<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER THE
TRUST INDENTURE ACT OF 1939
FITZGERALDS GAMING CORPORATION
(Name of Applicant)
301 Fremont Street, Las Vegas, NV 89101
(Address of principal executive offices)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
TITLE OF CLASS AMOUNT
13% Senior Secured Notes due 2002 $123,000,000
With Contingent Interest
Approximate date of proposed public offering: As soon as
practicable after this Registration Statement becomes effective.
Name and address of agent for service: Jerome M. Turk 301 Fremont
Street, Las Vegas, NV 89101.
With a copy to:
Theodore H. Latty
Hughes Hubbard & Reed LLP
350 S. Grand Avenue, Suite 3600
Los Angeles, CA 90071
(213) 613-2808
<PAGE> 2
Item 1. General Information
(a) Corporation
(b) Nevada
Item 2. Securities Act exemption applicable.
On December 23, 1996, applicant solicited the holders of its
outstanding 13% Senior Secured Notes due 2002 With Contingent Interest (the
"Notes") with regard to certain amendments to the indenture, dated as of
December 19, 1995 (the "Indenture"), among the applicant, as issuer,
Fitzgeralds South, Inc., Fitzgeralds Reno, Inc., Fitzgeralds Incorporated,
Fitzgeralds Las Vegas, Inc., Fitzgeralds Mississippi, Inc. (formerly named Polk
Landing Entertainment Corporation), and Fitzgeralds Black Hawk, Inc., as
subsidiary guarantors, and Wells Fargo Bank, N.A. (formerly First Interstate
Bank of Nevada, N.A.), as trustee. The amendments to the Indenture are being
proposed to enable the applicant to borrow up to $6,000,000 on substantially
the same terms and conditions except that the new loan will rank senior to the
Notes and the liens securing the new loan will rank senior to the liens
securing the Notes pursuant to the subordination provisions of a first
supplemental Indenture. The applicant had previously qualified the Indenture,
pursuant to which it had issued $123,000,000 principal amount of Notes, in
connection with its Registration Statement on Form S-1, Registration No.
33-94624, which was declared effective by the Commission on December 13, 1995
(the "Prior Registration Statement").
To the extent that the Notes, as modified in connection with
the solicitation of consents, may be deemed to be new securities, applicant has
relied on Section 3(a)(9) of the Securities Act of 1933.
No sales of any securities of the same class by the applicant
or by or through any underwriter have been or are to be made at or about the
same time as the subject transaction. No consideration has been or will be
given, directly or indirectly, to any person in connection with the subject
transaction. No cash payment has been or will be made by any holder of any
outstanding securities of the registrant.
-2-
<PAGE> 3
Item 3. Affiliates.
The information required is incorporated herein by reference
to the caption "Prospectus Summary - The Business Combination" in applicant's
Prior Registration Statement.
Item 4. Directors and executive officers.
The names of all directors and executive officers of applicant
are incorporated herein by reference to Part III, Item 10 of applicant's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995, Commission
File No. 0-26518 (the "Form 10-K"). The address of all directors and executive
officers is c/o Fitzgeralds Gaming Corporation, 301 Fremont Street, Las Vegas,
NV 89101.
Item 5. Principal owners of voting securities.
The information required is incorporated herein by reference
to Part III, Item 12 of applicant's Form 10-K.
Item 6. Underwriters.
(a) Jefferies & Company, Inc.
11100 Santa Monica Blvd.
Los Angeles, CA 90025
Jefferies & Company, Inc. acted as underwriter in connection
with the December 1995 offering of securities pursuant to the
Prior Registration Statement.
(b) None.
Item 7. Capitalization.
(a) The information required is incorporated by reference
to the caption "Fitzgeralds Gaming Corporation, Consolidated Balance Sheets" in
the registrant's Quarterly Report on Form 10-Q/A for the quarter ended
September 29, 1996. The information contained therein with regard to the title
of class, amount authorized and amount outstanding for each authorized class of
securities for applicant has not changed as of the date hereof from the
information contained in such Form 10-Q/A.
-3-
<PAGE> 4
(B) The information required is incorporated herein by
reference to the caption "Description of Capital Stock" in the Prior
Registration Statement.
Item 8. Analysis of indenture provisions.
The information required is incorporated herein by reference
to the caption "Description of Securities" in the Prior Registration Statement,
as supplemented by the description thereof contained in the applicant's
Solicitation of Consent of Holders of 13% Senior Securities Notes due 2002 With
Contingent Interest, dated December 23, 1996 (the "Consent Solicitation
Statement"), a copy of which is attached hereto as Exhibit 1.
Item 9. Other obligors.
Fitzgeralds South, Inc.
Fitzgeralds Reno, Inc.
Fitzgeralds Incorporated
Fitzgeralds Mississippi, Inc. (Formerly Polk Landing
Entertainment Corporation)
Fitzgeralds Fremont Experience Corporation
Fitzgeralds Las Vegas, Inc.
Fitzgeralds Black Hawk, Inc.
Each such other obligor is a subsidiary of the applicant and a
subsidiary guarantor under the terms of the Indenture pursuant to which the
Notes were issued. The address of each such other obligor is 301 Fremont
Street, Las Vegas, NV 89101.
Contents of application for qualification. This application for qualification
comprises:
(a) Pages numbered 1 to 5, consecutively.
(b) The statement of eligibility and qualification of each trustee
under the indenture to be qualified.
(c) the following exhibits in addition to those filed as a part of
the statement of eligibility and qualification of each trustee:
Exhibit T3A. Incorporated by reference to Exhibit 3(a) to
the Prior Registration Statement.
-4-
<PAGE> 5
Exhibit T3B. Incorporated by reference to Exhibit 3(a) to
the Prior Registration Statement.
Exhibit T3C. Incorporated by reference to Exhibit 4(a) to
the Prior Registration Statement. A copy of the First Supplemental Indenture
is attached as Exhibit B to the Consent Solicitation Statement attached hereto
as Exhibit 1.
Exhibit T3D. N/A.
Exhibit T3E. A copy of the Consent Solicitation Statement
is attached hereto as Exhibit 1.
Exhibit T3F. The cross reference sheet is included in (i)
the Indenture filed as Exhibit 4(a) to the Prior Registration Statement and
(ii) the First Supplemental Indenture attached as Exhibit B to the Consent
Solicitation Statement attached hereto as Exhibit 1
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant Fitzgeralds Gaming Corporation, a corporation organized and existing
under the laws of Nevada, has duly caused this application to be signed on its
behalf by the undersigned, thereunto duly authorized, and its seal to be
hereunto affixed and attested, all in the city of Las Vegas, and the state of
Nevada, on the 26th day of December, 1996.
By: /s/ Jerome H. Turk
---------------------------------------
Jerome H. Turk, Chairman of
the Board
Attest: /s/ Fernando Bensuaski
------------------------------------
Fernando Bensuaski, Secretary
-5-
<PAGE> 6
FORM T-1
-------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
(Exact name of trustee as agent for service)
Not applicable 94-1347393
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
National Bank)
420 Montgomery Street
San Francisco, California 94163
(Address of principal executive offices) (Zip Code)
Michael J. Harrington, Esq.
Wells Fargo Bank, N.A.
111 Sutter Street
San Francisco, California 94163
(415) 396-0943 (Zip Code)
(Name, Address and Telephone
Number of Agent for Service)
Fitzgerald's Gaming Corporation
(Exact name of obligor as specified in its charter)
Nevada 88-0329170
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
301 Fremont Street
Las Vegas, NV 89101
(Address of principal executive offices) (Zip Code)
_______________________________
13% Senior Secured Notes due 2002
With Contingent Interest
(Title of the Indenture Securities)
<PAGE> 7
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.
Name Address
Comptroller of the Currency Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
Board of Governors of The Federal
Reserve System Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of
the trustee, describe each such affiliation.
Neither the obligor nor any underwriter for the obligor is an
affiliate of the trustee.
Item 3 Through Item 15 (Not Applicable)
16. List of Exhibits:
Exhibit 1 A copy of the Articles of Association of the Trustee
as presently in effect.
Exhibit 2 A copy of the Certificate of Authority to transact
business
Exhibit 3 Certificate of Authority to transact business from
Comptroller of the Currency
Exhibit 4 A copy of the By-Laws of the Trustee as presently in
effect.
Exhibit 5 Not applicable.
Exhibit 6 The Consent of the Trustee as required under Section
321(b) of the Trust Indenture Act of 1939.
Exhibit 7 A copy of the latest report of condition of the
Trustee published pursuant to law or the requirements
of its supervising or examining authority.
<PAGE> 8
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
Wells Fargo Bank, National Association, a corporation organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City and County of Denver, and State of Colorado, on the
23rd day of December, 1996.
WELLS FARGO BANK,
NATIONAL ASSOCIATION.
By: /s/ KENT E. EICHSTADT
---------------------
Kent E. Eichstadt
Assistant Vice President
<PAGE> 9
WELLS FARGO BANK, NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
EFFECTIVE SEPTEMBER 8, 1992
ARTICLE I - NAME
The title of the Association shall be WELLS FARGO BANK, NATIONAL ASSOCIATION.
ARTICLE II - OFFICES
1. Main Office. The main office of the Association shall be
in the City and County of San Francisco, State of California. The Board of
Directors shall have the power to change the location of the main office to any
other place within the City and County of San Francisco, State of California,
without the approval of the stockholders, but subject to the approval of the
Comptroller of the Currency.
2. Branch Offices. The Board of Directors shall have the
power to establish or change the location of any branch or branches of the
Association to any other location, without the approval of the stockholders but
subject to the approval of the Comptroller of the Currency.
3. Conduct of Business. The general business of the
Association shall be conducted at its main office and its branches.
ARTICLE III - BOARD OF DIRECTORS
1. Number: Vacancy. The Board of Directors of the
Association shall consist of not less than five nor more than twenty-five
persons, the exact number of Directors within such minimum and maximum limits
to be fixed and determined from time to time by resolution of a majority of the
full Board of Directors or by resolution of the stockholders at any annual or
special meeting thereof. Unless otherwise provided by the laws of the United
States, any vacancy in the Board of Directors for any reason, including an
increase in the number thereof, may be filled by action of the Board of
Directors.
<PAGE> 10
2. Appointment of Officers. The Board of Directors shall
appoint one of its members as the President of the Association. The President
shall also be the Chairman of the Board unless the Board of Directors appoints
another Director to be the Chairman of the Board. The Board of Directors shall
have the power to appoint or to determine the manner of appointing the other
officers of the Association.
3. Powers. The Board of Directors shall have the power to
define or to determine the manner of defining the duties of the officers and
employees of the Association; to fix or to determine the manner of fixing the
salaries to be paid to them; to dismiss or to determine the manner of
dismissing them; to require bonds from them and to fix the penalty thereof; to
regulate the manner in which any increase of the capital of the Association
shall be made; to manage and administer the business and affairs of the
Association; to make all By- Laws that it may be lawful for the Board of
Directors to make; and generally to do and perform all acts that it may be
legal for a Board of Directors to do and perform.
ARTICLE IV - MEETINGS OF STOCKHOLDERS
1. Annual Meeting. The annual meeting of the stockholders
for the election of Directors and the transaction of whatever other business
may be brought before said meeting shall be held at the main office or such
other place as the Board of Directors may designate, on the day of each year
specified therefor in the By-Laws, but if no election is held on that day, it
may be held on any subsequent day according to the provisions of law; and all
elections shall be held according to such lawful regulations as may be
prescribed by the Board of Directors.
2. Special Meetings. Special meetings of the stockholders of
this Association unless otherwise regulated by statute, for any purpose or
purposes whatsoever, may be called at any time by the Board of Directors, the
chief executive officer or by one or more stockholders holding not less than
one-fifth of the voting power of the Association.
3. Notice of Meetings. Unless otherwise regulated by
statute, a notice of the time, place and purpose of every annual and special
meeting of the stockholders shall be given by first-class mail, postage
prepaid, mailed at least ten days prior to the date of such meeting to each
stockholders of record at his address as shown upon the books of the
Association.
<PAGE> 11
4. Written Consents. Unless otherwise regulated by statute,
any action required or permitted to be taken by the stockholders may be taken
without a meeting, if all stockholders shall individually or collectively
consent in writing to such action. Such written consent or consents shall be
filed with the minutes of the proceedings of the stockholders. Such action by
written consent shall have the same force and effect as the unanimous vote of
the stockholders.
ARTICLE V - INDEMNITY
Any person, his heir, executors, or administrators, may be
indemnified or reimbursed by the Association for reasonable expenses actually
incurred in connection with any action, suit, or proceeding, civil or criminal,
to which he or they shall be made a party by reason or his being or having been
a Director, officer, or employee of the Association or of any firm,
corporation, or organization which he served in any such capacity at the
request of the Association: Provided, however, that no person shall be so
indemnified or reimbursed in relation to any matter in such action, suit, or
proceeding as to which he shall finally be adjudged to have been guilty of or
liable for gross negligence, willful misconduct or criminal acts in the
performance of his duties to the Association: And, provided further, that no
person shall be so indemnified or reimbursed in relation to any matter in such
action suit, or proceeding which has been made the subject of a compromise
settlement except with the approval of a court of competent jurisdiction, or
the holders of record of a majority of the outstanding shares of the Capital
Stock of the Association, or the Board of Directors, acting by vote of
Directors not parties to the same or substantially the same action, suit, or
proceeding, constituting a majority of the entire number of Directors. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which such person, his heirs, executors, or administrators, may
be entitled as a matter of law. The Association may, upon the affirmative vote
of a majority of its Board of Directors, purchase insurance for the purpose of
indemnifying its Directors, officers, or employees.
ARTICLE VI - CAPITAL
1. Capitalization. The Association is authorized to issue a
total of 112,200,000 shares of Common Stock; the aggregate par value of all of
the shares of Common Stock which the Association shall be authorized to issue
shall be $1,122,000,000; and the par value of each share of Common Stock which
the Association shall be authorized to issue shall be Ten Dollars ($10.00).
<PAGE> 12
2. Voting Rights. Each holder of Common Stock shall be
entitled to vote on all matters, one vote for each share of Common Stock held
by him, provided that, in all elections of Directors, each holder of Common
Stock shall have the right to vote the shares allocated to the number of shares
owned by him for as many persons as there are Directors to be elected, or to
cumulate such votes and give one candidate as many votes as the number of
Directors to be elected multiplied by the number of votes allocable to his
share shall equal, or to distribute such votes on the same principle among as
many candidate as he shall think fit.
3. Debt Obligations. The Association, at any time and from
time to time, may authorize the issue of debt obligations, whether or not
subordinated, without the approval of the stockholders.
ARTICLE VII - PERPETUAL EXISTENCE
The corporate existence of the Association shall continue
until terminated in accordance with the laws of the United States.
ARTICLE VIII - AMENDMENT
These Articles of Association may be amended at any regular or
special meeting of the stockholders by the affirmative vote of the holders of a
majority of the Capital Stock of the Association, unless the vote of the
holders of a greater amount of Capital Stock is required by law, and in that
case by the vote of the holders of such greater amount.
<PAGE> 13
COMPTROLLER OF THE CURRENCY
TREASURY DEPARTMENT OF THE UNITED STATES
Washington, D.C.
WHEREAS, FIRST NATIONAL BANK OF NEVADA, located in Reno, State of
Nevada, being a National Banking Association, organized under the statutes of
the United States, has made application for authority to act as fiduciary
AND WHEREAS, applicable provisions of the statutes of the United States
authorize the grant of such authority;
NOW THEREFORE, I hereby certify that the necessary approval has been
given and that the said association is authorized to act in all fiduciary
capacities permitted by such statutes.
IN TESTIMONY WHEREOF, witness my
signature and seal of Office this
[SEAL] first day of October, 1979.
Comptroller of the Currency
EXHIBIT
<PAGE> 14
- ------------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
- ------------------------------------------------------------------------------
Washington, D.C. 20219
Whereas, satisfactory notice has been transmitted to the Comptroller of
the Currency evidencing that all requisite legal and corporate action
has been taken by
FIRST NATIONAL BANK OF NEVADA
located in RENO, State of NEVADA, in accordance with the statutes of the
United States, to authorize a change of the name of that association to
"FIRST INTERSTATE BANK OF NEVADA, NATIONAL ASSOCIATION"
Now, Therefore, it is hereby certified that such change of name
of said association is approved, effective as of June 1, 1981.
In Testimony Whereof, witness my signature and seal of office
this 3RD day of JUNE, 1981.
[SEAL]
/s/ CHARLES E. LORD
CHARLES E. LORD
Acting Comptroller of the Currency
Charter No. 7038.
<PAGE> 15
BY-LAWS
OF
WELLS FARGO BANK, NATIONAL ASSOCIATION
(AS AMENDED MAY 10, 1996)
ARTICLE I
MEETING OF STOCKHOLDERS
SECTION 1. ANNUAL MEETING. All annual meetings of the Stockholders
of WELLS FARGO BANK, NATIONAL ASSOCIATION (herein called the "Bank") shall be
held at the head office of the Bank, or other convenient place duly authorized
by the Board of Directors, on the third Monday of April in each year at 3:30
o'clock p.m., if not a bank holiday, and if a bank holiday then on the next
succeeding business day at the same hour and place. At such meetings,
Directors shall be elected, reports of the affairs of the Bank shall be
considered, and any other business may be transacted which is within the powers
of the Stockholders.
SECTION 2. SPECIAL MEETINGS. Special meetings of the Stockholders,
unless otherwise regulated by statute, for any purpose or purposes whatsoever,
may be called at any time by the Board of Directors, the chief executive
officer or one or more Stockholders holding not less than one-fifth (1/5) of
the voting power of the Bank. Such meetings shall be held at the head office
of the Bank or other convenient place duly authorized by the Board of
Directors.
SECTION 3. NOTICE OF MEETINGS. Unless otherwise provided by statute,
a notice of the time, place and purpose of every annual and special meeting of
the Stockholders shall be given by first-class mail, postage prepaid, mailed at
least ten (10) days prior to the date of such meeting to each Stockholder of
record at his address as shown upon the books of the Bank, or if no address is
shown, at 464 California Street, San Francisco, California. Except as
otherwise provided by statute, the transactions of any meeting of Stockholders,
however called and noticed and wherever held, shall be as valid as though had
at a meeting duly held after regular call and notice, if a quorum be present
either in person or by proxy, and if, either before or after the meeting, each
of the Stockholders entitled to vote, not present in person or by proxy, signs
a written waiver of notice of such meeting. All such waivers shall be filed
with the records of the Bank or made a part of the minutes of the meeting.
-1-
<PAGE> 16
SECTION 4. PROXIES. Stockholder may vote at any meeting of the
Stockholders by proxies duly authorized in writing, but no officer or employee
of the Bank shall act as proxy. Proxies shall be valid only for one meeting,
to be specified therein, and any adjournments of such meeting. Proxies shall
be dated and shall be filed with the records of the meeting.
SECTION 5. QUORUM. Except as otherwise provided by law, the presence
of the holders of a majority of the Capital stock issued and outstanding in
person or represented by proxy and entitled to vote is requisite and shall
constitute a quorum for the transaction of business at all meetings of the
Stockholders. A majority of votes cast shall decide every question or matter
submitted to the Stockholders at any meeting, unless otherwise provided by law
or by the Articles of Association.
SECTION 6. WRITTEN CONSENTS. Any action required or permitted to be
taken by the Stockholders may be taken without a meeting, if all Stockholders
shall individually or collectively consent in writing to such action. Such
written consent or consents shall be filed with the minutes of the proceedings
of the Stockholders. Such action by written consent shall have the same force
and effect as the unanimous vote of the Stockholders.
ARTICLE II
DIRECTORS
SECTION 1. CORPORATE POWERS, NUMBER. The corporate powers of this
Bank shall be vested in and exercised by a Board of Directors consisting of 21
members.
SECTION 2. ELECTION, VACANCIES. The Directors shall be elected by
ballot at the annual meeting of the Stockholders. Each Director shall serve
until the organizational meeting of the Board of Directors held pursuant to
Section 3 of this Article in the year next following his or her election and
until his or her successor has been elected and has qualified. Vacancies in
the Board of Directors shall be filled by the majority vote of the other
Directors then in office.
-2-
<PAGE> 17
SECTION 3. ORGANIZATIONAL MEETING. The Directors, without further
notice, shall meet on the next business day immediately following the
adjournment of the Stockholders' meeting at which they have been elected and
shall, pursuant to Section 1 of Article III hereof, proceed to elect the
officers of the Bank, the members of the Committees provided in Section 12 of
this Article, the Advisory Directors provided in Section 13 of this Article and
the Directors Emeriti provided in Section 14 of this Article. At said meeting,
the Board of Directors may consider and act upon any other business which may
properly be brought before this meeting.
SECTION 4. PLACE OF MEETINGS. The Board of Directors shall hold its
meetings at the head office of the Bank or at such other place as may from time
to time be designated by the Board of Directors or by the chief executive
officer.
SECTION 5. REGULAR MEETINGS. Regular meetings of the Board of
Directors will be held on the third Tuesday of each month (except for the
months of August and December ) at 10:00 a.m. If the day of any regular
meeting shall fall upon a bank holiday, the meeting shall be held at the same
hour on the first day following which is not a bank holiday. No call or notice
of a regular meeting need be given unless the meeting is to be held at a place
other than the head office of the Bank.
SECTION 6. SPECIAL MEETINGS. Special meetings shall be held when
called by the chief executive officer or at the written request of four
Directors.
SECTION 7. QUORUM; ADJOURNED MEETINGS. A majority of the authorized
number of Directors shall constitute a quorum for the transaction of business.
A majority of the Directors present, whether or not a quorum, may adjourn any
meeting to another time and place, provided that, if the meeting is adjourned
for more than 30 days, notice of the adjournment shall be given in accordance
with these By-Laws.
-3-
<PAGE> 18
SECTION 8. NOTICE; WAIVERS OF NOTICE. Notice of special meetings and
notice of regular meetings held at a place other than the head office of the
Bank shall be given to each Director, and notice of the adjournment of a
meeting adjourned for more than 30 days shall be given prior to the adjourned
meeting to all Directors not present at the time of the adjournment. No such
notice need specify the purpose of the meeting. Such notice shall be given
four days prior to the meeting if given by mail or on the day preceding the day
of the meeting if delivered personally or by telephone, facsimile, telex or
telegram. Such notice shall be addressed or delivered to each Director at such
Director's address as shown upon the records of the Bank or as may have been
given to the Bank by the Director for the purposes of notice. Notice need not
be given to any Director who signs a waiver of notice (whether before or after
the meeting) or who attends the meeting without protesting the lack of notice
prior to its commencement. All such waivers shall be filed with and made a
part of the minutes of the meeting.
SECTION 9. WRITTEN CONSENTS. Any action required or permitted to be
taken by the Board of Directors may be taken without a meeting if all members
of the Board of Directors shall individually or collectively consent in writing
to such action. Such written consent or consents shall be filed with the
minutes of the proceedings of the Board of Directors. Such action by written
consent shall have the same force and effect as the unanimous vote of the
Directors.
SECTION 10. TELEPHONIC MEETINGS. A meeting of the Board of Directors
or of any Committee thereof may be held through the use of conference telephone
or similar communications equipment, so long as all members participating in
such meeting can hear one another. Participation in such a meeting shall
constitute presence at such meeting.
SECTION 11. COMPENSATION. Directors, Advisory Directors (as provided
in Section 13 of this Article) and Directors Emeriti (as provided in Section 14
of this Article) as such may receive such compensation, if any, as the Board of
Directors by resolution may direct, including salary or a fixed sum plus
expenses, if any, for attendance at meetings of the Board of Directors or of
its committees.
-4-
<PAGE> 19
SECTION 12. COMMITTEES OF THE BOARD OF DIRECTORS. By resolution
adopted by a majority of the authorized number of Directors, the Board of
Directors may designate one or more Committees to act as or on behalf of the
Board of Directors. Each such Committee shall consist of one or more Directors
designated by the Board of Directors to serve on such Committee at the pleasure
of the Board of Directors. The Board of Directors may designate one or more
Directors as alternate members of any Committee, which alternate members may
replace any absent member at any meeting of such Committee in the order
designated. Failing such designation and in the absence or disqualification of
a member of a Committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he, she 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.
Included among such Committees shall be the following:
(a) EXECUTIVE COMMITTEE. There shall be an Executive Committee
consisting of the Chairman of the Board, presiding, and not less than seven
additional Directors, who shall be elected by the Board of Directors at its
organizational meeting or otherwise. The Executive Committee shall be subject
to the control of the Board of Directors but, subject thereto, it shall have
the fullest authority to act for and on behalf of the Bank and it shall have
all of the powers of the Board of Directors, which, under the law, is possible
for a Board of Directors to delegate to such a Committee, including the
supervision of the general management direction and superintendence of the
business affairs of the Bank.
(b) COMMITTEE ON EXAMINATIONS AND AUDITS. There shall be a Committee
on Examinations and audits consisting of not less than three (3) Directors, who
are not officers of the Bank who shall be elected by the Board of Directors at
its organizational meeting or otherwise.
-5-
<PAGE> 20
It shall be the duty of this committee (i) to make, or cause to be made in
accordance with procedures from time to time approved by the Board of
Directors, internal examinations and audits of the affairs of the Bank and the
affairs of any Bank Subsidiary which by resolution of its Board of Directors
has authorized this Committee to act hereunder, (ii) to make recommendations to
the Board of Directors of the Bank and of each such Bank Subsidiary with
respect to the selection of and scope of work for the independent auditors for
the Bank and for each Bank Subsidiary, (iii) to review, or cause to be reviewed
in accordance with procedures from time to time approved by the Board of
Directors, all reports of internal examinations and audits, all audit related
reports made by the independent auditors for the Bank and each such Bank
Subsidiary and all reports of examination of the Bank and of any Bank
Subsidiary made by regulatory authorities, (iv) from time to time, to review
and discuss with the management, and independently with the General Auditor,
the Risk Control Officer and the independent auditors, the accounting and
reporting principles, policies and practices employed by the Bank and its Bank
Subsidiaries and the adequacy of their accounting, financial, operating and
administrative controls, including the review and approval of any policy
statements relating thereto, and (v) to perform such other duties as the Board
of Directors may from time to time assign to it. This Committee shall submit
reports of its findings, conclusions and recommendations, if any, to the Board
of Directors.
(c) TRUST AND INVESTMENT PRODUCTS COMMITTEE. There shall be a Trust
and Investment Products Committee consisting of the President, presiding, and
not less than five additional Directors, who shall be elected by the Board of
Directors at its organizational meeting or otherwise. The Trust and Investment
Products Committee shall have the following two separate and distinct
responsibilities: (i) to supervise the administration and proper exercise of
the fiduciary powers of the Bank and (ii) to supervise the administration of
all non-fiduciary investment management activities of the Bank, including,
without limitation, all sales of mutual funds, annuities and other non-deposit
investment products.
-6-
<PAGE> 21
(d) MANAGEMENT DEVELOPMENT AND COMPENSATION COMMITTEE. There shall
be a Management Development and Compensation Committee consisting of not less
than six (6) Directors who shall be elected by the Board of Directors at its
organizational meeting or otherwise and none of whom shall be eligible to
participate in either the Wells Fargo & Company Equity Incentive Plan, the
Wells Fargo & Company Employee Stock Purchase Plan or any similar employee
stock plan (or shall have become so eligible within the year next preceding the
date of becoming a member of the Management Development and Compensation
Committee). It shall be the duty of the Management Development and
Compensation Committee, and it shall have authority, to fix and to vary
salaries of the Chairman of the Board, the President, the Vice Chairman of the
Board, the General Auditor and the Risk Control Officer and to advise the chief
executive officer concerning the Bank's salary policies, to administer such
compensation programs as from time to time delegated to it by the Board of
Directors and to accept or reject the recommendations of the chief executive
officer with respect to all salaries in excess of such dollar amount or of
officers of such grade or grades as the Board of Directors may from time to
time by resolution determine to be appropriate.
(e) NOMINATING COMMITTEE. There shall be a Nominating Committee
consisting of not less than three (3) Directors, who shall be elected by the
Board of Directors at its organizational meeting or otherwise. It shall be the
duty of the Nominating Committee, annually and in the event of vacancies in the
Board of Directors, to nominate candidates for election to the Board of
Directors.
Each Committee member shall serve until the organizational meeting of
the Board of Directors held pursuant to Section 3 of this Article in the year
next following his or her election and until his or her successor has been
elected and has qualified, but any such member may be removed at any time by
the Board of Directors. Vacancies in any of said committees, however created,
shall be filled by the Board of Directors. A majority of the members of any
such committee shall be necessary to constitute a quorum and sufficient for the
transaction of business and any act of a majority present at a meeting of any
such committee of which there is a quorum present shall be the act of such
committee. Any action which may be taken at a meeting of any Committee of the
Board may be taken without a meeting, if all members of said Committee
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of said
Committee and shall have the same force and effect as the unanimous vote of the
Committee members.
-7-
<PAGE> 22
Subject to these By-Laws and the Board of Directors, each Committee shall have
the power to determine the form of its organization, and the provisions of
these By-Laws governing the calling, notice and place of special meetings of
the Board of Directors shall apply to all meetings of any Committee unless such
committee fixes a time and place for regular meetings in which case notice for
such meeting shall be unnecessary. The provisions of these By-Laws regarding
meetings of the Board of Directors, however called or noticed, shall apply to
all meetings of any Committee. Each committee shall cause to be kept a full
and complete record of its proceedings, which shall be available for inspection
by any Director. There shall be presented at each meeting of the Board of
Directors a summary of the minutes of all proceedings of each committee since
the preceding meeting of the Board of Directors.
ARTICLE III
OFFICERS
Section 1. OFFICERS, ELECTION. The Bank shall have (i) a Chairman of
the Board, (ii) a President and (iii) a Secretary. The Bank also may have a
Vice Chairman of the Board, one or more Vice Chairmen, one or more Executive
Vice Presidents, one or more Senior Vice Presidents, one or more Vice
Presidents, one or more Assistant Vice Presidents, a Cashier, one or more
Assistant Cashiers, one or more Assistant Secretaries, one or more Assistant
Trust Officers, a General Auditor, a Risk Control Officer, a Controller and
such other officers as the Board, or the Chief Executive Officer or any officer
or committee whom he may authorize to perform this duty, may create. The
Chairman of the Board, Vice Chairman of the Board, and President, shall be
elected from among the members of the Board of Directors. The following
offices shall be filled only pursuant to election by the Board of Directors:
Chairman of the Board, Vice Chairman of the Board, President, Vice Chairman,
Executive Vice President, Senior Vice President, Senior Trust Officer, Cashier,
General Auditor, Risk Control Officer, Controller and Secretary. Other
officers may be appointed by the Chief Executive Officer or by any officer or
committee whom he may authorize to perform this duty.
