<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 3, 1997
REGISTRATION NO. 333-23667
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-11
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
MID-STATE TRUST VI
(Name of trust issuing Asset Backed Notes)
OF WHICH MID-STATE HOMES, INC. IS DEPOSITOR
(Exact name of registrant as specified in its governing instruments)
------------------------
MID-STATE TRUST VI
C/O WILMINGTON TRUST COMPANY
1100 NORTH MARKET STREET
WILMINGTON, DELAWARE 19890
(302) 651-1000
(Address of principal executive offices)
------------------------
WILMINGTON TRUST COMPANY,
AS OWNER TRUSTEE OF MID-STATE TRUST VI
1100 NORTH MARKET STREET
WILMINGTON, DELAWARE 19890
(302) 651-1000
ATTENTION: CORPORATE TRUST ADMINISTRATION
(Name and address of agent for service)
------------------------
THE COMMISSION IS REQUESTED TO SEND COPIES OF ALL COMMUNICATIONS TO:
<TABLE>
<S> <C> <C>
JORDAN M. SCHWARTZ, ESQ. EDWARD A. PORTER, ESQ. RENWICK D. MARTIN, ESQ.
PATRICK T. QUINN, ESQ. MID-STATE HOMES, INC. BROWN & WOOD LLP
CADWALADER, WICKERSHAM & TAFT 1500 NORTH DALE MABRY HIGHWAY ONE WORLD TRADE CENTER
100 MAIDEN LANE TAMPA, FLORIDA 33607 NEW YORK, NEW YORK 10048
NEW YORK, NEW YORK 10038 (813) 871-4811 (212) 839-5300
(212) 504-6000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE OF THE SECURITIES TO
THE PUBLIC: As soon as practicable after the effective date of this Registration
Statement.
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 30. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below are the fees and expenses (other than underwriting discounts
and commissions to be incurred with the issuance and distribution of the
shares).
<TABLE>
<S> <C>
SEC Filing Fee................................................. $ 133,076
Indenture Trustee's Fees....................................... 38,751
Owner Trustee's Fees........................................... 9,000
Legal Fees and Expenses........................................ 507,500*
Accounting Fees and Expenses................................... 150,000*
Blue Sky and Legal Investment Fees and Expenses................ 10,000*
Printing Fees and Expenses..................................... 80,000*
Rating Agency Fees and Expenses................................ 210,000*
Miscellaneous.................................................. 10,673*
----------
Total...................................................... $1,149,000*
----------
----------
</TABLE>
- ------------------------
* Estimated.
ITEM 31. SALES OF SPECIAL PARTIES.
Not Applicable.
ITEM 32. RECENT SALES OF UNREGISTERED SECURITIES.
Pursuant to the terms of the Trust Agreement the Issuer will issue and sell
to the Depositor, on or prior to the date of initial issuance of the Notes and
in exchange for the Depositor's covenant to pay for the Issuer's organizational
expenses, a certificate of beneficial interest representing a 100% beneficial
interest in the Issuer, in a transaction exempt from registration under the
Securities Act of 1933 pursuant to Section 4(2) of the Securities Act of 1933.
ITEM 33. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-laws of Walter Industries, Inc. ("Walter Industries"), a Delaware
corporation and indirect owner of all of the issued and outstanding shares of
the capital stock of the Depositor, provide that, to the fullest extent
permitted by Delaware law, Walter Industries will indemnify any current or
former director or officer of Walter Industries and may, at the discretion of
the board of directors, indemnify any current or former employee or agent of
Walter Industries, against certain liabilities, including liabilities incurred
by reason of the fact that such person is or was serving, at the request of
Walter Industries, as a director, officer, partner, trustee, employee or agent
of another corporation or partnership, joint venture, trust or other enterprise.
To the extent that directors and officers of the Depositor serve or have
previously served as directors, officers, employees or agents of Walter
Industries, they are eligible for indemnification by Walter Industries against
liabilities in respect of actions taken in their capacities as directors or
officers of the Depositor.
The directors and officers of the Depositor are covered by a directors' and
officers' liability insurance policy maintained by Walter Industries for the
benefit of all of its subsidiaries.
ITEM 34. TREATMENT OF PROCEEDS FROM STOCK BEING REGISTERED.
Not Applicable.
II-1
<PAGE>
ITEM 35. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements filed in the Prospectus: not applicable.
(b) Exhibits
<TABLE>
<C> <S>
1. Form of Underwriting Agreement*
3.1 Form of Trust Agreement*
4.1 Form of Indenture (including forms of Notes)*
5.1 Opinion of Counsel to the Issuer as to the legality of the Notes*
8.1 Opinion of Special Federal Income Tax Counsel to the Issuer as to federal income tax
matters*
10.1 Form of Servicing Agreement*
10.2 Form of Purchase and Sale Agreement*
23.1 Consents of Counsel and Special Federal Income Tax Counsel to Issuer (included in
exhibits 5.1 and 8.1)*
24. Power of Attorney*
25.1 Statement of Eligibility and Qualification on Form T-1 of First Union National Bank of
North Carolina, as Trustee, under the Trust VI Indenture relating to the Trust VI
Notes
</TABLE>
- ------------------------
* Previously filed.
ITEM 36. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Depositor pursuant to the provisions contained in Florida law, the Depositor's
Certificate of Incorporation and By-Laws or otherwise, the Depositor has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the reimbursement by the Depositor of expenses
incurred or paid by a director, officer or controlling person of the Depositor
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Depositor will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in such Act and will be governed by the final adjudication
of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-11 and has duly caused this Post-Effective
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Tampa, Florida on June 3, 1997.
MID-STATE HOMES, INC.
as depositor for and on behalf of Mid-State
Trust VI
By: /s/ DONALD M. KURUCZ
-----------------------------------------
Name: Donald M. Kurucz
Title: VICE PRESIDENT
II-3
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to Form S-11 Registration Statement has been
signed below by the following persons in the capacities and on the dates
indicated.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
*/s/ KENNETH E. HYATT President, Principal
- ------------------------------ Executive Officer and June 3, 1997
Kenneth E. Hyatt Director
*/s/ RICHARD E. ALMY
- ------------------------------ Director June 3, 1997
Richard E. Almy
*/s/ DEAN M. FJELSTUL Vice President, Principal
- ------------------------------ Financial Officer and June 3, 1997
Dean M. Fjelstul Director
/s/ JOSEPH H. KELLY, JR.
- ------------------------------ Controller (Principal June 3, 1997
Joseph H. Kelly, Jr. Accounting Officer)
<TABLE>
<S> <C> <C>
*By: /s/ JOSEPH H. KELLY, JR.
--------------------------------------
Joseph H. Kelly, Jr.
Attorney-in-fact(1)
</TABLE>
- ------------------------
(1) Joseph H. Kelly, Jr., by signing his name hereto, does sign the document on
behalf of the person indicated above pursuant to a power of attorney duly
executed by such person and filed with the Securities and Exchange
Commission.
