<PAGE>
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
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FIRST UNION NATIONAL BANK
(Exact name of trustee as specified in its charter)
United States National Bank 22-1147033
(State of incorporation if (I.R.S. employer
not a national bank) identification no.)
First Union National Bank
230 South Tryon Street, 9th Floor
Charlotte, North Carolina 28288-1179
(Address of principal executive offices) (Zip Code)
Same as above
-------------
(Name, address and telephone number, including
area code, of trustee's agent for service)
Health Management Associates, Inc.
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
61-0963645
(I.R.S. employer identification no.)
Stephen M. Ray
Health Management Associates, Inc.
5811 Pelican Bay Boulevard
Suite 500
Naples, Florida 34108-2710
(Address, including zip code, of principal executive offices)
--------------------
Convertible Senior Subordinated Debentures
(Title of the indenture securities)
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<PAGE>
1. General information. Furnish the following information as to the trustee:
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(a) Name and address of each examining or supervising authority to which
it is subject:
Federal Reserve Bank of Richmond, Richmond, VA Comptroller of the
Currency Washington, D.C. Securities and Exchange Commission Division
of Market Regulation Washington, D.C. Federal Deposit Insurance
Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor and underwriters. If the obligor or any
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underwriter for the obligor is an affiliate of the trustee, describe each
such affiliation.
None. (See Note attached hereto)
Because the obligor is not in default on any securities issued under indentures
under which the applicant is trustee, Items 3 through 15 are not required
herein.
16. List of Exhibits.
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All exhibits identified below are filed as a part of this statement of
eligibility.
1. A copy of the Articles of Association of First Union National Bank as now
in effect, which contain the authority to commence business and a grant of
powers to exercise corporate trust powers.
2. A copy of the certificate of authority of the trustee to commence business,
if not contained in the Articles of Association.
3. A copy of the authorization of the trustee to exercise corporate trust
powers, if such authorization is not contained in the documents specified
in exhibits (1) or (2) above.
4. A copy of the existing By-laws of First Union National Bank, or instruments
corresponding thereto.
5. Inapplicable.
6. The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939 is included at Page 4 of this Form T-1 Statement.
7. A copy of the latest report of condition of the trustee published pursuant
to law or to the requirements of its supervising or examining authority is
attached hereto.
8. Inapplicable.
9. Inapplicable.
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information. Item 2 may, however, be
considered correct unless amended by an amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, First Union National Bank, a national association organized and
existing under the laws of the United States of America, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Miami, and State of
Florida, on the 2nd day of October, 2000.
FIRST UNION NATIONAL BANK
(trustee)
By:_______________________________
Its:______________________________
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939, as amended, and in
connection with the proposed issuance by Health Management Associates, Inc.,
First Union National Bank as the trustee herein named, hereby consents that
reports of examinations of said Trustee by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon requests therefor.
FIRST UNION NATIONAL BANK
By:_______________________________
Name:_____________________________
Dated: October 2, 2000
<PAGE>
Legal Title of Bank: First Union National Bank Call Date: 6/30/2000 FFIEC 031
Address: Two First Union Center Page RC-1
City, State, Zip: Charlotte, NC 28288-0201
FDIC Certificate #: 33869
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Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 2000
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
<TABLE>
<CAPTION>
C400
Dollar Amount in Thousands RCFD Bil Mil Thou
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<S> <C>
ASSETS //////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): //////////////
a. Noninterest-bearing balances and currency and coin (1).................................. 0081 8,589,000 1.a.
b. Interest-bearing balances (2)........................................................... 0071 1,556,000 1.b.
2. Securities: //////////////
a. Held-to-maturity securities (from Schedule RC-B, column A).............................. 1754 1,602,,000 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)............................ 1773 51,963,000 2.b.
3. Federal funds sold and securities purchased under agreements to resell...................... 1350 4,657,,000 3.
4. Loans and lease financing receivables //////////////
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 137,760,000 ////////////// 4.a.
b. LESS: Allowance for loan and lease losses RCFD 3123 2,010,000 ////////////// 4.b.
c. LESS: Allocated transfer risk reserve RCFD 3128 0 //////////////
d. Loans and leases, net of unearned income, //////////////
allowance, and reserve (item 4.a minus 4.b and 4.c)..................................... 2125 136,750,000 4. d.
5. Trading assets (from Schedule RC-D.......................................................... 3545 11,417,000 5.
6. Premises and fixed assets (including capitalized leases).................................... 2145 3,109,000 6.
7. Other real estate owned (from Schedule RC-M)................................................ 2150 99,000 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) ... 2130 253,000 8.