-8-
<PAGE> 23
Section 1. OFFICERS, ELECTION. CONT.
All officers shall hold office at will, at the pleasure of the Board of
Directors, the Chief Executive Officer, the officer or committee having the
authority to appoint such officers, and the officer or committee authorized by
the Chief Executive Officer to remove such officers, and may be removed at any
time, with or without notice and with or without cause. No authorization by
the Chief Executive Officer to perform such duty of appointment or removal
shall be effective unless done in writing, signed by the Chief Executive
Officer. One (1) person may hold more than one (1) office except that offices
of President and Secretary may not be held by the same person.
Section 2. CHAIRMAN OF THE BOARD. The Chairman of the Board shall,
when present, preside at all meetings of Stockholders and of the Board of
Directors and shall be the chief executive officer of the Bank. As chief
executive officer he shall, subject to the provisions of these By-Laws and such
resolutions of the Board of Directors as shall be in effect from time to time,
exercise general supervision over the property, affairs and business of the
Bank and prescribe or, to the extent that he shall deem appropriate, designate
an officer or committee or prescribe the duties, authority and signing powers
of all other officers and employees. The Chairman of the Board shall preside
at all meetings of the Executive Committee.
Section 3. VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the
Board shall, subject to these By-Laws, exercise such powers and perform such
duties as may from time to time be prescribed by the Board of Directors.
Section 4. PRESIDENT. The President shall, subject to these By-Laws,
be the chief operating officer of the Bank and shall exercise such other powers
and perform such other duties as may from time to time be prescribed by the
Board of Directors. In the absence of the Chairman of the Board, the President
shall preside over the meetings of the Stockholders and of the Board of
Directors.
-9-
<PAGE> 24
Section 5. ABSENCE OR DISABILITY OF CHIEF EXECUTIVE OFFICER. In the
absence or disability of the Chairman of the Board, the President shall act as
chief executive officer. In the absence or disability of the Chairman of the
Board and the President, the Vice Chairman of the Board shall act as chief
executive officer. In the absence or disability of the Chairman of the Board,
the President and the Vice Chairman of the Board, the officer designated by the
Board of Directors or, if there be no such designation, the officer designated
by the Chairman of the Board shall act as the chief executive officer. The
Chairman of the Board shall at all times have on file with the Secretary his
written designation of the officer from time to time so designated by him to
act as the chief executive officer in his absence or disability and in the
absence or disability of the President and the Vice Chairman of the Board.
Section 6. SECRETARY. The Secretary shall keep the minutes of the
meetings of the Board of Directors and of the Executive Committee, and shall
perform such other duties as may be prescribed by the Board of Directors or the
chief executive officer. The Secretary is assigned all of the duties
previously assigned to, or authorized by law, custom or usage to be performed
by, a Cashier. In the absence of the Secretary, one of the Assistant
Secretaries, or an officer designated by the chief executive officer, shall
perform the duties and functions of the Secretary.
Section 7. GENERAL AUDITOR. The General Auditor shall be responsible
to the Board of Directors for evaluating the ongoing operations of, and the
adequacy, effectiveness and efficiency of the systems of control within the
Bank and of each Bank Subsidiary which has authorized the Committee on
Examinations and Audits to act under paragraph (b) of Section II, Article II.
He shall make, or cause to be made, such internal audits and reports of the
Bank and each such Bank Subsidiary as may be required by the Board of Directors
of the Bank or by the Committee on Examinations and Audits. He shall
coordinate the auditing work performed for the Bank and its Bank Subsidiaries
by public accounting firms and, in connection therewith, he shall determine
whether the internal auditing functions being performed within the Bank
subsidiaries are adequate. He shall also perform such other duties as the
chief executive officer may prescribe, and shall report to the chief executive
officer on all matters concerning the safety of the operations of the Bank and
of any Bank Subsidiary which he deems advisable or which the chief executive
officer may request.
-10-
<PAGE> 25
Additionally, the General Auditor shall have the duty of reporting
independently of all officers of the Bank to the Committee on Examinations and
Audits at least quarterly on all matters concerning the safety of the
operations of the Bank and its Bank subsidiaries which should be brought in
such manner through such Committee to the attention of the Board of Directors.
Should the General Auditor deem any matter to be of especial immediate
importance, he shall report thereon forthwith through the Committee on
Examination and Audits to the Board of Directors.
Section 8. RISK CONTROL OFFICER. The Risk Control Officer shall
report to the Board of Directors through its Committee on Examinations and
Audits. The Risk Control Officer shall be responsible for directing a number
of control related activities principally affecting the Bank's credit function
and shall have such other duties and responsibilities as shall be prescribed
from time to time by the chief executive officer and the Committee on
Examinations and Audits. Should the Risk Control Officer deem any matter to be
of special importance, the Risk Control Officer shall report thereon forthwith
through the Committee to the Board of Directors.
ARTICLE IV
EMERGENCY PROCEDURES
Section 1. EMERGENCY DEFINED. As used in this Article, "emergency"
shall mean any disorder, disturbance or damage caused by or resulting from any
natural disaster, act of God, act of war, enemy attack, outbreak of
hostilities, civil unrest or other similar cause or event beyond the control of
the Bank which prevents management by the Board of Directors and conduct by the
officers of the business and affairs of the Bank in the manner provided for in
the Articles of Association and in the other Articles of these By-Laws. The
powers and duties conferred and imposed by this Article and any resolutions
adopted pursuant hereto shall be effective only during an emergency. This
Article may be implemented from time to time by resolutions adopted by the
Board of Directors before or during an emergency, or during an emergency by the
Executive Committee or an Emergency Managing Committee constituted and then
acting pursuant hereto. An emergency, once commenced, shall be deemed to
continue until terminated by resolutions adopted for that purpose by the Board
of Directors. During an emergency, the provisions of this Article and any
implementing resolutions shall supersede any conflicting provisions of any
Article of these By-Laws or resolutions adopted pursuant thereto.
-11-
<PAGE> 26
Section 2. CONDUCT OF AFFAIRS. During any emergency, the officers
and employees of the Bank shall continue, so far as possible, to conduct the
affairs and business of the Bank under the guidance of the Board of Directors,
or the Executive Committee or any Emergency Managing Committee acting pursuant
to this Article, and in accordance with known orders of governmental
authorities.
Section 3. POWER OF EXECUTIVE COMMITTEE. If, during any emergency, a
quorum of either the Board of Directors or executive Committee cannot be found
or is unable to act, any two (2) or more available members of the Executive
Committee shall constitute a quorum of the Executive Committee and as such
shall have and exercise the fullest power for conduct and management of the
affairs and business of the Bank, including the powers conferred upon the Trust
Committee by Section 12 of Article II, and the power to relocate the head
office or any other office or branch as circumstances may require, provided
that the Executive Committee shall, during any emergency, comply with Sections1
and 2 of Article I, relating to annual and special meetings of the
Stockholders, to the extent that such compliance is practicable. If two (2) or
more members of the Executive Committee are not available to serve, any three
(3) or more available Directors shall be deemed to constitute a quorum of the
Executive Committee for exercise of the powers conferred and performance of the
duties imposed by this Section 3.
Section 4. POWER OF EMERGENCY MANAGING COMMITTEE. If, during any
emergency, neither a quorum of the Board of Directors nor the Executive
Committee as provided for in Section 3 above is available to serve, then the
powers conferred and duties imposed by said Section 3 shall be vested in and
devolve upon an Emergency Managing Committee consisting of all available
directors, the then acting chief executive officer if he is available, and as
many Vice Presidents or officers senior thereto as may be necessary to
constitute a total of five (5) committee members. If officers are needed to
serve on the Emergency Managing Committee initially, or to fill vacancies from
time to time, such vacancies shall be filled by the available Vice Presidents
and officers senior thereto assigned to the head office as constituted prior to
the emergency in order of their rank and seniority. If a sufficient number of
such officers is not available, such vacancies shall be filled by other Vice
Presidents selected by the incumbent members of the Emergency Managing
Committee.
-12-
<PAGE> 27
Any two (2) members of the Emergency Managing Committee and the then acting
chief executive officer, if he is available, shall constitute a quorum of the
Emergency Managing Committee and shall have and exercise all of the powers
conferred and perform the duties imposed by this Section 4 but if the then
acting chief executive officer is not available any three (3) members of the
Emergency Managing Committee shall constitute a quorum of said committee.
ARTICLE V
DEPOSITS
Section 1. AGREEMENTS, RULES AND REGULATIONS. The Board of Directors
shall have the right to establish the terms and conditions of agreements, rules
and regulations upon which deposits may be made with and will be repaid by the
Bank or any office of the Bank. Subject to the exercise of such right by the
Board of Directors and to applicable law, and not inconsistent therewith, the
chief executive officer of the Bank, or such other officer or officers or
committee whom he may authorize to perform this duty, or the designees of such
officer, officers or committee, shall establish the terms and conditions of
agreements, rules and regulations with respect to such deposits.
ARTICLE VI
INDEMNIFICATION
Section 1. ACTION, ETC. OTHER THAN BY OR IN THE RIGHT OF THE BANK.
The Bank shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding or investigation, whether civil, criminal or administrative, and
whether external or internal to the Bank (other than a judicial action or suit
brought by or in the right of the Bank), by reason of the fact that he or she
is or was an Agent (as hereinafter defined) against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the Agent in connection with such action, suit or
proceeding, or any appeal therein, if the Agent acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Bank and, with respect to any criminal action or proceeding,
had no reasonable cause to believe such conduct was unlawful.
-13-
<PAGE> 28
Section 1. ACTION, ETC. OTHER THAN BY OR IN THE RIGHT OF THE BANK. - CONT.
The termination of any action, suit or proceeding-whether by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent-shall not, of itself, create a presumption that the Agent did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Bank and, with respect to any
criminal action or proceeding, that the Agent had reasonable cause to believe
that his or her conduct was unlawful. For purposes of this Article, an "Agent"
shall be any Director, officer or employee of the Bank, or any person who,
being or having been such a Director, officer or employee, is or was serving at
the request of the Bank as a director, officer, employee, trustee or agent of
another bank, corporation, partnership, joint venture, trust or other
enterprise.
Section 2. ACTION. ETC. BY OR IN THE RIGHT OF THE BANK. The Bank
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed judicial action or suit brought
by or in the right of the Bank to procure a judgment in its favor by reason of
the fact that such person is or was an Agent (as defined above) against
expenses (including attorneys' fees) and amounts paid in settlement actually
and reasonably incurred by such person in connection with the defense,
settlement or appeal of such action or suit if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Bank, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Bank unless and only to the extent that the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnify for such
expenses which such court shall deem proper.
-14-
<PAGE> 29
Section 3. DETERMINATION OF RIGHT OF INDEMNIFICATION OR CONTRIBUTION.
Unless otherwise ordered by a court, any indemnification under Section 1 or 2,
and any contribution under Section 6, of this Article shall be made by the Bank
or an Agent unless a determination is reasonably and promptly made, either (i)
by the Board of Directors acting by a majority vote of a quorum consisting of
Directors who were not party to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or if obtainable and such quorum so directs,
by independent legal counsel in a written opinion, or (iii) by the
Stockholders, that such Agent acted in bad faith and in a manner that such
Agent did not believe to be in or not opposed to the best interests of the Bank
or, with respect to any criminal proceeding, that such Agent believed or had
reasonable cause to believe that his or her conduct was unlawful.
Section 4. ADVANCES OF EXPENSES. Except as limited by Section 5 of
this Article, costs, charges and expenses (including attorneys' fees) incurred
by an Agent in defense of any action, suit, proceeding or investigation of the
nature referred to in Section 1 or 2 of this Article or any appeal therefrom
shall be paid by the Bank in advance of the final disposition of such matter;
provided, however, that if the General Corporation Law of Delaware then would
by analogy so require, such payment shall be made only if the Agent shall
undertake to reimburse the Bank for such payment in the event that it is
ultimately determined, as provided herein, that such person is not entitled to
indemnification.
Section 5. RIGHT OF AGENT TO INDEMNIFICATION OR ADVANCE UPON
APPLICATION; PROCEDURE UPON APPLICATION. Any indemnification under Section 1
or 2, or advance under Section 4, of this Article shall be made promptly and in
any event within 90 days, upon written request of the Agent, unless with
respect to an application under said Sections 1 or 2 an adverse determination
is reasonably and promptly made pursuant to Section 3 of this Article or unless
with respect to an application under said Section 4 an adverse determination if
made pursuant to said Section 4. The right to indemnification or advances as
granted by this Article shall be enforceable by the Agent in any court of
competent jurisdiction if the Board of Directors or independent legal counsel
improperly denies the claim, in whole or in part, or if no disposition of such
claim is made within 90 days.
-15-
<PAGE> 30
It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any action, suit or
proceeding in advance of its final disposition where any required undertaking
has been tendered to the Bank) that the Agent has not met the standards of
conduct which would require the Bank to indemnify or advance the amount
claimed, but the burden of proving such defense shall be on the Bank. Neither
the failure of the Bank (including the Board of Directors, independent legal
counsel and the Stockholders) to have made a determination prior to the
commencement of such action that indemnification of the Agent is proper in the
circumstances because he or she has met the applicable standard of conduct, nor
an actual determination by the Bank (including the Board of Directors,
independent legal counsel and the Stockholders) that the agent had not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the Agent had not met the applicable standard of conduct. The
Agent's costs and expenses incurred in connection with successfully
establishing his or her right to indemnification, in whole or in part, in any
proceeding shall also be indemnified by the Bank.
Section 6. CONTRIBUTION. In the event that the indemnification
provided for in this Article is held by a court of competent jurisdiction to be
unavailable to an Agent in whole or in part, then in respect of any threatened,
pending or completed action, suit or proceeding in which the Bank is jointly
liable with the Agent (or would be if joined in such action, suit or
proceeding), to the extent that would by analogy be permitted by the General
Corporation Law of Delaware the Bank shall contribute to the amount of expenses
(including attorneys fees) judgments, fines and amounts paid in settlement
actually and reasonably incurred and paid or payable by the Agent in such
proportion as is appropriate to reflect (i) the relative benefits received by
the Bank on the one hand and the Agent on the other from the transaction from
which such action, suit or proceeding arose and (ii) the relative fault of the
Bank on the one hand and of the Agent on the other in connection with the
events which resulted in such expenses, judgments, fines or settlement amounts,
as well as any other relevant equitable considerations. The relative fault of
the Bank on the one hand and of the Agent on the other shall be determined by
reference to, among other things, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent the circumstances
resulting in such expenses, judgments, fines or settlement amounts.
-16-
<PAGE> 31
Section 7. OTHER RIGHTS AND REMEDIES. Indemnification under this
Article shall be provided regardless of when the events alleged to underlie any
action, suit or proceeding may have occurred, shall continue as to a person who
has ceased to be an Agent and shall inure to the benefit of the heirs,
executors and administrators of such a person. All rights to indemnification
and advancement of expenses under this Article shall be deemed to be provided
by a contract between the Bank and the Agent who serves as such at any time
while these By-Laws and other provisions of the General Corporation Law of
Delaware that would by analogy be relevant and other applicable law, if any,
are in effect. Any repeal or modification thereof shall not affect any rights
or obligations then existing.
Section 8. INSURANCE. Upon resolution passed by the Board of
Directors, the Bank may purchase and maintain insurance on behalf of any person
who is or was an Agent against any liability asserted against such person and
incurred by him or her in any such capacity, or arising out of his or her
status as such, regardless of whether the Bank would have the power to
indemnify such person against such liability under the provisions of this
Article. The Bank may create a trust fund, grant a security interest or use
other means, including without limitation a letter of credit, to ensure the
payment of such sums as may become necessary to effect indemnification as
provided herein.
Section 9. CONSTITUENT CORPORATIONS. For the purposes of the
Article, references to "the Bank' include all constituent banks (including any
constituent of a constituent) absorbed in a consolidation or merger as well as
the resulting or surviving bank, so that any person who is or was a director,
officer or employee of such a constituent bank or who, being or having been
such a director, officer or employee, is or was serving at the request of such
constituent bank as a director, officer, employee or trustee of another bank,
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article with respect to the
resulting or surviving bank as such person would if he or she had served the
resulting or surviving bank in the same capacity.
Section 10. OTHER ENTERPRISES, FINES, AND SERVING AT BANK'S REQUEST.
For purposes of this Article, references to "other enterprise" in Section 1 and
9 shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan;
and references to "serving at the request of the Bank" shall include any
service by an Agent as director, officer, employee, trustee or agent of the
Bank which imposes duties on, or involves services by, such Agent with respect
to any employee benefit plan, its participants, or beneficiaries.
-17-
<PAGE> 32
A person who acted in good faith and in a manner he or she reasonably believed
to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Bank" for purposes of this Article.
Section 11. SAVINGS CLAUSE. If this Article or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Bank shall nevertheless indemnify each Agent as to expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement with respect
to any action, suit, appeal, proceeding or investigation, whether civil,
criminal or administrative, and whether internal or external, including a grand
jury proceeding and an action or suit brought by or in the right of the Bank,
to the full extent permitted by the applicable portion of this Article that
shall not have been invalidated, or by any other applicable law.
Section 12. ACTIONS INITIATED BY AGENT. Anything to the contrary in
this Article notwithstanding, the Bank shall indemnify any agent in connection
with an action, suit or proceeding initiated by such Agent (other than actions,
suits, or proceedings commenced pursuant to Section 5 of this Article) only if
such action, suit or proceeding was authorized by the Board of Directors.
Section 13. STATUTORY AND OTHER INDEMNIFICATION. Notwithstanding any
other provision of this Article, in any administrative proceeding or civil
action not initiated by a federal bank regulatory agency, the Bank shall
indemnify any Agent and advance expenses incurred by such Agent in any action,
suit or proceeding of the nature referred to in Section 1 or 2 of this Article
to the fullest extent that would by analogy be permitted by the General
Corporation Law of Delaware, as the same may be amended from time to time,
except that no amount shall be paid pursuant to this Article in the event of an
adverse determination pursuant to Section 3 of this Article or in respect of
remuneration to the extent that it shall be determined to have been paid in
violation of law. The rights to indemnification and advancement of expenses
provided by any provision of this Article, including without limitation those
rights conferred by the preceding sentence, shall not be deemed exclusive of,
and shall not affect, any other rights to which an Agent seeking
indemnification or advancement of expenses may be entitled under any provision
of any law, articles of association, by-law, agreement or by any vote of
Stockholders or disinterested Directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while serving as
an Agent.
-18-
<PAGE> 33
The Bank may also provide indemnification and advancement of expenses to other
persons or entities to the extent deemed appropriate. Notwithstanding any
provision in these By-Laws, an Agent shall be indemnified in any administrative
proceeding or civil action initiated by a federal bank regulatory agency to the
extent reasonable and consistent with the provisions of Section 1828(k) of
Title 12 of the United States Code and the implementing regulations thereunder.
ARTICLE VII
MISCELLANEOUS
Section 1. CERTIFICATES OF STOCK. All certificates of the Bank's
stock shall be signed by the President or a Vice President and shall be
countersigned by the Secretary or an Assistant Secretary and shall bear the
corporate seal or a facsimile thereof.
Section 2. SEAL. The seal of the Bank shall be in the following
form:
Section 3. EXECUTION OF WRITTEN INSTRUMENTS. All written instruments
shall be binding upon the Bank if signed on its behalf by (i) any two of the
following Officers: The Chairman of the Board and Chief Executive Officer, the
President and Chief Operating Officer, the Vice Chairman of the Board, the Vice
Chairman or the Executive Vice Presidents, or (ii) any one of the foregoing
Officers signing jointly with any Senior Vice President. Whenever any other
officer or person shall be authorized to execute any agreement, document or
instrument by Resolution of the Board of Directors, or by the Chief Executive
Officer, or by any officer or committee designated by the Chief Executive
Officer, or by any two of the officers identified in the immediately preceding
sentence, such execution by such other officer or person shall be equally
binding upon the Bank.
-19-
<PAGE> 34
Section 4. BANK SUBSIDIARY. As used in these By-Laws, the term "Bank
Subsidiary" or "Bank Subsidiaries" means any corporation 25 per centum or more
of whose voting shares are directly or indirectly owned or controlled by this
Bank or any other affiliate of this Bank designated in writing as a Subsidiary
of this Bank by the chief executive officer of this Bank. All such written
designations shall be filed with the Secretary of this Bank.
Section 5. AMENDMENTS. Subject to the right of the Stockholders to
adopt, amend or repeal By-Laws, these By-Laws may be altered, amended or
repealed by the affirmative vote of a majority of the whole number of
directors.
Section 6. CORPORATE GOVERNANCE. To the extent not inconsistent with
applicable federal banking statutes or regulations or the safety and soundness
of this Association, this Association hereby elects to follow the corporate
governance procedures of the Delaware General Corporation Law, as the same may
be amended from time to time.
-20-
<PAGE> 35
CONSENT OF TRUSTEE
Wells Fargo Bank, National Association, hereby consents, pursuant to Section
321(b) of the Trust Indenture Act of 1939, that Reports of Examinations by all
Federal, State, Territorial or District authorities relating to Wells Fargo
Bank, National Association, may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
Dated December 23, 1996, in the City and County of Denver, Colorado.
By:__________________________________
Kent E. Eichstadt
Assistant Vice President
<PAGE> 36
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
Expires March 31, 1999
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL
- -------------------------------------------------------------------------------
[LOGO]
Please refer to page i, Table of Contents for
the required disclosure of estimated burden.
- -------------------------------------------------------------------------------
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES -- FFIEC 031
(960930)
Report at the close of business September 30, 1996 --------
(RCP# 9999)
This report is required by law: 12 U.S.C. Section 324 (State member banks); 12
U.S.C. Section 1817 (State nonmember banks); and 12 U.S.C. Section 161
(National banks).
This report form is to be filed by banks with branches and consolidated
subsidiaries in U.S. territories and possessions, Edge or Agreement
subsidiaries, foreign branches, consolidated foreign subsidiaries, or
International Banking Facilities.
- -------------------------------------------------------------------------------
NOTE: The Reports of Condition and income must be signed by an authorized
officer and the Report of Condition must be attested to by not less than two
directors (trustees) for State nonmember banks and three directors for State
member and National banks.
I, Frank A. Moeslein, EVP & Controller
-----------------------------------------------------------------------------
Name and Title of Officer Authorized to Sign Report
of the named bank do hereby declare that these Reports of Condition and Income
(including the supporting schedules) have been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and are
true to the best of my knowledge and belief.
/s/ FRANK A. MOESLEIN
- -------------------------------------------------------------------------------
Signature of Officer Authorized to Sign Report
November 14, 1996
- -------------------------------------------------------------------------------
Date of Signature
For Banks Submitting Hard Copy Report Forms:
STATE MEMBER BANKS: Return the original and one copy to the appropriate
Federal Reserve District Bank.
STATE NONMEMBER BANKS: Return the original only in the special return address
envelope provided. If express mail is used in lieu of the special return
address envelope, return the original only to the FDIC, c/o Quality Data
Systems, 2127 Espey Court, Suite 204, Crofton, MD 21114.
The Reports of Condition and Income are to be prepared in accordance with
Federal regulatory authority instructions. NOTE: These instructions may in
some cases differ from generally accepted accounting principles.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that it
has been examined by us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
/s/ CARL E. REICHARDT
- -------------------------------------------------------------------------------
Director (Trustee) Carl E. Reichardt
- -------------------------------------------------------------------------------
Director (Trustee)
- -------------------------------------------------------------------------------
Director (Trustee)
- -------------------------------------------------------------------------------
NATIONAL BANKS: Return the original only in the special return address envelope
provided. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2127
Espey Court, Suite 204, Crofton, MD 21114.
- -------------------------------------------------------------------------------
FDIC Certificate Number 0/3/5/1/1
---------
(RCP# 90501)
CALL NO. 197 31 09-30-96
STBK: 06-1450 01976 STCERT: 06-03511
WELLS FARGO BANK, NATIONAL ASSOCIATION
420 MONTGOMERY STREET
SAN FRANCISCO, CA 94163
Board of Governors of the Federal Reserve System, Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency
1
<PAGE> 37
Consolidated Reports of Condition and Income for
A Bank With Domestic and Foreign Offices
- --------------------------------------------------------------------------------
Table of Contents
Signature Page Cover
Report of Income
Schedule RI--Income Statement ....................................... RI-1, 2, 3
Schedule RI-A--Changes in Equity Capital .................................. RI-4
Schedule RI-B--Charge-offs and Recoveries
and Changes in Allowance for Loan and
Lease Losses ......................................................... RI-4, 5
Schedule RI-C--Applicable Income Taxes by
Taxing Authority ........................................................ RI-5
Schedule RI-D--Income from International
Operations .............................................................. RI-6
Schedule RI-E--Explanations ............................................ RI-7, 8
Disclosure of Estimated Burden
The estimated average burden associated with this information collection is
32.2 hours per respondent and is estimated to vary from 15 to 230 hours per
response, depending on individual circumstances. Burden estimates include the
time for reviewing instructions, gathering and maintaining data in the required
form, and completing the information collection, but exclude the time for
compiling and maintaining business records in the normal course of a
respondent's activities. Comments concerning the accuracy of this burden
estimate and suggestions for reducing this burden should be directed to the
Office of Information and Regulatory Affairs, Office of Management and Budget,
Washington, D.C. 20503, and to one of the following:
Secretary
Board of Governors of the Federal Reserve System
Washington, D.C. 20561
Legislative and Regulatory Analysis Division
Office of the Comptroller of the Currency
Washington, D.C. 20219
Assistant Executive Secretary
Federal Deposit Insurance Corporation
Washington, D.C. 20429
Report of Condition
Schedule RC--Balance Sheet ............................................. RC-1, 2
Schedule RC-A--Cash and Balances Due From
Depository Institutions ................................................. RC-3
Schedule RC-B--Securities ........................................... RC-3, 4, 5
Schedule RC-C--Loans and Leasing Financing
Receivables:
Part I. Loans and Leases .............................................. RC-6,7
Part II. Loans to Small Businesses and
Small Farms (included in the forms for
June 30 only) .................................................... RC-7a, 7b
Schedule RC-D--Trading Assets and Liabilities
(to be completed only by selected banks) ................................ RC-8
Schedule RC-E--Deposit Liabilities ................................ RC-9, 10, 11
Schedule RC-F--Other Assets .............................................. RC-11
Schedule RC-G--Other Liabilities ......................................... RC-11
Schedule RC-H--Selected Balance Sheet Items
for Domestic Offices ................................................... RC-12
Schedule RC-I--Selected Assets and Liabilities
of IBFs ................................................................ RC-13
Schedule RC-K--Quarterly Averages ........................................ RC-13
Schedule RC-L--Off-Balance Sheet Items ........................... RC-14, 15, 16
Schedule RC-M--Memoranda ............................................. RC-17, 18
Schedule RC-N--Past Due and Nonaccrual Loans,
Leases, and Other Assets ........................................... RC-19, 20
Schedule RC-0--Other Data for Deposit
Insurance Assessments .............................................. RC-21, 22
Schedule RC-R--Regulatory Capital .................................... RC-23, 24
Optional Narrative Statement Concerning the Amounts
Reported in the Reports of Condition and Income ........................ RC-25
Special Report (to be completed by all banks)
Schedule RC-J--Repricing Opportunities (sent only to and to be completed only
by savings banks)
For information or assistance, National and State nonmember banks should contact
the FDIC's Call Reports Analysis Unit, 550 17th Street, NW, Washington, D.C.
20429, toll free on (800) 688-FDIC(3342), Monday through Friday between 8:00
a.m. and 5:00 p.m., Eastern time. State member banks should contact their
Federal Reserve District Bank.
2
<PAGE> 38
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RI-1
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
CONSOLIDATED REPORT OF INCOME
FOR THE PERIOD JANUARY 1, 1996-SEPTEMBER 30, 1996
All Report of income schedules are to be reported on a calendar year-to-date basis in thousands of dollars.
SCHEDULE RI -- Income Statement
----
I480
-----------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Interest income:
a. Interest and fee income on loans:
(1) In domestic offices:
(a) Loans secured by real estate................................................... 4011 1,728,061 1.a.(1)(a)
(b) Loans to depository institutions............................................... 4019 168,040 1.a.(1)(b)
(c) Loans to finance agricultural production and other loans to farmers............ 4024 81,774 1.a.(1)(c)
(d) Commercial and industrial loans................................................ 4012 823,804 1.a.(1)(d)
(e) Acceptances of other banks..................................................... 4026 0 1.a.(1)(e)
(f) Loans to individuals for household, family, and other personal expenditures:
(1) Credit cards and related plans.............................................. 4054 142,002 1.a.(1)(f)(1)
(2) Other....................................................................... 4055 341,419 1.a.(1)(f)(2)
(g) Loans to foreign governments and official institutions......................... 4056 426 1.a.(1)(g)
(h) Obligations (other than securities and leases) of states and political
subdivisions in the U.S.:
(1) Taxable obligations........................................................ 4503 3,609 1.a.(1)(h)(1)
(2) Tax-exempt obligations..................................................... 4504 13,394 1.a.(1)(h)(2)
(i) All other loans in domestic offices............................................ 4058 59,751 1.a.(1)(i)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs...................... 4059 1,506 1.a.(2)
b. Income from lease financing receivables:
(1) Taxable leases..................................................................... 4505 156,727 1.b.(1)
(2) Tax-exempt leases.................................................................. 4307 0 1.b.(2)
c. Interest income on balances due from depository institutions:(1)
(1) In domestic offices................................................................ 4105 0 1.c.(1)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs...................... 4106 2,272 1.c.(2)
d. Interest and dividend income on securities:
(1) U.S. Treasury securities and U.S. Government agency and corporation obligations.... 4027 382,189 1.d.(1)
(2) Securities issued by states and political subdivisions in the U.S.:
(a) Taxable securities............................................................. 4506 0 1.d.(2)(a)
(b) Tax-exempt securities.......................................................... 4507 407 1.d.(2)(b)
(3) Other domestic debt securities..................................................... 3657 132,254 1.d.(3)
(4) Foreign debt securities............................................................ 3658 7,418 1.d.(4)
(5) Equity securities (including investments in mutual funds).......................... 3659 6,236 1.d.(5)
e. Interest income from trading assets.................................................... 4069 5,114 1.e.
- ------------
(1) Includes interest income on time certificates of deposit not held for trading.
