), and any and all amendments
(including post-effective amendments) or supplements to such Registration
Statement, and to file the same, with all exhibits thereto and all documents
in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to
do and perform each and every act and thing requisite and necessary to be
done (with full power to each of them to act alone), as fully and to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Date: November 29, 1999
/S/ DOUGLAS H. MCCORKINDALE
---------------------------
Douglas H. McCorkindale
Director
Continental Airlines, Inc.
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Lawrence W. Kellner,
Jeffery A. Smisek, Jennifer L. Vogel and Scott R. Peterson, and each or any
of them, his or her true and lawful attorneys-in-fact and agents (with full
power to each of them to act alone), with full power of substitution and
resubstitution for him or her and in his or her name, place and stead in any
and all capacities, to sign the Registration Statement on Form S-3, or other
appropriate Form, relating to the offer of up to $1,500,000,000 aggregate
face amount of pass through certificates (collectively, the "Securities")
(which amount includes $427,878,000 unissued balance of pass through
certificates under a shelf registration statement of Continental Airlines,
Inc. that became effective on August 25, 1998), and any and all amendments
(including post-effective amendments) or supplements to such Registration
Statement, and to file the same, with all exhibits thereto and all documents
in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to
do and perform each and every act and thing requisite and necessary to be
done (with full power to each of them to act alone), as fully and to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Date: November 29, 1999
/S/ GEORGE G. C. PARKER
--------------------------
George G. C. Parker
Director
Continental Airlines, Inc.
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Lawrence W. Kellner,
Jeffery A. Smisek, Jennifer L. Vogel and Scott R. Peterson, and each or any
of them, his or her true and lawful attorneys-in-fact and agents (with full
power to each of them to act alone), with full power of substitution and
resubstitution for him or her and in his or her name, place and stead in any
and all capacities, to sign the Registration Statement on Form S-3, or other
appropriate Form, relating to the offer of up to $1,500,000,000 aggregate
face amount of pass through certificates (collectively, the "Securities")
(which amount includes $427,878,000 unissued balance of pass through
certificates under a shelf registration statement of Continental Airlines,
Inc. that became effective on August 25, 1998), and any and all amendments
(including post-effective amendments) or supplements to such Registration
Statement, and to file the same, with all exhibits thereto and all documents
in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to
do and perform each and every act and thing requisite and necessary to be
done (with full power to each of them to act alone), as fully and to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Date: November 29, 1999
/S/ RICHARD W. POGUE
--------------------------
Richard W. Pogue
Director
Continental Airlines, Inc.
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Lawrence W. Kellner,
Jeffery A. Smisek, Jennifer L. Vogel and Scott R. Peterson, and each or any
of them, his or her true and lawful attorneys-in-fact and agents (with full
power to each of them to act alone), with full power of substitution and
resubstitution for him or her and in his or her name, place and stead in any
and all capacities, to sign the Registration Statement on Form S-3, or other
appropriate Form, relating to the offer of up to $1,500,000,000 aggregate
face amount of pass through certificates (collectively, the "Securities")
(which amount includes $427,878,000 unissued balance of pass through
certificates under a shelf registration statement of Continental Airlines,
Inc. that became effective on August 25, 1998), and any and all amendments
(including post-effective amendments) or supplements to such Registration
Statement, and to file the same, with all exhibits thereto and all documents
in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to
do and perform each and every act and thing requisite and necessary to be
done (with full power to each of them to act alone), as fully and to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Date: November 29, 1999
/S/ WILLIAM S. PRICE III
--------------------------
William S. Price III
Director
Continental Airlines, Inc.