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<S> <C> <C>
1. -- Form of Underwriting Agreement*
2. -- Form of Trust Agreement*
4.1 -- Form of Indenture (including forms of Notes)*
5.1 -- Opinion of Counsel to the Issuer as to the legality of the Notes*
8.1 -- Opinion of Special Federal Income tax Counsel to the Issuer as to federal income tax
matters*
10.1 -- Form of Servicing Agreement*
10.2 -- Form of Purchase and Sale Agreement*
23.1 -- Consents of Counsel and Special Counsel to Issuer (included in exhibits 5 and 8)*
24. -- Power of Attorney*
25.1 -- Statement of Eligibility and Qualification on Form T-1 of First Union National Bank
of North Carolina, as Trustee, under the Indenture relating to the Notes**
</TABLE>
- ------------------------
* Previously Filed.
** Exhibit 7 (Statement of Condition of Indenture Trustee) to this Exhibit 25.1
(Form T-1) has been filed in paper format pursuant to a continuing hardship
exemption.
II-5
<PAGE>
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
(Check if an Application to Determine Eligibility of a Trustee Pursuant To
Section 305(b)(2))
NOT APPLICABLE
--------------
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
(Exact name of trustee as specified in its charter)
NOT APPLICABLE 56-0900030
(Jurisdiction of incorporation or organization (I.R.S. Employer
Identification No.) if not a U.S. national bank)
<TABLE>
<S> <C>
PABLO DE LA CANAL
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
230 SOUTH TRYON STREET, 9TH FLOOR 230 SOUTH TRYON STREET
CHARLOTTE, NORTH CAROLINA 28288-1179 9TH FLOOR
CHARLOTTE, NORTH CAROLINA
28288-1179
(704) 383-5272
(Address of trustee's principal (Name, address and telephone no. of
executive offices) agent for service)
</TABLE>
-----------------
MID-STATE TRUST VI
(Exact name of obligor as specified in its charter)
DELAWARE APPLIED FOR
(State or other jurisdiction of incorporation I.R.S. Employer
or organization) Identification No.)
WILMINGTON TRUST COMPANY,
AS OWNER TRUSTEE OF MID-STATE TRUST VI
1100 NORTH MARKET STREET
WILMINGTON, DELAWARE 19890
ATTENTION: CORPORATE TRUST ADMINISTRATION
(Address of principal executive offices)
----------------
$287,750,000 [ ]% ASSET-BACKED NOTES, CLASS A-1
$ 57,750,000 [ ]% ASSET-BACKED NOTES, CLASS A-2
$ 45,100,000 [ ]% ASSET-BACKED NOTES, CLASS A-3
$ 48,550,000 [ ]% ASSET-BACKED NOTES, CLASS A-4
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
COMPTROLLER OF THE CURRENCY, WASHINGTON, D.C.
FEDERAL DEPOSIT INSURANCE CORPORATION, WASHINGTON,
D.C.
FEDERAL RESERVE BANK OF ATLANTA, ATLANTA, GEORGIA
THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
(b) Whether it is authorized to exercise corporate trust
powers.
YES
Item 2. Affiliations with the obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
NONE
Item 3. Voting Securities of the trustee.
Furnish the following information as to each class of voting
securities of the trustee:
As of May 29, 1997
- -------------------------------------------------------------------------------
Column A Column B
- -------------------------------------------------------------------------------
Title of Class Amount Outstanding
- -------------------------------------------------------------------------------
Common Stock(1) 279,281,846 Shares(1)
- ----------------
(1) See Footnote on page 8.
-2-
<PAGE>
Item 4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which
any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, furnish the following information:
(a) Title of the securities outstanding under each such
other indenture.
NONE
(b) A brief statement of the facts relied upon as a basis for the
claim that no conflicting interest within the meaning of Section
310(b)(1) of the Act arises as a result of the trusteeship under
any such other indenture, including a statement as to how the
indenture securities will rank as compared with the securities
issued under such other indenture.
NOT APPLICABLE
Item 5. Interlocking directorates and similar relationships with the obligor
or underwriters.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or
representative of the obligor or of any underwriter for the obligor,
identify each such person having any such connection and state the
nature of each such connection.
NONE
Item 6. Voting securities of the trustee owned by the obligor or its
officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner
and executive officer of the obligor:
As of May 29, 1997
- ----------------------------------------------------------------------------
Column A Column B Column C Column D
- ----------------------------------------------------------------------------
Name of own Title of class Amount owned Percentage of
beneficially voting
securities
represented by
amount given
in Col. C
- ----------------------------------------------------------------------------
NONE(1),(2)
- ------------
(1) and (2) See Footnotes on page 8.
-3-
<PAGE>
Item 7. Voting securities of the trustee owned by underwriters or their
officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and
each director, partner and executive officer of each such underwriter:
As of May 29, 1997
- -------------------------------------------------------------------------------
Column A Column B Column C Column D
- -------------------------------------------------------------------------------
Name of owner Title of class Amount owned Percentage of
beneficially voting
securities
represented by
amount given
in Col. C
- -------------------------------------------------------------------------------
THE AMOUNT OF VOTING SECURITIES OF THE TRUSTEE OWNED BENEFICIALLY BY
THE UNDERWRITERS AND THEIR DIRECTORS AND EXECUTIVE OFFICERS, TAKEN AS
A GROUP, DO NOT EXCEED 1 PERCENT OF THE OUTSTANDING VOTING SECURITIES
OF THE TRUSTEE.(1)
Item 8. Securities of the obligor owned or held by the trustee.
Furnish the following information as to securities of the obligor
owned beneficially or held as collateral security for obligations in
default by the trustee:
As of May 29, 1997
- -------------------------------------------------------------------------------
Column A Column B Column C Column D
- -------------------------------------------------------------------------------
Title of class Whether the Amount owned Percentage of
securities are beneficially class represented
voting or non- or held as by amount given
voting securities collateral in Col. C
security for
obligations in
default
- -------------------------------------------------------------------------------
NONE(2)
- ------------------
(1) and (2) See Footnotes on page 8.
-4-
<PAGE>
Item 9. Securities of the underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the
obligor, furnish the following information as to each class of
securities of such underwriter any of which are so owned or held by
the trustee:
As of May 29, 1997
- -------------------------------------------------------------------------------
Column A Column B Column C Column D
- ------------------------------------------------------------------------------
Title of issuer Amount Amount owned Percentage
and title of class outstanding beneficially or held of class
as collateral security represented by
for obligations in amount given
default by trustee in Col. C
- -------------------------------------------------------------------------------
THE TRUSTEE DOES NOT OWN BENEFICIALLY OR HOLD AS COLLATERAL SECURITY
FOR OBLIGATIONS IN DEFAULT MORE THAN 1 PERCENT OF ANY SECURITIES OF
ANY CLASS OF AN UNDERWRITER FOR THE OBLIGOR.