</TABLE>
3
<PAGE> 39
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RI-2
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RI -- Continued
-----------------
Dollar Amounts in Thousands Year-to-date
- --------------------------------------------------------------------------------------------------
RIAD Bil Mil Thou
<S> <C> <C> <C> <C> <C> <C>
1. Interest income (continued)
f. Interest income on federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank and of its Edge
and Agreement subsidiaries, and in IBFs................................ 4020 71,048 1.f.
g. Total interest income (sum of Items 1.a through 1.f)................... 4107 4,128,049 1.g.
2. Interest expense:
a. Interest on deposits:
(1) Interest on deposits in domestic offices:
(a) Transaction accounts (NOW accounts, ATS accounts, and telephone
and preauthorized transfer accounts)........................... 4508 36,030 2.a.(1)(a)
(b) Nontransaction accounts:
(1) Money market deposit accounts (MMDAs)...................... 4509 379,676 2.a.(1)(b)(1)
(2) Other savings deposits..................................... 4511 136,397 2.a.(1)(b)(2)
(3) Time certificates of deposits of $100,000 or more ......... 4174 131,796 2.a.(1)(b)(3)
(4) All other time deposits ................................... 4512 370,970 2.a.(1)(b)(4)
(2) Interest on deposits in foreign offices, Edge and Agreement
subsidiaries, and IBFs............................................. 4172 18,539 2.a.(2)
b. Expense of federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs.................................... 4180 120,043 2.b.
c. Interest on demand notes issued to the U.S. Treasury, trading
liabilities, and other borrowed money ................................. 4185 61,404 2.c.
d. Interest on mortgage indebtedness and obligations under capitalized
leases................................................................. 4072 9,884 2.d.
e. Interest on subordinated notes and debentures.......................... 4200 47,400 2.e.
f. Total interest expense (sum of items 2.a through 2.e) ................. 4073 1,312,139 2.f.
3. Net interest income (item 1.g minus 2.f) ................................. RIAD 4074 2,815,910 3.
4. Provisions:
a. Provision for loan and lease losses ................................... RIAD 4230 (299,461) 4.
b. Provision for allocated transfer risk ................................. RIAD 4243 0 4.
5. Noninterest income:
a. Income from fiduciary activities....................................... 4070 258,018 5.a.
b. Service charges on deposit accounts in domestic offices ............... 4080 572,099 5.b.
c. Trading revenue (must equal Schedule RI, sum of Memorandum items 8.a
through 8.d) .......................................................... A220 28,574 5.c.
d. Other foreign transaction gains (losses) .............................. 4076 0 5.d.
e. Not applicable
f. Other noninterest income:
(1) Other fee income .................................................. 5407 427,480 5.f.(1)
(2) All other noninterest income* ..................................... 5408 251,251 5.f.(2)
g. Total noninterest income (sum of items 5.a through 5.f) ............... RIAD 4079 1,537,422
6. a. Realized gains (losses) on held-to-maturity securities ................ RIAD 3521 0
b. Realized gains (losses) on available-for-sale securities .............. RIAD 3196 2,840
7. Noninterest expenses:
a. Salaries and employee benefits ........................................ 4135 1,254,267 7.a.
b. Expenses of premises and fixed assets (net of rental income)
(excluding salaries and employee benefits and mortgage interest) ...... 4217 502,668 7.b.
c. Other noninterest expense* ............................................ 4092 1,359,618 7.c.
d. Total noninterest expense (sum of items 7.a through 7.c) .............. RIAD 4093 3,116,553
8. Income (loss) before income taxes and extraordinary items and other
adjustments (item 3 plus or minus items 4.a, 4.b, 5.g, 6.a, 6.b, and 7.d). RIAD 4301 1,539,080
9. Applicable income taxes (on item 8) ...................................... RIAD 4302 732,547
10. Income (loss) before extraordinary items and other adjustments
(item 8 minus 9) ......................................................... RIAD 4300 806,533
--------------------------------------------
- -----------------
* Describe on Schedule RI-E -- Explanations.
</TABLE>
4
<PAGE> 40
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RI-3
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RI -- Continued
-----------------
Year-to-date
-----------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
11. Extraordinary items and other adjustments:
a. Extraordinary items and other adjustments, gross of income taxes ........... 4310 0 11.a.
b. Applicable income taxes (on item 11.a)* .................................... 4315 0 11.b.
c. Extraordinary items and other adjustments, net of income taxes ---------------------
(item 11.a minus 11.b) ..................................................... RIAD 4320 0 11.c.
12. Net income (loss) (sum of items 10 and 11.c) .................................. RIAD 4340 806,533 12.
--------------------------------------
</TABLE>
<TABLE>
<CAPTION>
----
I481
------------
Year-to-date
Memoranda --------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest expense incurred to carry tax-exempt securities, loans, and leases acquired after
August 7, 1986, that is not deductible for federal income tax purposes ......................... 4513 2,330 M.1.
2. Income from the sale and servicing of mutual funds and annuities in domestic offices
(included in Schedule RI, item 8) .............................................................. 8431 98,769 M.2.
3.-4. Not applicable
5. Number of full-time equivalent employees on payroll at end of current period (round to Number
nearest whole number) .......................................................................... 4150 39,690 M.5.
6. Not applicable
7. If the reporting bank has restated its balance sheet as a result of applying push down MM DD YY
accounting this calendar year, report the date of the bank's acquisition ....................... 9106 00/00/00 M.7.
8. Trading revenue (from cash instruments and off-balance sheet derivative instruments)
(sum of Memorandum items 8.a through 8.d must equal Schedule RI, item 5.c): .................... Bil Mil Thou
a. Interest rate exposures ..................................................................... 8757 10,502 M.8.
b. Foreign exchange exposures .................................................................. 8758 18,072 M.8.
c. Equity security and index exposures ......................................................... 8759 0 M.8.
d. Commodity and other exposures ............................................................... 8760 0 M.8.
9. Impact on income of off-balance sheet derivatives held for purposes other than trading:
a. Net increase (decrease) to interest income .................................................. 8761 56,197 M.9
b. Net (increase) decrease to interest expense ................................................. 8762 (4,168) M.9
c. Other (noninterest) allocations ............................................................. 8763 (8,030) M.9
10. Credit losses on off-balance sheet derivatives (see instructions) .............................. A251 0 M.1
--------------------
- ------------
* Describe on Schedule RI-E--Explanations.
</TABLE>
5
<PAGE> 41
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RI-4
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
Schedule RI-A--Changes in Equity Capital
---------
Indicate decreases and losses in parentheses. ----
I483
-----------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Total equity capital originally reported in the December 31, 1995, Reports of Condition
and Income................................................................................. 3215 4,228,140 1.
2. Equity capital adjustments from amended Reports of Income, net*............................ 3216 0 2.
3. Amended balance end of previous calendar year (sum of items 1 and 2)....................... 3217 4,228,140 3.
4. Net income (loss) (must equal Schedule RI, item 12)........................................ 4340 806,533 4.
5. Sale, conversion, acquisition, or retirement of capital stock net.......................... 4346 0 5.
6. Changes incident to business combinations, net............................................. 4356 10,043,994 6.
7. LESS: Cash dividends declared on preferred stock........................................... 4470 0 7.
8. LESS; Cash dividends declared on common stock.............................................. 4460 876,457 8.
9. Cumulative effect of changes in accounting principles from prior years* (see instructions
for this schedule)......................................................................... 4411 0 9.
10. Corrections of material accounting errors from prior years* (see instructions for
this schedule)............................................................................. 4412 0 10.
11. Change in net unrealized holding gains (losses) on available-for-sale securities........... 8433 (46,024) 11.
12. Foreign currency translation adjustments................................................... 4414 58 12.
13. Other transactions with parent holding company* (not included in items 5, 7, or 8 above)... 4415 0 13.
14. Total equity capital end of current period (sum of items 3 through 13) (must equal
Schedule RC, item 28)...................................................................... 3210 14,156,244 14.
- ------------
*Describe on Schedule RI-E--Explanations.
Schedule RI-B--Charge-offs and Recoveries and Changes
in Allowance for Loan and Lease Losses
Part I. Charge-offs and Recoveries on Loans and Leases
Part I excludes charge-offs and recoveries through the allocated transfer-risk reserve.
------
I486
--------------------------------------
(Column A) (Column B)
Charge-offs Recoveries
--------------------------------------
Calendar year-to-date
--------------------------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou RIAD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1. Loans secured by real estate:
a. To U.S. addresses (domicile)......................................... 4651 73,206 4661 48,411 1.a.
b. To non-U.S. addresses (domicile)..................................... 4652 0 4662 0 1.b.
2. Loans to depository institutions and acceptances of other banks:
a. To U.S. banks and other U.S. depository institutions................. 4653 0 4663 0 2.a.
b. To foreign banks..................................................... 4654 2 4664 0 2.b.
3. Loans to finance agricultural production and other loans to farmers..... 4655 3,292 4665 542 3.
4. Commercial and industrial loans:
a. To U.S. addresses (domicile)......................................... 4645 65,646 4617 24,337 4.a.
b. To non-U.S. addresses (domicile)..................................... 4646 0 4618 39 4.b.
5. Loans to individuals for household, family, and other personal
expenditures:
a. Credit cards and related plans....................................... 4656 56,256 4666 21,919 5.a.
b. Other (includes single payment, installment, and all student loans).. 4657 71,744 4667 21,468 5.b.
6. Loans to foreign governments and official institutions.................. 4643 0 4627 0 6.
7. All other loans......................................................... 4644 7,139 4628 1,974 7.
8. Less financing receivables:
a. Of U.S. addresses (domicile)......................................... 4658 20,104 4668 5,301 8.a.
b. Of non-U.S. addresses (domicile)..................................... 4659 0 4669 0 8.b.
9. Total (sum of items 1 through 8)........................................ 4635 297,389 4605 123,991 9.
</TABLE>
6
<PAGE> 42
<TABLE>
<S> <C>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RI-5
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
</TABLE>
SCHEDULE RI-B--CONTINUED
PART I. CONTINUED
<TABLE>
<CAPTION>
(Column A) (Column B)
Charge-offs Recoveries
-------------------------------------
Memorandum Calendar year-to-date
-------------------------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou RIAD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1-3. Not applicable
4. Loans to finance commercial real estate, construction, and land
development activities (not secured by real estate) included in
Schedule RI-B, part I, items 4 and 7, above.................................... 5409 1,946 5410 8,667 M.4.
5. Loans secured by real estate in domestic offices (included in
Schedule RI-B, part I, item 1, above):
a. Construction and land development........................................... 3582 8,554 3583 5,532 M.5.a.
b. Secured by farmland......................................................... 3584 96 3585 374 M.5.b.
c. Secured by 1-4 family residential properties
(1) Revolving, open-end loans secured by 1-4 family residential
properties and extended under lines of credit.......................... 5411 15,126 5412 3,012 M.5.c.(1)
(2) All other loans secured by 1-4 family residential properties........... 5413 21,426 5414 8,766 M.5.c.(2)
d. Secured by multifamily (5 or more) residential properties.................. 3588 1,150 3589 7,458 M.5.d.
e. Secured by nonfarm nonresidential properties............................... 3590 26,854 3591 23,269 M.5.e.
</TABLE>
PART II. CHANGES IN ALLOWANCE FOR LOAN AND LEASE LOSSES
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Balance originally reported in the December 31, 1995, Reports of Condition and Income............. 3124 1,414,706 1.
2. Recoveries (must equal part 1, item 9, column B above)............................................ 4605 123,991 2.
3. LESS: Charge-offs (must equal part 1, item 9, column A above)..................................... 4635 297,389 3.
4. Provision for loan and lease losses (must equal Schedule RI, item 4.a)............................ 4230 (299,461) 4.
5. Adjustments* (see instructions for this schedule)................................................. 4815 616,548 5.
6. Balance end of current period (sum of items 1 through 5) (must equal Schedule RC,
item 4.b)......................................................................................... 3123 1,558,395 6.
</TABLE>
- ------------
* Describe on Schedule RI-E--Explanations.
SCHEDULE RI-C--APPLICABLE INCOME TAXES BY TAXING AUTHORITY
Schedule RI-C is to be reported with the December Report of Income.
<TABLE>
<CAPTION> 1489
-----------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Federal........................................................................................... 4780 N/A 1.
2. State and local................................................................................... 4790 N/A 2.
3. Foreign........................................................................................... 4795 N/A 3.
4. Total (sum of items 1 through 3) (must equal sum of Schedule RI, items 9 and 11.b)................ 4770 N/A 4.
5. Deferred portion of item 4........................................... RIAD 4772 N/A 5.
</TABLE>
7
<PAGE> 43
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RI-6
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RI-D--INCOME FROM INTERNATIONAL OPERATIONS
For all banks with foreign offices, Edge or Agreement subsidiaries, or IBFs where international operations account
for more than 10 percent of total revenues, total assets, or net income.
Part I. Estimated Income from International Operations
----
I492
------------
Year-to-date
-----------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest income and expense booked at foreign offices, Edge and Agreement subsidiaries,
and IBFs:
a. Interest income booked .................................................................... 4837 N/A 1.a.
b. Interest expense booked ................................................................... 4838 N/A 1.b.
c. Net interest income booked at foreign offices, Edge and Agreement subsidiaries, and
IBFs (item 1.a minus 1.b) ................................................................. 4839 N/A 1.c.
2. Adjustments for booking location of international operations:
a. Net interest income attributable to international operations booked at domestic offices ... 4840 N/A 2.a.
b. Net interest income attributable to domestic business booked at foreign offices ........... 4841 N/A 2.b.
c. Net booking location adjustment (item 2.a minus 2.b) ...................................... 4842 N/A 2.c.
3. Noninterest income and expense attributable to international operations:
a. Noninterest income attributable to international operations ............................... 4097 N/A 3.a.
b. Provision for loan and lease losses attributable to international operations .............. 4235 N/A 3.b.
c. Other noninterest expense attributable to international operations ........................ 4239 N/A 3.c.
d. Net noninterest income (expense) attributable to international operations (item 3.a minus
3.b and 3.c) .............................................................................. 4843 N/A 3.d.
4. Estimated pretax income attributable to international operations before capital allocation
adjustment (sum of items 1.c, 2.c, and 3.d) .................................................. 4844 N/A 4.
5. Adjustment to pretax income for internal allocations to international operations to reflect
the effects of equity capital on overall bank funding costs .................................. 4845 N/A 5.
6. Estimated pretax income attributable to international operations after capital allocation
adjustment (sum of items 4 and 5) ............................................................ 4846 N/A 6.
7. Income taxes attributable to income from international operations as estimated in item 6 ..... 4797 N/A 7.
8. Estimated net income attributable to international operations (item 6 minus 7) ................. 4341 N/A 8.
Memoranda
-----------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------
1. Intracompany interest income included in item 1.a above ...................................... 4847 N/A N.1.
2. Intracompany interest expense included in item 1.b above ..................................... 4848 N/A N.2.
Part II. Supplementary Details on Income from International Operations Required by the Departments of Commerce and Treasury for
Purposes of the U.S. International Accounts and the U.S. National Income and Product Accounts
------------
Year-to-date
-----------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------
1. Interest income booked at IBFs ............................................................... 4849 N/A 1.
2. Interest expense booked at IBFs .............................................................. 4850 N/A 2.
3. Noninterest income attributable to international operations booked at domestic offices
(excluding IBFs):
a. Gains (losses) and extraordinary items .................................................... 5491 N/A 3.a.
b. Fees and other noninterest income ......................................................... 5492 N/A 3.b.
4. Provision for loan and lease losses attributable to international operations booked at
domestic offices (excluding IBFs) ............................................................ 4852 N/A 4.
5. Other noninterest expense attributable to international operations booked at domestic offices
(excluding IBFs) ............................................................................. 4853 N/A 5.
8
</TABLE>
<PAGE> 44
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RI-7
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
Schedule RI-E--Explanations
Schedule RI-E is to be completed each quarter on a calendar year-to-date basis.
Detail all adjustments in Schedule RI-A and RI-B, all extraordinary items and other adjustments in Schedule RI, and all
significant items of other noninterest income and other noninterest expense in Schedule R1. (See instructions for details.)
----
I495
-----------------
Year-to-date
-----------------
Memoranda Dollar Amounts in Thousands RIAD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. All other noninterest income (from Schedule RI, Item 5.f.(2))
Report amounts that exceed 10% of Schedule RI, item 5.f.(2):
a. Net gains on other real estate owned.................................................... 5415 0 1.a.
b. Net gains on sales of loans............................................................. 5416 0 1.b.
c. Net gains on sales of premises and fixed assets......................................... 5417 0 1.c.
Itemize and describe the three largest other amounts that exceed 10% of Schedule RI,
item 5.f.(2):
-------------
d. TEXT 4461 Service intercompany income 4461 130,013 1.d.
----------------------------------------------------------------------------------------
e. TEXT 4462 Check printing income 4462 37,561 1.e.
----------------------------------------------------------------------------------------
f. TEXT 4463 4463 1.f.
----------------------------------------------------------------------------------------
2. Other noninterest expense (from Schedule RI, item 7.c.):
a. Amortization expense of intangible assets............................................... 4531 470,496 2.a.
Report amounts that exceed 10% of Schedule RI, item 7.c.:
b. Net losses on other real estate owned................................................... 5418 0 2.b.
c. Net losses on sales of loans............................................................ 5419 0 2.c.
d. Net losses on sales of premises and fixed assets........................................ 5420 0 2.d.
Itemize and describe the three largest other amounts that exceed 10% of Schedule RI,
item 7.c:
------------
e. TEXT 4464 Outside professional services 4464 283,143 2.e.
----------------------------------------------------------------------------------------
f. TEXT 4467 4467 2.f.
----------------------------------------------------------------------------------------
g. TEXT 4468 4468 2.g.
----------------------------------------------------------------------------------------
3. Extraordinary items and other adjustments (from Schedule RI, item 11.a) and applicable
income tax effect (from Schedule RI, item 11.b) (itemize and describe all extraordinary
items and other adjustments):
-----------
a. (1) TEXT 4469 4469 3.a.(1)
---------------------------------------------------------------------------------
(2) Applicable income tax effect RIAD 4486 3.a.(2)
----------- -----------------------
b. (1) TEXT 4487 4487 3.b.(1)
---------------------------------------------------------------------------------
(2) Applicable income tax effect RIAD 4488 3.b.(2)
----------- -----------------------
c. (1) TEXT 4489 4489 3.c.(1)
---------------------------------------------------------------------------------
(2) Applicable income tax effect RIAD 4491 3.c.(2)
-----------------------
4. Equity capital adjustments from amended Reports of Income (from Schedule RI-A, item 2)
(itemize and describe all adjustments):
-----------
a. TEXT 4492 4492 4.a.
---------------------------------------------------------------------------------------
b. TEXT 4493 4493 4.b.
---------------------------------------------------------------------------------------
5. Cumulative effect of changes in accounting principles from prior years
(from Schedule RI-A, item 9) (itemize and describe all changes in accounting principles):
-----------
a. TEXT 4494 4494 5.a.
---------------------------------------------------------------------------------------
b. TEXT 4495 4495 5.b.
---------------------------------------------------------------------------------------
6. Corrections of material accounting errors from prior years (from Schedule RI-A, item 10)
(itemize and describe all corrections):
-----------
a. TEXT 4496 4496 6.a.
---------------------------------------------------------------------------------------
b. TEXT 4497 4497 6.b.
-----------------------------------------------------------------------------------------------------------
9
</TABLE>
<PAGE> 45
<TABLE>
<CAPTION>
<S> <C>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RI-8
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
</TABLE>
SCHEDULE RI-E -- Continued
<TABLE>
<CAPTION>
Year-to-Date
-----------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
7. Other transactions with parent holding company (from Schedule RI-A, item 13)
(itemize and describe all such transactions):
a. TEXT 4498 4498 7.a.
b. TEXT 4499 4499 7.b.
8. Adjustments to allowance for loan and lease losses (from Schedule RI-E, part II, item 5)
(itemize and describe all adjustments):
a. TEXT 4521 See comment below 4521 616,548 8.a.
b. TEXT 4522 4522 8.b.
-------------------
9. Other explanations (the space below is provided for the bank to briefly describe, at its I498 I499
option, any other significant items affecting the Report of Income):
No comment [ ] (RIAD 4769)
Other explanations (please type or print clearly):
(TEXT 4769)
</TABLE>
The amounts in RI-A item 6 of $10,043,994 and RI-B Part II item 5 of $616,548
are due to a reorganization which merged with the First Interstate Banks of
Arizona, California, Idaho, Nevada, New Mexico, Oregon, Utah and Washington
into Wells Fargo Bank, N.A. as permitted by the interstate branching provisions
of the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994.
Correspondingly, the income statement and related schedules include these
merged banks as of April 1, 1996, which is the date that Wells Fargo & Company
acquired First Interstate Bancorp.
10
<PAGE> 46
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-1
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND
STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise indicated,
report the amount outstanding as of the last business day of the quarter.
SCHEDULE RC -- Balance Sheet
----
C400
-----------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1)................................. 0081 10,589,324 1.a.
b. Interest-bearing balances(2) ......................................................... 0071 35,596 1.b.
2. Securities
a. Held-to-maturity securities (from Schedule RC-B, column A)............................ 1754 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).......................... 1773 12,569,520 2.b.
3. Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds sold.................................................................... 0276 318,673 3.a.
b. Securities purchased under agreements to resell....................................... 0277 263,817 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 63,561,860 4.a.
b. LESS: Allowance for loan and lease losses.................... RCFD 3123 1,558,395 4.b.
c. LESS: Allocated transfer risk reserve........................ RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance,
and reserve (item 4.a minus 4.b and 4.c).............................................. 2125 62,003,465 4.d.
5. Trading assets (from Schedule RC-D)...................................................... 3545 131,938 5.
6. Premises and fixed assets (including capitalized leases)................................. 2145 2,094,569 6.
7. Other real estate owned (from Schedule RC-N)............................................. 2150 361,804 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-N). 2130 66,906 8.
9. Customers' liability to this bank on acceptances outstanding............................. 2155 295,339 9.
10. Intangible assets (from Schedule RC-N)................................................... 2143 8,631,696 10.
11. Other assets (from Schedule RC-F)........................................................ 2160 2,254,484 11.
12. Total assets (sum of items 1 through 11)................................................. 2170 99,617,131 12.
___________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
11
<PAGE> 47
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-2
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RC -- Continued
-----------------
Dollar Amounts in Thousands Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)....................................................... RCON 2200 77,114,864 13.a.
(1) Noninterest-bearing(1)................................. RCON 6631 26,989,847 13.a.(1)
(2) Interest-bearing....................................... RCON 6636 50,125,017 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E, part II)..................................................... RCFM 2200 586,581 13.b.
(1) Noninterest-bearing.................................... RCFN 6631 0 13.b.(1)
(2) Interest-bearing....................................... RCFN 6636 586,581 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased........................................................... RCFD 0275 1,101,922 14.a.
b. Securities sold under agreements to repurchase.................................... RCFD 0279 1,576,898 14.b.
15. a. Demand notes issued to the U.S. Treasury.......................................... RCON 2840 25,004 15.a.
b. Trading liabilities (from Schedule RC-D).......................................... RCFD 3548 37,372 15.b.
16. Other borrowed money:
a. With a remaining maturity of one year or less..................................... RCFD 2332 42,615 16.a.
b. With a remaining maturity of more than one year................................... RCFD 2333 1,107,072 16.b.
17. Mortgage indebtedness and obligations under capitalized leases....................... RCFD 2910 120,659 17.
18. Bank's liability on acceptances executed and outstanding............................. RCFD 2920 295,341 18.
19. Subordinated notes and debentures.................................................... RCFD 3200 1,070,976 19.
20. Other liabilities (from Schedule RC-G)............................................... RCFD 2930 2,381,583 20.
21. Total liabilities (sum of items 13 through 20)....................................... RCFD 2948 85,460,887 21.
22. Limited-life preferred stock and related surplus..................................... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus........................................ RCFD 3838 0 23.
24. Common Stock......................................................................... RCFD 3230 520,152 24.
25. Surplus (exclude all surplus related to preferred stock)............................. RCFD 3839 11,242,635 25.
26. a. Undivided profits and capital reserves............................................ RCFD 3632 2,429,709 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities............ RCFD 8434 (32,180) 26.b.
27. Cumulative foreign currency translation adjustments.................................. RCFD 3284 (4,072) 27.
28. Total equity capital (sum of items 23 through 27).................................... RCFD 3210 14,156,244 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of
items 21, 22, and 28)................................................................ RCFD 3300 99,617,131 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes
the most comprehensive level of auditing work performed for the bank by independent Number
external auditors as of any date during 1995................................................. RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
__________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
12
<PAGE> 48
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-3
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
Schedule RC-A--Cash and Balances Due From Depository Institutions
Exclude assets held for trading.
----
C405
----------------------------------------------
(Column A) (Column B)
Consolidated Domestic
Bank Offices
----------------- -----------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCON Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Cash items in process of collection, unposted debits, and
currency and coin ............................................... 0022 9,291,816 1
a. Cash items in process of collection and unposted debits ...... 0020 6,405,357 1.a.
b. Currency and coin ............................................ 0080 2,886,459 1.b.
2. Balances due from depository institutions in the U.S. ........... 0082 662,935 2.
a. U.S. branches and agencies of foreign banks (including
their IBFs) .................................................. 0083 0 2.a.
b. Other commercial banks in the U.S. and other depository
institutions in the U.S. (including their IBFs) .............. 0085 662,935 2.b.
3. Balances due from banks in foreign countries and foreign
central banks ................................................... 0070 59,513 3.
a. Foreign branches of other U.S. banks ......................... 0073 19,739 3.a.
b. Other banks in foreign countries and foreign central banks ... 0074 59,513 3.b.
4. Balances due from Federal Reserve Banks ......................... 0090 590,917 0090 590,917 4.
5. Total (sum of items 1 through 4) (total of column A must equal
Schedule RC, sum of items 1.a and 1.b) .......................... 0010 10,624,920 0010 10,605,181 5.
-----------------
Memorandum Dollar Amounts in Thousands RCON Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------
1. Noninterest-bearing balances due from commercial banks in the U.S. (included in item 2,
column B above) .............................................................................0050 647,078 M.1.
Schedule RC-B--Securities
Exclude assets held for trading.
----
C410
--------------------------------------------------------------------------------
Held-to-maturity Available-for-sale
--------------------------------------------------------------------------------
(Column A) (Column B) (Column C) (Column D)
Amortized Cost Fair Value Amortized Cost Fair Value
---------------------------------- --------------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
1. U.S. Treasury securities .......... 0211 0 0213 0 1286 1,862,441 1287 1,866,039 1.
2. U.S. Government agency
and corporation obligations
(exclude mortgage-backed
securities):
a. Issued by U.S. Government
agencies(2) .................... 1289 0 1290 0 1291 0 1293 0 2.a.
b. Issued by U.S.
Government-sponsored
agencies(3) .................... 1294 0 1295 0 1297 0 1298 0 2.b.
- -------------
(1) Includes equity securities without readily determinable fair values at historical cost in item 6.c, column D.
(2) Includes Small Business Administration "Guaranteed Loan Pool Certificates," U.S. Maritime Administration obligations, and
Export-Import Bank participation certificates.
(3) Includes obligations (other than mortgage-backed securities) issued by the Farm Credit System, the Federal Home Loan Bank
System, the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, the Financing Corporation,
Resolution Funding Corporation, the Student Loan Marketing Association, and the Tennessee Valley Authority.
</TABLE>
13
<PAGE> 49
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-4
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RC-B--CONTINUED
----------------------------------------------------------------------------------
Held-to-maturity Available-for-sale
----------------------------------------------------------------------------------
(Column A) (Column B) (Column C) (Column D)
Amortized Cost Fair Value Amortized Cost Fair Value
------------------ ------------------ ------------------ -------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
3. Securities issued by states
and political subdivisions
in the U.S.:
a. General obligations .......... 1676 0 1677 0 1678 8,492 1679 8,484 3.a.
b. Revenue obligations .......... 1681 0 1686 0 1690 2,081 1691 1,886 3.b.
c. Industrial development
and similar obligations ...... 1694 0 1695 0 1696 500 1697 500 3.c.
4. Mortgage-backed
securities (MBS):
a. Pass-through securities:
(1) Guaranteed by
GMMA ..................... 1698 0 1699 0 1701 213,016 1702 216,311 4.a.(1)
(2) Issued by FHMA
and FHLMC ................ 1703 0 1705 0 1706 3,957,347 1707 3,928,779 4.a.(2)
(3) Other pass-through
securities ............... 1709 0 1710 0 1711 503 1713 503 4.a.(3)
b. Other mortgage-backed
securities (include CMOs,
REMICs, and stripped
MBS):
(1) Issued or guaranteed
by FHMA, FHLMC,
or GMMA .................. 1714 0 1715 0 1716 2,796,962 1717 2,778,138 4.b.(1)
(2) Collateralized
by MBS issued or
guaranteed by FHMA,
FHLMC, or GMMA ........... 1718 0 1719 0 1731 2,728 1732 453 4.b.(2)
(3) All other mortgage-
backed securities ........ 1733 0 1734 0 1735 3,049,868 1736 3,023,134 4.b.(3)
5. Other debt securities:
a. Other domestic debt
securities ................... 1737 0 1738 0 1739 267,770 1741 270,683 5.a.
b. Foreign debt
securities ................... 1742 0 1743 0 1744 110,093 1746 112,436 5.b.
6. Equity securities:
a. Investments in mutual
funds ........................ 1747 2,749 1748 2,749 6.a.
b. Other equity securities
with readily determinable
fair values .................. 1749 1,325 1751 11,238 6.b.
c. All other equity
securities(1) ................ 1752 348,187 1753 348,187 6.c.
7. Total (sum of items 1
through 6) (total of
column A must equal
Schedule RC, item 2.a)
(total of column D must
equal Schedule RC,
item 2.b) ........................ 1754 0 1771 0 1772 12,624,062 1773 12,569,520 7.
----------------------------------------------------------------------------------
- --------
(1) Includes equity securities without readily determinable fair values at historical cost in item 6.c, column D.
14
</TABLE>
<PAGE> 50
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-5
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RC-B -- Continued
----
C412
-----------------
Memoranda Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Pledged securities (2)................................................................... 0416 5,719,369 M.1.
