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EXHIBIT 16.4
THE BANK OF NEW YORK TRUST COMPANY OF FLORIDA, N.A.
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I, the undersigned, Patricia A. Bicket, Assistant Secretary of The
Bank of New York Trust Company of Florida, N.A. with its principal office at 701
Brickell Avenue, Miami, Florida 33131, DO HEREBY CERTIFY that attached is a true
copy of the By-laws and Amendments of The Bank of New York Trust Company of
Florida, N.A.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal
of The Bank of New York Trust Company of Florida, N.A. this 15th day of October,
1998.
/s/ Patricia A. Bicket
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Assistant Secretary
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Amended June 18, 1992,
January 21, 1994, July 25, 1996
and MAY 1, 1997
BY-LAWS
OF
THE BANK OF NEW YORK TRUST COMPANY OF FLORIDA, N.A.
ARTICLE I
Offices
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Section 1.1 The principal office of the Association shall be located in the
City of Miami, County of Dade, State of Florida.
Section 1.2 The Association may also have offices at such other places
either within or without the State of Florida as the Board of Directors may from
time to time determine, or the business of the Association may require.
ARTICLE II
Amended Jan. 21, 1994
Meetings of Shareholders
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Section 2.1 Annual Meeting. The regular annual meeting of the shareholders,
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for the election of directors and transaction of whatever other business as may
properly come before the meeting shall be held on January 15th of each year or,
in case the date for the annual meeting shall fall on a public holiday, such
meeting shall be held on the next succeeding business day either within or
without the State of Florida as may be determined by the Board of Directors.
Notice of such meeting shall be mailed, postage prepaid, at least ten days
prior to the date thereof, addressed to each shareholder at the address
appearing on the books of the Association.
Section 2.2 Action of Shareholders Without a Meeting. Any action required
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to be taken at a meeting of the Shareholders or any action which may be taken at
a meeting of the Shareholders may be taken without a meeting if a consent in
writing setting forth the action so to be taken is signed by a majority of all
shares held and entitled to vote, and is filed in the minutes of the proceedings
of the Association. Such consent shall have the same effect as a unanimous vote
of the shareholders.
Section 2.3 Special Meetings. Except as otherwise specifically provided by
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statute, special meetings of the shareholders may be called for any purpose at
any time by the Board of Directors or the holders of a majority of all shares
entitled to vote. Every such special meeting, unless otherwise provided by law,
shall be called by mailing a notice, postage prepaid, not less than ten days
prior to the date fixed for such meeting, to each shareholder of record entitled
to vote.
Section 2.4 Proxies. Shareholders may vote at any meeting of the
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shareholders by proxies duly authorized in writing, but no officer or employee
of this Association shall act as proxy. Proxies shall be
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valid only for one meeting, to be specified therein, and any adjournments of
such meeting. Proxies shall be dated and filed with the records of the meeting.
Section 2.5. Quorum. A majority of the outstanding capital stock,
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represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law; but less than a quorum may
adjourn any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE III
Directors
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Section 3.1. Board of Directors. The Board of Directors (hereinafter
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referred to as the "Board"), shall have the power to manage and administer the
business and affairs of the Association. Except as expressly limited by law, all
corporate powers of the Association shall be vested in and may be exercised by
said Board.
Section 3.2. Number. The Board shall consist of not less than five nor more
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than twenty-five persons, the exact number within such minimum and maximum
limits to be fixed and determined from time to time by resolution of a majority
of the full Board or by resolution of the shareholders at any meeting thereof;
provided, however, that a majority of the full Board of Directors may not
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increase the number of directors to a number which: (i) exceeds by more than two
the number of directors last elected by shareholders where such number was
fifteen or less, and (ii) to a number which exceeds by more than four the number
of directors last elected by shareholders where such number was sixteen or
more, but in no event shall the number of directors exceed twenty-five.
Section 3.3. Term of Office. Directors shall hold office until the next
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annual meeting of shareholders and until their successors are duly elected and
qualified.