9. Customers' liability to this bank on acceptances outstanding................................ 2155 839,000 9.
10. Intangible assets (from Schedule RC-M)...................................................... 2143 3,085,000 10.
11. Other assets (from Schedule RC-F)........................................................... 2160 12,184,000 11.
12. Total assets (sum of items 1 through 11).................................................... 2170 236,103,000 12.
</TABLE>
____________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
First Union National Bank Call Date: 6/30/2000 FFIEC 031
Address: Two First Union Center Page RC-1
City, State, Zip: Charlotte, NC 28288-0201
FDIC Certificate #: 33869
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Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands Bil Mil Thou
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<S> <C>
LIABILITIES /////////////////
13. Deposits: /////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, /////////////////
part I)................................................................................... RCON 2200 134,699,000 13.a.
(1) Noninterest-bearing (1) RCON 6631 20,265,000//////////////// 13.a.(1)
(2) Interest-bearing..................................................RCON 6636 114,434,000 ///////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, /////////////////
part II)..........................................................RCFN 2200 12,861,000 13.b.
(1) Noninterest-bearing.............................................RCFN 6631 586,000 ///////////////// 13.b.(1)
(2) Interest-bearing................................................RCFN 6636 12,2750,000 ///////////////// 13.b.(2)
b. Trading liabilities (from Schedule RC-D).................................................. RCFD 3548 6,718,000 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under /////////////////
capitalized leases):.......................................................................... /////////////////
a. With a remaining maturity of one year or less............................................. RCFD 2332 16.985,000 16.a.
b. With a remaining maturity of more than one year through three years....................... RCFD A547 3,181,000 16.b.
c. With a remaining maturity of more than three years........................................ RCFD A548 1,838,000 16.c.
17. Not applicable................................................................................ /////////////////
18. Bank's liability on acceptances executed and outstanding...................................... RCFD 2920 847,000 18.
19. Subordinated notes and debentures (2)......................................................... RCFD 3200 4,994,000 19.
20. Other liabilities (from Schedule RC-G)........................................................ RCFD 2930 6,797,000 20.
21. Total liabilities (sum of items 13 through 20)................................................ RCFD 2948 221,060,000 21.
22. Not applicable................................................................................ /////////////////
EQUITY CAPITAL /////////////////
23. Perpetual preferred stock and related surplus................................................. RCFD 3838 161,000 23.
24. Common stock.................................................................................. RCFD 3230 455,000 24.
25. Surplus (exclude all surplus related to preferred stock)...................................... RCFD 3839 13,306,000 25.
26. a. Undivided profits and capital reserves.................................................... RCFD 3632 2,296,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities....................`RCFD 8434 (1,170,000) 26.b.
c. Accumulated net gains (losses) on cash flow hedges........................................ RCFD 4336 0 26 c.
27. Cumulative foreign currency translation adjustments........................................... RCFD 3284 (5,000) 27.
28. Total equity capital (sum of items 23 through 27)............................................. RCFD 3210 15,043,000 28.
29. Total liabilities and equity capital (sum of items 21 and 28)................................. RCFD 3300 236,103,000 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 external Number
auditors as of any date during 1998............................................................ RCFD 6724 N/A M.1.
1 =Independent audit of the bank conducted in accordance with 4 =Directors' examination of the bank performed by other external
generally accepted auditing standards by a certified public auditors (may be required by state chartering authority)
accounting firm which submits a report on the bank. 5 =Review of the bank's financial statements by extermal auditors
2 =Independent audit of the bank's parent holding company 6 =Compilation of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors.
standards by a certified public accounting firm which submits a 7 =Other audit procedures (excluding tax preparation work)
report on the consolidated holding company (but not on the bank 8 =No external audit work
separately) (1) Includes total demand deposits and noninterest-bearing time
3 =Directors' examination of the bank conducted in accordance and savings deposit.
with generally accepted auditing standards by a certified public (2) Includes limited-life preferred stock and related surplus.
accounting firm (may be required by state chartering authority)
</TABLE>
32
<PAGE>
Charter No. 22693
FIRST UNION NATIONAL BANK
ARTICLES OF ASSOCIATION
-----------------------
(as restated effective February 26, 1998)
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.
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SECOND. The main office of the Association shall be in Charlotte, County of
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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
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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
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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
<PAGE>
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.
FIFTH.
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(a) General. The amount of capital stock of this Association shall be (I)
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25,000,000 shares of common stock of the par value of twenty dollars ($20.00)
each (the "Common Stock") and (ii) 160,540 shares of preferred stock of the par
value of one dollar ($ 1. 00) each (the "Non-Cumulative Preferred Stock"),
having the rights, privileges and preferences set forth below, 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.