2. Maturity and repricing data for debt securities (2), (3), (4) (excluding those in
nonaccrual status):
a. Fixed rate debt securities with a remaining maturity of:
(1) Three months or less.............................................................. 0343 255,407 M.2.a.(1)
(2) Over three months through 12 months............................................... 0344 593,466 M.2.a.(2)
(3) Over one year through five years.................................................. 0345 3,500,001 M.2.a.(3)
(4) Over five years................................................................... 0346 7,385,765 M.2.a.(4)
(5) Total fixed rate debt securities (sum of Memorandum items 2.a.(1)
through 2.a.(4)................................................................... 0347 11,734,639 M.2.a.(5)
b. Floating rate debt securities with a repricing frequency of:
(1) Quarterly or more frequently...................................................... 4544 472,253 M.2.b.(1)
(2) Annually or more frequently, but less frequently than quarterly................... 4545 0 M.2.b.(2)
(3) Every five years or more frequently, but less frequently than annually............ 4551 0 M.2.b.(3)
(4) Less frequently than every five years............................................. 4552 0 M.2.b.(4)
(5) Total floating rate debt securities (sum of Memorandum
items 2.b.(1) through 2.b.(4)).................................................... 4553 472,253 M.2.b.(5)
c. Total debt securities (sum of Memorandum items 2.a.(5) and 2.b.(5)) (must equal total
debt securities from Schedule RC-B, sum of items 1 through 5, columns A and D, minus
nonaccrual debt securities included in Schedule RC-N, item 9, column C)............... 0393 12,206,892 M.2.c.
3. Not applicable
4. Held-to-maturity debt securities restructured and in compliance with modified terms
(included in Schedule RC-B, items 3 through 5, column A, above).......................... 5365 0 M.4.
5. Not applicable
6. Floating rate debt securities with a remaining maturity of one year or less (2), (4)
(included in Memorandum items 2.b.(1) through 2.b.(4) above)............................. 5519 0 M.6.
7. Amortized cost of held-to-maturity securities sold or transferred to available-for-sale
or trading securities during the calendar year-to-date (report the amortized cost at
date of sale or transfer)................................................................ 1778 0 M.7.
8. High-risk mortgage securities (included in the held-to-maturity and available-for-sale
accounts in Schedule RC-B, item 4.b.):
a. Amortized cost........................................................................ 8780 0 M.8.a.
b. Fair value............................................................................ 8781 0 M.8.b.
9. Structured notes (included in the held-to-security and available-for-sale accounts in
Schedule RC-B, items 2, 3, and 5):
a. Amortized cost........................................................................ 8782 0 M.9.a.
b. Fair value............................................................................ 8783 0 M.9.b.
</TABLE>
_____________
(2) Includes held-to-maturity securities at amortized cost and
available-for-sale securities at fair value.
(3) Exclude equity securities, e.g., investments in mutual funds, Federal
Reserve stock, common stock, and preferred stock.
(4) Memorandum items 2 and 6 are not applicable to savings banks that must
complete supplemental Schedule RC-J.
15
<PAGE> 51
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-6
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RC-C--LOANS AND LEASE FINANCING RECEIVABLES
PART I. LOANS AND LEASES
Do not deduct the allowance for loan and lease losses from amounts
reported in this schedule. Report total loans and leases, net of unearned
income. Exclude assets held for trading.
---------
C415
----------------------------------------
(Column A) (Column B)
Consolidated Domestic
Bank Offices
------------------ -------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCON Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Loans secured by real estate .......................................... 1410 30,044,057 1.
a. Construction and land development .................................. 1415 1,556,890 1.a.
b. Secured by farmland (including farm residential and other
improvements) ...................................................... 1420 336,799 1.b.
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4 family residential
properties and extended under lines of credit .................. 1797 4,663,293 1.c.(1)
(2) All other loans secured by 1-4 family residential properties:
(a) Secured by first liens ..................................... 5367 9,935,081 1.c.(2)(a)
(b) Secured by junior liens .................................... 5368 2,119,178 1.c.(2)(b)
d. Secured by multifamily (5 or more) residential properties .......... 1460 961,234 1.d.
e. Secured by nonfarm nonresidential properties ....................... 1480 10,471,582 1.e.
2. Loans to depository institutions:
a. To commercial banks in the U.S. .................................... 1505 4,955,065 2.a.
(1) To U.S. branches and agencies of foreign banks ................. 1506 13,255 2.a.(1)
(2) To other commercial banks in the U.S. .......................... 1507 4,941,810 2.a.(2)
b. To other depository institutions in the U.S. ....................... 1517 2,583 1517 2,583 2.b.
c. To banks in foreign countries ...................................... 1510 12,141 2.c.
(1) To foreign branches of other U.S. banks ........................ 1513 0 2.c.(1)
(2) To other banks in foreign countries ............................ 1516 39,641 2.c.(2)
3. Loans to finance agricultural production and other loans to farmers ... 1590 1,404,027 1590 1,404,027 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile) ...................................... 1763 13,342,805 1763 13,341,679 4.a.
b. To non-U.S. addressees (domicile) .................................. 1764 76,630 1764 31,922 4.b.
5. Acceptances of other banks:
a. Of U.S. banks ...................................................... 1756 0 1756 0 5.a.
b. Of foreign banks ................................................... 1757 0 1757 0 5.b.
6. Loans to individuals for household, family, and other personal
expenditures (i.e., consumer loans) (includes purchased paper) ........ 1975 8,450,553 6.
a. Credit cards and related plans (includes check credit and other
revolving credit plans) ............................................ 2008 2,023,801 6.a.
b. Other (includes single payment, installment, and all student loans). 2011 6,426,752 6.b.
7. Loans to foreign governments and official institutions (including
foreign central banks) ................................................ 2081 8,050 2081 0 7.
8. Obligations (other than securities and leases) of states and political
subdivisions in the U.S. (includes nonrated industrial development
obligations) .......................................................... 2107 541,773 2107 541,773 8.
9. Other loans ........................................................... 1563 1,921,048 9.
a. Loans for purchasing or carrying securities (secured and unsecured). 1545 472,398 9.a.
b. All other loans (exclude consumer loans) ........................... 1564 1,448,650 9.b.
10. Lease financing receivables (net of unearned income) .................. 2165 2,775,628 10.
a. Of U.S. addressees (domicile) ...................................... 2182 2,775,628 10.a.
b. Of non-U.S. addressees (domicile) .................................. 2183 0 10.b.
11. LESS: Any unearned income on loans reflected in items 1-9 above ....... 2123 0 2123 0 11.
12. Total loans and leases, net of unearned income (sum of items 1
through 10 minus item 11) (total of column A must equal
Schedule RC, item 4.a) ................................................ 2122 63,561,860 2122 63,480,476 12.
16
</TABLE>
<PAGE> 52
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-7
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RC-C -- Continued
(Column A) (Column B)
Consolidated Domestic
Memoranda ----------------- -----------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCON Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Commercial paper included in Schedule RC-C, part I, above................. 1496 0 1496 0 M.1.
2. Loans and leases restructured and in compliance with modified terms
(included in Schedule RC-C, part I, above and not reported as past
due or nonaccrual in Schedule RC-N, Memorandum item 1):
a. Loans secured by real estate:
(1) To U.S. addresses (domicile)....................................... 1687 423 M.2.a.(1)
(2) To non-U.S. addresses (domicile)................................... 1689 0 M.2.a.(2)
b. All other loans and all lease financing receivables (exclude loans to
individuals for household, family, and other personal expenditures).... 8691 10,506 M.2.b.
c. Commercial and industrial loans to and lease financing receivables
of non-U.S. addresses (domicile) included in Memorandum item
2.b above.............................................................. 8692 0 M.2.c.
3. Maturity and repricing data for loans and leases(1) (excluding those in
nonaccrual status):
a. Fixed rate loans and leases with a remaining maturity of:
(1) Three months or less............................................... 0348 1,337,056 M.3.a.(1)
(2) Over three months through 12 months................................ 0349 621,495 M.3.a.(2)
(3) Over one year through five years................................... 0356 7,959,167 M.3.a.(3)
(4) Over five years.................................................... 0357 12,813,394 M.3.a.(4)
(5) Total fixed rate loans and leases (sum of Memorandum
items 3.a.(1) through 3.a.(4))..................................... 0358 22,731,112 M.3.a.(5)
b. Floating rate loans with a repricing frequency of:
(1) Quarterly or more frequently....................................... 4554 32,737,402 M.3.b.(1)
(2) Annually or more frequently, but less frequently than quarterly.... 4555 5,703,633 M.3.b.(2)
(3) Every five years or more frequently, but less frequently
than annually...................................................... 4561 1,770,224 M.3.b.(3)
(4) Less frequently than every five years.............................. 4564 0 M.3.b.(4)
(5) Total floating rate loans (sum of Memorandum items 3.b.(1)
through 3.a.(4))................................................... 4567 40,211,259 M.3.b.(5)
c. Total loans and leases (sum of Memorandum items 3.a.(5) and
3.b.(5)) (must equal the sum of total loans and leases, net, from
Schedule RC-C, part I, item 12, plus unearned income from
Schedule RC-C, part I, item 11, minus total nonaccrual loans and
leases from Schedule RC-M, sum of items 1 through 8, column c)......... 1479 62,942,371 M.3.c.
d. Floating rate loans with a remaining maturity of one year or less
(included in Memorandum items 3.b.(1) through 3.b.(4) above)........... A246 10,576,421 M.3.d.
4. Loans to finance commercial real estate, construction, and land
development activities (not secured by real estate) included in
Schedule RC-C, part I, items 4 and 9, column A, page RC-6(2).............. 2746 1,853,560 M.4.
5. Loans and leases held for sale (included in Schedule RC-C, part I,
above).................................................................... 5369 560,515 M.5.
6. Adjustable rate close-end loans secured by first liens on 1-4
family residential properties (included in Schedule RC-C, part I, RCON Bil Mil Thou
item 1.c.(2)(a), column B, page RC-6)..................................... 5370 2,855,172 M.6.
</TABLE>
___________
(1) Memorandum item 3 is not applicable to savings banks that must complete
supplemental Schedule RC-J.
(2) Exclude loans secured by real estate that are included in Schedule RC-C,
part I, item 1, column A.
17
<PAGE> 53
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 03
Address: 420 Montgomery Street Page RC-8
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
Schedule RC-D--Trading Assets and Liabilities
Schedule RC-D is to be completed only by banks with $1 billion or more in total assets or with $2 billion or more in par/notional
amount of off-balance sheet derivative contracts (as reported in Schedule RC-L, items 14.a through 14.e, columns A through D).
----
C420
-------------------
Dollar Amounts in Thousands Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------
ASSETS
<S> <C> <C> <C>
1. U.S. Treasury securities in domestic offices ............................................. RCON 3531 8,600 1.
2. U.S. Government agency and corporation obligations in domestic offices (exclude mortgage-
backed securities) ....................................................................... RCON 3532 21,980 2.
3. Securities issued by states and political subdivisions in the U.S. in domestic offices ... RCON 3533 4,197 3.
4. Mortgage-backed securities (NBS) in domestic offices:
a. Pass-through securities issued or guaranteed by FNMA, FHLMC, or GNMA .................. RCON 3534 0 4.a.
b. Other mortgage-backed securities issued or guaranteed by FNMA, FHLMC, or GNMA
(include CMOs, REMICs, and stripped MBS) ............................................... RCON 3535 0 4.b.
c. All other mortgage-backed securities .................................................. RCON 3536 12,995 4.c.
5. Other debt securities in domestic offices ................................................ RCON 3537 0 5.
6. Certificates of deposit in domestic offices .............................................. RCON 3538 0 6.
7. Commercial paper in domestic offices ..................................................... RCON 3539 0 7.
8. Bankers acceptances in domestic offices .................................................. RCON 3540 14,182 8.
9. Other trading assets in domestic offices ................................................. RCON 3541 28,821 9.
10. Trading assets in foreign offices ........................................................ RCON 3542 0 10.
11. Revaluation gains on interest rate, foreign exchange rate, and other commodity and equity
contracts:
a. In domestic offices ................................................................... RCON 3543 41,163 11.a.
b. In foreign offices .................................................................... RCFN 3544 0 11.b.
12. Total trading assets (sum of items 1 through 11) (must equal Schedule RC, item 5) ........ RCFD 3545 131,938 12.
LIABILITIES
13. Liability for short positions ............................................................ RCFD 3546 10 13.
14. Revaluation Losses on interest rate, foreign exchange rate, and other commodity and
equity contracts ......................................................................... RCFD 3547 37,362 14.
15. Total trading liabilities (sum of items 13 and 14) (must equal Schedule RC, item 15.b) ... RCFD 3548 37,372 15.
</TABLE>
18
<PAGE> 54
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-9
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RC-E -- Deposit Liabilities
Part I. Deposits in Domestic Offices
C425
------
Nontransaction
Transaction Accounts Accounts
------------------------------------- -----------------
(Column A) (Column B) (Column C)
Total transaction Memo: Total Total
accounts (including demand deposits nontransaction
total demand (included in accounts
deposits) column A) (including MMDAs)
Memoranda ----------------- ----------------- -----------------
Dollar Amounts in Thousands RCON Bil Mil Thou RCON Bil Mil Thou RCON Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Deposits of:
1. Individuals, partnerships, and corporations.......... 2201 27,755,475 2240 23,418,529 2346 45,672,623 1.
2. U.S. Government...................................... 2202 111,978 2280 107,270 2520 28,001 2.
3. States and political subdivisions in the U.S. ....... 2203 481,904 2290 392,726 2530 168,899 3.
4. Commercial banks in the U.S. ........................ 2206 1,892,705 2310 1,892,705 2550 7,368 4.
5. Other depository institutions in the U.S. ........... 2207 191,372 2312 191,372 2349 3,192 5.
6. Banks in foreign countries........................... 2213 66,691 2320 66,691 2236 7 6.
7. Foreign governments and official institutions
(including foreign central banks).................... 2216 502 2300 502 2377 215 7.
8. Certified and official checks........................ 2330 733,932 2330 733,932 8.
9. Total (sum of items 1 through 8) (sum of columns A
and C must equal Schedule RC, item 13.a)............. 2215 31,234,559 2210 26,803,727 2385 45,880,305 9.
</TABLE>
<TABLE>
<CAPTION>
Memoranda
-----------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Selected components of total deposits (i.e., sum of item 9, columns A and C):
a. Total Individual Retirement Accounts (IRAs) and Keogh Plan accounts........................ 6835 3,363,307 M.1.a.
b. Total brokered deposits.................................................................... 2365 194,602 M.1.b.
c. Fully insured brokered deposits (included in Memorandum item 1.b above):
(1) Issued in denominations of less than $100,000.......................................... 2343 0 M.1.c.(1)
(2) Issued either in denominations of $100,000 or in denominations greater than
$100,000 and participated out by the broker in shares of $100,000 or less.............. 2344 0 M.1.c.(2)
d. Maturity data for brokered deposits:
(1) Brokered deposits issued in denominations of less than $100,000 with a remaining
maturity of one year or less (included in Memorandum item 1.c.(1) above)............... A243 0 M.1.d.(1)
(2) Brokered deposits issued in denominations of $100,000 or more with a remaining
maturity of one year or less (included in Memorandum item 1.b above)................... A244 194,602 M.1.d.(2)
e. Preferred deposits (uninsured deposits of states and political subdivisions of the U.S.
reported in item 3 above which are secured or collateralized as required under state law).. 5590 563,568 M.1.e.
2. Components of total nontransaction accounts (sum of Memorandum items 2.a through 2.d must
equal item 9, column c above):
a. Savings deposits:
(1) Money market deposit accounts (MMDAs).................................................. 6810 18,855,604 M.2.a.(1)
(2) Other savings deposits (excludes MMDAs)................................................ 0352 11,762,847 M.2.a.(2)
b. Total time deposits of less than $100,000.................................................. 6668 11,861,295 M.2.b.
c. Time certificates of deposit of $100,000 or more........................................... 6645 3,420,407 M.2.c.
d. Open-account time deposits of $100,000 or more............................................. 6646 152 M.2.d.
3. All NOW accounts (included in column A above)................................................. 2398 4,450,832 M.3.
4. Not applicable
</TABLE>
19
<PAGE> 55
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-10
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RC-E -- Continued
Part I. Continued
Memoranda (continued)
------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
5. Maturity and repricing data for time deposits of less than $100,000 (sum of
Memorandum items 5.a.(1) through 5.b.(3) must equal Memorandum
item 2.b above): (1)
a. Fixed rate time deposits of less than $100,000 with a remaining
maturity of:
(1) Three months or less............................................... A225 3,352,832 M.5.a.(1)
(2) Over three months through 12 months................................ A226 5,835,595 M.5.a.(2)
(3) Over one year...................................................... A227 2,670,188 M.5.a.(3)
b. Floating rate time deposits of less than $100,000 with a repricing
frequency of:
(1) Quarterly or more frequently....................................... A228 2,380 M.5.b.(1)
(2) Annually or more frequently, but less frequently than quarterly.... A229 102 M.5.b.(2)
(3) Less frequently than annually...................................... A230 198 M.5.b.(3)
c. Floating rate time deposits of less than $100,000 with a remaining
maturity of one year or less (included in Memorandum items 5.b.(1)
through 5.b.(3) above)................................................. A231 2,029 M.5.c.
6. Maturity and repricing data for time deposits of $100,000 or more (i.e.,
time certificates of deposit of $100,000 or more and open-account time
deposits of $100,000 or more) (sum of Memorandum items 6.a.(1) through
6.b.(4) must equal the sum of Memorandum items 2.c and 2.d above):(1)
a. Fixed rate time deposits of $100,000 or more with a remaining
maturity of:
(1) Three months or less............................................... A232 1,697,502 M.6.a.(1)
(2) Over three months through 12 months................................ A233 1,364,397 M.6.a.(2)
(3) Over one year through five years................................... A234 351,429 M.6.a.(3)
(4) Over five years.................................................... A235 7,231 M.6.a.(4)
b. Floating rate time deposits of $100,000 or more with a repricing
frequency of:
(1) Quarterly or more frequently....................................... A236 0 M.6.b.(1)
(2) Annually or more frequently, but less frequently than quarterly.... A237 0 M.6.b.(2)
(3) Every five years or more frequently, but less frequently
than annually...................................................... A238 0 M.6.b.(3)
(4) Less frequently than every five years.............................. A239 0 M.6.b.(4)
c. Floating rate time deposits of $100,000 or more with a remaining
maturity of one year or less (included in Memorandum items 6.b.(1)
through 6.b.(4) above)................................................. A240 0 M.6.c.
-----------------
- -----------------
(1) Memorandum items 5 and 6 are not applicable to savings banks that must complete supplemental Schedule RC.J.
</TABLE>
20
<PAGE> 56
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-11
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RC-E -- Continued
PART II. DEPOSITS IN FOREIGN OFFICES (INCLUDING EDGE AND
AGREEMENT SUBSIDIARIES AND IBFs)
-----------------
Dollar Amounts in Thousands RCFN Bil Mil Thou
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Deposits of:
1. Individuals, partnerships, and corporations............................... 2621 585,581 1.
2. U.S. banks (including IBFs and foreign branches of U.S. banks)............ 2623 0 2.
3. Foreign banks (including U.S. branches and agencies of foreign banks,
including their IBFs)..................................................... 2625 0 3.
4. Foreign governments and official institutions (including foreign
central banks)............................................................ 2650 1,000 4.
5. Certified and official checks............................................. 2330 0 5.
6. All other deposits........................................................ 2668 0 6.
7. Total (sum of items 1 through 6) (must equal Schedule RC, item 13.b)...... 2200 586,581 7.
-----------------
-----------------
Memorandum Dollar Amounts in Thousands RCFN Bil Mil Thou
- --------------------------------------------------------------------------------------------------
1. Time deposits with a remaining maturity of one year or less (included in
Part II, item 7 above).................................................... A245 78,052 M.1.
-----------------
SCHEDULE RC-F -- OTHER ASSETS
C430
---------------------
Dollar Amounts in Thousands Bil Mil Thou 03
- ------------------------------------------------------------------------------------------------------
1. Income earned, not collected on loans..................................... RCFD 2164 410,260 1.
2. Net deferred tax assets(1)................................................ RCFD 2148 384,975 2.
3. Excess residential mortgage servicing fees receivable..................... RCFD 5371 0 3.
4. Other (itemize and describe amounts that exceed 25% of this item)......... RCFD 2168 1,459,249 4.
----------- ---------------------
a. TEXT 3549 Accounts Receivable RCFD 3549 801,639 4.a.
---------------------------------------------------
b. TEXT 3550 RCFD 3550 4.b.
---------------------------------------------------
c. TEXT 3551 RCFD 3551 4.c.
------------------------------------------------------------------------
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 11)........ RCFD 2160 2,254,484 5.
---------------------
---------------------
Memorandum Dollar Amounts in Thousands Bil Mil Thou
- ------------------------------------------------------------------------------------------------------
1. Deferred tax assets disallowed for regulatory capital purposes............ RCFD 5610 3,393 M.1.
SCHEDULE RC-G -- OTHER LIABILITIES
C435
---------------------
Dollar Amounts in Thousands Bil Mil Thou
- ------------------------------------------------------------------------------------------------------
1. a. Interest accrued and unpaid on deposits in domestic offices(2)......... RCON 3645 94,604 1.a.
b. Other expenses accrued and unpaid (includes accrued income taxes
payable)............................................................... RCFD 3646 1,061,889 1.b.
2. Net deferred tax liabilities(1)........................................... RCFD 3049 0 2.
3. Minority interest in consolidated subsidiaries............................ RCFD 3000 0 3.
4. Other (itemize and describe amounts that exceed 25% of this item)......... RCFD 2938 1,225,090 4.
----------- ---------------------
a. TEXT 3552 Lease Intangible Liability RCFD 3552 659,912 4.a.
---------------------------------------------------
b. TEXT 3553 Accounts Payable RCFD 3553 390,829 4.b.
---------------------------------------------------
c. TEXT 3554 RCFD 3554 4.c.
------------------------------------------------------------------------
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 20)........ RCFD 2930 2,381,583
---------------------
- -----------------
(1) See discussion of deferred income taxes in Glossary entry on "incomes taxes."
(2) For savings banks, include "dividends" accrued and unpaid on deposits.
</TABLE>
21
<PAGE> 57
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-12
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
Schedule RC-H--Selected Balance Sheet Items for Domestic Offices
----
C440
-----------------
Domestic Offices
-----------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Customers' liability to this bank on acceptances outstanding............................... 2155 295,339 1.
2. Bank's liability on acceptances executed and outstanding................................... 2920 295,341 2.
3. Federal funds sold and securities purchased under agreements to resell..................... 1350 582,490 3.
4. Federal funds purchased and securities sold under agreements to repurchase................. 2800 2,678,820 4.
5. Other borrowed money....................................................................... 3190 1,149,687 5.
EITHER
6. Net due from own foreign offices, Edge and Agreement subsidiaries, and IBFs................ 2163 N/A 6.
OR
7. Net due to own foreign offices, Edge and Agreement subsidiaries, and IBFs.................. 2941 241,736 7.
8. Total assets (excludes net due from foreign offices, Edge and Agreement subsidiaries, and
IBFs)...................................................................................... 2192 99,271,337 8.
9. Total Liabilities (excludes net due to foreign offices, Edge and Agreement subsidiaries,
and IBFs).................................................................................. 3129 84,873,357 9.
------------------
Items 10-17 include held-to-maturity and available-for-sale securities in domestic offices. ------------------
RCON Bil Mil Thou
------------------
10. U.S. Treasury securities.................................................................. 1779 1,740,895 10.
11. U.S. Government agency and corporation obligations (exclude mortgage-backed
securities)............................................................................... 1785 0 11.
12. Securities issued by states and political subdivisions in the U.S......................... 1786 10,870 12.
13. Mortgage-backed securities (MBS):
a. Pass-through securities:
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA....................................... 1787 4,145,090 13.a.(1)
(2) Other pass-through securities...................................................... 1869 503 13.a.(2)
b. Other mortgage-backed securities (include CMOs, REMICs, and stripped MBS):
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA....................................... 1877 2,778,138 13.b.(1)
(2) All other mortgage-backed securities............................................... 2253 3,023,587 13.b.(2)
14. Other domestic debt securities............................................................ 3159 270,683 14.
15. Foreign debt securities................................................................... 3160 1,274 15.
16. Equity securities:
a. Investments in mutual funds............................................................ 3161 2,749 16.a.
b. Other equity securities with readily determinable fair values.......................... 3162 11,238 16.b.
c. All other equity securities............................................................ 3169 348,187 16.c.
17. Total held-to-maturity and available-for-sale securities (sum of items 10 through 16)..... 3170 12,333,217 17.
-----------------
Memorandum (to be completed only by banks with IBFs and other "foreign" offices)
-----------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
EITHER
1. Net due from the IBF of the domestic offices of the reporting bank......................... 3051 N/A M.1.
OR
2. Net due to the IBF of the domestic offices of the reporting bank........................... 3059 2 M.2.
22
</TABLE>
<PAGE> 58
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FF1EC 031
Address: 420 Montgomery Street Page RC-13
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
Schedule RC-I--Selected Assets and Liabilities of IBFs
To be completed only by banks with IBFs and other "foreign" offices
----
C445
-----------------
Dollar Amounts in Thousands RCFN Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Total IBF assets of the consolidated bank (component of Schedule RC, item 12).............. 2133 36,625 1.
2. Total IBF loans and lease financing receivables (component of Schedule RC-C, part I,
item 12, column A)......................................................................... 2076 35,820 2.
3. IBF commercial and industrial loans (component of Schedule RC-C, part I, item 4,
column A).................................................................................. 2077 269 3.
4. Total IBF liabilities (component of Schedule RC, item 21).................................. 2898 158 4.
5. IBF deposit liabilities due to banks, including other IBFs (component of Schedule RC-E,
part II, items 2 and 3).................................................................... 2379 0 5.
6. Other IBF deposit liabilities (component of Schedule RC-E, part II, items 1, 4, 5, and 6).. 2381 0 6.
-----------------
Schedule RC-K--Quarterly Averages(1)
----
C455
-----------------------
Dollar Amounts in Thousands Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
ASSETS
1. Interest-bearing balances due from depository institutions............................. RCFD 3381 54,614 1.
2. U.S. Treasury securities and U.S. Government agency and corporation obligations(2)..... RCFD 3382 9,089,530 2.
3. Securities issued by states and political subdivisions in the U.S.(2).................. RCFD 3383 11,896 3.
4. a. Other debt securities(2)............................................................ RCFD 3647 3,301,479 4.a.
b. Equity securities(3) (includes investments in mutual funds and Federal Reserve
stock).............................................................................. RCFD 3648 300,412 4.b.
5. Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs............ RCFD 3365 2,122,481 5.
6. Loans:
a. Loans in domestic offices:
(1) Total loans..................................................................... RCON 3360 61,037,072 6.a.(1)
(2) Loans secured by real estate.................................................... RCON 3385 31,157,120 6.a.(2)
(3) Loans to finance agricultural production and other loans to farmers............. RCON 3386 1,459,537 6.a.(3)
(4) Commercial and industrial loans................................................. RCON 3387 13,178,054 6.a.(4)
(5) Loans to individuals for household, family, and other personal expenditures..... RCON 3388 8,533,336 6.a.(5)
b. Total loans in foreign offices, Edge and Agreement subsidiaries, and IBFs........... RCFN 3360 80,092 6.b.
7. Trading assets......................................................................... RCFD 3401 227,767 7.
8. Lease financing receivables (net of unearned income)................................... RCFD 3484 2,671,565 8.
9. Total assets(4)........................................................................ RCFD 3368 99,363,603 9.
LIABILITIES
10. Interest-bearing transaction accounts in domestic offices (NOW accounts, ATS accounts,
and telephone and preauthorized transfer accounts) (exclude demand deposits)........... RCON 3485 4,976,952 10.
11. Nontransaction accounts in domestic offices:
a. Money market deposit accounts (MMDAs)............................................... RCON 3486 19,019,613 11.a.
b. Other savings deposits.............................................................. RCON 3487 12,146,907 11.b.
c. Time certificates of deposit of $100,000 or more.................................... RCON 3345 3,422,500 11.c.
d. All other time deposits............................................................. RCON 3469 12,336,015 11.d.
12. Interest-bearing deposits in foreign offices, Edge and Agreement subsidiaries, and IBFs RCFN 3404 363,142 12.
13. Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs............ RCFD 3353 2,848,892 13.
14. Other borrowed money................................................................... RCFD 3355 1,215,853 14.
-----------------------
</TABLE>
- ----------------------
(1) For all items, banks have the option of reporting either (1) an average of
daily figures for the quarter, or (2) an average of weekly figures (i.e.,
the Wednesday of each week of the quarter).
(2) Quarterly averages for all debt securities should be based on amortized
cost.
(3) Quarterly averages for all equity securities should be based on historical
cost.
(4) The quarterly average for total assets should reflect all debt securities
(not held for trading) at amortized cost, equity securities with readily
determinable fair values at the lower of cost or fair value, and equity
securities without readily determinable fair values at historical cost.
23
<PAGE> 59
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 03
Address: 420 Montgomery Street Page RC-14
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
Schedule RC-L--Off-Balance Sheet Items
Please read carefully the instructions for the preparation of Schedule RC-L. Some of the amounts reported in Schedule RC-L are
regarded as volume indicators and not necessarily as measure of risk.
----
C460
-----------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Unused commitments:
a. Revolving, open-end lines secured by 1-4 family residential properties, e.g., home
equity lines ........................................................................... 3814 5,441,247 1.a.
b. Credit card lines ...................................................................... 3815 2,628,385 1.b.
c. Commercial real estate, construction, and land development:
(1) Commitments to fund loans secured by real estate ................................... 3816 2,622,469 1.c.(1)
(2) Commitments to fund loans not secured by real estate ............................... 6550 1,481,698 1.c.(2)
d. Securities underwriting ................................................................ 3817 0 1.d.
e. Other unused commitments ............................................................... 3818 26,580,036 1.e.
2. Financial standby letters of credit and foreign office guarantee .......................... 3819 1,822,974 2.
a. Amount of financial standby letters of credit conveyed to others RCFD 3820 29,160 2.a.
3. Performance standby letters of credit and foreign office guarantees ....................... 3821 945,588 3.
a. Amount of performance standby letters of credit conveyed to others RCFD 3822 85,093 3.a.
4. Commercial and similar letters of credit .................................................. 3411 192,089 4.
5. Participations in acceptances (as described in the instructions) conveyed to others by the
reporting bank ............................................................................ 3428 5,782 5.
6. Participations in acceptances (as described in the instructions) acquired by the reporting
(nonaccepting) bank ....................................................................... 3429 8,639 6.
7. Securities borrowed ....................................................................... 3432 0 7.
8. Securities lent (including customers' securities lent where the customer is indemnified
against loss by the reporting bank) ....................................................... 3433 2,938,548 8.
