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EXHIBIT 25
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) _____
First Union National Bank
(Exact name of trustee as specified in its charter)
United States of America
(Jurisdiction of incorporation or organization if not a U.S. national bank)
22-1147033
(I.R.S. Employer Identification Number)
One First Union
301 South College Street
Charlotte, North Carolina
(Address of principal executive offices)
28288
(Zip code)
Mary B. Knauer
First Union National Bank
Corporate Trust Department FL0122
225 Water Street, Third Floor
Jacksonville, Florida 32202
(904)361-3160
(Name, address and telephone number of agent for service)
Commercial Net Lease Realty, Inc.
(Exact name of obligor as specified in its charter)
Maryland
(State or other jurisdiction of incorporation or organization)
56-1431377
(I.R.S. Employer Identification No.)
400 East South Street
Orlando, Florida
(407) 422-1574
(Address of principal executive offices)
32801
(Zip code)
Commercial Net Lease Realty, Inc.
Notes Due 2008
(Title of the indenture securities)
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1. GENERAL INFORMATION. Furnish the following information as to the
trustee:
a. Name and address of each examining or supervising authority to
which it is subject.
NAME ADDRESS
Board of Governors of the Federal Washington, D.C.
Reserve System
Comptroller of the Currency Washington, D.C.
Federal Deposit Insurance Washington, D.C.
Corporation
b. Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the
trustee, describe each such affiliation.
The obligor is not an affiliate of the trustee. (See Note 1 on page 6.)
3. VOTING SECURITIES OF THE TRUSTEE. Furnish the following information as
to each class of voting securities of the trustee:
As of March 6, 1998 (Insert date within 31 days).
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
Common Stock 568,500,000
(See Note 1 on page 6.)
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.
Not Applicable.
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.
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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 of any underwriter for the obligor, identify each
such person having any such connection and state the nature of each such
connection.
Not Applicable - see answer to Item 13.
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______________________(Insert date within 31 days).
COL. D
COL. C PERCENTAGE OF VOTING SECURITIES
COL. A COL. B AMOUNT OWNED REPRESENTED BY AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
Not Applicable - see answer to Item 13.
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 __________________ (Insert date within 31 days).
COL. D
COL. C PERCENTAGE OF VOTING SECURITIES
COL. A COL. B AMOUNT OWNED REPRESENTED BY AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
Not Applicable - see answer to Item 13.
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 __________________(Insert date within 31 days).
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COL. C
AMOUNT OWNED COL.
COL. B BENEFICIALLY OR PERCENT OF CLASS
WHETHER THE SECURITIES HELD AS COLLATERAL REPRESENTED BY
COL. A ARE VOTING OR SECURITY FOR AMOUNT GIVEN
TITLE OF CLASS NONVOTING SECURITIES OBLIGATIONS IN DEFAULT IN COL. C
Not Applicable - see answer to Item 13.
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE. If the
trustee owns beneficially or hold 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 _________________ (Insert date within 31 days).
COL. C COL. D
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY
TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN
AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
Not Applicable - see answer to Item 13.
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 __________________ (Insert date within 31 days).
COL. C COL. D
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY
TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN
AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
Not Applicable - see answer to Item 13.
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__________________(Insert date within 31 days).
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COL. C COL. D
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY
TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN
AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
Not Applicable - See answer to Item 13.
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:
As of__________________(Insert date within 31 days).
COL. A COL. B COL. C
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
Not Applicable - See answer to Item 13.
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.
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.
14. AFFILIATIONS WITH THE UNDERWRITERS. If any underwriter is an affiliate
of the trustee, describe each such affiliation.
Not Applicable.
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.
16. LIST OF EXHIBITS. List below all exhibits filed as a part of this
statement of eligibility.
1. Articles of Association of First Union National Bank as now in
effect.
2. Certificate of Authority of the trustee to commence business.
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3. Copy of the authorization of the trustee to exercise corporate
trust powers.
4. Existing bylaws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
NOTES:
Note 1: The trustee is a subsidiary of First Union Corporation, a
bank holding company; all of the voting securities of the trustee are held by
First Union Corporation. The voting securities of First Union Corporation are
described in Item 3.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, First Union National Bank, a national banking association [state form
of organization] organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the city of
Jacksonville, and State [or other jurisdiction] of Florida, on the 18 day of
March , 1998.