(b) Terms of the Non-Cumulative Preferred Stock.
-------------------------------------------
1. General. Each share of Non-Cumulative Preferred Stock shall be identical
-------
in all respects with the other shares of Non-Cumulative Preferred Stock. The
authorized number of shares of Non-Cumulative Preferred Stock may from time
to time be increased or decreased (but not below the number then
outstanding) by the Board of Directors. Shares of Non-Cumulative Preferred
Stock redeemed by the Association shall be canceled and shall revert to
authorized but unissued shares of Non-Cumulative Preferred Stock.
2. Dividends.
----------
(a) General. The holders of Non-Cumulative Preferred Stock shall be
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entitled to receive, when, as and if declared by the Board of
Directors, but only out of funds legally available therefor,
non-cumulative cash dividends at the annual rate of $83.75 per share,
and no more, payable quarterly on the first days of December, March,
June and September, respectively, in each year with respect to the
quarterly dividend period (or portion thereof) ending on the day
preceding such respective dividend payment date, to shareholders of
record on the respective date, not exceeding fifty days preceding such
dividend payment date, fixed for that purpose by the Board of Directors
in advance of payment of each particular dividend. Notwithstanding the
foregoing, the cash dividend to be paid on the first dividend payment
date after the initial issuance of Non-Cumulative Preferred Stock and
on any dividend payment date with respect to a partial dividend period
shall be $83.75 per share multiplied by the fraction produced by
dividing the number of days since such initial issuance or in such
partial dividend period, as the case may be, by 360.
(b) Non-cumulative Dividends. Dividends on the shares of Non-cumulative
------------------------
Stock shall not be cumulative and no rights shall accrue to the holders
of shares of Non-Cumulative Preferred Stock by reason of the fact that
the Association may fail to declare or pay
34
<PAGE>
dividends on the shares of Non-Cumulative Preferred Stock in any amount
in any quarterly dividend period, whether or not the earnings of the
Association in any quarterly dividend period were sufficient to pay
such dividends in whole or in part, and the Association shall have no
obligation at any time to pay any such dividend.
(c) Payment of Dividends. So long as any share of Non-Cumulative
--------------------
Preferred Stock remains outstanding, no dividend whatsoever shall be
paid or declared and no distribution made on any junior stock other
than a dividend payable in junior stock, and no shares of junior stock
shall be purchased, redeemed or otherwise acquired for consideration by
the Association, directly or indirectly (other than as a result of a
reclassification of junior stock, or the exchange or conversion of one
junior stock for or into another junior stock, or other than through
the use of the proceeds of a substantially contemporaneous sale of
other junior stock), unless all dividends on all shares of non-
cumulative Preferred Stock and non-cumulative Preferred Stock ranking
on a parity as to dividends with the shares of Non-Cumulative Preferred
Stock for the most recent dividend period ended prior to the date of
such payment or declaration shall have been paid in full and all
dividends on all shares of cumulative Preferred Stock ranking on a
parity as to dividends with the shares of Non-Cumulative Stock
(notwithstanding that dividends on such stock are cumulative) for all
past dividend periods shall have been paid in full. Subject to the
foregoing, and not otherwise, such dividends (payable in cash, stock or
otherwise) as may be determined by the Board of Directors may be
declared and paid on any junior stock from time to time out of any
funds legally available therefor, and the Non-Cumulative Preferred
Stock shall not be entitled to participate in any such dividends,
whether payable in cash, stock or otherwise. No dividends shall be paid
or declared upon any shares of any class or series of stock of the
Association ranking on a parity (whether dividends on such stock are
cumulative or non-cumulative) with the Non-Cumulative Preferred Stock
in the payment of dividends for any period unless at or prior to the
time of such payment or declaration all dividends payable on the Non-
cumulative Preferred Stock for the most recent dividend period ended
prior to the date of such payment or declaration shall have been paid
in full. When dividends are not paid in full, as aforesaid, upon the
Non-Cumulative Preferred Stock and any other series of Preferred Stock
ranking on a parity as to dividends (whether dividends on such stock
are cumulative or non-cumulative) with the Non-Cumulative Preferred
Stock, all dividends declared upon the Non-Cumulative Preferred Stock
and any other series of Preferred Stock ranking on a parity as to
dividends with the Non-Cumulative Preferred Stock shall be declared pro
rata so that the amount of dividends declared per share on the Non-
cumulative Preferred Stock and such other Preferred Stock shall in all
cases bear to each other the same ratio that accrued dividends per
share on the Non-Cumulative Preferred Stock (but without any
accumulation in respect of any unpaid dividends for prior dividend
periods on the shares of Non-Cumulative Stock) and such other Preferred
Stock bear to each other. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or
payments on the Non-Cumulative Preferred Stock which may be in arrears.