9. Loans transferred (i.e., sold or swapped) with recourse that have been treated as sold for
Call Report purposes:
a. FNMA and FHLMC residential mortgage loan pools:
(1) Outstanding principal balance of mortgages transferred as of the report date ....... 3650 8,315 9.a.(1)
(2) Amount of recourse exposure on these mortgages as of the report date ............... 3651 8,315 9.a.(2)
b. Private (nongovernment-issued or -guaranteed residential mortgage loan pools:
(1) Outstanding principal balance of mortgages transferred as of the report date ....... 3652 0 9.b.(1)
(2) Amount of recourse exposure on these mortgages as of the report date ............... 3653 0 9.b.(2)
c. Farmer Mac agricultural mortgage loan pools:
(1) Outstanding principal balance of mortgages transferred as of the report date ....... 3654 0 9.c.(1)
(2) Amount of recourse exposure on these mortgages as of the report date ............... 3655 0 9.c.(2)
d. Small business obligations transferred with recourse under Section 208 of the
Riegle Community Development and Regulatory Improvement Act of 1994:
(1) Outstanding principal balance of small business obligations transferred
as of the report date .............................................................. A249 0 9.d.(1)
(2) Amount of retained recourse on these obligations as of the report date ............. A250 0 9.d.(2)
10. When-issued securities:
a. Gross commitments to purchase .......................................................... 3434 30,000 10.a.
b. Gross commitments to sell .............................................................. 3435 0 10.b.
11. Spot foreign exchange contracts ........................................................... 8765 411,933 11.
12. All other off-balance sheet liabilities (exclude off-balance sheet derivatives) (itemize
and describe each component of this item over 25% of Schedule RC, item 28, "Total equity
capital") ................................................................................ 3430 0 12.
--------- ----------------------
a. TEXT 3555 RCFD 3555 12.a.
--------- ----------------------
b. TEXT 3556 RCFD 3556 12.b.
--------- ----------------------
c. TEXT 3557 RCFD 3557 12.c.
--------- ----------------------
d. TEXT 3558 RCFD 3558 12.d.
--------- ----------------------
</TABLE>
24
<PAGE> 60
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-15
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RC-L--CONTINUED
Dollars Amounts in Thousands RCFD Bil Mil Thou
- --------------------------------------------------------------------------------------------------- ---------------------
<S> <C> <C> <C> <C>
13. All other off-balance sheet assets (exclude off-balance sheet derivatives) (itemize and
describe each component of this item over 25% of Schedule RC, item 28, "Total equity capital") 5591 0 13.
----------- ---------------------------
a. TEXT 5592 RCFD 5592 13.a.
---------------------------------------------------------------
b. TEXT 5593 RCFD 5593 13.b.
---------------------------------------------------------------
c. TEXT 5594 RCFD 5594 13.c.
---------------------------------------------------------------
d. TEXT 5595 RCFD 5595 13.d.
------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
--------
C461
----------------------------------------------------------------------------------
(Column A) (Column B) (Column C) (Column D)
Dollar Amounts in Thousands Interest Rate Foreign Exchange Equity Derivative Commodity and
- ---------------------------------------- Contracts Contracts Contracts Other Contracts
Off-balance Sheet Derivatives ----------------- ----------------- ----------------- ------------------
Position Indicators Tril Bil Mil Thou Tril Bil Mil Thou Tril Bil Mil Thou Tril Bil Mil Thou
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
14. Gross amounts (e.g., notional
amounts) (for each column, sum of
items 14.a through 14.e must equal
sum of items 15, 16.a, and 16.b):
----------------------------------------------------------------------------------
a. Futures contracts ............. 5,407,500 0 0 0 14.a.
----------------------------------------------------------------------------------
RCFD 8693 RCFD 8694 RCFD 8695 RCFD 8696
----------------------------------------------------------------------------------
b. Forward contracts ............. 0 1,115,786 0 0 14.b.
----------------------------------------------------------------------------------
RCFD 8697 RCFD 8698 RCFD 8699 RCFD 8700
----------------------------------------------------------------------------------
c. Exchange-traded option
contracts:
----------------------------------------------------------------------------------
(1) Written options ........... 0 0 0 0 14.c.(1)
----------------------------------------------------------------------------------
RCFD 8701 RCFD 8702 RCFD 8703 RCFD 8704
----------------------------------------------------------------------------------
(2) Purchased options ......... 0 596 0 0 14.c.(2)
----------------------------------------------------------------------------------
RCFD 8705 RCFD 8706 RCFD 8707 RCFD 8708
----------------------------------------------------------------------------------
d. Over-the-counter option
contracts:
----------------------------------------------------------------------------------
(1) Written options ........... 3,493,260 28,280 0 0 14.d.(1)
----------------------------------------------------------------------------------
RCFD 8709 RCFD 8710 RCFD 8711 RCFD 8712
----------------------------------------------------------------------------------
(2) Purchased options ......... 23,587,740 31,714 0 0 14.d.(2)
----------------------------------------------------------------------------------
RCFD 8713 RCFD 8714 RCFD 8715 RCFD 8716
----------------------------------------------------------------------------------
e. Swaps ......................... 19,641,756 0 0 0 14.e.
----------------------------------------------------------------------------------
RCFD 3450 RCFD 3826 RCFD 8719 RCFD 8720
----------------------------------------------------------------------------------
15. Total gross notional amount of
derivative contracts held for
trading ........................... 8,829,489 1,151,503 0 0 15.
----------------------------------------------------------------------------------
RCFD A126 RCFD A127 RCFD 8723 RCFD 8724
----------------------------------------------------------------------------------
16. Total gross notional amount of
derivative contracts held for
purposes other than trading:
----------------------------------------------------------------------------------
a. Contracts marked to market .... 24,978,540 24,873 0 0 16.a.
----------------------------------------------------------------------------------
RCFD 8725 RCFD 8726 RCFD 8727 RCFD 8728
----------------------------------------------------------------------------------
b. Contracts not marked to market. 18,122,227 0 0 0 16.b.
----------------------------------------------------------------------------------
RCFD 8729 RCFD 8730 RCFD 8731 RCFD 8732
----------------------------------------------------------------------------------
25
</TABLE>
<PAGE> 61
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 03??
Address: 420 Montgomery Street Page RC-16
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RC-L -- Continued
---------------- ----------------- ----------------- -----------------
(Column A) (Column B) (Column C) (Column D)
Dollar Amounts in Thousands Interest Rate Foreign Exchange Equity Derivative Commodity and
- --------------------------------------- Contracts Contracts Contracts Other Contracts
Off-balance Sheet Derivatives ----------------- ----------------- ----------------- -----------------
Position Indicators RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
17. Gross fair values of
derivative contracts:
a. Contracts held for trading:
(1) Gross positive
fair value.................. 8733 25,067 8734 11,029 8735 0 8736 0 17.a.(1)
(2) Gross negative
fair value.................. 8737 22,869 8738 9,542 8739 0 8740 0 17.a.(2)
b. Contracts held for purposes
other than trading that are
marked to market:
(1) Gross positive
fair value.................. 8741 79,277 8742 60 8743 0 8744 0 17.b.(1)
(2) Gross negative
fair value.................. 8745 0 8746 0 8747 0 8748 0 17.b.(2)
c. Contracts held for purposes
other than trading that are
not marked to market:
(1) Gross positive
fair value.................. 8749 123,509 8750 0 8751 0 8752 0 17.c.(1)
(2) Gross negative
fair value.................. 8753 204,733 8754 0 8755 0 8756 0 17.c.(2)
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
-----------------
Memoranda Dollar Amounts in Thousands RCFD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------------
<S> <C>
1.-2. Not applicable
3. Unused commitments with an original maturity exceeding one year that are reported in
Schedule RC-L, item 1.a through 1.e above (report only the unused portions of commitments
that are fee paid or otherwise legally binding).................................................. 3833 22,304,618 M.3.
a. Participations in commitments with an original maturity
exceeding one year conveyed to others..................................RCFD 3834 865,359 M.3.a.
4. To be completed only by banks with $1 billion or more in total assets:
Standby letters of credit and foreign office guarantees (both financial and performance) issued
to non-U.S. addresses (domicile) included in Schedule RC-L, items 2 and 3, above.................. 3377 44,873 M.4.
5. Installment loans to individuals for household, family, and other personal expenditures that
have been securitized and sold without recourse (with servicing retained), amounts outstanding
by type of loan:
a. Loans to purchase private passenger automobiles (to be completed for the September
report only).................................................................................. 2741 0 M.5.a.
b. Credit cards and related plans (TO BE COMPLETED QUARTERLY).................................... 2742 0 M.5.b.
c. All other consumer installment credit (including mobile home loans) (to be completed
for the September report only)................................................................ 2743 0 M.5.c.
</TABLE>
26
<PAGE> 62
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-17
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RC-M -- Memoranda
C465
------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou <-
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Extensions of credit by the reporting bank to its executive officers,
directors, principal shareholders, and their related interests as of the
report date:
a. Aggregate amount of all extensions of credit to all executive officers,
directors, principal shareholders, and their related interests......... 6164 9,437 1.a.
b. Number of executive officers, directors, and principal shareholders
to whom the amount of all extensions of credit by the reporting bank
(including extensions of credit to related interests)
equals or exceeds the lesser of $500,000 or 5 percent Number
of total capital as defined for this purpose in ----------------
agency regulations. RCFD 6165 2 1.b.
----------------
2. Federal funds sold and securities purchased under agreements to resell
with U.S. branches and agencies of foreign banks(1) (included in
Schedule RC, items 3.a and 3.b)........................................... 3405 227,300 2.
3. Not applicable.
4. Outstanding principal balance of 1-4 family residential mortgage loans
serviced for others (include both retained servicing and purchased
servicing):
a. Mortgages serviced under a GNMA contract............................... 5500 646,175 4.a.
b. Mortgages serviced under a FHLMC contract:
(1) Serviced with recourse to servicer................................. 5501 13,094 4.b.(1)
(2) Serviced without recourse to servicer.............................. 5502 6,174,188 4.b.(2)
c. Mortgages serviced under a FNMA contract:
(1) Serviced under a regular option contract........................... 5503 73,888 4.c.(1)
(2) Serviced under a special option contract........................... 5504 9,216,252 4.c.(2)
d. Mortgages serviced under other servicing contracts..................... 5505 9,191,297 4.d.
5. To be completed only by banks with $1 billion or more in total assets:
Customers' liability to this bank on acceptances outstanding (sum of
items 5.a and 5.b must equal Schedule RC, item 9):
a. U.S. addressees (domicile)............................................. 2103 216,990 5.a.
b. Non-U.S. addressees (domicile)......................................... 2104 78,349 5.b.
6. Intangible assets:
a. Mortgage servicing rights.............................................. 3164 246,712 6.a.
b. Other identifiable intangible assets:
(1) Purchased credit card relationships................................ 5506 0 6.b.(1)
(2) All other identifiable intangible assets........................... 5507 1,924,563 6.b.(2)
c. Goodwill............................................................... 3163 6,460,421 6.c.
d. Total (sum of items 6.a through 6.c) (must equal Schedule RC, item 10). 2143 8,631,696 6.d.
e. Amount of intangible assets (included in item 6.b.(2) above) that have
been grandfathered or are otherwise qualifying for regulatory
capital purposes....................................................... 6442 739,403 6.e.
7. Mandatory convertible debt, net of common or perpetual preferred stock
dedicated to redeem the debt.............................................. 3295 324,976 7.
-----------------
- -----------------
(1) Do not report federal funds sold and securities purchased under agreements to resell with other
commercial banks in the U.S. in this item.
</TABLE>
27
<PAGE> 63
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-18
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
SCHEDULE RC-M -- Continued
----------------------
Dollar Amounts in Thousands Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
8. a. Other real estate owned:
(1) Direct and indirect investments in real estate ventures........................ RCFD 5372 123,124 8.a.(1)
(2) All other real estate owned:
(a) Construction and land development in domestic offices...................... RCON 5506 0 8.a.(2)(a)
(b) Farmland in domestic offices............................................... RCON 5509 22,336 8.a.(2)(b)
(c) 1-4 family residential properties in domestic offices...................... RCON 5510 51,626 8.a.(2)(c)
(d) Multifamily (5 or more) residential properties in domestic offices......... RCON 5511 818 8.a.(2)(d)
(e) Nonfarm residential properties in domestic offices......................... RCON 5512 163,900 8.a.(2)(e)
(f)In foreign offices.......................................................... RCFM 5513 0 8.a.(2)(f)
(3) Total (sum of items 8.a.(1) and 8.a.(2)) (must equal Schedule RC, item 7)...... RCFD 2150 361,804 8.a.(3)
b. Investments in unconsolidated subsidiaries and associated companies:
(1) Direct and indirect investments in real estate ventures........................ RCFD 5374 2,376 8.b.(1)
(2) All other investments in unconsolidated subsidiaries
and associated companies....................................................... RCFD 5375 64,530 8.b.(2)
(3) Total (sum of items 8.b.(1) and 8.b.(2)) (must equal Schedule RC, item 8)...... RCFD 2130 66,906 8.b.(3)
c. Total assets of unconsolidated subsidiaries and associated companies............... RCFD 5376 7,142,349 8.c.
9. Noncumulative perpetual preferred stock and related surplus included in Schedule RC,
item 23, "Perpetual preferred stock and related surplus".............................. RCFD 3778 0 9.
10. Mutual fund and annuity sales in domestic offices during the quarter (include
proprietary, private label, and third party products):
a. Money market funds................................................................. RCON 6441 10,513,200 10.a.
b. Equity securities funds............................................................ RCON 8427 219,900 10.b.
c. Debt securities funds.............................................................. RCON 8428 180,300 10.c.
d. Other mutual funds................................................................. RCON 8429 98,500 10.d.
e. Annuities.......................................................................... RCON 8430 178,200 10.e.
f. Sales of proprietary mutual funds and annuities (included in items 10.a.
through 10.e above)................................................................ RCON 8784 10,935,700 10.f.
</TABLE>
<TABLE>
----------------------
Memorandum Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1. Interbank holdings of capital instruments (to be completed for the December
report only):
a. Reciprocal holdings of banking organizations' capital instruments................... 3836 N/A M.1.a.
b. Nonreciprocal holdings of banking organizations' capital instruments................ 3837 N/A M.1.b.
</TABLE>
28
<PAGE> 64
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-19
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RC-N--PAST DUE AND NONACCRUAL LOANS, LEASES,
AND OTHER ASSETS
The FFIEC regards the information reported in
all of Memorandum item 1, in items 1 through 10,
column A, and in Memorandum items 2 through 4,
column A, as confidential.
---------
C470
-------------------------------------------------------------
(Column A) (Column B) (Column C)
Past due Past due 90 Nonaccrual
30 through 89 days or more
days and still and still
accruing accruing
------------------ ------------------ -------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1. Loans secured by real estate:
a. To U.S. addressees (domicile) ................. 1245 702,059 1246 104,705 1247 429,249 1.a.
b. To non-U.S. addressees (domicile) ............. 1248 0 1249 0 1250 0 1.b.
2. Loans to depository institutions and acceptances
of other banks:
a. To U.S. banks and other U.S. depository
institutions .................................. 5377 0 5378 0 5379 0 2.a.
b. To foreign banks .............................. 5380 35 5381 0 5382 0 2.b.
3. Loans to finance agricultural production and
other loans to farmers ........................... 1594 51,738 1597 7,836 1583 14,293 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile) ................. 1251 410,822 1252 47,712 1253 173,717 4.a.
b. To non-U.S. addressees (domicile) ............. 1254 0 1255 0 1256 0 4.b.
5. Loans to individuals for household, family, and
other personal expenditures:
a. Credit cards and related plans ................ 5383 34,192 5384 8,331 5385 114 5.a.
b. Other (includes single payment, installment,
and all student loans) ........................ 5386 114,425 5387 4,728 5388 1,506 5.b.
6. Loans to foreign governments and official
institutions ..................................... 5389 0 5390 0 5391 0 6.
7. All other loans .................................. 5459 69,543 5460 9,721 5461 406 7.
8. Lease financing receivables:
a. Of U.S. addressees (domicile) ................. 1257 14,749 1258 410 1259 204 8.a.
b. Of non-U.S. addressees (domicile) ............. 1271 0 1272 0 1791 0 8.b.
9. Debt securities and other assets (exclude other
real estate owned and other repossessed assets) .. 3505 0 3506 0 3507 454 9.
===============================================================================================================================
Amounts reported in items 1 through 8 above include guaranteed and unguaranteed portions of past due and nonaccrual loans and
leases. Report in item 10 below certain guaranteed loans and leases that have already been included in the amounts reported in
items 1 through 8.
<CAPTION>
-------------------------------------------------------------
RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
10. Loans and leases reported in items 1
through 8 above which are wholly or partially
guaranteed by the U.S. Government ................ 5612 12,207 5613 3,348 5614 15,192 10.
a. Guaranteed portion of loans and leases
included in item 10 above ..................... 5615 9,308 5616 2,748 5617 12,617 10.a.
29
</TABLE>
<PAGE> 65
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-20
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RC-N--CONTINUED
---------
C473
----------------------------------------
(Column A) (Column B) (Column C)
Past due Past due 90 Nonaccrual
30 through 89 days or more
days and still and still
MEMORANDA accruing accruing
------------------ ------------------ -------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1. Restructured loans and leases included in
Schedule RC-N, items 1 through 8, above (and not
reported in Schedule RC-C, part I, Memorandum
item 2) .......................................... 1658 0 1659 0 1661 71,070 M.1.
2. Loans to finance commercial real estate,
construction, and land development activities
(not secured by real estate) included in
Schedule RC-N, items 4 and 7, above .............. 6558 33,466 6559 724 6560 10,244 M.2.
---------------------------------------------------------------
RCON Bil Mil Thou RCON Bil Mil Thou RCON Bil Mil Thou
---------------------------------------------------------------
3. Loans secured by real estate in domestic offices
(included in Schedule RC-N, item 1, above):
a. Construction and land development ............. 2759 57,120 2769 2,829 3492 26,643 M.3.a.
b. Secured by farmland ........................... 3493 7,927 3494 360 3495 4,568 M.3.b.
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by
1-4 family residential properties and
extended under lines of credit ............ 5398 37,300 5399 12,136 5400 6,737 M.3.c.(1)
(2) All other loans secured by 1-4 family
residential properties .................... 5401 270,262 5402 52,168 5403 86,384 M.3.c.(2)
d. Secured by multifamily (5 or more) residential
properties .................................... 3499 9,262 3500 61 3501 28,891 M.3.d.
e. Secured by nonfarm nonresidential properties... 3502 320,188 3503 37,151 3504 276,026 M.3.e.
---------------------------------------------------------------
<CAPTION>
-----------------------------------------
(Column A) (Column B)
Past due 30 Past due 90
through 89 days or more
-----------------------------------------
RCFD Bil Mil Thou RCFD Bil Mil Thou
------------------------------------------
<S> <C> <C> <C> <C> <C>
-------------------- ------------------
4. Interest rate, foreign exchange rate, and other
commodity and equity contracts:
a. Book value of amounts, carried as assets ...... 3522 0 3528 0 M.4.a.
b. Replacement cost of contracts with a
positive replacement cost ..................... 3529 0 3530 0 M.4.b.
-----------------------------------------
30
</TABLE>
<PAGE> 66
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-21
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
Schedule RC-O--Other Data for Deposit Insurance Assessments
----
C475
-----------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Unposted debits (see instructions):
a. Actual amount of all unposted debits ..................................................... 0030 N/A 1.a.
OR
b. Separate amount of unposted debits:
(1) Actual amount of unposted debits to demand deposits .................................. 0031 11,380 1.b.(1)
(2) Actual amount of unposted debits to time and savings deposits(1) ..................... 0032 7,844 1.b.(2)
2. Unposted credits (see instructions):
a. Actual amount of all unposted credits .................................................... 3510 N/A 2.a.
OR
b. Separate amount of unposted credits:
(1) Actual amount of unposted credits to demand deposits ................................. 3512 14,662 2.b.(1)
(2) Actual amount of unposted credits to time and savings deposits(1) .................... 3514 2,474 2.b.(2)
3. Uninvested trust funds (cash) held in bank's own trust department (not included in total
deposits in domestic offices) ............................................................... 3520 32,481 3.
4. Deposits of consolidated subsidiaries in domestic offices and in insured branches in Puerto
Rico and U.S. territories and possessions (not included in total deposits):
a. Demand deposits of consolidated subsidiaries ............................................. 2211 21,818 4.a.
b. Time and savings deposits(1) of consolidated subsidiaries ................................ 2351 0 4.b.
c. Interest accrued and unpaid on deposits of consolidated subsidiaries ..................... 5514 0 4.c.
5. Deposits in insured branches in Puerto Rico and U.S. territories and possessions:
a. Demand deposits in insured branches (included in Schedule RC-E, Part II) ................. 2229 0 5.a.
b. Time and savings deposits(1) in insured branches (included in Schedule RC-E, Part II) .... 2383 0 5.b.
c. Interest accrued and unpaid on deposits in insured branches
(included in Schedule RC-G, item 1.b) .................................................... 5515 0 5.c.
-----------------
-----------------
Item 6 is not applicable to state nonmember banks that have not been authorized by the Federal
Reserve to act as pass-through correspondents.
6. Reserve balances actually passed through to the Federal Reserve by the reporting bank on
behalf of its respondent depository institutions that are also reflected as deposit
liabilities of the reporting bank:
a. Amount reflected in demand deposits (included in Schedule RC-E, Part I, item 4 or 5,
column B) ................................................................................ 2314 0 6.a.
b. Amount reflected in time and savings deposits(1) (included in Schedule RC-E, Part I,
item 4 or 5, column A or C, but not column B) ............................................ 2315 0 6.b.
7. Unamortized premiums and discounts on time and savings deposits:(1)
a. Unamortized premiums ..................................................................... 5516 23,371 7.a.
b. Unamortized discounts .................................................................... 5517 0 7.b.
-----------------
- -----------------------------------------------------------------------------------------------------------------------------
8. To be completed by banks with "Oakar deposits."
-----------------
Total "Adjusted Attributable Deposits" of all institutions acquired under Section 5(d)(3) of
the Federal Deposit Insurance Act (from most recent FDIC Oakar Transaction Worksheet(s)) .... 5518 3,349,101 8.
-----------------
- -----------------------------------------------------------------------------------------------------------------------------
-----------------
9. Deposits in lifeline accounts ............................................................... 5596 9.
10. Benefit-responsive "Depository Institution Investment Contracts" (included in total
deposits in domestic offices) .............................................................. 8432 0 10.
-----------------
- ------------
(1) For FDIC insurance assessment purposes, "time and savings deposits" consists of nontransaction accounts and all transaction
accounts other than demand deposits.
31
</TABLE>
<PAGE> 67
<TABLE>
<CAPTION>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-22
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
SCHEDULE RC-O -- Continued
-----------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
11. Adjustments to demand deposits in domestic offices reported in Schedule
RC-E for certain reciprocal demand balances:
a. Amount by which demand deposits would be reduced if reciprocal demand
balances between the reporting bank and savings associations were
reported on a net basis rather than a gross basis in Schedule RC-E..... 8785 0 11.a.
b. Amount by which demand deposits would be increased if reciprocal
demand balances between the reporting bank and U.S. branches and
agencies of foreign banks were reported on a gross basis rather than
a net basis in Schedule RC-E........................................... A181 0 11.b.
c. Amount by which demand deposits would be reduced if cash items in
process of collection were included in the calculation of net
reciprocal demand balances between the reporting bank and the domestic
offices of U.S. banks and savings associations in Schedule RC-E........ A182 3,169 11.c.
-----------------
Memoranda (to be completed each quarter except as noted)
-----------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- --------------------------------------------------------------------------------------------------
1. Total deposits in domestic offices of the bank (sum of Memorandum items
1.a.(1) and 1.b.(1) must equal Schedule RC, item 13.a):
a. Deposit accounts of $100,000 or less:
(1) Amount of deposit accounts of $100,000 or less..................... 2702 47,946,956 M.1.a.(1)
(2) Number of deposit accounts of $100,000 or less Number
(to be completed for the June report only)........-----------------
RCON 3779 N/A M.1.a.(2)
-----------------
b. Deposit accounts of more than $100,000:
(1) Amount of deposit accounts of more than $100,000................... 2710 29,167,908 M.1.b.(1)
Number
(2) Number of deposit accounts of more than $100,000..-----------------
RCON 2722 80,984 M.1.b.(2)
-----------------
2. Estimated amount of uninsured deposits in domestic offices of the bank:
a. An estimate of your bank's uninsured deposits can be determined by
multiplying the number of deposit accounts of more than $100,000 reported
in Memorandum item 1.b.(2) above by $100,000 and subtracting the result
from the amount of deposit accounts of more than $100,000 reported in
Memorandum item 1.b.(1) above.
Indicate in the appropriate box at the right whether your bank has a YES NO M.2.a.
method or procedure for determining a better estimate of uninsured -----------------
deposits than the estimate described above............................. 6861 X
-----------------
RCON Bil Mil Thou
b. If the box marked YES has been checked, report the estimate of -----------------
uninsured deposits determined by using your bank's method or procedure. 5597 N/A M.2.b.
-----------------
- --------------------------------------------------------------------------------------------------
Person to whom questions about the Reports of Condition and Income should C477
be directed: ------
Nancy E. Hull, AVP & Project Manager (415) 396-3986
- -------------------------------------------------------- --------------------------------------------
Name and Title (TEXT 8901) Area code/phone number/extension (TEXT 8902)
</TABLE>
32
<PAGE> 68
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-23
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
</TABLE>
SCHEDULE RC-R -- Regulatory Capital
This schedule must be completed by all banks as follows: Banks that reported
total assets of $1 billion or more in Schedule RC, item 12, for June 30, 1995,
must complete items 2 through 9 and Memoranda items 1 and 2. Banks with assets
of less than $1 billion must complete items 1 through 3 below or Schedule RC-R
in its entirety, depending on their response to item 1 below.
<TABLE>
<CAPTION>
<S> <C>
1. Test for determining the extent to which Schedule RC-R must be completed
To be completed only by banks with total assets of less than $1 billion. C480
Indicate in the appropriate box at the right whether the bank has total YES NO
capital greater than or equal to eight percent of adjusted total assets..... RCFD 6056 1.
</TABLE>
For purposes of this test, adjusted total assets equals total assets
less cash, U.S. Treasuries, U.S. Government agency obligations, and 80
percent of U.S. Government-sponsored agency obligations plus the allowance
for loan and lease losses and selected off-balance sheet items as reported on
Schedule RC-L (see instructions).
If the box marked YES has been checked, then the bank only has to
complete items 2 and 3 below. If the box marked NO has been checked, the bank
must complete the remainder of this schedule.
A NO response to item 1 does not necessarily mean that the bank's actual
risk-based capital ratio is less than eight percent or that the bank is not
in compliance with the risk-based capital guidelines.
NOTE: All banks are required to complete items 2 and 3 below. See optional
worksheet for items 3.a through 3.f.
<TABLE>
<CAPTION>
(Column A) (Column B)
Subordinated Other
Debt(1) and Limited-Life
Intermediate Term Capital
Preferred Stock Instruments
----------------- -----------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
2. Subordinated debt(1) and other limited-life capital instruments
(original weighted average maturity of at least five years)
with a remaining maturity of:
a. One year or less................................................. 3780 0 3786 0 2.a.
b. Over one year through two years.................................. 3781 0 3787 0 2.b.
c. Over two years through three years............................... 3782 0 3788 0 2.c.
d. Over three years through four years.............................. 3783 0 3789 0 2.d.
e. Over four years through five years............................... 3784 35,000 3790 0 2.e.
f. Over five years.................................................. 3785 711,000 3791 0 2.f.
3. Amounts used in calculating regulatory capital ratios (report
amounts determined by the bank for its own internal regulatory
capital analyses consistent with applicable capital standards): RCFD Bil Mil Thou
a. Tier 1 capital........................................................................ 8274 6,539,449 3.a.
b. Tier 2 capital........................................................................ 8275 2,000,678 3.b.
c. Total risk-based capital.............................................................. 3792 8,540,127 3.c.
d. Excess allowance for loan and lease losses............................................ A222 621,693 3.d.
e. Risk-weighted assets (net of all deductions, including excess allowance).............. A223 74,314,473 3.e.
f. "Average total assets" (net of all assets deducted from Tier 1 capital) (2)........... A224 91,714,628 3.f.
</TABLE>
<TABLE>
<CAPTION>
Items 4-9 and Memoranda items 1 and 2 are to be completed (Column A) (Column B)
by banks that answered NO to item 1 above and Assets Credit Equiv-
by banks with total assets of $1 billion or more. Recorded alent Amount
on the of Off-Balance
Balance Sheet Sheet Items(3)
----------------- -----------------
RCFD Bil Mil Thou RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
4. Assets and credit equivalent amounts of off-balance sheet items
assigned to the Zero percent risk category:
a. Assets recorded on the balance sheet:
(1) Securities issued by, other claims on, and claims unconditionally
guaranteed by, the U.S. Government and its agencies and
other OECD central governments............................... 3794 2,671,244 4.a.(1)
(2) All other.................................................... 3795 3,477,376 4.a.(2)
b. Credit equivalent amount of off-balance sheet items.............. 3796 2,960,816 4.b.
</TABLE>
- ----------
(1) Exclude mandatory convertible debt reported in Schedule RC-N, item 7.
(2) Do not deduct excess allowance for loan and lease losses.
(3) Do not report in column B the risk-weighted amount of assets reported
in column A.
33
<PAGE> 69
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 031
Address: 420 Montgomery Street Page RC-24
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
Schedule RC-R--Continued
(Column A) (Column B)
Assets Credit Equiv-
Recorded alent Amount
on the of Off-Balance
Balance Sheet Sheet Items(1)
----------------- -----------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- ------------------------------------------------------------------------------ ----------------- -----------------
<S> <C> <C>
5. Assets and credit equivalent amounts of off-balance sheet items
assigned to the 20 percent risk category:
a. Assets recorded on the balance sheet:
(1) Claims conditionally guaranteed by the U.S. Government and
its agencies and other OECD central governments . . . . . . . . . . 3798 57,069 5.a.(1)
(2) Claims collateralized by securities issued by the U.S. Government
and its agencies and other OECD central governments; by
securities issued by U.S. Government-sponsored agencies; and
by cash on deposit . . . . . . . . . . . . . . . . . . . . . . . . 3799 62,288 5.a.(2)
(3) All other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3800 27,479,517 5.a.(3)
b. Credit equivalent amount of off-balance sheet items . . . . . . . . . . 3801 1,434,748 5.b.
6. Assets and credit equivalent amounts of off-balance sheet items
assigned to the 50 percent risk category:
a. Assets recorded on the balance sheet . . . . . . . . . . . . . . . . . 3802 12,929,675 6.a.
b. Credit equivalent amount of off-balance sheet items . . . . . . . . . . 3803 60,941 6.b.
