Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
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) [ ]
WACHOVIA BANK, NATIONAL ASSOCIATION
(Exact Name of Trustee as Specified in its Charter)
22-1147033
(I.R.S. Employer Identification No.)
One Wachovia Center- 301 South College Street Charlotte, North Carolina
(Address of Principal Executive Offices)
28288
(Zip Code)
WACHOVIA BANK, NATIONAL ASSOCIATION
200 BERKELEY STREET, 17TH FLOOR
BOSTON, MA 02116
ATTENTION: EVANGELOS NTAVOS, CCTS
(617)210-3773
(Name, address and telephone number of Agent for Service)
THE COMMERCE GROUP, INC.
(Exact Name of Obligor as Specified in its Charter)
Massachusetts
(State or other jurisdiction of Incorporation or Organization)
04-2599931
(I.R.S. Employer Identification No.)
211 Main Street
Webster, MA
(Address of Principal Executive Offices)
01570
(Zip Code)
THE COMMERCE GROUP, INC. SENIOR NOTES
(TITLE OF INDENTURE SECURITIES)
1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO WHICH IT IS
SUBJECT:
Comptroller of the Currency
United States Department of the Treasury
Washington, D.C. 20219
Federal Reserve Bank
Richmond, Virginia 23219
Federal Deposit Insurance Corporation
Washington, D.C. 20429
b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
None.
3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING SECURITIES OF THE
TRUSTEE:
Not applicable - see answer to Item 13.
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.
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE TRUSTEE IS A
DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR REPRESENTATIVE OF THE
OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON HAVING
ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION.
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:
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:
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:
Not applicable - see answer to Item 13.
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR OBLIGATIONS
IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR, FURNISH THE
FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH UNDERWRITER ANY OF
WHICH ARE SO OWNED OR HELD BY THE TRUSTEE:
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 STOCK 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:
Not applicable - see answer to Item 13.
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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:
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:
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 - see answer to Item 13.
15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE TRUSTEE IS AUTHORIZED TO ACT AS
SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED UNDER THE ACT.
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Not applicable - trustee is a national banking association organized
under the laws of the United States.
16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
[X] 1. Copy of Articles of Association of the trustee as now in effect.
[X] 2. Copy of the Certificate of the Comptroller of the Currency dated April
24, 2002, evidencing the authority of the trustee to transact business.
[X] 3. Copy of the Certification of Fiduciary Powers of the trustee by the
Office of the Comptroller of the Currency dated April 4, 2002.
[X] 4. Copy of existing by-laws of the trustee.
[ ] 5. Copy of each indenture referred to in Item 4, if the obligor is in
default.
Not Applicable.
[X] 6. Consent of the trustee required by Section 321(b) of the Act.
[X] 7. Copy of report of condition of the trustee at the close of business on
June 30, 2003, published pursuant to the requirements of its supervising
authority.
[ ] 8. Copy of any order 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
[ ] 9. Consent to service of process required of foreign trustees pursuant to
Rule 10a-4 under the Act.
Not Applicable
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NOTE
The trustee disclaims responsibility for the accuracy or completeness
of information contained in this Statement of Eligibility and Qualification not
known to the trustee and not obtainable by it through reasonable investigation
and as to which information it has obtained from the obligor and has had to rely
or will obtain from the principal underwriters and will have to rely.
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Wachovia Bank, National Association, a national banking 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 Boston
and the Commonwealth of Massachusetts, on the 3rd day of November, 2003.
Wachovia Bank, National Association
By: /s/ Evangelos Ntavos
-------------------------------
Evangelos Ntavos
Officer
Exhibit 1
WACHOVIA BANK, NATIONAL ASSOCIATION
CHARTER NO. 1*
ARTICLES OF ASSOCIATION
AS RESTATED 4/1/02
* The OCC allowed the reassignment of Charter No. 1 (formerly held by
CoreStates Bank, N.A., which merged into First Union National Bank on
5/15/98) to First Union National Bank on 5/18/98. Charter No. 1
superceded Charter No. 22693. On 4/1/02, First Union National Bank
changed its name to Wachovia Bank, National Association.