Item 10. Ownership or holdings by the trustee of voting securities of certain
affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the
knowledge of the trustee (1) owns 10 percent or more of the voting
securities of the obligor or (2) is an affiliate, other than a
subsidiary, of the obligor, furnish the following information as to
the voting securities of such person:
As of May 29, 1997
- -------------------------------------------------------------------------------
Column A Column B Column C Column D
- -------------------------------------------------------------------------------
Title of issuer Amount Amount owned Percentage
and title of class outstanding beneficially or held of class
as collateral security represented by
for obligations in amount given
default by trustee in Col. C
- -------------------------------------------------------------------------------
THE AMOUNT OF VOTING SECURITIES OF SUCH A PERSON OWNED BENEFICIALLY BY
THE TRUSTEE DOES NOT EXCEED 1 PERCENT OF THE OUTSTANDING VOTING
SECURITIES OF SUCH PERSON.
-5-
<PAGE>
Item 11. Ownership or holdings by the trustee of any securities of a person
owning 50 percent or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the
knowledge of the trustee, owns 50 percent or more of the voting
securities of the obligor, furnish the following information as to
each class of securities of such person any of which are so owned or
held by the trustee:
As of May 29, 1997
- -------------------------------------------------------------------------------
Column A Column B Column C Column D
- -------------------------------------------------------------------------------
Title of issuer Amount Amount owned Percentage
and title of class outstanding beneficially or held of class
as collateral security represented by
for obligations in amount given
default by trustee in Col. C
- -------------------------------------------------------------------------------
NONE
- -------------------------------------------------------------------------------
Item 12. Indebtedness of the obligor to the trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
- -------------------------------------------------------------------------------
Column A Column B Column C
- -------------------------------------------------------------------------------
Nature of Indebtedness Amount Outstanding Date Due
- -------------------------------------------------------------------------------
NONE
Item 13. Defaults by the obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such
default.
NONE
-6-
<PAGE>
(b) If the trustee is a trustee under another indenture under which
any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more than one outstanding series
of securities under the indenture, state whether there has been a
default under any such indenture or series, identify the
indenture or series affected and explain the nature of any such
default.
NONE
Item 14. Affiliations with the underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
NONE
Item 15. Foreign trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be
qualified under the Act.
NOT APPLICABLE
Item 16. List of exhibits.
List below all exhibits filed as a part of this statement of
eligibility.
Exhibit
NUMBER
-------
1. A copy of the articles of association of the trustee, as now in
effect.
2. A copy of the certificate of authority of the trustee to commence
business.
3. A copy of the certificate of authorization of the trustee to exercise
corporate trust powers.
4. A copy of the bylaws of the trustee, as now in effect.
5. Not applicable.
6. The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939.
-7-
<PAGE>
7. A copy of the report of condition of the trustee as of the close of
business on March 31, 1997, published pursuant to the requirements
of the Comptroller of the Currency.
8. Not applicable.
9. Not applicable.
In answering any item in this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or the underwriters,
the trustee will be relying upon information to be furnished to it by the
obligor or the underwriters, as the case may be, and the trustee disclaims
responsibility for the accuracy and completeness of such information.
- --------------------
Footnotes:
(1) The trustee is a wholly owned subsidiary of First Union Corporation of
North Carolina, a bank holding company and wholly owned subsidiary of
First Union Corporation, a bank holding company. The voting securities
of First Union Corporation are described in Item 3.
(2) The obligor is Mid-State Trust VI, a business trust established under the
laws of Delaware in connection with the issuance of the securities under
the indenture.
-8-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, First Union National Bank of North Carolina, a national banking
association organized and existing under the laws of the United States, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Charlotte and the
State of North Carolina, on this 30th day of May, 1997.
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
BY: /s/ PABLO DE LA CANAL
---------------------------------
Pablo de la Canal
Assistant Vice President
-9-
<PAGE>
Exhibit 1 to Form T-1
Charter No. 15650
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
ARTICLES OF ASSOCIATION
For the purpose of organizing an Association to carry on the business of banking
under the laws of the United States, the undersigned do enter into the
following Articles of Association:
FIRST. The title of this Association shall be FIRST UNION NATIONAL BANK
OF NORTH CAROLINA.
SECOND. The main office of the Association shall be in Charlotte, County
of Mecklenburg, State of North Carolina. The general business of the
Association shall be conducted at its main office and its branches.
THIRD. The Board of Directors of this Association shall consist of not
less than five nor more than twenty-five directors, 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 shareholders 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.
FOURTH. The annual meeting of the shareholders for the election of
directors and the transaction of whatever other business may be brought before
said meeting shall be held at the main office or such other place as the Board
of Directors may designate, on the day of each year specified therefor in the
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.
Nominations for election to the Board of Directors may be made by the Board
of Directors or by any stockholder of any outstanding class of capital stock of
the bank entitled to vote for election of directors. Nominations, other than
those made by or on behalf of the existing management of the bank, shall be made
in writing and shall be delivered or mailed to the President of the bank and to
the Comptroller of the Currency, Washington, D.C., not less than 14 days nor
more than 50 days prior to any meeting of stockholders called for the election
of directors, PROVIDED, HOWEVER, that if less than 21 days' notice of the
meeting is given to shareholders, such nomination shall be mailed or delivered
to the President of the Bank and to the Comptroller of the Currency not later
than the close of business on the seventh day following the day on which the
notice of meeting was mailed. Such notification shall contain the following
information to the extent known to the notifying shareholder: (a) the name and
address of each proposed nominee; (b) the principal occupation of each proposed
nominee;
<PAGE>
(c) the total number of shares of capital stock of the bank that will be voted
for each proposed nominee; (d) the name and residence address of the notifying
shareholder; and (e) the number of shares of capital stock of the bank owned by
the notifying shareholder. Nominations not made in accordance herewith may, in
his discretion, be disregarded by the Chairman of the meeting, and upon his
instructions, the vote tellers may disregard all votes cast for each such
nominee.
FIFTH. The authorized amount of capital stock of this Association shall
be 7,500,000 shares of common stock of the par value of Fifteen Dollars ($15.00)
each, but said capital stock may be increased or decreased from time to time in
accordance with the provisions of the laws of the United States.
If the capital stock is increased by the sale of additional shares thereof,
each shareholder shall be entitled to subscribe for such additional shares in
proportion to the number of shares of said capital stock owned by him at the
time the increase is authorized by the shareholders, unless another time
subsequent to the date of the shareholder's meeting is specified in a resolution
adopted by the shareholders at the time the increase is authorized. The Board
of Directors shall have the power to prescribe a reasonable period of time
within which the preemptive rights to subscribe to the new shares of capital
stock must be exercised.
The Association, at any time and from time to time, may authorize and issue
debt obligations, whether or not subordinated, without the approval of the
shareholders.
SIXTH. The Board of Directors shall appoint one of its members President
of this Association, who shall be Chairman of the Board, unless the Board
appoints another director to be the Chairman. The Board of Directors shall have
the power to appoint one or more Vice Presidents; and to appoint a cashier or
such other officers and employees as may be required to transact the business of
this Association.