7. Assets and credit equivalent amounts of off-balance sheet items
assigned to the 100 percent risk category:
a. Assets recorded on the balance sheet . . . . . . . . . . . . . . . . . 3804 60,624,483 7.a.
b. Credit equivalent amount of off-balance sheet items . . . . . . . . . . 3805 10,898,623 7.b.
8. On-balance sheet asset values excluded from the calculation of the
risk-based capital ratio(2) . . . . . . . . . . . . . . . . . . . . . . 3806 73,874 8.
9. Total assets recorded on the balance sheet (sum of
items 4.a, 5.a, 6.a, 7.a, and 8, column A)(must equal Schedule RC,
item 12 plus items 4.b and 4.c) . . . . . . . . . . . . . . . . . . . . . . 3807 101,175,526 9.
----------------- -----------------
</TABLE>
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------- -----------------
<S> <C>
1. Current credit exposure across all off-balance sheet derivative contracts covered by the
risk-based capital standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8764 238,838 M.1.
-----------------
</TABLE>
<TABLE>
<CAPTION>
With a remaining maturity of:
-------------------------------------------------------------------------
(Column A) (Column B) (Column C)
One year or less Over one year Over 5 years
through five years
---------------------- ---------------------- ----------------------
RCFD Tril Bil Mil Thou RCFD Tril Bil Mil Thou RCFD Tril Bil Mil Thou
---------------------- ---------------------- ----------------------
<S> <C> <C> <C>
2. Notional principal amounts of
off-balance sheet derivative contracts(3):
a. Interest rate contracts . . . . . . . . . 3809 3,658,493 8766 36,106,226 8767 3,300,778 M.2.a
b. Foreign exchange contracts . . . . . . . 3812 1,007,324 8769 44,085 8770 0 M.2.b
c. Gold contracts . . . . . . . . . . . . . 8771 0 8772 0 8773 0 M.2.c
d. Other precious metals contracts . . . . . 8774 0 8775 0 8776 0 M.2.d
e. Other commodity contracts . . . . . . . . 8777 0 8778 0 8779 0 M.2.e
f. Equity derivative contracts . . . . . . . A000 0 A001 0 A002 0 M.2.f
---------------------- --------------------- ----------------------
</TABLE>
- ---------------
(1) Do not report in column B the risk-weighted amount of assets reported in
column A.
(2) Include the difference between the fair value and the amortized cost of
available-for-sale securities in item 8 and report the amortized cost of
these securities in items 4 through 7 above. Item 8 also includes
on-balance sheet values (or portions thereof) of off-balance sheet interest
rate, foreign exchange rate, and commodity contracts and those contracts
(e.g. futures contract) not subject to risk-based capital. Exclude from
item 8 margin accounts and accrued receivables not included in the
calculation of credit equivalent amounts of off-balance sheet derivatives as
well as any portion of the allowance for loan and lease losses in excess of
the amount that may be included in Tier 2 capital.
(3) Exclude foreign exchange contracts with an original maturity of 14 days or
less and all futures contracts.
34
<PAGE> 70
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450 FFIEC 03
Address: 420 Montgomery Street Page RC-25
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
</TABLE>
OPTIONAL NARRATIVE STATEMENT CONCERNING THE AMOUNTS
REPORTED IN THE REPORTS OF CONDITION AND INCOME
at close of business on September 30, 1996
Wells Fargo Bank, National Association San Francisco , California
- ----------------------------------------------- ------------------ ----------
Legal Title of Bank City State
The management of the reporting bank may, if it wishes, submit a brief
narrative statement on the amounts reported in the Reports of Condition and
Income. This optional statement will be made available to the public, along
with the publicly available data in the Reports of Condition and Income, in
response to any request for individual bank report data. However, the
information reported in column A and in all of Memorandum item 1 of Schedule
RC-N is regarded as confidential and will not be released to the public. BANKS
CHOOSING TO SUBMIT THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE STATEMENT
DOES NOT CONTAIN THE NAMES OR OTHER IDENTIFICATIONS OF INDIVIDUAL BANK
CUSTOMERS, REFERENCES TO THE AMOUNTS REPORTED IN THE CONFIDENTIAL ITEMS IN
SCHEDULE RC-N, OR ANY OTHER INFORMATION THAT THEY ARE NOT WILLING TO HAVE MADE
PUBLIC OR THAT WOULD COMPROMISE THE PRIVACY OF THEIR CUSTOMERS. Banks choosing
not to make a statement may check the "No comment" box below and should make no
entries of any kind in the space provided for the narrative statement; i.e., DO
NOT enter in this space such phrases as "No statement," "Not applicable,"
"N/A," "No comment," and "None."
The optional statement must be entered on this sheet. The statement should not
exceed 100 words. Further, regardless of the number of words, the statement
must not exceed 750 characters, including punctuation, indentation, and
standard spacing between words and sentences. If any submission should exceed
750 characters, as defined, it will be truncated at 750 characters with no
notice to the submitting bank and the truncated statement will appear as the
bank's statement both on agency computerized records and in computer-file
releases to the public.
All information furnished by the bank in the narrative statement must be
accurate and not misleading. Appropriate efforts shall be taken by the
submitting bank to ensure the statement's accuracy. The statement must be
signed, in the space provided below, by a senior officer of the bank who
thereby attests to its accuracy.
If, subsequent to the original submission, material changes are submitted for
the data reported in the Reports of Condition and income, the existing
narrative statement will be deleted from the files, and from disclosure; the
bank, at its option, may replace it with a statement, under signature,
appropriate to the amended data.
The optional narrative statement will appear in agency records and in release
to the public exactly as submitted (or amended as described in the preceding
paragraph) by the management of the bank (except for the truncation of
statements exceeding the 750-character limit described above). THE STATEMENT
WILL NOT BE EDITED OR SCREENED IN ANY WAY BY THE SUPERVISORY AGENCIES FOR
ACCURACY OR RELEVANCE. DISCLOSURE OF THE STATEMENT SHALL NOT SIGNIFY THAT ANY
FEDERAL SUPERVISORY AGENCY HAS VERIFIED OR CONFIRMED THE ACCURACY OF THE
INFORMATION CONTAINED THEREIN. A STATEMENT TO THIS EFFECT WILL APPEAR ON ANY
PUBLIC RELEASE OF THE OPTIONAL STATEMENT SUBMITTED BY THE MANAGEMENT OF THE
REPORTING BANK.
- -----------------------------------------------------------------------------
NO COMMENT [X] (RCOM 6979) C471 / C472
---
BANK MANAGEMENT STATEMENT (please type or print clearly):
(TEXT 6980)
-------------------------------------- ------------------
Signature of Executive Officer of Bank Date of Signature
35
<PAGE> 71
<TABLE>
<S> <C> <C>
Legal Title of Bank: Wells Fargo Bank, National Association Call Date: 9/30/96 ST-BK: 06-1450
Address: 420 Montgomery Street
City, State Zip: San Francisco, CA 94163
FDIC Certificate No.: 0/3/5/1/1
---------
THIS PAGE IS TO BE COMPLETED BY ALL BANKS
- -----------------------------------------------------------------------------------------------------------------------------------
NAME AND ADDRESS OF BANK OMB No. For OCC: 1557-0081
OMB No. For FDIC: 3064-0052
OMB No. For Federal Reserve: 7100-0036
Expiration Date: 3/31/99
PLACE LABEL HERE SPECIAL REPORT
(Dollar Amounts in Thousands)
---------------------------------------------------------------------------
CLOSE OF BUSINESS FDIC Certificate Number
DATE C-700 <-
9/30/96 0 3 5 1 1
- -----------------------------------------------------------------------------------------------------------------------------------
LOANS TO EXECUTIVE OFFICERS (Complete as of each Call Report Date)
- -----------------------------------------------------------------------------------------------------------------------------------
The following information is required by Public Laws 90-44 and 102-242, but does not constitute a part of the Report of Condition.
With each Report of Condition, these laws require all banks to furnish a report of all loans or other extensions of credit to their
executive officers made since the date of the previous Report of Condition. Data regarding individual loans or other extensions of
credit are not required. if no such loans or other extensions of credit were made during the period, insert "none" against subitem
(a). (exclude the first $15,000 of indebtedness of each executive officer under bank credit card plan.) see sections 215.2 and
215.3 of title 12 of the code of federal regulations (federal reserve board regulation d) for the definitions of "executive officer"
and "extension of credit," respectively. exclude loans and other extensions of credit to directors and principal shareholders who
are not executive officers.
- -----------------------------------------------------------------------------------------------------------------------------------
-----------------------
a. Number of loans made to executive officers since the previous Call Report date............ RCFD 3561 0 a.
-----------------------
b. Total dollar amount of above loans (in thousands of dollars).............................. RCFD 3562 0 b.
-----------------------
c. Range of interest charged on above loans -------------------------------------------------------
(example: 9 3/4% = 9.75).................................. RCFD 7701 0.00 % to RCFD 7702 0.00 % c.
-------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
SIGNATURE AND TITLE OF OFFICER AUTHORIZED TO SIGN REPORT DATE (Month, Day, Year)
/s/ FRANK A. MOESLEIN
Frank A. Moeslein, Executive Vice President and Controller November 14, 1996
- -----------------------------------------------------------------------------------------------------------------------------------
NAME AND TITLE OF PERSON TO WHOM INQUIRIES MAY BE DIRECTED (TEXT 8903) AREA CODE/PHONE NUMBER/EXTENSION
(TEXT 8904)
Nancy E. Hull, AVP & Project Manager (415) 396-3986
- -----------------------------------------------------------------------------------------------------------------------------------
FDIC 8040/33 (6-95)
</TABLE>
36
<PAGE> 1
EXHIBIT 1
FITZGERALDS GAMING CORPORATION
301 FREMONT STREET
LAS VEGAS, NEVADA 89101
___________________
SOLICITATION OF CONSENTS OF
HOLDERS OF
13% SENIOR SECURED NOTES DUE 2002
WITH CONTINGENT INTEREST
December 23, 1996
To Holders of 13% Senior Secured
Notes due 2002 With Contingent Interest:
This Consent Solicitation Statement is being furnished to registered
holders (the "Holders") of the 13% Senior Secured Notes due 2002 With
Contingent Interest (the "FGC Notes") of Fitzgeralds Gaming Corporation (the
"Company") in connection with the solicitation by the Board of Directors of the
Company of the consent of the Holders to certain amendments to the Indenture
dated as of December 19, 1995 (the "Indenture") among the Company, as Issuer,
Fitzgeralds South, Inc., Fitzgeralds Reno, Inc., Fitzgeralds Incorporated,
Fitzgeralds Las Vegas, Inc., Fitzgeralds Mississippi, Inc. (formerly named Polk
Landing Entertainment Corporation), and Fitzgeralds Black Hawk, Inc., as
Subsidiary Guarantors, and Wells Fargo Bank, N.A. (formerly First Interstate
Bank of Nevada, N.A.), as Trustee, and to conforming amendments to the FGC
Notes and the Collateral Documents (as such term is defined in the Indenture),
as necessary.
The Company's Annual Report on Form 10-K for the year ended December
31, 1995 and Quarterly Reports on Form 10-Q (or Form 10-Q/A) for the quarters
ended March 31, June 30 and September 30, 1996 are attached hereto as Exhibit A
and incorporated herein by this reference. The Company's business is subject
to certain risks, including those described in the Company's Registration
Statement on Form S-1, File No. 33- 94624, under the heading "Risk Factors",
which are incorporated herein by this reference.
Proposed Senior Secured Borrowing
As stated in the Company's Quarterly Report on Form 10-Q/A for the
quarter ended September 31, 1996, based on the Company's current cash position
and anticipated cash flows and expenses, management believes that in order to
maintain prudent levels of cash reserves while remaining current on all
obligations, including the FGC Notes, the Company requires additional funding.
Accordingly, the Company has reached an oral agreement in principal for a
two-year loan (the "New Loan") on the terms described herein, subject to the
consent of the holders of the FGC Notes and to completion of satisfactory
documentation.
<PAGE> 2
Holders of 13% of Senior Secured
Notes due 2002 With Contingent Interest
December 23, 1996
Page 2
The New Loan is anticipated to be made by Trust Company of the West, a
Holder of FGC Notes (and/or its affiliates which hold FGC Notes), and such
other Holders (and/or their affiliates) which elect to participate (up to their
pro rata share of the FGC Notes, calculated on the basis of all holdings of
affiliates) in such New Loan. The New Loan, which will have a face amount of
$5,882,000, will provide $4,899,700 in net proceeds to the Company. The New
Loan will mature on December 31, 1998, but may be retired earlier at any time
at the option of the Company, and will bear interest at 13% per annum, payable
semi-annually. Repayment of the New Loan will be guaranteed by the Subsidiary
Guarantors (as in the case of the FGC Notes) pursuant to a Subsidiary Guarantee
(the "New Subsidiary Guarantee"). The New Loan and New Subsidiary Guarantee
will be secured, directly or indirectly, by some or all of the same assets of
the Company and its subsidiaries which serve as collateral for the FGC Notes.
However, the New Loan will rank senior to the FGC Notes and the liens securing
the New Loan will rank senior to the liens securing the FGC Notes pursuant to
the subordination provisions of a First Supplemental Indenture (in
substantially the form attached hereto as Exhibit B). As a result of such
subordination, the new lender(s) will be entitled to have the New Loan paid
from the proceeds obtained upon liquidation of the Company's assets before any
such proceeds are used to pay the FGC Notes. Similarly, in the event of a sale
of assets requiring the application of net cash proceeds to repurchase FGC
Notes, the new lenders will be entitled to have their New Loan repaid first.
Except as described above, the covenants, events of default and other
provisions imposed under the New Loan will be substantially the same as those
contained in the Indenture governing the FGC Notes. The New Loan is expected
to be funded on or about December 27, 1996.
The foregoing description of the terms of the New Loan is qualified by
the First Supplemental Indenture and the Summary of Terms attached hereto as
Exhibits B and C.
Management Changes
In an effort to reduce administrative costs, the Company intends to
reduce the size of its Board of Directors to three members and to restructure
the Board's current membership by replacing the Company's two outside directors
with executive officers who will serve on the Board without separate
compensation therefor. In addition, Jerome Turk will resign his positions as
Chairman of the Board and a Director and become a part-time consultant to the
Company.
<PAGE> 3
Holders of 13% of Senior Secured
Notes due 2002 With Contingent Interest
December 23, 1996
Page 3
Proposed Amendments
The incurrence of the New Loan will require certain amendments (the
"Amendments") to the Indenture as described below, to which we hereby request
your consent. The Amendments, if approved, will be effected through the First
Supplemental Indenture (and through conforming amendments to the FGC Notes and
the Collateral Documents, as necessary).
1. Section 1012(h) of the Indenture currently permits the Company
to incur up to $20 million in Pari Passu Indebtedness or
Subordinated Indebtedness, but does not currently permit
Indebtedness which is senior in right of payment to the FGC
Notes or which is payable earlier or more rapidly than the FGC
Notes. The First Supplemental Indenture modifies Section
1012(h) and adds a new Section 1012(i) to permit the Company
to incur (on a one-time basis) the New Loan. The amendments
will not allow the Company to incur more Indebtedness than it
may now incur.
2. Section 1017(a) of the Indenture permits the Company to incur
Permitted Liens on the Collateral, which include Liens
incurred in connection with the borrowing of permitted Pari
Passu Indebtedness and Subordinated Indebtedness. The First
Supplemental Indenture supplements the definition of Permitted
Liens to permit the incurrence of Liens on the Collateral to
secure obligations arising from the New Loan, which Liens will
be senior to the Liens in favor of the FGC Notes.
3. Section 1016 of the Indenture generally requires that net cash
proceeds from an asset sale (i) be reinvested in a gaming or
related business or applied against an offer to repurchase FGC
Notes and (ii) prior thereto, be held in a special deposit
account pledged for the benefit of the holders of the FGC
Notes. The First Supplemental Indenture provides that net
cash proceeds not reinvested in a gaming or related business
will be applied first to the repurchase or retirement of the
New Loan. In addition, net cash proceeds must be held in a
special deposit account pledged for the benefit of the New
Loan first and the holders of the FGC Notes second.
4. The First Supplemental Indenture authorizes the Collateral
Agent to enter into a written agreement (and such other
documents as necessary) to accept and hold senior Liens
granted to secure the New Loan obligations and to effect the
subordination of the Liens in favor of the FGC Notes.
5. The First Supplemental Indenture adds to the Indenture
definitive provisions by which the FGC Notes are fully
subordinated to the New Loan obligations.
In addition to the foregoing, the Indenture will be amended
through the First Supplemental Indenture to clarify that Fitzgeralds Black
Hawk, Inc. (or another subsidiary of the
<PAGE> 4
Holders of 13% of Senior Secured
Notes due 2002 With Contingent Interest
December 23, 1996
Page 4
Company) may grant a lien on the Fitzgeralds Black Hawk Casino in order to
secure Non-Recourse Indebtedness to fund the acquisition of the balance of the
outstanding membership interests in 101 Main Street, LLC, the owner of that
property. In such event, the Fitzgeralds Black Hawk Casino (and other assets
of 101 Main Street) will become an Excluded Asset and, as a result, will not be
pledged as Collateral. Accordingly, the Subsidiary Guarantee entered into by
101 Main Street (at such time as it becomes a Subsidiary Guarantor) will be
unsecured. In addition, such Subsidiary Guarantee will not become enforceable
until such time as the lender of the new Non-Recourse Indebtedness exercises
any default remedy under the agreements therefor. However, the membership
interests in 101 Main Street, LLC will be pledged as Collateral for the New
Loan and the FGC Notes in the same priority as the other Collateral therefor.
The foregoing description of the Amendments is qualified by
reference to the form of First Supplemental Indenture attached hereto as
Exhibit B.
Required Approval and Revocation of Consents
The Indenture requires that Holders of all of the FGC Notes
outstanding consent to the Amendments (the "Requisite Consents") in order for
the Amendments to become effective. As of the date hereof, the aggregate
principal amount of the FGC Notes outstanding is $123 million. Accordingly,
the consent of Holders of $123 million principal amount of the FGC Notes will
be required in order for the Amendments to be approved.
The Indenture provides that until an amendment or waiver
becomes effective, a consent to it by a Holder is a continuing consent by the
Holder and every subsequent Holder of an FGC Note or a portion of an FGC Note
that evidences the same debt as the consenting Holder's Note, even if notation
of the consent is not made on the FGC Note. Any Holder, however, may revoke
the consent as to its FGC Note by a written notice to the trustee, if such
notice is received by the trustee before the date on which the Amendments
become effective. The Company and the trustee may put notations on FGC Notes
indicating that the Holder thereof has consented to the Amendments to the
Indenture.
Effective Date
When the Requisite Consents have been received, the Company
will deliver to the Trustee any board resolutions and other documents that may
be required under the Indenture. Upon receipt of such consents and materials,
the Trustee shall execute the First Supplemental Indenture. The effective date
of the First Supplemental Indenture will be the date it is executed by the
Trustee and the Company. Promptly after the effective date of the First
Supplemental Indenture, the Company will mail the notice required by the
Indenture to the Holders announcing the effectiveness of the Amendments. The
Company and the trustee do not intend to issue new forms of FGC Notes after the
effective date of the Amendments.
<PAGE> 5
Holders of 13% of Senior Secured
Notes due 2002 With Contingent Interest
December 23, 1996
Page 5
DELIVERY OF CONSENT
TO INDICATE YOUR CONSENT TO THE AMENDMENTS, PLEASE SIGN THIS
LETTER (OR A COPY HEREOF) IN THE SPACE PROVIDED BELOW AND RETURN TO THE TRUSTEE
(WITH A COPY TO THE COMPANY) BY FACSIMILE AND BY OVERNIGHT COURIER AT THE
FOLLOWING ADDRESS ON OR BEFORE 5:00 P.M. E.S.T. ON DECEMBER 24, 1996:
WELLS FARGO BANK, N.A.
633 17TH STREET
DENVER, COLORADO 80202
ATTENTION: CORPORATE TRUST ADMINISTRATION
FACSIMILE: (303) 293-5257
This consent solicitation statement is being delivered to the registered
Holders on the books of the trustee as of the date hereof.
BY ORDER OF THE BOARD OF DIRECTORS
Phillip D. Griffith, President
<PAGE> 6
1. The undersigned hereby consents to the Amendments described in
the foregoing Consent Solicitation Statement dated December 23, 1996 as of the
date indicated below.
2. The Trustee and Collateral Agent are hereby directed by the
undersigned to execute and deliver the First Supplemental Indenture and
Priority Notes Collateral Documents. This direction shall survive the transfer
of all or any portion of the Notes.
3. The undersigned acknowledges that (i) the Company offered to
it to make available all financial and other information it desires, (ii) it
has received and reviewed such information concerning the financial performance
and position of the Company as it deems appropriate, (iii) it has been given
access to, and ample opportunity to ask questions of, the Company's management
regarding the New Loan and the purpose therefor and (iv) it has fully
considered the foregoing consent and, to the extent deemed necessary, consulted
its counsel with regard thereto.
4. The undersigned represents and warrants to the Company, the
Trustee and the holders of the New Loan obligations that:
(a) the undersigned owns and is the sole Holder of (or it
has full power and authority to act for and bind by the provisions
hereof a partnership, fund or account which owns and is the sole
Holder of) $_________________________________________________
principal amount of the FGC Notes, represented by certificate
number(s) _________________ _______________________________________,
free and clear of all liens and encumbrances;
(b) the undersigned has duly executed and delivered this
consent in compliance with all laws and regulations applicable to it
and all agreements binding upon it, by an officer or agent thereunto
duly authorized (with full power and authority to bind each such fund
and account for which it is acting);
(c) the undersigned will cause the following legend to be
placed conspicuously on the face of each Note Unit Certificate or Note
Certificate of which it (or such partnership, fund and account for
which it is acting) is the Holder and acknowledges that each person to
which it transfers any such Note Unit Certificate or Note Certificate
shall be bound by the terms of the First Supplemental Indenture:
The principal of (and premium, if any) and interest, including
Contingent Interest, on the indebtedness represented hereby
and all other obligations hereunder and the Subsidiary
Guarantee are subordinated as set forth in the First
Supplemental Indenture dated as of December 27, 1996; and
(d) The undersigned hereby acknowledges and understands
that pursuant to the First Supplemental Indenture and the Priority
Notes Collateral Documents, the Notes will become Subordinated Claims
and as such will be subordinated to all Senior Claims (as those terms
are defined in the First Supplemental Indenture).
Holder: _____________________________ Date: December ___, 1996
By: _________________________
Name:
Title:
<PAGE> 7
EXHIBIT A
PART 1 OF 4
FITZGERALDS GAMING CORPORATION
FORM 10-K
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1995
INCORPORATED BY REFERENCE TO
SEC FILE NO. 0-26518
EXHIBIT A
PART 2 OF 4
FITZGERALDS GAMING CORPORATION
FORM 10-Q
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1996
INCORPORATED BY REFERENCE TO
SEC FILE NO. 0-26518
EXHIBIT A
PART 3 OF 4
FITZGERALDS GAMING CORPORATION
FORM 10-Q
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1996
INCORPORATED BY REFERENCED TO
SEC FILE NO. 0-26518
EXHIBIT A
PART 4 OF 4
FITZGERALDS GAMING CORPORATION
FORM 10-Q/A
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 29, 1996
INCORPORATED BY REFERENCE TO
SEC FILE NO. 0-26518
<PAGE> 8
EXHIBIT B
DRAFT
12/23/96
================================================================================
FITZGERALDS GAMING CORPORATION
Issuer
AND
FITZGERALDS SOUTH, INC.
FITZGERALDS RENO, INC.
FITZGERALDS INCORPORATED
FITZGERALDS LAS VEGAS, INC.
FITZGERALDS FREMONT EXPERIENCE CORPORATION
FITZGERALDS MISSISSIPPI, INC. (FORMERLY POLK
LANDING ENTERTAINMENT CORPORATION)
FITZGERALDS BLACK HAWK, INC.
Subsidiary Guarantors
AND
WELLS FARGO BANK, N.A. (FORMERLY
FIRST INTERSTATE BANK OF NEVADA, N.A.)
Trustee
----------------------------
FIRST SUPPLEMENTAL INDENTURE
----------------------------
Dated as of December __, 1996
$123,000,000
13% Senior Secured Notes Due 2002 With Contingent Interest
================================================================================
<PAGE> 9
DRAFT
12/23/96
FIRST SUPPLEMENTAL INDENTURE (hereinafter, the "FIRST SUPPLEMENTAL
INDENTURE"), dated as of December __, 1996, among FITZGERALDS GAMING
CORPORATION, a Nevada corporation, as Issuer (the "COMPANY"), and FITZGERALDS
SOUTH, INC., a Nevada corporation, FITZGERALDS INCORPORATED, a Nevada
corporation, FITZGERALDS LAS VEGAS, INC., a Nevada corporation, FITZGERALDS
FREMONT EXPERIENCE CORPORATION, a Nevada corporation, FITZGERALDS MISSISSIPPI,
INC. (formerly named POLK LANDING ENTERTAINMENT CORPORATION), a Mississippi
corporation, and FITZGERALDS BLACK HAWK, INC., a Nevada corporation, as
Subsidiary Guarantors, and WELLS FARGO BANK, N.A. (formerly FIRST INTERSTATE
BANK OF NEVADA, N.A.), as Trustee (the "TRUSTEE").
A. The Company and the Subsidiary Guarantors have executed and
delivered to the Trustee an Indenture dated as of December 19, 1995 (the
"Indenture"), providing for the issuance of $123,000,000 principal amount of the
Company's 13% Senior Secured Notes due 2002 with Contingent Interest (THE
"NOTES").
B. The Company and the Subsidiary Guarantors desire to amend the
Indenture in accordance with Article Nine thereof as follows, which amendments
have been authorized by the holders of all of the outstanding Notes pursuant to
Section 902 of the Indenture.
----------------------------
In consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company, the
Subsidiary Guarantors and the Trustee hereby amend the Indenture as follows:
1. SECTION 101 IS HEREBY AMENDED TO ADD THE FOLLOWING DEFINED
TERMS (TO APPEAR IN ALPHABETICAL ORDER WITH ALL DEFINED TERMS IN SUCH SECTION
101) TO READ IN THEIR ENTIRETIES AS FOLLOWS:
"BANKRUPTCY CODE" means Title 11 of the United States Code.
"BANKRUPTCY, INSOLVENCY OR LIQUIDATION PROCEEDING" means (i)
any case commenced by or against the Company or any Subsidiary Guarantor under
any chapter of the Bankruptcy Code, any other proceeding for the reorganization,
recapitalization or adjustment or marshaling of the assets or liabilities of the
Company or any Subsidiary Guarantor, any receivership or assignment for the
benefit of creditors relating to the Company or any Subsidiary Guarantor or any
similar case or proceeding relative to the Company or any Subsidiary Guarantor
or their respective creditors, as such, in each case whether or not voluntary,
(ii) any liquidation, dissolution, marshaling of assets or liabilities or other
winding up of or relating to the Company or any Subsidiary Guarantor, in each
case whether or not voluntary and whether or not involving bankruptcy or
insolvency, and (iii) any other
<PAGE> 10
proceeding of any type or nature in which claims against the Company or any
Subsidiary Guarantor generally are determined, proven or paid.
"DISALLOWED POST-PETITION INTEREST/EXPENSE CLAIMS" means any
claim for interest on the Priority Notes (including accretion of original issue
discount and any applicable post-default rate) accruing after the commencement
of any Bankruptcy, Insolvency or Liquidation Proceeding at the rate (including
any applicable post-default rate) set forth in the Priority Notes or the
Priority Notes Agreement or for fees, expense reimbursements, indemnification or
other similar obligations arising or accruing under the Priority Notes Agreement
after the commencement of any Bankruptcy, Insolvency or Liquidation Proceeding,
if such claim is not allowed, allowable or enforceable in such Bankruptcy,
Insolvency or Liquidation Proceeding.
"DISCHARGE OF THE PRIORITY OBLIGATIONS" means that all
Priority Note Obligations and all Senior Claims (except indemnification
obligations which are then contingent and as to which no payment is then due and
no claim or demand has then been made) have been paid in full and in cash.
"FIRST SUPPLEMENTAL INDENTURE" means the First Supplemental
Indenture dated as of December 27, 1996, among the Company, the Subsidiary
Guarantors and Wells Fargo Bank, N.A., as successor Trustee.
"FITZGERALDS BLACK HAWK" means Fitzgeralds Black Hawk Casino
located in Black Hawk, Colorado.
"PRIORITY NOTE OBLIGATIONS" means the obligations of the
Company to pay principal of (and premium, if any) and interest (including
accretion of original issue discount and any applicable post-default rate) on
the Priority Notes, all guaranties thereof made by any Subsidiary Guarantors,
and all obligations of the Company or any Subsidiary Guarantor for fees, expense
reimbursement, compensation, indemnification or other similar obligations at any
time arising or accruing under the Priority Notes Agreement.
"PRIORITY NOTES" means the Company's Priority Secured Notes
due December 31, 1998 outstanding pursuant to the Priority Notes Agreement and
all other instruments evidencing the indebtedness that is evidenced by such
Priority Secured Notes, as such Priority Secured Notes and instruments from time
to time may be amended.
"PRIORITY NOTES AGREEMENT" means the Note Purchase Agreement
dated as of December 27, 1996, among the Company, the Subsidiary Guarantors and
the purchasers listed on the signature pages thereto, as such agreement from
time to time may be amended.
"PRIORITY NOTES COLLATERAL" means all Collateral upon which a
Lien securing any of the Priority Note Obligations is held by the Trustee or
Collateral Agent.
-2-
<PAGE> 11
"PRIORITY NOTES COLLATERAL DOCUMENTS" means the Global
Amendment to Collateral Documents dated as of December 27, 1996, by and among
the Company and the then Subsidiary Guarantors and Trustee, all Collateral
Documents executed and delivered after delivery of the First Supplemental
Indenture and prior to Discharge of the Priority Obligations, and each other
instrument or agreement by which any of the Priority Note Obligations becomes
secured by any Lien granted to the Trustee or Collateral Agent.
"PRIORITY NOTES DEFAULT" means the failure to pay when due any
principal of or interest on the Priority Notes or any event upon the occurrence
of which one or more of the holders of Priority Notes are permitted (under the
terms of the Priority Notes Agreement) either to accelerate the maturity of the
Priority Notes or to direct the Trustee or Collateral Agent to foreclose upon or
enforce any Lien upon any Priority Notes Collateral and specifically includes
each "Event of Default," as that term is defined in the Priority Notes Agreement
as in effect on the date of the First Supplemental Indenture.
"SENIOR CLAIMS" means the Priority Note Obligations and
Disallowed Post-Petition Interest/Expense Claims.