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Lawrence W. Kellner,
Jeffery A. Smisek, Jennifer L. Vogel and Scott R. Peterson, and each or any
of them, his or her true and lawful attorneys-in-fact and agents (with full
power to each of them to act alone), with full power of substitution and
resubstitution for him or her and in his or her name, place and stead in any
and all capacities, to sign the Registration Statement on Form S-3, or other
appropriate Form, relating to the offer of up to $1,500,000,000 aggregate
face amount of pass through certificates (collectively, the "Securities")
(which amount includes $427,878,000 unissued balance of pass through
certificates under a shelf registration statement of Continental Airlines,
Inc. that became effective on August 25, 1998), and any and all amendments
(including post-effective amendments) or supplements to such Registration
Statement, and to file the same, with all exhibits thereto and all documents
in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to
do and perform each and every act and thing requisite and necessary to be
done (with full power to each of them to act alone), as fully and to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Date: November 29, 1999
/S/ DONALD L. STURM
--------------------------
Donald L. Sturm
Director
Continental Airlines, Inc.
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Lawrence W. Kellner,
Jeffery A. Smisek, Jennifer L. Vogel and Scott R. Peterson, and each or any
of them, his or her true and lawful attorneys-in-fact and agents (with full
power to each of them to act alone), with full power of substitution and
resubstitution for him or her and in his or her name, place and stead in any
and all capacities, to sign the Registration Statement on Form S-3, or other
appropriate Form, relating to the offer of up to $1,500,000,000 aggregate
face amount of pass through certificates (collectively, the "Securities")
(which amount includes $427,878,000 unissued balance of pass through
certificates under a shelf registration statement of Continental Airlines,
Inc. that became effective on August 25, 1998), and any and all amendments
(including post-effective amendments) or supplements to such Registration
Statement, and to file the same, with all exhibits thereto and all documents
in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to
do and perform each and every act and thing requisite and necessary to be
done (with full power to each of them to act alone), as fully and to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Date: November 29, 1999
/S/ KAREN HASTIE WILLIAMS
--------------------------
Karen Hastie Williams
Director
Continental Airlines, Inc.
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Lawrence W. Kellner,
Jeffery A. Smisek, Jennifer L. Vogel and Scott R. Peterson, and each or any
of them, his or her true and lawful attorneys-in-fact and agents (with full
power to each of them to act alone), with full power of substitution and
resubstitution for him or her and in his or her name, place and stead in any
and all capacities, to sign the Registration Statement on Form S-3, or other
appropriate Form, relating to the offer of up to $1,500,000,000 aggregate
face amount of pass through certificates (collectively, the "Securities")
(which amount includes $427,878,000 unissued balance of pass through
certificates under a shelf registration statement of Continental Airlines,
Inc. that became effective on August 25, 1998), and any and all amendments
(including post-effective amendments) or supplements to such Registration
Statement, and to file the same, with all exhibits thereto and all documents
in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to
do and perform each and every act and thing requisite and necessary to be
done (with full power to each of them to act alone), as fully and to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Date: November 29, 1999
/S/ CHARLES A. YAMARONE
--------------------------
Charles A. Yamarone
Director
Continental Airlines, Inc.
EXHIBIT 25.1
Registration No.:
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CONTINENTAL AIRLINES, INC.
(Exact name of obligor as specified in its charter)
Delaware 74-2099724
(State of incorporation) (I.R.S. employer identification no.)
1600 Smith Street, Dept. HQSEO
Houston, Texas 77002
(Address of principal executive offices) (Zip Code)
Pass through Certificates
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(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 upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. 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, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
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 23 day
of November, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /S/ PATRICIA A. EVANS By: /S/ DONALD G. MACKELCAN
---------------------- ------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
EXHIBIT A
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 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 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.
(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 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.
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
(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 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."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. 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 of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. 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. 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 small 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 II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the
Company, provided, however, that this limitation shall not apply to any
person who was serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. 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 or the President.
Section 6. Special meetings of the Board of Directors may be called
at any time by the Chairman of the Board of Directors or by the President,
and shall be called upon the written request of a majority of the directors.
Section 7. 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 8. 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 9. 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 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may appoint
at any time such other committees and elect or appoint such other officers as
it may deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. 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 12. The Board of Directors may designate an officer to be in
charge of such of the departments or divisions of the Company as it may deem
advisable.
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not
more than nine members who shall be selected by the Board of Directors from
its own members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of
the Board of Directors when it is not in session to transact all business for
and in behalf of the Company that may be brought before it.