Charter No. 1
WACHOVIA BANK, NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
For the purpose of organizing an Association to carry on the business of banking
under the laws of the United States, the undersigned do enter into the following
Articles of Association:
FIRST. The title of this Association shall be WACHOVIA BANK, NATIONAL
ASSOCIATION.
SECOND. The main office of the Association shall be in Charlotte, County of
Mecklenburg, State of North Carolina. The general business of the Association
shall be conducted at its main office and its branches.
THIRD. The Board of Directors of this Association shall consist of not less
than five nor more than twenty-five directors, the exact number of directors
within such minimum and maximum limits to be fixed and determined from time to
time by resolution of a majority of the full Board of Directors or by resolution
of the shareholders at any annual or special meeting thereof. Unless otherwise
provided by the laws of the United States, any vacancy in the Board of Directors
for any reason, including an increase in the number thereof, may be filled by
action of the Board of Directors.
FOURTH. The annual meeting of the shareholders for the election of
directors and the transaction of whatever other business may be brought before
said meeting shall be held at the main office or such other place as the Board
of Directors may designate, on the day of each year specified therefor in the
By-Laws, but if no election is held on that day, it may be held on any
subsequent day according to the provisions of law; and all elections shall be
held according to such lawful regulations as may be prescribed by the Board of
Directors.
Nominations for election to the Board of Directors may be made by the Board
of Directors or by any stockholder of any outstanding class of capital stock of
the bank entitled to vote for election of directors. Nominations, other than
those made by or on behalf of the existing management of the bank, shall be made
in writing and shall be delivered or mailed to the President of the bank and to
the Comptroller of the Currency, Washington, D.C., not less than 14 days nor
more than 50 days prior to any meeting of stockholders called for the election
of directors, provided, however, that if less than 21 days' notice of the
meeting is given to shareholders, such nomination shall be mailed or delivered
to the President of the Bank and to the Comptroller of the Currency not later
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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 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
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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 NonCumulative
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 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
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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 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.
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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 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
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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.
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
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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.
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.
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NINTH. The Board of Directors of this Association, or any three or more
shareholders owning, in the aggregate, not less than 10 percent of the stock of
this Association, may call a special meeting of shareholders at any time. Unless
otherwise provided by the laws of the United States, a notice of the time,
place, and purpose of every annual and special meeting of the shareholders shall
be given by first-class mail, postage prepaid, mailed at least ten days prior to
the date of such meeting to each shareholder of record at his address as shown
upon the books of this Association.
TENTH. Each director and executive officer of this Association shall be
indemnified by the association against liability in any proceeding (including
without limitation a proceeding brought by or on behalf of the Association
itself) arising out of his status as such or his activities in either of the
foregoing capacities, except for any liability incurred on account of activities
which were at the time taken known or believed by such person to be clearly in
conflict with the best interests of the Association. Liabilities incurred by a
director or executive officer of the Association in defending a proceeding shall
be paid by the Association in advance of the final disposition of such
proceeding upon receipt of an undertaking by the director or executive officer
to repay such amount if it shall be determined, as provided in the last
paragraph of this Article Tenth, that he is not entitled to be indemnified by
the Association against such liabilities.
The indemnity against liability in the preceding paragraph of this Article
Tenth, including liabilities incurred in defending a proceeding, shall be
automatic and self-operative.
Any director, officer or employee of this Association who serves at the
request of the Association as a director, officer, employee or agent of a
charitable, not-for-profit, religious, educational or hospital corporation,
partnership, joint venture, trust or other enterprise, or a trade association,
or as a trustee or administrator under an employee benefit plan, or who serves
at the request of the Association as a director, officer or employee of a
business corporation in connection with the administration of an estate or trust
by the Association, shall have the right to be indemnified by the Association,
subject to the provisions set forth in the following paragraph of this Article
Tenth, against liabilities in any manner arising out of or attributable to such
status or activities in any such capacity, except for any liability incurred on
account of activities which were at the time taken known or believed by such
person to be clearly in conflict with the best interests of the Association, or
of the corporation, partnership, joint venture, trust, enterprise, Association
or plan being served by such person.