The Board of Directors shall have the power to define the duties of the
officers and employees of the Association, to fix the salaries to be paid to
them; to dismiss them, to require bonds from them and to fix the penalty
thereof; to regulate the manner in which 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 them to make; and
generally to do and perform all acts that it may be legal for a Board of
Directors to do and perform.
SEVENTH. The Board of Directors shall have the power to change the
location of the main office to any other place within the limits of Charlotte,
North Carolina, without the approval of the shareholders but subject to the
approval of the Comptroller of the Currency; and 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 shareholders but subject to the
approval of the Comptroller of the Currency.
EIGHTH. The corporate existance of this Association shall continue until
terminated in accordance with the laws of the United States.
-2-
<PAGE>
NINTH. The Board of Directors of this Association, or any three or more
shareholders owning, in the aggregate, not less than 10 percent of the stock of
this Association, may call a special meeting of shareholders at any time.
Unless otherwise provided by the laws of the United States, a notice of the
time, place, and purpose of every annual and special meeting of the shareholders
shall be given by first-class mail, postage prepaid, mailed at least ten days
prior to the date of such meeting to each shareholder of record at his address
as shown upon the books of this Association.
TENTH. Each director and executive officer of this association shall be
indemnified by the association against liability in any proceeding (including
without limitation a proceeding brought by or on behalf of the association
itself) arising out of his status as such or his activities in either of the
foregoing capacities, except for any liability incurred on account of activities
which were at the time taken known or believed by such person to be clearly in
conflict with the best interests of the association. Liabilities incurred by a
director or executive officer of the association in defending a proceeding shall
be paid by the association in advance of the final disposition of such
proceeding upon receipt of an undertaking by the director or executive officer
to repay such amount if it shall be determined, as provided in the last
paragraph of this Article Tenth, that he is not entitled to be indemnified by
the association against such liabilities.
The indemnity against liability in the preceding paragraph of this Article
Tenth, including liabilities incurred in defending a proceeding, shall be
automatic and self-operative.
Any director, officer or employee of this association who serves at the
request of the association as a director, officer, employee or agent of a
charitable, not-for-profit, religious, educational or hospital corporation,
partnership, joint venture, trust or other enterprise, or a trade association,
or as a trustee or administrator under an employee benefit plan, or who serves
at the request of the association as a director, officer or employee of a
business corporation in connection with the administration of an estate or trust
by the association, shall have the right to be indemnified by the association,
subject to the provisions set forth in the following paragraph of this Article
Tenth, against liabilities in any manner arising out of or attributable to such
status or activities in any such capacity, except for any liability incurred on
account of activities which were at the time taken known or believed by such
person to be clearly in conflict with the best interests of the association, or
of the corporation, partnership, joint venture, trust, enterprise, association
or plan being served by such person.
In the case of all persons except the directors and executive officers of
the association, the determination of whether a person is entitled to
indemnification under the preceding paragraph of this Article Tenth shall be
made by and in the sole discretion of the Chief Executive Officer of the
association. In the case of the directors and executive officers of the
association, the indemnity against liability in the preceding paragraph of this
Article Tenth shall be automatic and self-operative.
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<PAGE>
For purposes of this Article Tenth of these Articles of Association only,
the following terms shall have the meanings indicated:
(a) "Association" means First Union National Bank of North Carolina and
its direct and indirect wholly-owned subsidiaries.
(b) "Director" means an individual who is or was a director of the
association.
(c) "Executive officer" means an officer of the association who by
resolution of the Board of Directors of the association has been
determined to be an executive officer of the association for purposes
of Regulation 0 of the Federal Reserve Board.
(d) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an
employee benefit plan), or reasonable expenses, including counsel fees
and expenses, incurred with respect to a proceeding.
(e) "Party" includes an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(f) "Proceeding" means any threatened, pending, or completed claim,
action, suit, or proceeding, whether civil, criminal, administrative,
or investigative and whether formal or informal.
The association shall have no obligation to indemnify any person for an
amount paid in settlement of a proceeding unless the association consents in
writing to such settlement.
The right to indemnification herein provided for shall apply to persons who
are directors, officers, or employees of banks or other entities that are
hereafter merged or otherwise combined with the association only after the
effective date of such merger or other combination and only as to their status
and activities after such date.
The right to indemnification herein provided for shall inure to the benefit
of the heirs and legal representatives of any person entitled to such right.
No revocation of, change in, or adoption of any resolution or provision in
the Articles of Association or By-Laws of the association inconsistent with,
this Article Tenth shall adversely affect the rights of any director, officer,
or employee of the association with respect to (i) any proceeding commenced or
threatened prior to such revocation, change, or adoption, or (ii) any proceeding
arising out of any act or omission occurring prior to such revocation, change,
or adoption, in either case, without the written consent of such director,
officer, or employee.
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The rights hereunder shall be in addition to and not exclusive of any other
rights to which a director, officer, or employee of the association may be
entitled under any statute, agreement, insurance policy, or otherwise.
The association shall have the power to purchase and maintain insurance an
behalf of any person who is or was a director, officer, or employee of the
association, or is or was serving at the request of the association as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, trade association, employee benefit plan, or other enterprise,
against any liability asserted against such director, officer, or employee in
any such capacity, or arising out of their status as such, whether or not the
association would have the power to indemnify such director, officer, or
employee against such liability, excluding insurance coverage for a formal order
assessing civil money penalties against an association director or employee.
Notwithstanding anything to the contrary provided herein, no person shall
have a right to indemnification with respect to any liability (i) incurred in an
administrative proceeding or action instituted by an appropriate bank regulatory
agency which proceeding or action results in a final order assessing civil money
penalties or requiring affirmative action by an individual or individuals in the
form of payments to the association, (ii) to the extent such person is entitled
to receive payment therefor under any insurance policy or from any corporation,
partnership, joint venture, trust, trade association, employee benefit plan, or
other enterprise other than the association, or (iii) to the extent that a court
of competent jurisdiction determines that such indemnification is void or
prohibited under state or federal law.
ELEVENTH. These Articles of Association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of a
majority of the stock of this Association, unless the vote of holders of a
greater amount of stock is required by law, and in that case, by the vote of the
holders of such greater amount.
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<PAGE>
Exhibit 2 to Form T-1
- --------------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
- --------------------------------------------------------------------------------
Washington, D.C. 20219
CERTIFICATE
I, Eugene A. Ludwig, Comptroller of the Currency, do hereby certify
that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et
seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody
and control of all records pertaining to the chartering of all National
Banking Associations.
2. "First Union National Bank of North Carolina, " Charlotte, North
Carolina, (Charter No. 15650) is a National Banking Association formed under
the laws of the United States and is authorized thereunder to transact the
business of banking on the date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents
at the Treasury Department in the City
of Washington and District of Columbia,
this 02th day of January, 1997.
/s/ EUGENE A. LUDWIG
---------------------------------------
Comptroller of the Currency
<PAGE>
Exhibit 3 to Form T-1
- --------------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
- --------------------------------------------------------------------------------
Washington, D.C. 20219
CERTIFICATE OF FIDUCIARY POWERS
I, Eugene A. Ludwig, Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et
seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody
and control of all records pertaining to the chartering of all National
Banking Associations.