(C) The Executive Committee 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 Executive Committee or at the call of the Chairman of the Board of
Directors. The majority of its members shall be necessary to constitute a
quorum for the transaction of business. Special meetings of the Executive
Committee may be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee
shall be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend
all investments that may be made of the funds of the Company, and shall
direct the disposal of the same, in accordance with such rules and
regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws
any two available members of the Executive Committee as constituted
immediately prior to such disaster shall constitute a quorum of that
Committee for the full conduct and management of the affairs and business of
the Company in accordance with the provisions of Article III of these
By-Laws; and if less than three members of the Trust Committee is constituted
immediately prior to such disaster shall be available for the transaction of
its business, such Executive Committee shall also be empowered to exercise
all of the powers reserved to the Trust Committee under Article III Section 2
hereof. In the event of the unavailability, at such time, of a minimum of
two members of such Executive Committee, any three available directors shall
constitute the Executive Committee for the full conduct and management of the
affairs and business of the Company in accordance with the foregoing
provisions of this Section. This By-Law shall be subject to implementation
by Resolutions of the Board of Directors presently existing or hereafter
passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to
the provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall
be determined by any interim Executive Committee acting under this section
that it shall be to the advantage of the Company to resume the conduct and
management of its affairs and business under all of the other provisions of
these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more
than thirteen members who shall be selected by the Board of Directors, a
majority of whom shall be members of the Board of Directors and who shall
hold office during the pleasure of the Board.
(B) The Trust Committee shall have general supervision
over the Trust Department and the investment of trust funds, in all matters,
however, being subject to the approval of the Board of Directors.
(C) The Trust Committee 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 its chairman. A
majority of its members shall be necessary to constitute a quorum for the
transaction of business.
(D) Minutes of each meeting of the Trust Committee shall
be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the
Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five
members who shall be selected by the Board of Directors from its own members,
none of whom shall be an officer of the Company, and shall hold office at the
pleasure of the Board.
(B) The Audit Committee shall have general supervision
over the Audit 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 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
the majority of its members shall deem it to be proper for the transaction of
its business, and a majority of its Committee shall constitute a quorum.
Section 4. 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 who are not officers of the Company and who shall hold
office during the pleasure of the Board.
(B) The Compensation Committee shall in general advise
upon all matters of policy concerning the Company brought to its attention by
the management and from time to time review the management of the Company,
major organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called
at any time by the Chairman of the Compensation Committee, the Chairman of
the Board of Directors, or the President of the Company.
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 during
the pleasure of the Board.
(B) An associate director shall be entitled to attend
all directors meetings and participate in the discussion of all matters
brought to the Board, with the exception that he would have no right to
vote. An associate director will be eligible for appointment to Committees
of the Company, with the exception of the Executive Committee, Audit
Committee and Compensation Committee, which must be comprised solely of
active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of
any Committee created under Article III of the By-Laws of this Company, 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 IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers
and shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such
duties as may from time to time be agreed upon between himself and the
President of the Company.
Section 2. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such
further authority and powers and shall perform such duties as the Board of
Directors or the Chairman of the Board may from time to time confer and
direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors. In the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
Section 4. The Chairman of the Board of Directors or the President
as designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and 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. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and
such other powers and duties as may from time to time be assigned to them by
the Board of Directors, the Executive Committee, the Chairman of the Board or
the President and by the officer in charge of the department or division to
which they are assigned.
Section 6. 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
and to recording the same in the minute books of the Company. In addition to
the other notice requirements of these By-Laws 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 other meeting. He shall have custody
of the corporate seal and shall affix the same to any documents requiring
such corporate seal and to attest the same.
Section 7. The Treasurer 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 the transactions of the Company. He shall have general supervision of
the expenditures of the Company and shall report to the Board of Directors at
each regular meeting of the condition of the Company, and perform such other
duties as may be assigned to him from time to time by the Board of Directors
of the Executive Committee.
Section 8. 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 at appropriate times a
report relating to the general condition and internal operations of the
Company.
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. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only
to 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
Division.
Section 10. 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 Assistant Secretary of this Company and who may perform such duties as
may be prescribed by the officer in charge of the department or division to
whom they are assigned.