FIRST UNION NATIONAL BANK
(Trustee)
By: /s/ MARY B. KNAUER
-------------------------------------------------
Mary B. Knauer, Vice President
(Name and Title)
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EXHIBIT 1
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.
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
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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;
(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.
(a) General. The amount of capital stock of this Association shall be (I)
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
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
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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 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
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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.
(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
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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, 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
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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
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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.
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.
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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.
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
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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.
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.
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(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.
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.
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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.
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EXHIBIT 2
[LOGO]
- -------------------------------------------------------------------------------
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 the
document hereto attached is a true and correct copy, as recorded in this
Office, of the Charter Certificate for "First Union National Bank," Charlotte,
North Carolina, (Charter No. 22693).
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 4th day of
March, 1998.
[SEAL]
/s/ EUGENE A. LUDWIG
--------------------------------------
Comptroller of the Currency
19
EXHIBIT 2
[LOGO]
- -------------------------------------------------------------------------------
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," Charlotte, North Carolina, (Charter No.
22693) 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 4th day of
March, 1998.
[SEAL]
/s/ EUGENE A. LUDWIG
--------------------------------------
Comptroller of the Currency
20
EXHIBIT 3
[LOGO]
- -------------------------------------------------------------------------------
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, Charlotte, North Carolina, (Charter No.
22693), 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, and that
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 4th day of
March, 1998.
[SEAL]
/s/ EUGENE A. LUDWIG
--------------------------------------
Comptroller of the Currency
21
EXHIBIT 4
BY-LAWS OF
FIRST UNION NATIONAL BANK
CHARTER NO. 22693
AS RESTATED EFFECTIVE FEBRUARY 26, 1998
22
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
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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
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.
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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.
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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
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.
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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 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.
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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
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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 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
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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 the Capital Management/General Trust Committee. All
action
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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.
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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 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
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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 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
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 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
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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 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
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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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EXHIBIT 6
First Union National Bank, 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 Commercial Net Lease Realty, Inc. of its Notes due
2008 hereby consents that reports of examination 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: March 18, 1998 FIRST UNION NATIONAL BANK
By: /s/ MARY B. KNAUER
-----------------------------------
Mary B. Knauer, Vice President
37
REPORT OF CONDITION
EXHIBIT 7
Consolidating domestic and foreign subsidiaries of the First Union National
Bank, Avondale, Pennsylvania, at the close of business on December 31, 1997,
published in response to call made by Comptroller of the Currency, under title
12, United States Code, Section 161. Charter Number 22693 Comptroller of the
Currency Northeastern District.
STATEMENT OF RESOURCES AND LIABILITIES
ASSETS
Thousand of Dollars
-------------------
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin . . . . . . . . . . . . . . . . . . . . . . . 1,725,148
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,216,934
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . /////////
Hold-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337,471
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,949,655
Federal funds sold and securities purchased under agreements /////////
to resell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51,999
Loans and lease financing receivables:
Loan and leases, net of unearned income . . . . . . . . . . . . . . . . . . . . 15,757,193
LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . . . . . . . 196,929
LESS: Allocated transfer risk reserve . . . . . . . . . . . . . . . . . . . . . . . . . 0
Loans and leases, net of unearned income, allowance, and
reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,560,264
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases). . . . . . . . . . . . . . . . . 418,837
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36,598
Investment in unconsolidated subsidiaries and associated /////////
companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37,868
Customer's liability to this bank on acceptances outstanding. . . . . . . . . . . . . . . 91,787
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382,749
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,043,467
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27,852,777
LIABILITIES
Deposits:
38
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,810,085
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . 3,480,114
interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . 17,329,971
In foreign offices, Edge and Agreement subsidiaries,
and IBFs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 736,612
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . 136
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . 736,476
Federal funds purchased and securities sold under agreements /////////
to repurchase 2,581,021
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64,236
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . /////////
With a remaining maturity of one year or less . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
With a remaining maturity of one year through three years . . . . . . . . . . . . . . . . . . . . . 7,510
With a remaining maturity of more than three years . . . . . . . . . . . . . . . . . . . . . . . . 5,777
Not Applicable /////////
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . . . . . . 93,594
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450,000
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 812,999
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,561,834
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . 160,540
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452,156
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,303,224
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342,689
Net unrealized holding gains (losses) on available-for-sale /////////
securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32,334
Cumulative foreign currency translation adjustments . . . . . . . . . . . . . . . . . . . . . . . . 0
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,290,943
Total liabilities and equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27,852,777