Section 3.4. Organization Meeting. The Secretary, upon determining the
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result of any election, shall notify the directors-elect of their election and
request that the Board convene for the purpose of organizing the new Board and
electing officers of the Association for the succeeding year. Such meeting shall
be held on the day of the election or as soon thereafter as practicable, and, in
any event, within thirty days thereof. If, at the time fixed for such meeting,
there shall not be a quorum present, the directors present may adjourn the
meeting, from time to time, until a quorum is obtained.
Section 3.5. Regular Meetings. Regular meetings of the Board of Directors
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may be held at such places either within or without the State of Florida and at
such times as the Board may from time to time determine. Each member of the
Board shall be given notice stating the time and place by telephone, letter, or
in person.
Section 3.6. Special Meetings. Special Meetings of the Board may be called
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by the Chairman of the Association, or, upon the written request of any two
directors or by the President. Each member of the Board shall be given notice
stating the time and place, by telephone, letter, or in person. Special meetings
may be held either within or without the State of Florida as determined by the
Board.
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Section 3.7. Quorum. A majority of the directors shall constitute a quorum
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at any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice. Except as otherwise required by law, the
Articles of Association, or these By-laws, the vote of a majority of the
directors present at a meeting at the time of such vote, if a quorum is present,
shall be the act of the Board.
Section 3.8. Removal. Any one or more of the directors may be removed for
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cause by action of the Board. Any or all of the directors may be removed with or
without cause by vote of the shareholders.
Section 3.9. Vacancies. When any vacancy occurs among the directors, the
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remaining members of the Board, in accordance with the laws of the United
States, may appoint a director to fill such vacancy at any Regular Meeting of
the Board, at any Special Meeting of the Board or by Unanimous Written Consent
of the remaining members of the Board.
Section 3.10. Compensation. Members of the Board, except members who are
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officers of the Association or any of its affiliates, shall be entitled to
receive such compensation and such fees for attendance as the Board shall fix
from time to time.
Section 3.11. Telephonic Participation. Directors may participate in a
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meeting of the Board or any committee designated by the Board by means of a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same time.
Participation by such means shall constitute presence in person at a meeting.
Section 3.12. Action Without a Meeting. Any action required to be taken at
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a meeting of the Board or any action which may be taken at a meeting of the
Board or a committee thereof, may be taken without a meeting if a consent in
writing, setting forth the action so to be taken, signed by all of the
Directors, or all the members of the committee, as the case may be, is filed in
the minutes of the proceedings of the Board or of the committee. Such consent
shall have the same effect as a unanimous vote.
ARTICLE IV
Officers and Employees
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Section 4.1. Chairman. The Board of directors shall appoint one of its
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members to be Chairman of the Board. Such person shall preside at all meetings
of the Board of Directors; shall have general executive powers, as well as
specific powers conferred by these By-laws; shall, in the absence of the Chief
Executive Officer, perform all the duties of the Chief Executive Officer; and
shall also have and may exercise such further powers and duties as from time to
time may be conferred upon or assigned by the Board.
Section 4.2. Chief Executive Officer. The Board of Directors shall appoint
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one of its members to be Chief Executive Officer of the Association. The Chief
Executive Officer shall supervise the carrying out of the policies adopted or
approved by the Board; shall be the senior and principal executive officer of
the Association; shall have general executive powers, as well as the specific
powers conferred by these By-laws; shall, in the absence of the Chairman,
perform all the duties of the Chairman; and shall also have and may exercise
such further powers and duties as from time to time may be conferred upon or
assigned by the Board.
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Section 4.3. President. The Board shall appoint one of its members to be
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President of the Association. In the absence of the Chairman and the Chief
Executive Officer, the President shall preside at any meeting of the Board.
Subject to the senior executive powers of the Chief Executive Officer, the
President shall have general executive powers, and shall have and may exercise
any and all other powers and duties pertaining by law, regulation, or practice,
to the office of President, or imposed by these By-laws. The President shall
have and may exercise such further powers and duties as from time to time may be
conferred or assigned by the Board.
Section 4.4. Vice President. The Board may appoint one or more Senior
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Vice Presidents and one or more Vice Presidents. Each Senior Vice President or
Vice President shall have such powers and duties as may be assigned by the
Board. One Senior Vice President shall be designated by the Board, in the
absence of the President, to perform all the duties of the President.