In the case of all persons except the directors and executive officers of
the Association, the determination of whether a person is entitled to
indemnification under the preceding paragraph of this Article Tenth shall be
made by and in the sole discretion of the Chief Executive Officer of the
Association. In the case of the directors and executive officers of the
Association, the indemnity against liability in the preceding paragraph of this
Article Tenth shall be automatic and self-operative.
9
For purposes of this Article Tenth of these Articles of Association only,
the following terms shall have the meanings indicated:
(a) "Association" means Wachovia Bank, National Association 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.
No revocation of, change in, or adoption of any resolution or provision in
the Articles of Association or By-laws of the Association inconsistent with,
this Article Tenth shall adversely affect the rights of any director, officer,
or employee of the Association with respect to (i) any proceeding commenced or
threatened prior to such revocation, change, or adoption, or (ii) any proceeding
arising out of any act or omission occurring prior to such revocation, change,
or adoption, in either case, without the written consent of such director,
officer, or employee.
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The rights hereunder shall be in addition to and not exclusive of any other
rights to which a director, officer, or employee of the Association may be
entitled under any statute, agreement, insurance policy, or otherwise.
The Association shall have the power to purchase and maintain insurance 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.
TWELFTH. The Association, at any time and from time to time, may authorize
and issue debt obligations, whether or not subordinated, without the approval of
the shareholders.
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Exhibit 2
Controller of the Currency
Administrator of National Banks
- --------------------------------------------------------------------------------
Washington, D.C. 20219
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that the
document hereto attached is a true copy, as recorded in this Office, of the
currently effective Articles of Association for "Wachovia Bank, National
Association," Charlotte, North Carolina, (Charter No. 1)
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
[SEAL] the City of Washington and District of Columbia,
this Wednesday, April 24, 2002
/s/ John D. Hawke, Jr.
-----------------------
Comptroller of the Currency
Exhibit 3
Comptroller of the Currency
Administrator of National Banks
- -------------------------------------------------------------------------------
Washington, D.C. 20219
CERTIFICATE OF FIDUCIARY POWERS
I, John D. Hawke, Jr., 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. "Wachovia Bank, National Association," Charlotte, North Carolina, (Charter
No. 1) 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
[SEAL] 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 Thursday, April 04, 2002
/s/ John D. Hawke, Jr.
---------------------------
Comptroller of the Currency
Exhibit 4
AMENDED AND RESTATED BY-LAWS OF
WACHOVIA BANK, NATIONAL ASSOCIATION
Charter No. 1
Effective October 15, 2002
BY-LAWS OF
WACHOVIA BANK, NATIONAL ASSOCIATION
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 2002, 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 (3) or more shareholders
owning, in the aggregate, not less than ten percent (10%) of the stock of the
Association. Unless otherwise provided by the laws of the United States, a
notice of the time, place and purpose of every special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least ten (10) days prior to the date of such meeting to each shareholder of
record at his address as shown upon the books of this Association.
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 shareholders
of any outstanding class of capital stock of the Association entitled to vote
for the election of Directors. Nominations, other than those made by or on
behalf of the existing management of the Association, shall be made in writing
and shall be delivered or mailed to the President of the Association and to the
Comptroller of the Currency, Washington, D. C., not fewer than fourteen (14)
days nor more than fifty (50) days prior to any meeting of shareholders called
for the election of Directors, provided, however, that if fewer than twenty-one
(21) days' notice of such meeting is given to shareholders, such nomination
shall be mailed or delivered to the President of the Association 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 Association 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 Association 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.
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Section 1.4 Judges of Election. The Board may at any time appoint from
among the shareholders three (3) or more persons to serve as Judges of Election
at any meeting of shareholders; to act as judges and tellers with respect to all
votes by ballot at such meeting and to file with the Secretary of the meeting a
Certificate under their hands, certifying the result thereof.
Section 1.5 Proxies. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing, but no officer or employee
of this Association shall act as proxy. Proxies shall be valid only for one
meeting, to be specified therein, and any adjournments of such meeting. Proxies
shall be dated and shall be filed with the records of the meeting.