2. "First Union National Bank of North Carolina, Charlotte, North
Carolina (Charter No. 15650), was granted, under the hand and seal of the
Comptroller, the right to act in all fiduciary capacities authorized under
the provisions of The Act of Congress approved September 28, 1962, 76 Stat.
668, 12 U.S.C. 92a. I further certify the authority so granted remains in
full force and effect on the date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents
at the Treasury Department, in the City
of Washington and District of Columbia,
this 10th day of January, 1997.
/s/ EUGENE A. LUDWIG
---------------------------------------
Comptroller of the Currency
<PAGE>
Exhibit 4 to Form T-1
BY-LAWS OF
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
As Amended
Various Amendments
prior to 1985
April 16, 1985
October 21, 1986
December 15, 1993
December 13, 1995
May 22, 1996
May 21, 1997
<PAGE>
BY-LAWS OF
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
ARTICLE I
MEETING OF SHAREHOLDERS
SECTION 1.1 ANNUAL MEETING. The annual meeting of the shareholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on the third Tuesday of February
in each year, commencing with the year 1996, except that the Board of Directors
may, from time to time and upon passage of a resolution specifically setting
forth its' reasons, set such other date for such meeting during the month of
February as the Board of Directors may deem necessary or appropriate; provided,
however, that if an annual meeting would otherwise fall on a legal holiday, then
such annual meeting shall be held on the second business day following such
legal holiday. The holders of a majority of the outstanding shares entitled to
vote which are represented at any meeting of the shareholders may choose persons
to act as Chairman and as Secretary of the meeting.
SECTION 1.2 SPECIAL MEETINGS. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by the Board of Directors or by any three or more shareholders owning,
in the aggregate, not less than ten percent of the stock of the Association.
Every such special meeting, unless otherwise provided by law, shall be called by
mailing, postage prepaid, not less than ten days prior to the date fixed for
such meeting, to each shareholder at his address appearing on the books of the
Association, a notice stating the purpose of the meeting.
SECTION 1.3 NOMINATIONS FOR DIRECTORS. Nominations for election to the
Board of Directors may be made by the Board of Directors or by any stockholder
of any outstanding class of capital stock of the bank entitled to vote for the
election of directors. Nominations, other than those made by or on behalf of
the existing management of the bank, shall be made in writing and shall be
delivered or mailed to the President of the Bank and to the Comptroller of the
Currency, Washington, D. C., not less than 14 days nor more than 50 days prior
to any meeting of stockholders called for the election of directors, provided
however, that if less than 21 days' notice of such meeting is given to
shareholders, such nomination shall be mailed or delivered to the President of
the Bank and to the Comptroller of the Currency not later than the close of
business on the seventh day following the day on which the notice of meeting was
mailed. Such notification shall contain the following information to the extent
known to the notifying shareholder: (a) the name and address of each proposed
nominee; (b) the principal occupation of each proposed nominee; (c) the total
number of shares of capital stock of the bank that will be voted for each
proposed nominee; (d) the name and residence address of the notifying
shareholder; and (e) the number of shares of capital stock of the bank owned by
the notifying shareholder. Nominations not made in accordance herewith may, in
his discretion, be disregarded by the chairman of the meeting, and upon his
instructions, the vote tellers may disregard all votes cast for each such
nominee.
<PAGE>
SECTION 1.4 JUDGES OF ELECTION. The Board may at any time appoint from
among the shareholders three or more persons to serve as Judges of Election at
any meeting of shareholders; to act as judges and tellers with respect to all
votes by ballot at such meeting and to file with the Secretary of the meeting a
Certificate under their hands, certifying the result thereof.
SECTION 1.5 PROXIES. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing, but no officer or employee
of this Association 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 1.6 QUORUM. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law; but less than a quorum may
adjourn any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.1 BOARD OF DIRECTORS. The Board of Directors (hereinafter
referred to as the "Board"), shall have power to manage and administer the
business and affairs of the Association. Except as expressly limited by law,
all corporate powers of the Association shall be vested in and may be exercised
by said Board.
SECTION 2.2 NUMBER. The Board shall consist of not less than five nor more
than twenty-five directors, the exact number within such minimum and maximum
limits to be fixed and determined from time to time by resolution of a majority
of the full Board or by resolution of the shareholders at any meeting thereof;
provided, however, that a majority of the full Board of Directors may not
increase the number of directors to a number which, (1) exceeds by more than two
the number of directors last elected by shareholders where such number was
fifteen or less, and (2) to a number which exceeds by more than four the number
of directors last elected by shareholders where such number was sixteen or more,
but in no event shall the number of directors exceed twenty-five.
SECTION 2.3 ORGANIZATION MEETING. The Secretary of the meeting upon
receiving the certificate of the judges, of the result of any election, shall
notify the directors-elect of their election and of the time at which they are
required to meet at the Main Office of the Association for the purpose of
organizing the new Board and electing and appointing officers of the Association
for the succeeding year. Such meeting shall be held as soon thereafter as
practicable. If, at the time fixed for such meeting, there shall not be a
quorum present, the directors present may adjourn the meeting from time to time,
until a quorum is obtained.
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<PAGE>
SECTION 2.4 REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held at such place and time as may be designated by resolution of the
Board of Directors. Upon adoption of such resolution, no further notice of such
meeting dates or the places or times thereof shall be required. Upon the
failure of the Board of Directors to adopt such a resolution, regular meetings
of the Board of Directors shall be held, without notice, on the Wednesday
following the third Tuesday in February, May, August, and November, commencing
with the year 1996, at the main office or at such other place and time as may be
designated by the Board of Directors. When any regular meeting of the Board
would otherwise fall on a holiday, the meeting shall be held on the next
business day unless the Board shall designate some other day.
SECTION 2.5 SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the President of the Association, or at the request of three
(3) or more directors. Each member of the Board of Directors shall be given
notice stating the time and place, by telegram, letter, or in person, of each
such special meeting.
SECTION 2.6 QUORUM. A majority of the directors shall constitute a quorum
at any meeting, except when otherwise provided by law; but a less number may
adjourn any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice.
SECTION 2.7 VACANCIES. When any vacancy occurs among the directors, the
remaining members of the Board, in accordance with the laws of the United
States, may appoint a director to fill such vacancy at any regular meeting of
the Board, or at a special meeting called for that purpose.
SECTION 2.8 ADVISORY BOARDS. The Board of Directors may appoint an
Advisory Board or Boards in such place or places as the Board of Directors may
determine. Each such Advisory Board shall consist of as many persons as the
Board of Directors may determine. The duties of each Advisory Board shall be to
consult and advise with the Board of Directors and senior officers of the Bank
with regard to the best interests of the Association and to perform such other
duties as the Board of Directors may lawfully delegate.