3. Voting. The holders of Non-Cumulative Preferred Stock shall not have
------
any right to vote for the election of directors or for any other
purpose.
4. Redemption.
----------
35
<PAGE>
(a) Optional Redemption. The Association, at the option of the Board of
-------------------
Directors, may redeem the whole or any part of the shares of Non-
Cumulative Preferred Stock at the time outstanding, at any time or from
time to time after the fifth anniversary of the date of original
issuance of the Non-Cumulative Preferred Stock, upon notice given as
hereinafter specified, at the redemption price per share equal to $1,000
plus an amount equal to the amount of accrued and unpaid dividends from
the immediately preceding dividend payment date (but without any
accumulation for unpaid dividends for prior dividend periods on the
shares of Non-Cumulative Preferred Stock) to the redemption date.
(b) Procedures. Notice of every redemption of shares of Non-Cumulative
Preferred Stock shall be mailed by first class mail, postage prepaid,
addressed to the holders of record of the shares to be redeemed at their
respective last addresses as they shall appear on the books of the
Association. Such mailing shall be at least 10 days and not more than 60
days prior to the date fixed for redemption. Any notice which is mailed
in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the shareholder receives such notice,
and failure duly to give such notice by mail, or any defect in such
notice, to any holder of shares of Non-Cumulative Preferred Stock
designated for redemption shall not affect the validity of the
proceedings for the redemption of any other shares of Non-Cumulative
Preferred Stock.
In case of redemption of a part only of the shares of Non-Cumulative
Preferred Stock at the time outstanding the redemption may be either pro
rata or by lot or by such other means as the Board of Directors of the
Association in its discretion shall determine. The Board of Directors
shall have full power and authority, subject to the provisions herein
contained, to prescribe the terms and conditions upon which shares of
the Non-Cumulative Preferred Stock shall be redeemed from time to time.
If notice of redemption shall have been duly given, and, if on or before
the redemption date specified therein, all funds necessary for such
redemption shall have been set aside by the Association, separate and
apart from its other funds, in trust for the pro rata benefit of the
holders of the shares called for redemption, so as to be and continue to
be available therefor, then, notwithstanding that any certificate for
shares so called for redemption shall not have been surrendered for
cancellation, all shares so called for redemption shall no longer be
deemed outstanding on and after such redemption date, and all rights
with respect to such shares shall forthwith on such redemption date
cease and terminate, except only the right of the holders thereof to,
receive the amount payable on redemption thereof, without interest.
If such notice of redemption shall have been duly given or if the
Association shall have given to the bank or trust company hereinafter
referred to irrevocable authorization promptly to give such notice, and,
if on or before the redemption date specified therein, the funds
necessary for such redemption shall have been deposited by the
Association with such bank or trust company in trust for the pro rata
benefit of the holders of the shares called for redemption, then,
notwithstanding that any certificate for shares so called for redemption
shall not have been surrendered for cancellation, from and after the
time of such deposit, all shares so called for redemption shall no
longer be deemed to be outstanding and all rights with respect to such
shares shall forthwith cease and terminate,
36
<PAGE>
except only the right of the holders thereof to receive from such bank
or trust company at any time after the time of such deposit the funds so
deposited, without interest. The aforesaid bank or trust company shall
be organized and in good standing under the laws of the United States of
America or any state thereof, shall have capital, surplus and undivided
profits aggregating at least $50,000,000 according to its last published
statement of condition, and shall be identified in the notice of
redemption. Any interest accrued on such funds shall be paid to the
Association from time to time. In case fewer than all the shares of Non-
Cumulative Preferred Stock represented by a stock certificate are
redeemed, a new certificate shall be issued representing the unredeemed
shares without cost to the holder thereof.
Any funds so set aside or deposited, as the case may be, and unclaimed
at the end of the relevant escheat period under applicable state law
from such redemption date shall, to the extent permitted by law, be
released or repaid to the Association, after which repayment the holders
of the shares so called for redemption shall look only to the
Association for payment thereof.
5. Liquidation.
-----------
(a) Liquidation Preference. In the event of any voluntary liquidation,
----------------------
dissolution or winding up of the affairs of the Association, the holders
of Non-cumulative Preferred Stock shall be entitled, before any
distribution or payment is made to the holders of any junior stock, to
be paid in full an amount per share equal to an amount equal to $1,000
plus an amount equal to the amount of accrued and unpaid dividends per
share from the immediately preceding dividend payment date (but without
any accumulation for unpaid dividends for prior dividend periods on the
shares of Non-cumulative Preferred Stock) per share to such distribution
or payment date (the "liquidation amount").