Section 1.6 Quorum. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law; but less than a quorum may
adjourn any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
Directors
Section 2.1 Board of Directors. The Board of Directors (hereinafter
referred to as the "Board"), shall have power to manage and administer the
business and affairs of the Association. Except as expressly limited by law, all
corporate powers of the Association shall be vested in and may be exercised by
said Board.
Section 2.2 Number. The Board shall consist of not fewer than five (5)
nor more than twenty-five (25) 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 annual
or special 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 (2) the number of Directors last elected by
shareholders where such number was fifteen (15) or fewer, and (2) to a number
which exceeds by more than four (4) the number of Directors last elected by
shareholders where such number was sixteen (16) or more, but in no event shall
the number of Directors exceed twenty-five (25).
Section 2.3 Organization Meeting. The Secretary of the meeting upon
receiving the Certificate of the Judges of Election, 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
3
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 April 2002, 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 lesser
number may adjourn any meeting, from time to time, and the meeting may be held,
as adjourned, without further notice.
Section 2.7 Vacancies. When any vacancy occurs among the Directors, the
remaining members of the Board, in accordance with the laws of the United
States, may appoint a Director to fill such vacancy at any regular meeting of
the Board, or at a special meeting called for that purpose.
Section 2.8 Advisory Boards. The Board of Directors may appoint
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 (2) 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 these By-laws, (4) amendment or repeal of any resolution of the
Board which by its terms is not so amendable or repealable,
4
and (5) declaration of dividends, issuance of stock, or recommendations to
shareholders of any action requiring shareholder approval.
The Board of Directors or the Chairman of the Board of Directors of the
Association may change the membership of any committee at any time, fill
vacancies therein, discharge any committee or member thereof either with or
without cause at any time, and change at any time the authority and
responsibility of any such committee.
A majority of the members of any committee of the Board of Directors
may fix such committee's rules of procedure. All action by any committee shall
be reported to the Board of Directors at a meeting succeeding such action,
except such actions as the Board may not require to be reported to it in the
resolution creating any such committee. Any action by any committee shall be
subject to revision, alteration, and approval by the Board of Directors, except
to the extent otherwise provided in the resolution creating such committee;
provided, however, that no rights or acts of third parties shall be affected by
any such revision or alteration.
ARTICLE IV
Officers and Employees
Section 4.1 Officers. The officers of the Association may be a Chairman
of the Board, a Vice Chairman of the Board, one or more Chairmen or Vice
Chairmen (who shall not be required to be Directors of the Association), a
President, one or more Vice Presidents, a Secretary, a Cashier or Treasurer, and
such other officers, including officers holding similar or equivalent titles to
the above in regions, divisions or functional units of the Association, as may
be appointed by the Board of Directors. The Chairman of the Board and the
President shall be members of the Board of Directors. Any two or more offices
may be held by one person, but no officer shall sign or execute any document in
more than one capacity.
Section 4.2 Election, Term of Office, and Qualification. Each officer
shall be chosen by the Board of Directors and shall hold office until the annual
meeting of the Board of Directors held next after his election or until his
successor shall have been duly chosen and qualified, or until his death, or
until he shall resign, or shall have been disqualified, or shall have been
removed from office.
Section 4.3 Officers Acting as Assistant Secretary. Notwithstanding
Section 4.1 of these By-laws, any officer holding the title of Assistant Vice
President or above 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
Association, and to such extent, said officers are appointed to the office of
Assistant Secretary.
Section 4.4 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 4.5 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
5
the authority to prescribe the duties of other officers of the Association 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 4.6 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 4.7 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 4.6.
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 Trust Services Division. There shall be divisions of this
Association known as the Capital Management Group and the Wealth Management
Group which shall be responsible for the exercise of the fiduciary activities of
this Association.
Section 5.2 Trust Officers. There shall be one or more Officers of this
Association whose duties shall be to manage, supervise and direct all the
fiduciary activities of the Capital Management and Wealth Management Groups.
Further, there shall be one or more Senior Trust Officers designated to assist
the Officers in the performance of their duties. They shall do or cause to be
done all things necessary or proper in carrying out the business of the Capital
Management and Wealth Management Groups in accordance with provisions of
applicable laws and regulations.