ARTICLE III
COMMITTEES OF THE BOARD
SECTION 3.1 The Board of Directors, by resolution adopted by a majority of
the number of directors fixed by these By-Laws, may designate two or more
directors to constitute an Executive Committee and other committees, each of
which, to the extent authorized by law and provided in such resolution, shall
have and may exercise all of the authority of the Board of Directors and the
management of the Association. The designation of any committee and the
delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility or liability imposed
upon it or any member of the Board of Directors by law. The Board of Directors
reserves to itself alone the power to act on (1) dissolution, merger or
consolidation, or disposition of substantially all corporate property, (2)
designation of committees or filling vacancies on the Board of Directors or on a
committee of
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<PAGE>
the Board (except as hereinafter provided), (3) adoption, amendment or repeal of
By-laws, (4) amendment or repeal of any resolution of the Board which by its
terms is not so amendable or repealable, and (5) declaration of dividends,
issuance of stock, or recommendations to stockholders of any action requiring
stockholder approval.
The Board of Directors or the Chairman of the Board of Directors of the
Association may change the membership of any committee at any time, fill
vacancies therein, discharge any committee or member thereof either with or
without cause at any time, and change at any time the authority and
responsibility of any such committee.
A majority of the members of any committee of the Board of Directors may
fix such committee's rules of procedure. All action by any committee shall be
reported to the Board of Directors at a meeting succeeding such action, except
such actions as the Board may not require to be reported to it in the resolution
creating any such committee. Any action by any committee shall be subject to
revision, alteration, and approval by the Board of Directors, except to the
extent otherwise provided in the resolution creating such committee; provided,
however, that no rights or acts of third parties shall be affected by any such
revision or alteration.
ARTICLE IV
OFFICERS AND EMPLOYEES
SECTION 4.1 OFFICERS. The officers of the Association may be a Chairman of
the Board, a Vice Chairman of the Board, one or more Chairmen or Vice Chairmen
(who shall not be required to be directors of the Association), a President, one
or more Vice Presidents, a Secretary, a Cashier or Treasurer, and such other
officers, including officers holding similar or equivalent titles to the above
in regions, divisions or functional units of the Association, as may be
appointed by the Board of Directors. The Chairman of the Board and the
President shall be members of the Board of Directors. Any two or more offices
may be held by one person, but no officer shall sign or execute any document in
more than one capacity.
SECTION 4.2 ELECTION, TERM OF OFFICE, AND QUALIFICATION. Each officer
shall be chosen by the Board of Directors and shall hold office until the annual
meeting of the Board of Directors held next after his election or until his
successor shall have been duly chosen and qualified, or until his death, or
until he shall resign, or shall have been disqualified, or shall have been
removed from office.
SECTION 4.2(A) OFFICERS ACTING AS ASSISTANT SECRETARY. Notwithstanding
Section 1 of these By-laws, any Senior Vice President, Vice President, or
Assistant Vice President shall have, by virtue of his office, and by authority
of the By-laws, the authority from time to time to act as an Assistant Secretary
of the Bank, and to such extent, said officers are appointed to the office of
Assistant Secretary.
SECTION 4.3 CHIEF EXECUTIVE OFFICER. The Board of Directors shall
designate one of its members to be the President of this Association, and the
officer so designated shall be an ex
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<PAGE>
officio member of all committees of the Association except the Examining
Committee, and its Chief Executive Officer unless some other officer is so
designated by the Board of Directors.
SECTION 4.4 DUTIES OF OFFICERS. The duties of all officers shall be
prescribed by the Board of Directors. Nevertheless, the Board of Directors may
delegate to the Chief Executive Officer the authority to prescribe the duties of
other officers of the corporation not inconsistent with law, the charter, and
these By-laws, and to appoint other employees, prescribe their duties, and to
dismiss them. Notwithstanding such delegation of authority, any officer or
employee also may be dismissed at any time by the Board of Directors.
SECTION 4.5 OTHER EMPLOYEES. The Board of Directors may appoint from time
to time such tellers, vault custodians, bookkeepers, and other clerks, agents,
and employees as it may deem advisable for the prompt and orderly transaction of
the business of the Association, define their duties, fix the salary to be paid
them, and dismiss them. Subject to the authority of the Board of Directors, the
Chief Executive Officer or any other officer of the Association authorized by
him, may appoint and dismiss all such tellers, vault custodians, bookkeepers and
other clerks, agents, and employees, prescribe their duties and the conditions
of their employment, and from time to time fix their compensation.
SECTION 4.6 REMOVAL AND RESIGNATION. Any officer or employee of the
Association may be removed either with or without cause by the Board of
Directors. Any employee other than an officer elected by the Board of Directors
may be dismissed in accordance with the provisions of the preceding Section 4.5.
Any officer may resign at any time by giving written notice to the Board of
Directors or to the Chief Executive Officer of the Association. Any such
resignation shall become effective upon its being accepted by the Board of
Directors, or the Chief Executive Officer.
ARTICLE V
FIDUCIARY POWERS
SECTION 5.1 CAPITAL MANAGEMENT GROUP. There shall be an area of this
Association known as the Capital Management Group which shall be responsible for
the exercise of the fiduciary powers of this Association. The Capital
Management Group shall consist of four service areas: Fiduciary Services, Retail
Services, Investments and Marketing. The Fiduciary Services unit shall consist
of personal trust, employee benefits, corporate trust and operations. The
General Office for the Fiduciary Services unit shall be located in Charlotte,
N.C., with City Trust Offices located in such cities within the State of North
Carolina as designated by the Board of Directors.
SECTION 5.2 TRUST OFFICERS. There shall be a General Trust Officer of this
Association whose duties shall be to manage, supervise and direct all the
activities of the Capital Management Group. Further, there shall be one or more
Senior Trust Officers designated to assist the General Trust Officer in the
performance of his duties. They shall do or cause to be done all things
necessary or proper in carrying out the business of the Capital Management Group
in accordance with provisions of applicable law and regulation.
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<PAGE>
SECTION 5.3 CAPITAL MANAGEMENT/GENERAL TRUST COMMITTEE. There shall be a
Capital Management/General Trust Committee composed of not less than four (4)
members of the Board of Directors of this Association who shall be appointed
annually or from time to time by its membership. The General Trust Officer
shall serve as an ex-officio member of the Committee. Each member shall serve
until his successor is appointed. The Board of Directors or the Chairman of the
Board may change the membership of the Capital Management/General Trust
Committee at any time, fill vacancies therein, or discharge any member thereof
with or without cause at any time. The Committee shall counsel and advise on
all matters relating to the business or affairs of the Capital Management Group
and shall adopt overall policies for the conduct of the business of the Capital
Management Group including but not limited to: general administration,
investment policies, new business development, and review for approval of major
assignments of functional responsibilities. The Committee shall meet at least
quarterly or as called for by its Chairman or any three (3) members of the
Committee. A quorum shall consist of three (3) members. In carrying out its
responsibilities, the Capital Management/General Trust Committee shall review
the actions of all officers, employees and committees utilized by this
Association in connection with the activities of the Capital Management Group
and may assign the administration and performance of any fiduciary powers or
duties to any of such officers or employees or to the Investment Policy
Committee, Personal Trust Administration Committee, Account Review Committee,
Corporate and Institutional Accounts Committee, or any other committees it shall
designate. One of the methods to be used in the review process will be the
thorough scrutiny of the Report of Examination by the Office of the Comptroller
of the Currency and the reports of the Audit Division of First Union
Corporation, as they relate to the activities of the Capital Management Group.