Section 4.5. Secretary. The Board shall appoint a person who shall be
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Secretary of the Board and of the Association, and shall keep accurate minutes
of all meetings. The Secretary shall attend to the giving of all notices
required by these By-laws to be given; shall be custodian of the corporate seal,
records, documents and papers of the Association; shall provide for the keeping
of proper records of all transactions of the Association; shall have and may
exercise any and all other powers and duties pertaining by law, regulation or
practice, or imposed by these By-laws; and shall also perform such other duties
as may be assigned from time to time by the Board.
Section 4.6. Assistant Secretary. The Assistant Secretary or, if there be
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more than one, the Assistant Secretaries in the order determined by the Board of
Directors, shall, in the absence or disability of the Secretary, perform the
duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
Section 4.7. Treasurer and Comptroller. The Board may appoint a Treasurer
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and Comptroller, which offices may be filled by one person. The Treasurer and
Comptroller shall be responsible for the financial management and reporting for
the Association.
Section 4.8. Auditor. The Board may appoint an Auditor. The Auditor shall
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be responsible for the auditing of the activities of the Association.
Section 4.9. Other Officers. The Board or the Chairman may appoint one or
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more Assistant Vice Presidents, one or more Assistant Secretaries or Assistant
Treasurers and such other officers and Attorneys-in-fact as from time to time
may appear to the Board to be required or desirable to transact the business of
the Association. Such officers shall respectively exercise such powers and
perform such duties as pertain to their several offices, or as may be conferred
upon, or assigned to, them by the Board, the Chairman of the Board, or the
President. Any two or more offices may be held by the same person.
Section 4.10. Tenure of Office. The President and all other officers shall
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hold office for the current year for which the Board was elected, unless they
shall resign, become disqualified, or be removed; and any vacancy occurring in
the offices of the Chief Executive Officer or the President shall be filled
promptly by the Board.
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ARTICLE V
SIGNING AUTHORITIES
Amended May 1, 1997
SECTION 5.1. Real Property. Real Property owned by the Association in its
own right shall not be deeded, conveyed, mortgaged assigned or transferred
except when duly authorized by a resolution of the Board. The Board may from
time-to-time authorize officers to deed, convey, mortgage, assign or transfer
real property owned by the Association in its own right with such maximum values
as the Board may fix in its authorizing resolution.
SECTION 5.2. Senior Signing Powers. Subject to the exception provided in
Section 5.1, the Chairman, the President, any Vice Chairman of the Board, any
Senior Executive Vice President, any Executive Vice President or any Senior Vice
President is authorized to accept, endorse, execute or sign any document,
instrument or paper in the name of, or on behalf of, the Association in all
transactions arising out of, or in connection with, the normal course of the
Association's business or in any fiduciary, representative or agency capacity
and, when required, to affix the seal of the Association thereto. In such
instances as in the judgment of the Chairman, the President, any Vice Chairman
of the Board, any Senior Executive Vice President or any Executive Vice
President may be proper and desirable, any one of said officers may authorize in
writing from time-to-time any other officer to have the powers set forth in this
section applicable only to the performance or discharge of the duties of such
officer within his or her particular division or function. Any officer of the
Association authorized in or pursuant to Section 5.3 to have any of the powers
set forth therein, other than the officer signing pursuant to this Section 5.2,
is authorized to attest to the seal of the Association on any documents
requiring such seal.
SECTION 5.3. Limited Signing Powers. Subject to the exception provided in
Section 5.1, in such instances as in the judgment of the Chairman, the
President, any Vice Chairman of the Board, any Senior Executive Vice President,
or any Executive Vice President may be proper and desirable, any one of said
officers may authorize in writing from time-to-time any other officer, employee
or individual to have the limited signing powers or limited power to affix the
seal of the Association to specified classes of documents set forth in a
resolution of the Board applicable only to the performance or discharge of the
duties of such officer, employee or individual within his or her division or
function.
SECTION 5.4. Powers of Attorney. All powers of attorney on behalf of the
Association shall be executed by any officer of the Association jointly with the
Chairman of the Board, the President, any Vice Chairman, any Senior Executive
Vice President, any Executive Vice President or any Senior Vice President. Any
such power of attorney may, however, be executed by any officer or officers or
person or persons who may be specifically authorized to execute the same by the
Board of Directors.