In the event of any involuntary liquidation, dissolution or winding up
of the affairs of the Association, then, before any distribution or
payment shall be made to the holders of any junior stock, the holders of
Non-Cumulative Preferred Stock shall be entitled to be paid in full an
amount per share equal to the liquidation amount.
If such payment shall have been made in full to all holders of shares of
Non-Cumulative Preferred Stock, the remaining assets of the Association
shall be distributed among the holders of junior stock, according to
their respective rights and preferences and in each case according to
their respective numbers of shares.
(b) Insufficient Assets. In the event that, upon any such voluntary or
-------------------
involuntary liquidation, dissolution or winding up, the available assets
of the Association are insufficient to pay such liquidation amount on
all outstanding shares of Non-cumulative Preferred Stock, then the
holders of Non-Cumulative Preferred Stock shall share ratably in any
distribution of assets in proportion to the full amounts to which they
would otherwise be respectively entitled.
(c) Interpretation. For the purposes of this paragraph 5, the
--------------
consolidation or merger of the Association with any other corporation or
association shall not be deemed to constitute a liquidation, dissolution
or winding up of the Association.
37
<PAGE>
6. Preemptive Rights. The Non-Cumulative Preferred Stock is not entitled to
-----------------
any preemptive, subscription, conversion or exchange rights in respect
of any securities of the Association.
7. Definitions. As used herein with respect to the Non-Cumulative Preferred
-----------
Stock, the following terms shall have the following meanings:
(a) The term "junior stock" shall mean the Common Stock and any other
class or series of shares of the Association hereafter authorized over
which the Non-Cumulative Preferred Stock has preference or priority in
the payment of dividends or in the distribution of assets on any
liquidation, dissolution or winding up of the Association.
(b) The term "accrued dividends", with respect to any share of any class
or series, shall mean an amount computed at the annual dividend rate for
the class or series of which the particular share is a part, from, if
such share is cumulative, the date on which dividends on such share
became cumulative to and including the date to which such dividends are
to be accrued, less the aggregate amount of all dividends theretofore
paid thereon and, if such share is noncumulative, the relevant date
designated to and including the date to which such dividends are
accrued, less the aggregate amount of all dividends theretofore paid
with respect to such period.
(c) The term "Preferred Stock" shall mean all outstanding shares of all
series of preferred stock of the Association as defined in this Article
Fifth of the Articles of Association, as amended, of the Association.
8. Restriction on Transfer. No shares of Non-Cumulative Preferred Stock, or
-----------------------
any interest therein, may be sold, pledged, transferred or otherwise
disposed of without the prior written consent of the Association. The
foregoing restriction shall be stated on any certificate for any shares
of Non-Cumulative Preferred Stock.
9. Additional Rights. The shares of Non-Cumulative Preferred Stock shall
-----------------
not have any relative, participating, optional or other special rights
and powers other than as set forth herein.
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.
38
<PAGE>
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 existence of this Association shall continue until
------
terminated in accordance with the laws of the United States.
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
39
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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.
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 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 O 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.
40
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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.
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 on
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.
<PAGE>
BY-LAWS OF
FIRST UNION NATIONAL BANK
Charter No. 22693
As Restated Effective February 26, 1998
<PAGE>
BY-LAWS OF
FIRST UNION NATIONAL BANK
ARTICLE I
Meetings 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 April in
each year, commencing with the year 1998, 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
April 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.
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
43
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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.
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 third Tuesday in
February, April, June, August, October and December, commencing with the year
1997, 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.
44
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Section 2.8 Advisory Boards. The Board of Directors may appoint Advisory Boards
---------------------------
for each of the states in which the Association conducts operations. 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 Association in such state with
regard to the best interests of the Association and to perform such other duties
as the Board of Directors may lawfully delegate. The senior officer in such
state, or such officers as directed by such senior officer, may appoint advisory
boards for geographic regions within such state and may consult with the State
Advisory Boards prior to such appointments.
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 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.
45
<PAGE>
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 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.
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 or officers of this Association who shall be appointed
annually or from time to time by the Board of Directors of the Association. The
General Trust Officer shall serve as an ex-officio member of the Committee. Each
member shall serve until his successor is
46
<PAGE>
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 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
47
<PAGE>
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 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.
48
<PAGE>
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 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 as 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
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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
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First Union National Bank
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 II 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 unavail- ability, 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 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
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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
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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";
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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