"SUBORDINATED CLAIMS" means the principal of (and premium, if
any) and interest, including Contingent Interest, on the Notes and all other
obligations arising under the Notes and Subsidiary Guarantee.
2. SECTION 101 IS HEREBY FURTHER AMENDED TO MODIFY THE
FOLLOWING DEFINED TERMS TO READ IN THEIR ENTIRETIES AS FOLLOWS:
"COLLATERAL" means all property and interests in property now
owned or hereafter acquired by any Note Party in or upon which a Lien is granted
for the benefit of the Beneficiaries (whether directly or by way of assignment
of a Lien granted to the Company) and, until Discharge of the Priority
Obligations, the Holders of Priority Note Obligations under any of the
Collateral Documents.
"COLLATERAL AGENT" means (i) First Interstate, as collateral
agent for itself and the Holders and, until Discharge of the Priority
Obligations, the Holders of Priority Note Obligations under the Collateral
Documents, or (ii) the "Collateral Agent" as defined in and under any
Intercreditor Agreement.
"COLLATERAL DOCUMENTS" means, collectively, (i) the Company
Accounts Pledge Agreement, the Company Pledge Agreement, the Company Security
Agreement, the Subsidiary Pledge Agreement, the Subsidiary Security Agreement,
the FLVI Mortgage, the FRI Mortgage (if any), the PLEC Mortgage, the PLEC Ship
Mortgage, and the Disbursement Agreements, and (ii) any other Mortgages, Ship
Mortgages, Accounts Pledge Agreements and other security documents entered into
by the Company or any Restricted Subsidiary to secure
-3-
<PAGE> 12
their respective obligations under the Note Documents, in each case as amended
from time to time, including amendments pursuant to any Priority Notes
Collateral Document.
"EXCLUDED ASSETS" means:
(i) the leased portions of Fitzgeralds Las Vegas, unless
and until the consent of the related lessors to pledge the leases is obtained,
(ii) except to the extent such assets are covered by Exhibit A
to the FLVI Mortgages, the assets of FRI, including Fitzgeralds Reno, but only
for so long as such assets are subject to a Lien listed on Schedule 101B (or any
Permitted Lien under clause (g) of the definition of "Permitted Lien" with
respect to such Lien);
(iii) cash, deposit accounts and other cash equivalents,
including those derived from the operation of Gaming Equipment (as defined in
the Company Security Agreement or the Subsidiary Security Agreement) and related
food and beverage service, but excluding (A) those included in the Note Proceeds
Accounts, Note Proceeds Account Collateral or Asset Sale Account Collateral, (B)
proceeds, products, rents and issues of any Collateral (other than proceeds and
products of food, beverage and gift shop inventories), and (C) without
limitation of clause (B), all rights to payment and payments for hotel room
occupancy (and related reservations, tour and junket proceeds, and deposits for
convention and party reservations);
(iv) (A) any equipment subject to Liens listed on Schedule
101B securing Existing Indebtedness and (B) any newly acquired or leased assets
financed with Permitted FF&E Financing or Non-Recourse Indebtedness to the
extent that a Lien on any such assets is expressly prohibited by the terms of
such permitted FF&E Financing or Non-Recourse Indebtedness and the lender under
such Permitted FF&E Financing or Non-Recourse Indebtedness has not consented to
a Lien on such assets;
(v) any agreement with a third party, existing on the date on
which the relevant Collateral Document is required to be executed hereunder,
that prohibits the grant of a Lien on such agreement or any of the relevant
rights thereunder without the consent of such party or under which a consent to
such grant is otherwise required, which consent has not been obtained, except to
the extent rights under any such agreement are covered by Section 9-318 of the
relevant Uniform Commercial Code (or any successor provision);
(vi) any license, permit or other Governmental Approval that,
under the terms and conditions of such Governmental Approval or under Applicable
Law, cannot be subjected to a Lien in favor of the Company or the Collateral
Agent, as applicable, without the consent of the relevant Governmental
Authority, which consent has not been obtained;
-4-
<PAGE> 13
(vii) Capital Stock of any Unrestricted Subsidiary; and
(viii) In the event that a Subsidiary Guarantor Incurs
Permitted Black Hawk Indebtedness in the form of Non-Recourse Indebtedness to
acquire Main Street pursuant to the Main Street Option Agreement, Fitzgeralds
Black Hawk and the other assets, if any, of Main Street;
provided, however, that Excluded Assets shall not include the
proceeds, products, rents, issues, income and profits (collectively, the
"PROCEEDS") of the assets referred to in clause (i), (ii), (iv), (v), (vi) or
(vii) above to the extent such Proceeds do not constitute Excluded Assets
pursuant to clause (iii) above.
"PARI PASSU INDEBTEDNESS" means Indebtedness of the Company or
any Subsidiary Guarantor that (i) is not Subordinated Indebtedness, (ii) except
in the case of Permitted Construction Indebtedness, matures not before the
Stated Maturity, (iii) except in the case of Permitted Construction
Indebtedness, has an Average Life not shorter than that applicable to the Notes,
and (iv) if such Indebtedness is secured by any assets, (A) the Notes or the
Subsidiary Guarantee of such Subsidiary Guarantor, as the case may be, are
secured by a first Priority Lien on the same assets, and (B) the Lien securing
such Indebtedness is equal and ratable with the Lien securing the Notes or the
Subsidiary Guarantee, as applicable, pursuant to an Intercreditor Agreement;
provided that such Liens shall be subject and subordinate to Liens under the
Priority Notes Collateral Documents securing Priority Note Obligations.
"PERMITTED BLACK HAWK INDEBTEDNESS" means, in the alternative,
either (x) Pari Passu Indebtedness or Subordinated Indebtedness of the Company
(and Pari Passu Indebtedness or Subordinated Indebtedness of any Subsidiary
Guarantor in the form of Guarantees of such Pari Passu Indebtedness or
Subordinated Indebtedness of the Company, as applicable) or (y) Non-Recourse
Indebtedness of any Subsidiary Guarantor, in each case in respect of the
purchase price payable by the Company to exercise its rights to acquire
membership interests in Main Street pursuant to the Main Street Option Agreement
(including Indebtedness of Main Street outstanding at the time of such
acquisition), provided that such Indebtedness does not exceed in aggregate
principal amount (including any Refinancing Indebtedness with respect to such
Indebtedness and together with any Indebtedness of Main Street outstanding at
the time of such incurrence) the lesser of (a) $65,000,000 and (b) in the case
of Pari Passu Indebtedness only, 75% of the higher of (i) such purchase price
and (ii) the Fair Market Value of the membership interests so purchased, as set
forth in an appraisal from a national or regional independent investment banking
firm with recognized experience in the gaming industry, which appraisal shall
have been delivered to the Trustee.
"PERMITTED INTERCOMPANY LOAN" means any loan made by the
Company to any Restricted Subsidiary that (i) is evidenced by a Permitted
Intercompany Note, (ii) provides for interest payments at the same rate and at
the same times as the Notes and the principal amount of and all accrued interest
on such loan is due and payable on demand, (iii) ranks at least pari
-5-
<PAGE> 14
passu in right of payment with all other Indebtedness of such Restricted
Subsidiary, except as contemplated by the Company Pledge Agreement, (iv) except
as provided herein, is secured by a Lien on substantially all assets of such
Restricted Subsidiary other than Negative Pledge Assets, which Lien shall be (a)
of first Priority or, in the case of a Restricted Subsidiary that is a
Subsidiary Guarantor, which Lien shall be subject only to a prior Lien (or,
until Discharge of the Priority Obligations, junior Lien) on the same assets
securing the Subsidiary Guarantee, and (b) equal and ratable with any other
Liens securing Indebtedness on the same assets pursuant to an Intercreditor
Agreement, and (v) together with the Permitted Intercompany Note and any related
Collateral and Liens, is pledged to the Collateral Agent for the benefit of the
Holders and, until Discharge of the Priority Obligations, the Holders of
Priority Note Obligations.
"PERMITTED LIENS" means any of the following:
(a) Liens arising by reason of any judgment, decree or order
of any court only to the extent for an amount and for a period not resulting in
an Event of Default with respect thereto and so long as such Lien is being
contested in good faith and is adequately bonded, and any appropriate legal
proceedings that may have been duly initiated for the review of such judgment,
decree or order shall not have been finally adversely terminated or the period
within which such proceedings may be initiated shall not have expired;
(b) Security for the performance of bids, tenders, trade,
contracts (other than contracts for the payment of money) or leases, surety
bonds, performance bonds and other obligations of a like nature Incurred in the
ordinary course of business or appeal bonds, and public and statutory bonds;
(c) Liens (other than Liens arising under ERISA) for taxes,
assessments or other governmental charges not yet due or which are being
contested in good faith and by appropriate proceedings by the Company if
adequate reserves with respect thereto are maintained on the books of the
Company in accordance with GAAP;
(d) Liens of carriers, warehouse men, mechanics, landlords,
material men, repairmen or other like Liens arising by operation of law in the
ordinary course of business (other than Liens arising under ERISA) and
consistent with industry practices and Liens on deposits made to obtain the
release of such Liens if (i) the underlying obligations are not overdue for a
period of more than 30 days or (ii) such Liens are being contested in good faith
and by appropriate proceedings by the Company and adequate reserves with respect
thereto are maintained on the books of the Company in accordance with GAAP;
(e) Easements, rights of way, zoning and similar restrictions
and other similar encumbrances or title defects incurred in the ordinary course
of business and consistent with industry practices that, in the aggregate, are
not substantial in amount, and that do not in any case materially detract from
the value of the property subject thereto (as such property is used by the
Company or a Subsidiary) or interfere with the ordinary conduct of the business
of the Company or any of its Subsidiaries; provided that any such Liens are not
incurred in connection with any borrowing of money or any commitment to loan any
money or to extend any credit;
-6-
<PAGE> 15
(f) Pledges or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security legislation;
(g) Liens, incurred in connection with the Incurrence of
Refinancing Indebtedness in compliance with this Indenture with respect to
Indebtedness secured by Liens, provided (i) such Liens do not extend to any
additional property or assets, (ii) if the Liens securing the Indebtedness being
refinanced, retired or amended by such Refinancing Indebtedness was subordinated
to or pari passu with the Liens securing the Notes, the Subsidiary Guarantee or
any Permitted Intercompany Loan, as applicable, such new Liens are subordinated
to or pari passu with such Liens to the same extent, and any related
subordination or intercreditor agreement is confirmed, and (iii) such Liens are
no more adverse to the interests of Holders than the Liens replaced or extended
thereby;
(h) Such Liens and items described in paragraph (e) above in
existence and outstanding on the Issue Date as are disclosed in the policies of
title insurance issued on or about the Issue Date;
(i) Liens that secure Indebtedness of any Person existing at
the time such Person becomes a Subsidiary of the Company or is merged or
consolidated into or with the Company or a Subsidiary of the Company, provided
that such Liens do not extend to or cover any other property or assets and were
not put in place in anticipation of such acquisition;
(j) Liens in favor of the Collateral Agent (including, in the
case of Liens securing Permitted Intercompany Loans, as collateral agent for the
Company) under the Collateral Documents;
(k) Liens in favor of the Company or any Subsidiary Guarantor,
which are assigned to the Trustee as Collateral;
(l) Liens of the Company or its Restricted Subsidiaries in
existence on the Issue Date and set forth on Schedule 101B;
(m) with respect to any vessel included in the Collateral,
maritime Liens for crew's wages, general average, salvage and damages arising
out of maritime torts permitted to exist pursuant to Section 4.6 of the related
Ship Mortgage;
(n) Liens that secure Pari Passu Indebtedness or Subordinated
Indebtedness, other than Non-Recourse Indebtedness, (a) permitted to be Incurred
under clauses (d), (e), (f) (if to refinance Existing Indebtedness of FRI) and
(h) of Section 1012 (or constituting Refinancing Indebtedness with respect to
such Indebtedness), which Liens may cover the assets financed with such
Indebtedness as well as other Collateral;
(o) Liens that secure Non-Recourse Indebtedness permitted to
be Incurred pursuant to clauses (d), (e) and (h) of Section 1012 (or
constituting Refinancing Indebtedness with respect to such Indebtedness), which
Liens under shall attach only to the assets of the Restricted Subsidiary
Incurring such Indebtedness;
-7-
<PAGE> 16
(p) Liens that secure Permitted FF&E Financing permitted to be
Incurred under clause (c) of Section 1012, which Liens shall not attach to any
assets other than the assets financed thereby; and
(q) Liens granted to the Trustee or Collateral Agent to secure
the Priority Note Obligations.
"RESTRICTED PAYMENT" means, with respect to any Person,
(a) the declaration or payment of any dividend or other
distribution in respect of Equity Interests of such Person (including the
Preferred Stock) or any Subsidiary of such Person (other than dividends or
distributions payable in Equity Interests (other than Disqualified Capital
Stock) of the Company, dividends or distributions payable to the Company or any
Wholly Owned Subsidiary of the Company that is a Subsidiary Guarantor, and pro
rata dividends or distributions payable to a minority stockholder of a
Subsidiary of the Company);
(b) any payment on account of the purchase, redemption or
other acquisition or retirement for value of Equity Interests of such Person or
any Subsidiary of such Person other than any such Equity Interests owned by the
Company or any Subsidiary Guarantor, and other than a redemption of the
Preferred Stock required as a result of an order of any Gaming Authority
(provided no Default or Event of Default then exists);
(c) any purchase, redemption, or other acquisition or
retirement for value of, any payment in respect of any amendment of the terms of
or any defeasance of, any Subordinated Indebtedness or Senior Indebtedness
(unless Notes are purchased, redeemed or otherwise acquired or retired for value
on a pro rata basis with such Senior Indebtedness and except for (i) any such
purchase, redemption, acquisition, retirement or payment of Priority Note
Obligations, (ii) any Refinancing of such Senior Indebtedness (other than the
Priority Notes) with Refinancing Indebtedness and (iii) the reduction of amounts
outstanding under revolving lines of credit), directly or indirectly, by such
Person or a Restricted Subsidiary of such Person prior to the scheduled
maturity, any scheduled repayment of principal, or scheduled sinking fund
payment, as the case may be, of such Indebtedness; and
(d) any Restricted Investment by such Person.
3. SECTION 201 IS HEREBY AMENDED TO ADD A NEW PARAGRAPH AT
THE END THEREOF TO READ IN ITS ENTIRETY AS FOLLOWS:
Each Note Unit Certificate and Note Certificate issued by the
Trustee after the date of the First Supplemental Indenture and prior to
Discharge of the Priority Obligations shall include the following legend:
-8-
<PAGE> 17
The principal of (and premium, if any) and interest,
including Contingent Interest, on the indebtedness
represented hereby and all other obligations hererunder and
the Subsidiary Guarantee are subordinated as set forth in
the First Supplemental Indenture dated as of December 27,
1996.
4. SECTION 501 IS HEREBY AMENDED TO MODIFY PARAGRAPH (E) TO
READ IN ITS ENTIRETY AS FOLLOWS:
(e) default under any indenture, loan agreement, mortgage,
bond, promissory note or other agreement or instrument (other than any Note
Document), under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any Restricted
Subsidiary, or the payment of which is Guaranteed by the Company or any
Restricted Subsidiary, whether such Indebtedness exists on the Issue Date or is
created or Incurred thereafter, and such default is either (i) caused by a
failure to pay when due principal or interest on such Indebtedness within any
grace period applicable thereto (a PAYMENT Default") or (ii) results in or
requires the prepayment, repurchase, redemption, or defeasance of any such
Indebtedness prior to its express maturity, or requires that the Company or any
Restricted Subsidiary offer to take any of the foregoing actions (any such
event, an ACCELERATION") and, in each case, either (i) such Indebtedness
consists of Priority Note Obligations or (ii) the principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or with respect to which there has
been an Acceleration, aggregates $5,000,000 or more; or
5. SECTION 503 IS HEREBY AMENDED TO ADD A NEW PARAGRAPH AT
THE END THEREOF TO READ IN ITS ENTIRETY AS FOLLOWS:
Subject to the provisions of Article Six, prior to Discharge
of the Priority Obligations, the Trustee shall foreclose on the Collateral and
otherwise enforce its Liens on the Collateral, or direct the Collateral Agent to
foreclose upon the Collateral and enforce its Liens on the Collateral, in
accordance with any lawful and commercially reasonable instructions given by
Holders of a majority in principal amount of Outstanding Notes, by Act of such
Holders delivered to the Company and the Trustee; provided, however, that if the
Trustee receives written notice signed by the holders of a majority in principal
amount of outstanding Priority Notes, stating that the Priority Notes are due
and payable in full (whether at maturity, by acceleration or otherwise) and have
not been paid in full and that such holders direct the Trustee to foreclose upon
or enforce the Liens upon the Priority Notes Collateral, then the Trustee shall
commence and prosecute such foreclosure and enforcement, or direct the
Collateral Agent to do so, in any manner which the Trustee determines to be
lawful, commercially reasonable, reasonably prudent and reasonably expeditious.
In making such determination, the Trustee may consider and act upon any such
lawful and commercially
-9-
<PAGE> 18
reasonable instructions given by Holders of a majority in principal amount of
Outstanding Notes. All proceeds of such foreclosure and enforcement shall be
applied in the order of priority set forth in Section 506.
6. SECTION 504 IS HEREBY AMENDED TO MODIFY CLAUSE "THIRD"
THEREOF TO READ IN ITS ENTIRETY AS FOLLOWS:
THIRD: To the payment, first and on a priority basis, of all
Priority Note Obligations and Senior Claims and, second after Discharge of the
Priority Obligations, to the payment of the amounts then due and unpaid upon the
Notes for principal (and premium, if any) and interest, in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Notes for principal (and premium, if any) and interest;
7. SECTION 512 IS HEREBY AMENDED TO ADD A NEW CLAUSE (C) TO
READ IN ITS ENTIRETY AS FOLLOWS (AND TO MOVE THE WORD "AND" FROM THE END OF
CLAUSE (A) TO THE END OF CLAUSE (B)):
(c) The Trustee shall foreclose upon and enforce the Priority
Notes Collateral as provided in the last paragraph of Section 503.
8. SECTION 902 IS HEREBY AMENDED TO ADD A NEW CLAUSE (III) AT
THE END OF PARAGRAPH (A) TO READ IN ITS ENTIRETY AS FOLLOWS (AND TO MOVE THE
WORD "AND" FROM THE END OF SUBCLAUSE (F) OF CLAUSE (I) OF PARAGRAPH (A) TO THE
END OF CLAUSE (II) OF PARAGRAPH (A)):
(iii) until Discharge of the Priority Obligations, no such
supplemental indenture shall, without the written consent of the holders of at
least 66 2/3% in principal amount of outstanding Priority Notes, amend, qualify,
negate, discharge or limit the effect of any of the provisions added to this
Indenture pursuant to the First Supplemental Indenture or any Lien securing
Priority Note Obligations.
9. SECTION 1012 IS HEREBY AMENDED TO MODIFY CLAUSE (H) AND TO
ADD CLAUSE (I) TO READ IN THEIR ENTIRETIES AS FOLLOWS:
(h) The Company may Incur Pari Passu Indebtedness or
Subordinated Indebtedness (and the Subsidiary Guarantors may Incur Pari Passu
Indebtedness or Subordinated Indebtedness in the form of Guarantees of such Pari
Passu Indebtedness or Subordinated Indebtedness of the Company, as applicable)
and any Subsidiary Guarantor may Incur Non-Recourse Indebtedness, in an
aggregate amount for all such Indebtedness (including any related Refinancing
Indebtedness) at any time outstanding not to exceed $20,000,000, less the
principal amount (or, if less, the accreted value) of Priority Notes then
outstanding.
-10-
<PAGE> 19
(i) The Company and the Restricted Subsidiaries may Incur the
Priority Note Obligations.
10. SECTION 1014 IS HEREBY AMENDED TO MODIFY CLAUSES (A), (E)
AND (H) AND TO ADD A NEW CLAUSE (I) TO READ IN THEIR ENTIRETIES AS FOLLOWS:
(a) restrictions imposed by the Note Documents, the Priority
Note Agreement, the Priority Notes or the Priority Notes Collateral Documents.
* * *
(e) any such contractual encumbrance imposed by or in
connection with the Incurrence of any Permitted FF&E Financing or working
capital Indebtedness permitted pursuant to clause (c) of Section 1012, provided
such encumbrance does not have the effect of restricting the payment of
dividends to the Company or any Restricted Subsidiary or the payment of
Indebtedness owed to the Company or any Subsidiary Guarantor or reducing the
amount of any such dividends or payments,
* * *
(h) any such contractual encumbrances imposed on Main Street
in connection with the acquisition thereof with Permitted Black Hawk
Indebtedness in the form of Non-Recourse Indebtedness.
(i) replacements of restrictions imposed pursuant to clauses
(a) through (h) that are no more restrictive than those being replaced.
11. SECTION 1016 IS HEREBY AMENDED TO MODIFY SUBCLAUSE (A) OF
PARAGRAPH (A) TO READ IN ITS ENTIRETY AS FOLLOWS:
(A) within 210 days after the date of the Asset Sale (the
"REINVESTMENT PERIOD"), the Net Cash Proceeds therefrom are either (1)
reinvested in assets or property directly related to a Related Business of the
Company or such Restricted Subsidiary (or the Company or such Restricted
Subsidiary shall have entered into a binding obligation to make such an
investment), (2) applied to pay Priority Note Obligations, or (3) in accordance
with the procedures set forth in this Section 1016 and Section 1110, applied,
pursuant to an offer (a "ASSET SALE PURCHASE OFFER") to purchase from the
Holders, to the repurchase for cash from Holders accepting such Asset Sale
Purchase Offer, of the maximum principal amount of Notes that may be purchased
out of that portion, if any, of the Net Cash Proceeds of such Asset Sale that is
not reinvested pursuant to clause (1) or applied pursuant to clause (2) within
the Reinvestment Period ("EXCESS PROCEEDS"), at a purchase price of 100% of
principal amount, plus accrued interest to the Purchase Date (the "ASSET SALE
PURCHASE PRICE"),
12. SECTION 1017 IS HEREBY AMENDED TO MODIFY PARAGRAPH (B) TO
READ IN ITS ENTIRETY AS FOLLOWS:
-11-
<PAGE> 20
(b) Notwithstanding the foregoing, (i) no Liens referred to in
clauses (n) through (o) of the definition of Permitted Liens may attach to any
Excluded Assets (other than Liens granted on Fitzgeralds Black Hawk and the
other assets of Main Street in connection with the incurrence of Permitted Black
Hawk Indebtedness which is Non-Recourse Indebtedness), and (ii) no Lien referred
to in clauses (n) through (p) of the definition of Permitted Lien may attach to
any assets of FNYI or FAMI. Without limitation of the other provisions of the
Note Documents, this subsection (b) shall apply to the assets referred to in
this subsection notwithstanding any transfer thereof to any other Restricted
Subsidiary or the Company after the Issue Date.
13. SECTION 1020 IS HEREBY AMENDED TO MODIFY SUBCLAUSES (A),
(B) AND (E) OF CLAUSE (III) OF PARAGRAPH (A) TO READ IN THEIR ENTIRETIES AS
FOLLOWS:
(A) in the case of the Company, an Accounts Pledge Agreement
securing the Secured Obligations of the Company and, until Discharge of the
Priority Obligations, the Priority Note Obligations with a first priority Lien
in the Asset Sale Account, the Net Cash Proceeds deposited therein, and all
proceeds thereof (including all Cash Equivalents in which such Net Cash Proceeds
or proceeds may from time to time be invested (collectively, the "ASSET SALE
ACCOUNT COLLATERAL");
(B) in the case of a Subsidiary Guarantor, (1) an Accounts
Pledge Agreement securing the Subsidiary Guarantee of and all Permitted
Intercompany Loans from time to time made to such Person and, until Discharge of
the Priority Obligations, the Priority Note Obligations with priority Liens in
the Asset Sale Account Collateral, and (2) an amendment to Schedule B-2 of the
Company Pledge Agreement and the related financing statements, adding the
Accounts Pledge Agreement referred to in (1) to the Collateral listed therein;
* * *
(E) an Opinion of Counsel to the effect that (1) each Accounts
Pledge Agreement and other Collateral Document required by this Section 1020(a)
is the legal, valid and binding obligation of the Note Party party thereto and
creates a perfected security interest in the Collateral thereunder, as security
for the Secured Obligations, any Permitted Intercompany Loans or Permitted
Intercompany Notes and, until Discharge of the Priority Obligations, the
Priority Note Obligations, in the order of priority set forth in Section
1202(b), and (2) the Company has taken all steps required to be taken under
Sections 1016(c) and 1202(c) and this Section 1020(a).
-12-
<PAGE> 21
14. SECTION 1020 IS HEREBY FURTHER AMENDED TO MODIFY SUBCLAUSE
(A) OF CLAUSE (II) OF PARAGRAPH (C) TO READ IN ITS ENTIRETY AS FOLLOWS:
(A) such amendments to the Subsidiary Security Agreement or
Subsidiary Pledge Agreement and such Subsidiary Mortgages, Subsidiary Ship
Mortgages, financing statements, notices of security interest, assignments or
other Collateral Documents executed by such Subsidiary, as may be reasonably
required to create first priority and second priority Liens in favor of the
Collateral Agent on behalf of the Beneficiaries and the Company, respectively,
on all Additional Collateral, securing the Secured Obligations of such
Subsidiary under the Subsidiary Guarantee (if any), the Permitted Intercompany
Loans and, until Discharge of the Priority Obligations, the Priority Note
Obligations;
15. SECTION 1020 IS HEREBY FURTHER AMENDED TO MODIFY SUBCLAUSE
(A) OF CLAUSE (II) OF PARAGRAPH (D) TO READ IN ITS ENTIRELY AS FOLLOWS:
(A) such amendments to existing Collateral Documents and
additional Mortgages, Ship Mortgages or other Collateral Documents, executed by
the Company, as may be reasonably required to create first priority Liens in
favor of the Collateral Agent on behalf of the Beneficiaries on all Additional
Collateral, securing the Secured Obligations of the Company and, until Discharge
of the Priority Obligations, the Priority Note Obligations;
16. SECTION 1201 IS HEREBY AMENDED TO ADD A NEW PARAGRAPH (D)
TO READ IN ITS ENTIRETY AS FOLLOWS:
(d) Until Discharge of the Priority Obligations, the Trustee
shall act as Collateral Agent for the holders of Priority Note Obligations, as
well as for the Beneficiaries, and in such capacity shall (i) enter into and
accept the Priority Notes Collateral Documents, (ii) accept or enter into any
additional Collateral Documents which the Company or any Restricted Subsidiary
may be required to deliver only if such Collateral Documents state that, until
Discharge of the Priority Obligations, the Priority Note Obligations shall be
secured thereby and the Collateral Agent shall hold the Priority Notes
Collateral both for the holders of the Priority Notes and other Priority Note
Obligations and for the Beneficiaries, and (iii) hold and enforce the Liens
created by the Priority Notes Collateral Documents for the benefit of both the
holders of the Priority Notes and other Priority Note Obligations and the
Beneficiaries, subject to the provisions of this Indenture.
17. SECTION 1202 IS HEREBY AMENDED TO MODIFY PARAGRAPHS (B)
AND (D) TO READ IN THEIR ENTIRETIES AS FOLLOWS:
(b) Notwithstanding any provision to the contrary in this
Indenture or any of the Collateral Documents, until Discharge of the Priority
Obligations, (i) all Liens held by the Trustee or Collateral Agent as security
both for Priority Note Obligations and for Secured Obligations shall secure
Priority Note Obligations in preference and priority over Secured
-13-
<PAGE> 22
Obligations, (ii) all Liens held by the Trustee or Collateral Agent upon any
property of any Subsidiary Guarantor as security for Priority Note Obligations
and also as security for Permitted Intercompany Notes or Permitted Intercompany
Loans and for the Subsidiary Guarantee and other Secured Obligations shall
secure, in order of preference and priority, first, the Priority Note
Obligations, second, such Permitted Intercompany Notes and Permitted
Intercompany Loans, and third, the Subsidiary Guarantee and such other Secured
Obligations, and (iii) all proceeds received by the Collateral Agent under any
policy of casualty insurance or title insurance covering any Collateral shall be
applied in the order of priority set forth in clause (ii) herein.
The Company, Subsidiary Guarantors, Trustee and Holders
acknowledge and agree that the purpose and intent of the foregoing provision is
that, until Discharge of the Priority Obligations:
(i) All Liens held by the Trustee or Collateral Agent pursuant
to the Collateral Documents shall secure the Priority Note Obligations, and, to
the extent a grant of such security may be required under the laws of any
jurisdiction in which any Collateral is located, the Company and the Subsidiary
Guarantors hereby grant to the Trustee, as Collateral Agent, a security interest
in and Lien upon all of the Collateral as security for the payment when due of
each and all of the Priority Note Obligations upon the terms and conditions set
forth in the Collateral Documents;
(ii) All Liens held by the Trustee or Collateral Agent as
security for Priority Note Obligations shall secure the Priority Note
Obligations in preference and priority over the Notes, the Subsidiary Guarantees
and all other Secured Obligations;
(iii) All Liens granted by any Subsidiary Guarantor pursuant
to the Collateral Documents upon any property of such Subsidiary Guarantor,
whether real, personal or mixed, as security both for Permitted Intercompany
Loans or Permitted Intercompany Notes and as security for a Subsidiary Guarantee
or other Secured Obligations shall be (and hereby are) reprioritized so that
such Liens shall be (and are hereby declared and agreed to be) first, prior and
senior Liens insofar as they secure such Permitted Intercompany Loans or
Permitted Intercompany Notes and junior Liens (subject only to the provisions of
clause (ii) above and to such first, prior and senior Liens) insofar as they
secure such Subsidiary Guarantee and other Secured Obligations; and
(iv) The Trustee or Collateral Agent shall hold and be
entitled to enforce all such Permitted Intercompany Loans and Permitted
Intercompany Notes, as secured by such reprioritized first, prior and senior
Liens, as part of the Priority Notes Collateral and as first and prior
collateral security for the Priority Note Obligations.
The Company, Subsidiary Guarantors and Trustee agree to
execute and deliver (if required, in duly attested and recordable form) any and
all amendments and supplements to the Collateral Documents that may reasonably
be requested by any holder of Priority Notes in order to further assure that the
foregoing purpose and intent are reflected in any instrument or
-14-
<PAGE> 23
agreement that may be required or appropriate under the laws of any jurisdiction
in which any Collateral is located or to reflect the agreements herein set forth
in a document filed for public record or otherwise to perfect and prioritize any
Lien held by the Trustee or Collateral Agent as security for Priority Note
Obligations.