These reviews shall be in addition to reviews of such reports by the Audit
Committee of the Board of Directors. The Chairman of the Capital Management/
General Trust Committee shall be appointed by the Chairman of the Board of
Directors. He shall cause to be recorded in appropriate minutes all actions
taken by the Committee. The minutes shall be signed by its Secretary and
approved by its Chairman. Further, the Committee shall summarize all actions
taken by it and shall submit a report of its proceedings to the Board of
Directors at its next regularly scheduled meeting following a meeting of the
Capital Management/General Trust Committee. As required by Section 9.7 of
Regulation 9 of the Comptroller of the Currency, the Board of Directors retains
responsibility for the proper exercise of the fiduciary powers of this
Association.
The Fiduciary Services unit of the Capital Management Group will maintain a
list of securities approved for investment in fiduciary accounts and will from
time to time provide the Capital Management/General Trust Committee with current
information relative to such list and also with respect to transactions in other
securities not on such list. It is the policy of this Association that members
of the Capital Management/General Trust Committee should not buy, sell or trade
in securities which are on such approved list or in any other securities in
which the Fiduciary Services unit has taken, or intends to take, a position in
fiduciary accounts in any circumstances in which any such transaction could be
viewed as a possible conflict of interest or could constitute a violation of
applicable law or regulation. Accordingly, if any such securities are owned by
any member of the Capital Management/General Trust Committee at the time of
appointment to such Committee, the Capital Management Group shall
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<PAGE>
be promptly so informed in writing. If any member of the Capital
Management/General Trust Committee intends to buy, sell, or trade in any such
securities while serving as a member of the Committee, he should first notify
the Capital Management Group in order to make certain that any proposed
transaction will not constitute a violation of this policy or of applicable law
or regulation.
SECTION 5.4 INVESTMENT POLICY COMMITTEE. There shall be an Investment
Policy Committee composed of not less than seven (7) officers and/or employees
of this Association who shall be appointed annually or from time to time by the
Board of Directors. Each member shall serve until his successor is appointed.
Meetings shall be called by the Chairman or any two (2) members of the
Committee. A quorum shall consist of five (5) members. The Investment Policy
Committee shall exercise such fiduciary powers and perform such duties as may be
assigned to it by the Capital Management/General Trust Committee. All actions
taken by the Investment Policy Committee shall be recorded in appropriate
minutes, signed by the Secretary thereof, approved by its Chairman and submitted
to the Capital Management/General Trust Committee at its next ensuing regular
meeting for its review and approval.
SECTION 5.5 PERSONAL TRUST ADMINISTRATION COMMITTEE. There shall be a
Personal Trust Administration Committee composed of not less than five (5)
officers, who shall be appointed annually or from time to time by the Board of
Directors. Each member shall serve until his successor is appointed. Meetings
shall be called by the Chairman or any three (3) members of the Committee. A
quorum shall consist of three (3) members. The Personal Trust Administration
Committee shall exercise such fiduciary powers and perform such duties as may be
assigned to it by the Capital Management/General Trust Committee. All action
taken by the Personal Trust Administration Committee shall be recorded in
appropriate minutes signed by the Secretary thereof, approved by its Chairman,
and submitted to the Capital Management/General Trust Committee at its next
ensuing regular meeting for its review and approval.
SECTION 5.6 ACCOUNT REVIEW COMMITTEE. There shall be an Account Review
Committee composed of not less than four (4) officers and/or employees of this
Association, who shall be appointed annually or from time to time by the Board
of Directors. Each member shall serve until his successor is appointed.
Meetings shall be called by the Chairman or any two (2) members of the
Committee. A quorum shall consist of three (3) members. The Account Review
Committee shall exercise such fiduciary powers and perform such duties as may be
assigned to it by the Capital Management/General Trust Committee. All actions
taken by the Account Review Committee shall be recorded in appropriate minutes,
signed by the Secretary thereof, approved by its Chairman and submitted to the
Capital Management/ General Trust Committee at its next ensuing regular meeting
for its review and approval.
SECTION 5.7 CORPORATE AND INSTITUTIONAL ACCOUNTS COMMITTEE. There shall be
a Corporate and Institutional Accounts Committee composed of not less than five
(5) officers and/or employees of this Association, who shall be appointed
annually, or from time to time, by the Capital Management/General Trust
Committee and approved by the Board of Directors. Meetings may be called by the
Chairman or any two (2) members of the Committee. A
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quorum shall consist of three (3) members. The Corporate and Institutional
Accounts Committee shall exercise such fiduciary powers and duties as may be
assigned to it by the General Trust Committee. All actions taken by the
Corporate and Institutional Accounts Committee shall be recorded in appropriate
minutes, signed by the Secretary thereof, approved by its Chairman and made
available to the General Trust Committee at its next ensuing regular meeting for
its review and approval.
ARTICLE VI
STOCK AND STOCK CERTIFICATES
SECTION 6.1 TRANSFERS. Shares of stock shall be transferable on the books
of the Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to his shares, succeed to all rights and liabilities of the
prior holder of such shares.
SECTION 6.2 STOCK CERTIFICATES. Certificates of stock shall bear the
signature of the Chairman, the Vice Chairman, the President, or a Vice President
(which may be engraved, printed, or impressed), and shall be signed manually or
by facsimile process by the Secretary, Assistant Secretary, Cashier, Assistant
Cashier, or any other officer appointed by the Board of Directors for that
purpose, to be known as an Authorized Officer, and the seal of the Association
shall be engraved thereon. Each certificate shall recite on its face that the
stock represented thereby is transferable only upon the books of the Association
properly endorsed.
ARTICLE VII
CORPORATE SEAL
SECTION 7.1. The President, the Cashier, the Secretary. or any Assistant
Cashier, or Assistant Secretary, or other officer thereunto designated by the
Board of Directors shall have authority to affix the corporate seal to any
document requiring such seal, and to attest the same. Such seal shall be
substantially in the following form.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 FISCAL YEAR. The fiscal year of the Association shall be the
calendar year.
SECTION 8.2 EXECUTION OF INSTRUMENTS. All agreements, indentures,
mortgages, deeds, conveyances, transfers, certificates, declarations, receipts,
discharges, releases, satisfactions, settlements, petitions, notices,
applications, schedules, accounts, affidavits, bonds, undertakings, proxies, and
other instruments or documents may be signed, executed, acknowledged, verified,
delivered or accepted in behalf of the Association by the Chairman of the Board,
the Vice Chairman of the Board, any Chairman or Vice Chairman, the President,
any Vice President or Assistant Vice President, the Secretary or any Assistant
Secretary, the
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Cashier or Treasurer or any Assistant Cashier or Assistant Treasurer, or any
officer holding similar or equivalent titles to the above in any regions,
divisions or functional units of the Association, or, if in connection with the
exercise of fiduciary powers of the Association, by any of said officers or by
any Trust Officer or Assistant Trust Officer (or equivalent titles); provided,
however, that where required, any such instrument shall be attested by one of
said officers other than the officer executing such instrument. Any such
instruments may also be executed, acknowledged, verified, delivered or accepted
in behalf of the Association in such other manner and by such other officers of
the Board of Directors may from time to time direct. The provisions of this
Section 8.2 are supplementary to any other provision of these By-laws.