SECTION 5.5. Auditor. The Auditor or any officer designated by the Auditor
is authorized to certify in the name of, or on behalf of the Association, in its
own right or in a fiduciary or representative capacity, as to the accuracy and
completeness of any account, schedule of assets, or other document, instrument
or paper requiring such certification.
ARTICLE VI
Trust Administration and Investment
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Section 6.1. Trust Investment Committee. The Board shall appoint a Trust
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Investment Committee of not less than three and not more than seven members, who
shall be capable and experienced officers or directors of the Association. All
investments of funds held in a fiduciary capacity shall be made, retained or
disposed of only with the approval of the Trust Investment Committee; and the
Committee shall keep minutes of all its meetings, showing the disposition of all
matters considered and passed upon by it. The Committee shall, promptly after
the acceptance of an account for which the Association has investment
responsibilities, review the assets thereof to determine
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the advisability of retaining or disposing of such assets. The Committee shall
conduct a similar review at least once during each calendar year thereafter and
within fifteen months of the last such review. A report of all such reviews,
together with the action taken as a result thereof, shall be noted in the
minutes of the Committee.
Section 6.2. Trust Audit Committee. The Board shall appoint a committee
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of not less than two Directors, exclusive of any active officer of the
Association, which shall, at least once during each calendar year and within
fifteen months of the last such audit, make suitable audits of the fiduciary
activities of the Association or cause suitable audits to be made by auditors
responsible only to the Board, and at such time shall ascertain whether the
fiduciary activities of the Association have been administered in accordance
with law, Part 9 of the Regulations of the comptroller of the Currency and sound
fiduciary principles.
Section 6.3. Committees of the Board. In addition to the Committees
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designated under Article VI of the By-laws, the Board may appoint, from time to
time, from its own members, other committees of one or more persons, for such
purposes and with such powers as the Board may determine.
Section 6.4. Trust Records. Files shall be maintained which contain all
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fiduciary records necessary to assure that the fiduciary responsibilities of the
Association have been properly undertaken and discharged.
Section 6.5. Trust Investments. Funds held in a fiduciary capacity shall
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be invested in accordance with the instrument establishing the fiduciary
relationship and local law. Where such instrument does not specify the character
and class of investments to be made and does not vest in the Association a
discretion in the matter, funds held pursuant to such instrument shall be
invested in investments in which corporate fiduciaries may invest under local
law.
ARTICLE VII
Stock and Stock Certificates
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Section 7.1. Transfer. Shares of stock shall be transferable on the books
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of the Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to his shares, succeed to all rights of the prior holder of
such shares.
Section 7.2. Stock Certificates. Certificates of stock shall bear the
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signature of the Chairman of the Board or the President (which may be engraved,
printed or impressed), and shall be signed manually or by facsimile process by
the Secretary, Assistant Secretary, or any other officer appointed by the Board
of Directors for that purpose, to be known as an Authorized Officer, and the
seal of the Association shall be engraved thereon. Each certificate shall recite
on its face that the stock represented thereby is transferable only upon the
books of the Association properly endorsed.
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ARTICLE VIII
Corporate Seal
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Amended May 1, 1997
Section 8.1. The Seal. The Board shall provide a corporate seal for the
Corporation which may be affixed to any document, certificate or paper and
attested by such individuals as provided by these By-laws or as the Board may
from time-to-time determine.
ARTICLE IX
Miscellaneous
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Section 9.1. Fiscal Year. The fiscal year of the Association shall be the
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calendar year.
Section 9.2. Records. The Articles of Association, the By-laws and the
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proceedings of all meetings of the shareholders, the Board and standing
committees of the Board, shall be recorded in appropriate minute books provided
for the purpose. The minutes of each meeting shall be signed by the Secretary or
Assistant Secretary or other officer appointed to act as Secretary of the
meeting.
Section 9.3. Inspection of By-laws. A copy of the By-laws, with all
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amendments thereto, shall at all times be kept in a convenient place at the
Principal Office of the Association, and shall be open for inspection to all
shareholders during banking hours.
Section 9.4. Amendments. The By-laws may be amended, altered or repealed,
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at any meeting of the Board, by a vote of a majority of the total number of the
Directors.