Subject to the foregoing and except as otherwise expressly
provided herein and the other Note Documents, at all times while any Notes
remain Outstanding, (i) the Secured Obligations of the Company are required to
be secured by a first priority, perfected Lien on all of the following (not
including Excluded Assets):
(A) the Company's Equity Interests in all present and
future Restricted Subsidiaries held by the Company, substantially on the terms
set forth in and contemplated by the Company Pledge Agreement;
(B) all existing and later created Permitted
Intercompany Loan Collateral, substantially on the terms set forth in and
contemplated by the Company Pledge Agreement;
(C) the Note Proceeds Account Collateral,
substantially on the terms set forth in and contemplated by the Company Accounts
Pledge Agreement;
(D) under the circumstances described in Section
1020(a) with respect to the Company, all Asset Sale Account Collateral,
substantially on the terms set forth in and contemplated by the Company Accounts
Pledge Agreement; and
(E) substantially all of the Company's present and
future assets not referred to in (A), (B), (C) or (D), including real estate
(including leasehold properties), fixtures and personal property, substantially
on the terms set forth in and contemplated by the Company Security Agreement, a
Mortgage, a Ship Mortgage or other relevant Collateral Documents covering
Collateral of the same type.
(ii) The Subsidiary Guarantee of each Subsidiary Guarantor
shall be secured by first priority perfected Liens on all of the following (not
including Excluded Assets):
(A) all Equity Interests in other present and future
Restricted Subsidiaries held by such Subsidiary Guarantor, substantially on the
terms set forth in and contemplated by the Subsidiary Pledge Agreement;
(B) in the case of PLEC and each other Subsidiary
Guarantor that may from time to time acquire a vessel eligible for registration
with the US Coast Guard, the Fitzgeralds Tunica Gaming Vessel or such other
vessel, as the case may be, substantially on the terms set forth in and
contemplated by the PLEC Ship Mortgage or any other Subsidiary Ship Mortgage;
-15-
<PAGE> 24
(C) under the circumstances described in Section
1020(a) with respect to such Subsidiary Guarantor, all Asset Sale Account
Collateral, substantially on the terms set forth in and contemplated by an
Accounts Pledge Agreement; and
(D) substantially all present and future assets of
such Subsidiary not referred to in (A), (B) or (C), including real estate
(including leasehold properties), fixtures and personal property, in each case
substantially on the terms set forth in and contemplated by the Subsidiary
Security Agreement, a Subsidiary Mortgage or other relevant Collateral Documents
covering Collateral of the same type.
(iii) All Permitted Intercompany Loans to present and future
Restricted Subsidiaries shall be secured by first (or, in the case of Permitted
Intercompany Loans to any Subsidiary Guarantor, second) priority perfected Liens
on substantially all assets of such Restricted Subsidiaries, other than Excluded
Assets, in each case substantially on the terms set forth in and contemplated by
the relevant Collateral Documents referred to in Section 1202(b)(ii).
Without limitation, if any assets of Fitzgeralds Las Vegas or
Fitzgeralds Reno cease to constitute Excluded Assets at any time, the Company or
the relevant Restricted Subsidiary shall take such steps are may be required to
grant the Liens contemplated by clauses (ii) and (ii) of this subsection (b) in
accordance with subsection (d) below.
Notwithstanding the foregoing, (i) neither the Company nor any
Restricted Subsidiary shall be required to grant a Lien, as security for
Priority Note Obligations, upon the capital stock of any Subsidiary of the
Company which holds, or which owns a Subsidiary which holds, a Gaming License
issued by a Gaming Authority in the State of Nevada or in the State of
Mississippi, unless and until all such Gaming Authorities in such State have
approved the grant of a Lien upon such capital stock as security for Priority
Note Obligations, (ii) any provision of this Section 1202(b) or any Priority
Notes Collateral Documents pursuant to which Priority Note Obligations would
(but for this clause (ii)) become secured by any such capital stock shall become
effective only if and when such approval is granted, and (iii) such provision
shall become effective, automatically, unconditionally and irrevocably and
without necessity for any further act or deed, immediately when such approval is
granted in such State. The Company will file appropriate applications for all
such approvals no later than January 10, 1997, will diligently prosecute such
applications and will use its best efforts to obtain such approvals in
accordance with gaming laws and practice and as promptly as practicable.
* * *
(d) If, at any time after the Issue Date, pursuant to
subsection (b) of this Section 1202 or otherwise, Liens are required to be
created on (i) assets acquired after the Issue Date (including assets acquired
in connection with an Asset Sale), (ii) assets that previously constituted
Excluded Assets, (iii) assets or Capital Stock of a Person that was not
previously a Restricted Subsidiary or Significant Restricted Subsidiary or that
did not have outstanding any Permitted Affiliate Loans, or (iv) any other assets
not previously subject to a
-16-
<PAGE> 25
Lien securing the Secured Obligations and, until Discharge of the Priority
Obligations, the Priority Note Obligations, the relevant Note Party shall take
all necessary steps toward the creation of such Liens within 10 days after the
acquisition of such assets or the date on which such assets first ceased to
constitute Excluded Assets or such Person first constituted a Restricted
Subsidiary or Significant Restricted Subsidiary or first incurred such Permitted
Affiliate Loan, or the date on which such Liens are first required to exist
hereunder, as applicable. With respect to assets referred to in clause (iv)(B)
of the definition of "Excluded Assets" over which a lien may be granted in favor
of the Collateral Agent, if requested by the Company and upon receipt of an
Officer's Certificate from the Company certifying that no Default or Event of
Default has occurred and is continuing, the Collateral Agent will execute and
deliver to the lender under the Permitted FF&E Financing or Non-Recourse
Indebtedness, as the case may be, a subordination agreement, in form and
substance satisfactory to the Collateral Agent, subordinating the lien in favor
of the Collateral Agent in such assets, in order of priority, to the lien in
favor of such lender.
18. SECTION 1207 IS HEREBY AMENDED TO MODIFY PARAGRAPH (A) TO
READ IN ITS ENTIRETY AS FOLLOWS:
(a) If (i) each Obligor delivers an Officers' Certificate
certifying that all of its obligations under this Indenture have been
indefeasibly satisfied and discharged by complying with the provisions of
Article Four or Fourteen hereof or (ii) all Outstanding Notes issued under this
Indenture shall have been surrendered to the Trustee for cancellation and if the
Trustee receives evidence reasonably satisfactory to it that there has been a
Discharge of the Priority Obligations, the Collateral Agent, subject to
compliance by the Obligors with Section 1206, shall deliver to the Note Parties
a certificate stating that the Collateral Agent, on behalf of the Beneficiaries
and holders of Priority Note Obligations, disclaims and has given up any and all
rights it has in or to the Collateral, and any rights it has under the
Collateral Documents, and, upon and after the receipt by the Note Parties of
such certificate, the Collateral Agent shall no longer be deemed to hold the
Lien in the Collateral for the benefit of the Beneficiaries.
19. SECTION 1208 IS HEREBY AMENDED TO MODIFY CLAUSE (II) OF
PARAGRAPH (A) TO READ IN ITS ENTIRETY AS FOLLOWS:
(ii) take all steps the Collateral Agent is entitled to take
under the relevant Collateral Documents for the protection of the Collateral or
its priority (including by discharging or paying Liens and claims the Collateral
Agent is entitled to discharge or pay), provided the Collateral Agent has
received notice of facts indicating that such steps are required for the
protection of the Collateral or such Lien or its priority, whether in the
Opinion of Counsel required by Section 1202(a), pursuant to any requirement of
the Collateral Documents to give such notice, or otherwise.
20. SECTION 1309 IS HEREBY AMENDED TO ADD A NEW PARAGRAPH AT
THE END THEREOF TO READ IN ITS ENTIRETY AS FOLLOWS:
-17-
<PAGE> 26
Notwithstanding anything contained herein to the contrary, in
the event that a Subsidiary Guarantor acquires Main Street pursuant to the Main
Street Option Agreement with Permitted Black Hawk Indebtedness in the form of
Non-Recourse Indebtedness (for which only Main Street is liable), the Subsidiary
Guarantee of Main Street shall provide that it will not become enforceable
unless and until the lender of such Permitted Black Hawk Indebtedness exercises
any remedy available to it under the agreements governing such Permitted Black
Hawk Indebtedness for the acceleration or collection of such Permitted Black
Hawk Indebtedness or for the foreclosure or any other enforcement of any Lien
governing such Permitted Black Hawk Indebtedness.
21. A NEW ARTICLE SIXTEEN IS HEREBY ADDED TO READ IN ITS
ENTIRETY AS FOLLOWS:
ARTICLE SIXTEEN
SUBORDINATION OF NOTES TO PRIORITY NOTES
SECTION 1601. SUBORDINATION.
The Company, each Subsidiary Guarantor and each Holder hereby
covenant and agree, for the benefit of each present and future holder of any
Senior Claims, that the Subordinated Claims are and shall be postponed,
subordinated and junior in right of payment to the prior payment in full of all
Senior Claims, on the terms and conditions set forth in this Article Sixteen.
SECTION 1602. PAYMENT.
Until Discharge of the Priority Obligations, the Company and
its Restricted Subsidiaries shall not make, and the Holders of the Notes will
not demand, accept, receive or retain, any payment or distribution of any kind
or character, whether in cash, property, securities or otherwise, on account or
in respect of any Subordinated Claim, PROVIDED, HOWEVER, that
(a) interest (including Contingent Interest) on the
Notes may be paid on or after the date payment thereof is due, if no
payment of principal or interest on the Priority Notes is then past
due,
(b) the Company may make and perform an Asset Sale
Purchase Offer from Excess Proceeds pursuant to Section 1016, but only
(i) to the extent the holders of the Priority Notes have declined to
accept an offer by the Company to apply the Net Cash Proceeds from
which such Excess Proceeds were derived first to the payment of the
Priority Notes (with premium, if any) and (ii) if no Bankruptcy,
Insolvency or Liquidation Proceeding is then pending, and
-18-
<PAGE> 27
(c) the Company may make and perform a Change of
Control Purchase Offer pursuant to Section 1109, but only (i) to the
extent that the holders of the Priority Notes have declined to accept
an offer by the Company to repurchase or retire the Priority Notes in
full (with premium, if any) and (ii) if not Bankruptcy, Insolvency or
Liquidation Proceeding is then pending.
SECTION 1603. BANKRUPTCY, INSOLVENCY OR LIQUIDATION
PROCEEDINGS.
(a) In the event of any Bankruptcy, Insolvency or
Liquidation Proceeding:
(i) all Senior Claims shall be paid in full in cash
before any holder of Subordinated Claims shall be entitled to receive
any payment or distribution of any kind or character, whether in cash,
property, securities or otherwise, in such Bankruptcy, Insolvency or
Liquidation Proceeding on account or in respect of any Subordinated
Claim;
(ii) the holders of Senior Claims shall be entitled
to receive any and all payments and distributions of every kind or
character, whether in cash, property, securities or otherwise
(including, without limitation, any such payment or distribution which
may become payable or deliverable by reason of the payment of any other
claim against the Company or any Subsidiary Guarantor being
subordinated to the payment of any Subordinated Claim), that may become
payable or deliverable on account or in respect of any Subordinated
Claim, for application to the payment of all Senior Claims, until the
holders of Senior Claims have received payment of all Senior Claims in
full and in cash; and
(iii) all such payments and distributions on account
or in respect of Subordinated Claims shall be delivered by the debtor,
trustee, receiver, disbursing agent or other person making such payment
or distribution in such Bankruptcy, Insolvency or Liquidation
Proceeding directly to the holders of Senior Claims. If such payment or
distribution consists of any property or securities other than cash,
(i) such payment or distribution shall not be deemed applied to the
payment of Senior Claims at any adjudicated or imputed value and (ii)
such payment or distribution and all other and future non-cash payments
and distributions on account or in respect of Subordinated Claims shall
be delivered to and held by the holders of Senior Claims, until cash
proceeds from such non-cash payments and distributions have been
received by the holders of Senior Claims in an amount sufficient (with
any other cash paid or distributed to them by or on behalf of the
Company or any Subsidiary Guarantor) to pay, in full and in cash, all
Senior Claims (including, without limitation, all Disallowed
Post-Petition Interest/Expense Claims accrued or arising through the
date on which cash proceeds in such amount are received).
(b) If the holder of any Subordinated Claim fails to file a
proof of claim or other statement or demand in respect of such Subordinated
Claim in a Bankruptcy, Insolvency or Liquidation Proceeding prior to the 30th
day preceding any bar date or other deadline for
-19-
<PAGE> 28
filing a proof of claim or other such statement or demand therein, or if any
such proof of claim, statement or demand filed by such holder prior to such day
is in any respect inadequate or insufficient (in the good faith opinion of any
holder of a Senior Claim), then each holder of a Senior Claim shall have the
right, but not the obligation, to execute and deliver (in the name of the holder
of such Subordinated Claim or in its own name but on behalf of the holder of
such Subordinated Claim, as such holder of a Senior Claim may elect) and file in
such Bankruptcy, Insolvency or Liquidation Proceeding any proof of claim,
statement or demand which such holder of a Senior Claim may determine to be
required or appropriate in respect of such Subordinated Claim.
(c) To the extent necessary or reasonably appropriate to
permit the holders of Senior Claims to exercise the right granted to them under
this Section 1603(d), each holder of Subordinated Claims hereby constitutes and
appoints each holder of a Senior Claim as its attorney-in-fact and agent, with
full power of substitution and delegation, to execute, deliver and file any such
proof of claim, statement or demand as herein provided, and the power of
attorney granted herein (being coupled with an interest) is and shall be in all
respects irrevocable.
(d) No holder of a Senior Claim shall, by executing,
delivering or filing any such proof of claim, statement or demand, become liable
or responsible in any respect for the legality, adequacy or sufficiency thereof.
(e) No holder of a Senior Claim shall have the right, as
holder of a Senior Claim or by reason of the subordination provided herein, to
vote any Subordinated Claim in any Bankruptcy, Insolvency or Liquidation
Proceeding.
SECTION 1604. TURNOVER.
If and in each instance that, notwithstanding the provisions
of Sections 1602 and 1603, the Trustee or any holder of any Subordinated Claim
receives any payment or distribution of any kind or character, whether in cash,
property, securities or otherwise (including, without limitation, any such
payment or distribution which may become payable or deliverable by reason of the
payment of any other claim against the Company or any Subsidiary Guarantor being
subordinated to the payment of any Subordinated Claim but excluding any payment
or distribution expressly permitted to be made pursuant to Section 1602), on
account or in respect of any Subordinated Claim at any time when any Senior
Claim is outstanding, then and in each such event:
(a) the Trustee or the holder of such Subordinated
Claim shall forthwith pay over, transfer and deliver such payment or
distribution to the holders of Senior Claims, whether or not any Bankruptcy,
Insolvency or Liquidation Proceeding is then pending, until all Senior Claims
have been paid in full in cash; and
(b) the Trustee and each holder of a Subordinated
Claim shall, and hereby agrees to, hold in trust for the holders of Senior
Claims, in the identical form received
-20-
<PAGE> 29
(except for any necessary endorsement to holders of Senior Claims) and as
trustee of an express trust, all payments and distributions required to be paid
over, transferred and delivered pursuant to this Section 1604.
SECTION 1605. PROCEEDS OF COLLATERAL SUBJECT TO
SUBORDINATION.
All proceeds of Collateral that may at any time be or become
payable or deliverable to any holder of any Subordinated Claim shall be
delivered directly to the holders of Senior Claims, in the same manner and on
the same terms as any other payment or distribution on account or in respect of
any Subordinated Claim.
SECTION 1606. SUBROGATION.
In any Bankruptcy, Insolvency or Liquidation Proceeding,
subject to the prior payment in full and in cash of all Senior Claims, the
holders of Subordinated Claims shall have and may enforce any and all rights of
subrogation accorded by law in respect of any payment or distribution on account
of any Subordinated Claim that is applied to the payment of any Senior Claim
pursuant to the provisions of this Article Sixteen. For such purposes:
(a) no right of subrogation shall be available to or may be
enforced by any holder of any Subordinated Claim, unless and until there has
been a Discharge of the Priority Obligations;
(b) no holder of any Senior Claim makes any representation or
warranty, or shall otherwise have any responsibility, as to whether any such
right of subrogation is accorded or available to any holder of any Subordinated
Claim or is enforceable by it in any particular circumstance;
(c) no holder of any Senior Claim shall have any duty to any
holder of any Subordinated Claim to ensure, perfect, protect, enforce or
maintain any right, remedy, lien or interest that might otherwise be accorded or
available to or enforceable by it or by any holder of any Senior Claim or
Subordinated Claim. The subordination provided herein and the rights of the
holders of Senior Claims hereunder shall remain fully enforceable on the terms
set forth herein, regardless of any act, omission or circumstance (whether or
not attributable to any holder of any Senior Claim and whether or not wrongful)
which does or might in any manner or in any respect destroy, limit, reduce,
affect or impair any right of subrogation otherwise accorded or available to or
enforceable by any holder of any Subordinated Claim. Each holder of any Senior
Claim shall remain utterly free to take or fail to take any and all actions in
respect of any Senior Claim or any person or entity liable therefor or any
collateral security therefor (including, without limitation, each and all of the
acts, omissions and matters described in Section 1607), without exonerating any
holder of a Subordinated Claim, even if any right of subrogation is destroyed,
limited, reduced, affected or impaired thereby;
(d) the subordination provided herein and the rights of the
holders of Senior Claims hereunder shall be fully enforceable as to all Senior
Claims that are Disallowed Post-
-21-
<PAGE> 30
Petition Interest/Expense Claims, even if and even though no right of
subrogation is available in respect of such Disallowed Post-Petition
Interest/Expense Claims; and
(e) for purposes of enforcing any right of subrogation on the
terms set forth in this Section 1606, no payment or distribution on account of
any Subordinated Claim applied to the payment of a Senior Claim shall, as
between the Company and the Subsidiary Guarantors and the holder of such
Subordinated Claim and to the extent of the payment or distribution so applied,
discharge the liability of the Company or any Subsidiary Guarantor for the
payment of such Senior Claim or any Lien securing such Senior Claim and, to this
end, the Company and the Subsidiary Guarantors shall remain obligated to pay
such Senior Claim in full and all Liens securing such Senior Claim shall remain
outstanding and enforceable, notwithstanding any such application. To the extent
necessary to accomplish the foregoing, the provisions of this Section 1606(e)
and all provisions added to the Indenture by the First Supplemental Amendment
and all provisions of the Priority Notes Collateral Documents shall survive and
remain enforceable after Discharge of the Priority Obligations and any discharge
of the First Supplemental Indenture.
SECTION 1607. SUBORDINATION NOT PREJUDICED, AFFECTED OR
IMPAIRED.
(a) No right of the holders of Senior Claims to enforce
subordination as provided in this Article Sixteen shall at any time in any way
be prejudiced, affected or impaired by any act or failure to act on the part of
the Company or any Subsidiary Guarantor or by any act or failure to act on the
part of any holder of Senior Claims or by any breach or default by the Company
or any Subsidiary Guarantor in the performance or observance of any promise,
covenant or obligation enforceable by any holder of Subordinated Claims,
regardless of any knowledge thereof that any holder of Senior Claims may have or
otherwise be charged with, or by any breach or default by any holder of Senior
Claims in the performance or observance of any promise, obligation or duty
enforceable by the Company or any of its Subsidiaries.
(b) Without in any way limiting the generality of the
foregoing, each holder of Senior Claims may at any time and from time to time,
without the consent of or notice to any holder of Subordinated Claims, without
incurring any responsibility or liability to any holder of Subordinated Claims
and without in any manner prejudicing, affecting or impairing the subordination
provided herein or the obligations of the holders of Subordinated Claims under
this Article Sixteen:
(i) purchase securities of, make loans and advances to, or
otherwise extend credit to or for account of the Company or any Restricted
Subsidiary, subject to Section 1012; provided, however, that, except for the
Priority Notes, no such securities, loans, advances or extensions of credit
shall, even if permitted under Section 1012, constitute Senior Claims;
-22-
<PAGE> 31
(ii) change the manner, place or terms of payment or
extend the maturity to no later than December 31, 1999, alter, compromise,
accelerate or modify any Senior Claim or any agreement or obligation of the
Company or any Subsidiary Guarantor or any other person or entity in any manner
related thereto;
(iii) reduce the amount of any Senior Claim or the
interest thereon;
(iv) release or discharge any Senior Claim or any
guaranty thereof or any agreement or obligation of the Company or any Subsidiary
Guarantor or any other person or entity with respect thereto;
(v) take or fail to take any collateral security for any
Senior Claim (except that Senior Claims shall only be secured pursuant to
Priority Financing Collateral Documents) or take or fail to take any action
which may be necessary or appropriate to ensure that any Lien upon any property
securing any Senior Claim is duly enforceable or perfected or entitled to
priority as against any other Lien or to ensure that any proceeds of any
property subject to any Lien are applied to the payment of any Senior Claim;
(vi) release, discharge or permit the lapse of any or all
Liens at any time securing any Senior Claim; or
(vii) direct the Trustee or Collateral Agent to exercise
or enforce, in any manner, order or sequence, or fail to direct the Trustee or
Collateral Agent as to the exercise or enforcement of, any right or remedy
against the Company or any Subsidiary Guarantor or any collateral security or
any other person, entity or property in respect of any Senior Claim or Lien
securing any Senior Claim or any right under this Article Sixteen or take or
fail to take any other action as to any Priority Notes Collateral.
(c) No exercise, delay in exercising or failure to exercise
any right arising under this Article Sixteen, no act or omission of any holder
of any Senior Claim in respect of the Company or any Subsidiary Guarantor or any
other person or entity or any collateral security for any Senior Claim or any
right arising under this Article Sixteen, no change, impairment, or suspension
of any right or remedy of any holder of any Senior Claim, and no other act,
failure to act, circumstance, occurrence or event which, but for this provision,
would or could act as a release or exoneration of the obligations of the holders
of Subordinated Claims hereunder shall in any way affect, decrease, diminish or
impair any of the obligations of any holder of Subordinated Claims under this
Article Sixteen or give any holder of Subordinated Claims or any other person or
entity any recourse or defense against any holder of Senior Claims in respect of
any right arising under this Article Sixteen.
SECTION 1608. REDEMPTION, PURCHASE, DEFEASEANCE OR EXCHANGE.
Any redemption, purchase, defeasance or exchange of any
Subordinated Claim, whether or not required or permitted under this Indenture,
shall, for the purposes of this Article Sixteen, constitute a payment or
distribution on account of such Subordinated Claim.
-23-
<PAGE> 32
SECTION 1609. REINSTATEMENT.
If any payment or distribution at any time made on account or
in respect of any Senior Claim is thereafter rescinded, recovered, set aside,
avoided or required to be returned, then such Senior Claim and all rights of the
holder of such Senior Claim to enforce subordination as set forth herein and all
Liens securing Priority Note Obligations shall be automatically and
unconditionally reinstated, as fully as if such payment or distribution had
never been made. To the extent necessary to accomplish the foregoing, the
provisions of this Article Sixteen and all Liens securing Priority Note
Obligations shall survive and remain enforceable after Discharge of the Priority
Obligations and discharge of the First Supplemental Indenture.
22. A NEW ARTICLE SEVENTEEN IS HEREBY ADDED TO
READ IN ITS ENTIRETY AS FOLLOWS:
ARTICLE SEVENTEEN
MODIFICATION AND DISCHARGE
OF
THE FIRST SUPPLEMENTAL INDENTURE
SECTION 1701. ACTION BY PRIORITY NOTEHOLDERS BINDS ALL SENIOR
CLAIMS.
The holders of the Priority Notes (or such number of them as
may, under the Priority Notes Agreement, the power to bind all of them) shall
have the right and power (subject to Sections 901 and 902) to modify, amend,
waive, release or discharge the provisions added to the Indenture by the First
Supplemental Indenture and the Priority Notes Collateral Documents, but only
pursuant to a written agreement executed and delivered by them, and all such
written agreements shall be binding upon and may be enforced against all other
holders of Senior Claims, without any requirement that such other holders
receive notice thereof or give consent thereto.
SECTION 1702. ENFORCEABLE BY PRIORITY HOLDERS; ACCEPTANCE;
RELIANCE.
Each and all of the amendments made to this Indenture by the
First Supplemental Indenture and each and all of the Priority Notes Collateral
Documents and the benefit of the Liens securing Priority Note Obligations
created thereby are intended to inure directly to the benefit of each present
and future holder of Priority Note Obligations or Senior Claims and may be
enforced by them in any lawful manner. Notice of acceptance thereof by any such
holder is hereby waived. Reliance thereon by each such holder shall be
conclusively presumed.
SECTION 1703. DISCHARGE OF THE FIRST SUPPLEMENTAL INDENTURE
AND PRIORITY LIENS.
-24-
<PAGE> 33
(a) Subject only to Sections 1606(e) and 1609 and to paragraph
(b) of this Section 1703, the amendments made to this Indenture by the First
Supplemental Indenture and, to the extent they secure Priority Note Obligations,
all Liens securing Priority Note Obligations shall be discharged upon Discharge
of the Priority Obligations.
(b) The following amendments made to this Indenture by the
First Supplemental Indenture shall survive the discharge of the
Priority Obligations:
(i) the addition of the defined term "Fitzgeralds Black
Hawk" to Section 101;
(ii) the amendment of the defined term "Excluded Assets"
and "Permitted Black Hawk Indebtedness" in Section
101;
(iii) the amendment of clause (h) and addition of clause
(i) to Section 1014;
(iv) the amendment of paragraph (b) of Section 1017;
(v) the amendment of Section 1309 to add a new paragraph
thereto; and
(vi) this paragraph (b) of Section 1703.
23. FOR ALL PURPOSES OF THIS FIRST SUPPLEMENTAL INDENTURE, EXCEPT AS
OTHERWISE HEREIN EXPRESSLY PROVIDED OR UNLESS THE CONTEXT OTHERWISE REQUIRES,
THE TERMS AND EXPRESSIONS USED HEREIN SHALL HAVE THE SAME MEANINGS AS
CORRESPONDING TERMS AND EXPRESSIONS USED IN THE INDENTURE.
24. EXCEPT AS HEREBY EXPRESSLY AMENDED, THE INDENTURE AND THE NOTES
ISSUED THEREUNDER ARE IN ALL RESPECTS RATIFIED AND CONFIRMED AND ALL TERMS,
CONDITIONS AND PROVISIONS THEREOF SHALL REMAIN IN FULL FORCE AND EFFECT.
25. THIS FIRST SUPPLEMENTAL INDENTURE SHALL FORM A PART OF THE
INDENTURE FOR ALL PURPOSES, AND EVERY HOLDER OF NOTES HERETOFORE OR HEREAFTER
AUTHENTICATED AND DELIVERED SHALL BE BOUND HEREBY.
26. THIS FIRST SUPPLEMENTAL INDENTURE MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL,
AND ALL OF WHICH WHEN TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
-25-
<PAGE> 34
27. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
-26-
<PAGE> 35
IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed, and their respective seals to be affirmed, all as
of the date and year first written above.
ISSUER
Attest: FITZGERALDS GAMING CORPORATION
__________________________________ By: _______________________________
Name: Philip D. Griffith, President
Title:
SUBSIDIARY GUARANTORS
Attest: FITZGERALDS SOUTH, INC.
__________________________________ By: _______________________________
Name: Philip D. Griffith, President
Title:
Attest: FITZGERALDS RENO, INC.
__________________________________ By: _______________________________
Name: Philip D. Griffith, President
Title:
Attest: FITZGERALDS INCORPORATED
__________________________________ By: _______________________________
Name: Philip D. Griffith, President
Title:
Attest: FITZGERALDS LAS VEGAS, INC.
__________________________________ By: _______________________________
Name: Philip D. Griffith, President
Title:
Attest: FITZGERALDS FREMONT EXPERIENCE
CORPORATION
__________________________________ By: _______________________________
Name: Philip D. Griffith, President
Title:
-27-
<PAGE> 36
Attest: FITZGERALDS MISSISSIPPI, INC. (Formerly
POLK LANDING ENTERTAINMENT CORPORATION)
__________________________________ By: _______________________________
Name: Philip D. Griffith, President
Title:
Attest: FITZGERALDS BLACK HAWK, INC.
__________________________________ By: _______________________________
Name: Philip D. Griffith, President
Title:
TRUSTEE AND COLLATERAL AGENT
Attest: WELLS FARGO BANK, N.A. (Formerly FIRST
INTERSTATE BANK OF NEVADA, N.A.)
__________________________________ By: _______________________________
Name: [ ]
Title:
-28-
<PAGE> 37
EXHIBIT C
FITZGERALDS GAMING CORPORATION
SUMMARY OF TERMS FOR PRIVATE PLACEMENT
Issuer.............. Fitzgeralds Gaming Corporation ("Fitzgeralds" or the
"Company").
Issue................. Senior Secured Noted (the "New Notes").
Pre-Closing........... Thursday, December 26, 1996.
Settlement Date....... Friday, December 27, 1996.
Issue Proceeds........ $4,999,700.
Issue Price........... 85.000%.
Face Amount........... $5,882,000.
Maturity.............. December 31, 1998.
Coupon................ 13.000%, payable semi-annually in arrears, commencing
June 30, 1997.
Purchasers............ Each holder of Existing Senior Secured Notes shall have
the right to participate in the New Notes pro rata with
their holdings of the Existing Senior Secured Notes.
TCW will backstop the Issue in return for a backstop fee
of 2% of the Issue Proceeds.
Purchasers' Counsel... Latham & Watkins.
Legal Expenses........ To be reimbursed by the Company.
Security.............. Super senior to the Existing Senior Secured Notes. (1)
There will be a subordination agreement among the
holders of the Existing Senior Secured Notes and the
purchasers of the New Notes. (2) Additional liens and
guarantees on the Company's assets will be obtained.
The Pledge of stock of the Nevada subsidiaries will be
made upon receipt of Nevada Gaming Commission Approval
by May 31, 1997.
Consent Solicitation.. Consents are required from each of the holders of the
Existing Senior Secured Notes.
Warrants (Attached to
the Notes)............ None.
<PAGE> 38
FITZGERALDS GAMING CORPORATION
Mandatory Redemption.. None.
Optional Redemption... Redeemable at any time on 10 days notice at a price (the
"Call Price") calculated to yield 22.6% on a bond yield
(semi-annual equivalent) basis.
Principal Covenants... Same as Existing Senior Secured Notes. New Notes to
have right of first redemption over Existing Senior
Secured Notes in the event of an Asset Sale Offer.
Change of Control..... Same as Existing Senior Secured Notes.
Contingent Interest... None.
-2-