Section 5.3 General Trust Committee. There shall be a General Trust
Committee composed of not fewer 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 this Association. 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 General Trust Committee at any time, fill
any vacancies therein, or discharge any member thereof with or without cause at
any time. The General Trust Committee shall counsel and advise on all matters
relating to the fiduciary business or affairs of the Capital Management and
Wealth Management Groups and shall adopt overall policies for the conduct of the
fiduciary business of the Capital Management and Wealth Management Groups,
including, but not limited to: general administration, investment policies, new
business development, and review for approval of
6
major assignments of functional responsibilities. The General Trust Committee
shall assign the administration and performance of any of its fiduciary powers
or duties to any subcommittee as it may designate. The General Trust Committee
shall appoint the members of any such subcommittees and shall determine the
number of members which constitutes a quorum at meetings of such subcommittees.
The General Trust 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 General Trust
Committee shall review the actions of all officers, employees and committees
utilized by this Association in connection with the fiduciary activities of the
Capital Management and Wealth Management Groups and may assign the
administration and performance of any fiduciary powers or duties to any officers
or employees of the Capital Management Group or Wealth Management Group or to
any committee it may designate. One of the methods to be used in the review
process will be the scrutiny of the Reports of Examination by the Office of the
Comptroller of the Currency and the reports of the Audit Division of Wachovia
Corporation, as they relate to the activities of the Capital Management and
Wealth Management Groups. These reviews shall be in addition to reviews of such
reports by the Audit Committee of the Board of Directors. The Chairman of the
General Trust Committee shall be appointed by the Board of Directors. The
Chairman of the General Trust Committee 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 General Trust
Committee shall make its minutes available to the Board of Directors at its next
regularly scheduled meeting following a meeting of the General Trust Committee.
As required by Section 9.4 of Regulation 9 of the Comptroller of the Currency,
the Board of Directors retains responsibility for the proper exercise of this
Association's fiduciary powers.
Members of the General Trust Committee will abide by the Association's Code of
Conduct as it applies to the Capital Management and Wealth Management Groups.
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
7
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 in the
form adopted by the Board of Directors.
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 Senior Executive Vice President, Executive Vice President, Vice President or
Assistant Vice President, the Secretary, the Cashier or 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), and if so
required by applicable law or regulation, attested or countersigned by the
Secretary or Assistant Secretary; 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 Main 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.
ARTICLE X
8
Emergency By-Laws
Section 10.1. Emergency. 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.
Section 10.2. Officers Pro Tempore. 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 10.3. Executive Committee Powers. 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 (2) or more available members of the
Board of Directors shall constitute the Executive Committee and 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, the Executive 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 (2) members of the then incumbent Executive Committee, any three
(3) 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. 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.
Section 10.4. Officer Succession. If consequent upon war or warlike
damage or disaster, the Chief Executive Officer of this Association cannot be
located 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
Head of the General Bank
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 Section 10.4
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 Main Office decide in writing
9
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.
Section 10.5. Certification. Anyone dealing with this Association may
accept a certification by any three (3) officers that a specified individual is
acting as Chief Executive Officer in accordance with this By-law; 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 (3) officers of the Association.
Section 10.6. Alternate Locations. The offices of the Association at
which its business shall be conducted shall be the Main Office thereof and each
of its branches, 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.
Section 10.7. Acting Main Offices. In case of war or warlike damage or
disaster, the Main Office of this Association, located in Charlotte, North
Carolina, is unable temporarily to continue its functions, the Business
Continuity Plan, as approved by the Board of Directors from time to time, shall
automatically and without further action of this Board of Directors become
effective.
Section 10.8. Resumption of Main Office. The Main Office shall resume
its functions at its legally authorized location as soon as practicable as
determined by the Executive Committee pursuant to Section 10.3 of these By-laws.