Section 11. 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 Executive Committee,
Chairman of the Board of Directors or the President and the officer in charge
of the department or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable 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 of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an Assistant
Secretary, and the seal of the corporation shall be engraved thereon. Each
certificate shall recite that the stock represented thereby is transferrable
only upon the books of the Company by the holder thereof or his attorney,
upon surrender of the certificate properly endorsed. Any certificate of
stock surrendered to the Company shall be cancelled at the time of transfer,
and before a new certificate or certificates shall be issued in lieu
thereof. Duplicate certificates of stock shall be issued only upon giving
such security as may be satisfactory to the Board of Directors or the
Executive Committee.
Section 3. The Board of Directors of the Company 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 or 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 proceeding 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 VI
Seal
Section 1. 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 VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, 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
or the Executive Committee, and any and all such instruments shall have the
same force and validity as though expressly authorized by the Board of
Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. 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 employed by the
Company for such special services as the Board of Directors may from time to
time determine and shall be paid for such special services so performed
reasonable compensation as may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation 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, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or of
a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such person.
The Corporation shall indemnify a person in connection with a proceeding
initiated by such person only if the proceeding was authorized by the Board
of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, PROVIDED,
HOWEVER, that the payment of expenses incurred by a Director or officer in
his capacity as a Director or officer in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by the
Director or officer to repay all amounts advanced if it should be ultimately
determined that the Director or officer is not entitled to be indemnified
under this Article or otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety days after a
written claim therefor has been received by the Corporation 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 Corporation shall have the burden of
proving that the claimant was not entitled to the requested indemnification
of payment of expenses under applicable law.
(D) The rights conferred on any person by this Article X
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 By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X 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 repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all
the members of the Board of Directors then in office.
EXHIBIT C
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
requests therefor.
WILMINGTON TRUST COMPANY
Dated:: NOVEMBER 23, 1999
-------------------
By: /S/ DONALD G. MACKELCAN
--------------------------
Name: Donald G. MacKelcan
Title: Vice President
EXHIBIT D
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.
R E P O R T O F C O N D I T I O N
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 June 30, 1999.
-----------
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins ......207,947
Interest-bearing balances .........................0
Held-to-maturity securities ...........................................37,680
Available-for-sale securities ......................................1,598,933
Federal funds sold and securities purchased under
agreements to resell .................................................180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income ..........4,237,557
LESS: Allowance for loan and lease losses ...........70,233
LESS: Allocated transfer risk reserve ....................0
Loans and leases, net of unearned income, allowance,
and reserve .................................................4,167,324
Assets held in trading accounts ...........................................0
Premises and fixed assets (including capitalized leases) ............141,415
Other real estate owned .................................................922
Investments in unconsolidated subsidiaries and associated
companies .............................................................1,227
Customers' liability to this bank on acceptances outstanding ..............0
Intangible assets .....................................................5,179
Other assets ........................................................104,101
Total assets ......................................................6,445,094
CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices ..............................................4,574,509
Noninterest-bearing ..............992,436
Interest-bearing ...............3,582,073
Federal funds purchased and Securities sold under
agreements to repurchase ...........................................344,719
Demand notes issued to the U.S. Treasury ............................83,802
Trading liabilities (from Schedule RC-D) .................................0
Other borrowed money: ..............................................///////
With original maturity of one year or less .......860,000
With original maturity of more than one year ......43,000
Bank's liability on acceptances executed and outstanding .................0
Subordinated notes and debentures ........................................0
Other liabilities (from Schedule RC-G) ..............................80,279
Total liabilities ................................................5,986,309
EQUITY CAPITAL
Perpetual preferred stock and related surplus ...........................0
Common Stock ..........................................................500
Surplus (exclude all surplus related to preferred stock) ...........62,118
Undivided profits and capital reserves ............................412,409
Net unrealized holding gains (losses) on available-for-sale
securities ........................................................(16,242)
Total equity capital ..............................................458,785
Total liabilities, limited-life preferred stock, and equity
capital .........................................................6,445,094