SECTION 8.3 RECORDS. The Articles of Association, the By-laws, and the
proceedings of all meetings of the shareholders, the Board of Directors,
standing committees of the Board, shall be recorded in appropriate minute books
provided for the purpose. The minutes of each meeting shall be signed by the
Secretary, Cashier, or other officer appointed to act as Secretary of the
meeting.
ARTICLE IX
BY-LAWS
SECTION 9.1 INSPECTION. A copy of the By-laws, with all amendments
thereto, shall at all times be kept in a convenient place at the Head Office of
the Association, and shall be open for inspection to all shareholders, during
banking hours.
SECTION 9.2 AMENDMENTS. The By-laws may be amended, altered or repealed,
at any regular or special meeting of the Board of Directors, by a vote of a
majority of the whole number of Directors.
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EXHIBIT A
First Union National Bank of North Carolina
ARTICLE X
EMERGENCY BY-LAWS
In the event of an emergency declared by the President of the United States
or the person performing his functions, the officers and employees of this
Association will continue to conduct the affairs of the Association under such
guidance from the directors or the Executive Committee as may be available
except as to matters which by statute require specific approval of the Board of
Directors and subject to conformance with any applicable governmental directives
during the emergency.
OFFICERS PRO TEMPORE AND DISASTER
Section 1. The surviving members of the Board of Directors or the
Executive Committee shall have the power, in the absence or disability of any
officer, or upon the refusal of any officer to act, to delegate and prescribe
such officer's powers and duties to any other officer, or to any director, for
the time being.
Section 2. In the event of a state of disaster of sufficient severity
to prevent the conduct and management of the affairs and business of this
Association by its directors and officers as contemplated by these By-laws, any
two or more available members of the then incumbent Executive Committee shall
constitute a quorum of that Committee for the full conduct and management of the
affairs and business of the Association in accordance with the provisions of
Article 11 of these By-laws; and in addition, such Committee shall be empowered
to exercise all of the powers reserved to the General Trust Committee under
Section 5.3 of Article V hereof. In the event of the unavailability, at such
time, of a minimum of two members of the then incumbent Executive Committee, any
three available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Association in
accordance with the foregoing provisions of this section. This By-law shall be
subject to implementation by resolutions of the Board of Directors passed from
time to time for that purpose, and any provisions of these By-laws (other than
this section) and any resolutions which are contrary to the provisions of this
section or to the provisions of any such implementary resolutions shall be
suspended until it shall be determined by an interim Executive Committee acting
under this section that it shall be to the advantage of this Association to
resume the conduct and management of its affairs and business under all of the
other provisions of these By-laws.
Officer Succession
BE IT RESOLVED, that if consequent upon war or warlike damage or disaster,
the Chief Executive Officer of this Association cannot be located by the then
acting Head Officer
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or is unable to assume or to continue normal executive duties, then the
authority and duties of the Chief Executive Officer shall, without further
action of the Board of Directors, be automatically assumed by one of the
following persons in the order designated:
Chairman
President
Division Head/Area Administrator - Within this officer class, officers
shall take seniority on the basis of length of service in such office or,
in the event of equality, length of service as an officer of the
Association.
Any one of the above persons who in accordance with this resolution assumes the
authority and duties of the Chief Executive Officer shall continue to serve
until he resigns or until five-sixths of the other officers who are attached to
the then acting Head Office decide in writing he is unable to perform said
duties or until the elected Chief Executive Officer of this Association, or a
person higher on the above list, shall become available to perform the duties of
Chief Executive Officer of the Association.
BE IT FURTHER RESOLVED, that anyone dealing with this Association may
accept a certification by any three officers that a specified individual is
acting as Chief Executive Officer in accordance with this resolution; and that
anyone accepting such certification may continue to consider it in force until
notified in writing of a change, said notice of change to carry the signatures
of three officers of the Association.
Alternate Locations
The offices of the Association at which its business shall be conducted
shall be the main office thereof in each city which is designated as a City
Office (and branches, if any), and any other legally authorized location which
may be leased or acquired by this Association to carry on its business. During
an emergency resulting in any authorized place of business of this Association
being unable to function, the business ordinarily conducted at such location
shall be relocated elsewhere in suitable quarters, in addition to or in lieu of
the locations heretofore mentioned, as may be designated by the Board of
Directors or by the Executive Committee or by such persons as are then, in
accordance with resolutions adopted from time to time by the Board of Directors
dealing with the exercise of authority in the time of such emergency, conducting
the affairs of this Association. Any temporarily relocated place of business of
this Association shall be returned to its legally authorized location as soon as
practicable and such temporary place of business shall then be discontinued.
Acting Head Offices
BE IT RESOLVED, that in case of and provided because of war or warlike
damage or disaster, the General Office of this Association, located in
Charlotte, North Carolina, is unable temporarily to continue its functions, the
Raleigh office, located in Raleigh, North Carolina, shall automatically and
without further action of this Board of Directors, become the "Acting Head
Office of this Association";
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BE IT FURTHER RESOLVED, that if by reason of said war or warlike damage or
disaster, both the General Office of this Association and the said Raleigh
Office of this Association are unable to carry on their functions, then and in
such case, the Asheville Office of this Association, located in Asheville, North
Carolina, shall, without further action of this Board of Directors, become the
"Acting Head Office of this Association"; and if neither the Raleigh Office nor
the Asheville Office can carry on their functions, then the Greensboro Office of
this Association, located in Greensboro, North Carolina, shall, without further
action of this Board of Directors, become the "Acting Head Office of this
Association"; and if neither the Raleigh Office, the Asheville Office, nor the
Greensboro Office can carry on their functions, then the Lumberton Office of
this Association, located in Lumberton, North Carolina, shall, without further
action of this Board of Directors, become the "Acting Head Office of this
Association". The Head Office shall resume its functions at its legally
authorized location as soon as practicable.
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Exhibit 6 to Form T-1
First Union National Bank of North Carolina, pursuant to the
requirements of Section 321(b) of the Trust Indenture Act of 1939, as amended
(the "Act") in connection with the proposed issuance by Mid-State Trust VI of
its Asset Backed Notes hereby consents that reports of examinations by
federal, state, territorial or district authorities may be furnished by such
authorities to the Securities and Exchange Commission upon request therefor,
as contemplated by Section 321(b) of the Act.
Dated: May 30, 1997.
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
BY: /s/ PABLO DE LA CANAL
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Pablo de la Canal
Assistant Vice President