10
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, and in connection with the proposed issue of The Commerce Group,
Inc. Senior Notes, Wachovia Bank, National Association, hereby consents that
reports of examinations by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Evangelos Ntavos
----------------------
Evangelos Ntavos
Officer
Boston, Massachusetts
November 3, 2003
Exhibit 7
Institution Name Wachovia Bank, National Association
Institution Address 301 SOUTH COLLEGE STREET
CHARLOTTE
Certificate Number 33869
Selected Form CALL 31
Selected Report Date 6/30/2003
Dollars in Thousands
FFIEC ITEM DESCRIPTION
Schedule RC Balance Sheet
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC A)
1.a. Noninterest bearing balances and currency and coin* $ 14,108,000
1.b. Interest bearing balances** 4,283,000
2.Securities:
2.a. Held to maturity securities (from Schedule RC B, column A) 0
2.b. Available for sale securities (from Schedule RC B, column D) 70,107,000
3.a. Federal funds sold in domestic offices 2,060,000
3.b. Securities purchased under agreements to resell 4,782,000
4. Loans and lease financing receivables (from Schedule RC C):
4.a. Loans and leases held for sale 10,391,000
4.b. Loans and leases, net of unearned income 160,238,000
4.c. LESS: Allowance for loan and lease losses 2,655,000
4.d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c) 157,583,000
5. Trading assets (from Schedule RC D) 26,931,000
6. Premises and fixed assets (including capitalized leases) 3,823,000
7. Other real estate owned (from Schedule RC M) 163,000
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC M) 689,000
9. Customers liability to this bank on acceptances outstanding 1,074,000
10. Intangible assets:
10.a. Goodwill 9,519,000
10.b. Other intangible assets (from Schedule RC M) 1,608,000
11. Other assets (from Schedule RC F) 24,500,000
12. Total assets (sum of items 1 through 11) 331,621,000
LIABILITIES
13. Deposits:
13.a. In domestic offices (sum of totals of columns A and C from Schedule RC E, part I) 195,313,000
13.a.(1) Noninterest bearing*** 29,821,000
13.a.(2) Interest bearing 165,492,000
13.b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC E, part II) 11,457,000
13.b.(1) Noninterest bearing 21,000
13.b.(2) Interest bearing 11,436,000
14. Federal funds purchased and securities sold under agreements to repurchase
14.a. Federal funds purchased in domestic offices 3,871,000
14.b. Securities sold under agreements to repurchase 25,005,000
15. Trading liabilities (from Schedule RC D) 20,648,000
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases) (from Schedule RC M) 19,665,000
17. Not applicable
18. Banks liability on acceptances executed and outstanding 1,078,000
19. Subordinated notes and debentures**** 8,049,000
20. Other liabilities (from Schedule RC G) 13,250,000
21. Total liabilities (sum of items 13 through 20) 298,336,000
22. Minority interest in consolidated subsidiaries 1,658,000
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 0
24. Common stock 455,000
25. Surplus (exclude all surplus related to preferred stock) 24,184,000
26.a. Retained earnings 4,879,000
26.b. Accumulated other comprehensive income***** 2,109,000
27. Other equity capital components****** 0
28. Total equity capital (sum of items 23 through 27) 31,627,000
29. Total liabilities, minority interest, and equity capital (sum of items 21,22,and 28) 331,621,000
Memorandum
To be reported 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 auditors as of any date during 2001
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which submits
a report on the bank
2 = Independent audit of the banks parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
3 = Attestation on bank management assertion on the effectiveness of the banks
internal control over financial reporting by a certified public accounting firm
4 = Directors examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
5 = Directors examination of the bank performed by other external auditors (may
be required by state chartering authority)
6 = Review of the banks financial statements by external auditors
7 = Compilation of the banks financial statements by external auditors
8 = Other audit procedures (excluding tax preparation work)
9 = No external audit work
* Includes cash items in process of collection and unposted debits.
** Includes time certificates of deposit not held for trading.
*** Includes total demand deposits and noninterest bearing time and savings
deposits.
**** Includes limited life preferred stock and related surplus.
***** Includes net unrealized holding gains (losses) on available for sale
securities, accumulated net gains (losses) on cash flow hedges, cumulative
foreign currency translation adjustments, and minimum pension liability
adjustments.
****** Includes treasury stock and unearned Employee Stock Ownership Plan
shares.