EXHIBIT 25.1
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) [ ]
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WACHOVIA BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
United States National Bank 22-1147033
(Jurisdiction of incorporation or organizations (I.R.S. employer
if not a U.S. national bank) identification no.)
Wachovia Bank, National Association
401 South Tryon Street, 12th Floor
Charlotte, North Carolina 28288-1179
(Address of principal (Zip Code)
executive offices)
Same as above
(Name, address and telephone number, including
area code, of trustee's agent for service)
aaiPharma Inc.
(Exact name of obliger as specified in its charter)
State of Delaware
(State or other jurisdiction of incorporation or organization)
04-2687849
(I.R.S. employer identification no.)
Thomas Aluise
Controller
2320 Scientific Park Drive
Wilmington, NC 28405
(910)254-7000
(Address, including zip code, of principal executive offices)
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11% Senior Subordinated Notes due 2010
(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
- --------------------------------------------------------------------------------
Federal Reserve Bank of Richmond, VA
Comptroller of the Currency, Washington, D.C.
Securities and Exchange Commission
Division of Market Regulation Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
2. Affiliations with the obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
Because the obligor is not in default on any securities issued under
indentures under which the applicant is trustee, Items 3 through 15 are
not required herein.
16. List of Exhibits.
All exhibits identified below are filed as a part of this statement of
eligibility.
1. copy of the Articles of Association of Wachovia Bank, National
Association as now in effect.
2. A copy of the certificate of authority of the trustee to commence
business.
3. A copy of the authorization of the trustee to exercise corporate trust
powers is contained in the documents specified in exhibit 2 above.
4. A copy of the existing By-laws of Wachovia Bank, National Association.
5. Inapplicable.
6. The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939 is included at Page 4 of this Form T-1 Statement.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
8. Inapplicable.
9. Inapplicable.
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Wachovia Bank, National Association, a national association 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 Charlotte, and State of North
Carolina, on the 21st day of May, 2002.
WACHOVIA BANK, NATIONAL ASSOCIATION
(trustee)
By: /s/ James Long
-------------------------------
Its: Assistant Vice President
--------------------------
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939, as amended,
and in connection with the proposed issuance by aaiPharma Inc. of its 11% Senior
Subordinated Notes due 2010, Wachovia Bank, National Association as the trustee
herein named, hereby consents that reports of examinations of said Trustee by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ James Long
-------------------------------
Name: James Long
--------------------------
Title: Assistant Vice President
-------------------------
Dated: May 21, 2002
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Exhibit 1 TO T-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
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days nor more than 50 days prior to any meeting of stockholders called for the
election of directors, provided, however, that if less than 21 days' notice of
the meeting is given to shareholders, such nomination shall be mailed or
delivered to the President of the Bank and to the Comptroller of the Currency
not later than the close of business on the seventh day following the day on
which the notice of meeting was mailed. Such notification shall contain the
following information to the extent known to the notifying shareholder: (a) the
name and address of each proposed nominee; (b) the principal occupation of each
proposed nominee; (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,
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respectively, in each year with respect to the quarterly
dividend period (or portion thereof) ending on the day
preceding such respective dividend payment date, to
shareholders of record on the respective date, not exceeding
fifty days preceding such dividend payment date, fixed for
that purpose by the Board of Directors in advance of payment
of each particular dividend. Notwithstanding the foregoing,
the cash dividend to be paid on the first dividend payment
date after the initial issuance of Non-Cumulative Preferred
Stock and on any dividend payment date with respect to a
partial dividend period shall be $83.75 per share multiplied
by the fraction produced by dividing the number of days since
such initial issuance or in such partial dividend period, as
the case may be, by 360.
(b) Non-cumulative Dividends. Dividends on the shares of
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
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Preferred Stock shall not be entitled to participate in any
such dividends, whether payable in cash, stock or otherwise.
No dividends shall be paid or declared upon any shares of any
class or series of stock of the Association ranking on a
parity (whether dividends on such stock are cumulative or
non-cumulative) with the Non-Cumulative Preferred Stock in
the payment of dividends for any period unless at or prior to
the time of such payment or declaration all dividends payable
on the Non-cumulative Preferred Stock for the most recent
dividend period ended prior to the date of such payment or
declaration shall have been paid in full. When dividends are
not paid in full, as aforesaid, upon the Non-Cumulative
Preferred Stock and any other series of Preferred Stock
ranking on a parity as to dividends (whether dividends on
such stock are cumulative or non-cumulative) with the
Non-Cumulative Preferred Stock, all dividends declared upon
the Non-Cumulative Preferred Stock and any other series of
Preferred Stock ranking on a parity as to dividends with the
Non-Cumulative Preferred Stock shall be declared pro rata so
that the amount of dividends declared per share on the
Non-cumulative Preferred Stock and such other Preferred Stock
shall in all cases bear to each other the same ratio that
accrued dividends per share on the Non-Cumulative Preferred
Stock (but without any accumulation in respect of any unpaid
dividends for prior dividend periods on the shares of
Non-Cumulative Stock) and such other Preferred Stock bear to
each other. No interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or
payments on the Non-Cumulative Preferred Stock which may be
in arrears.
3. Voting. The holders of Non-Cumulative Preferred Stock shall
not have any right to vote for the election of directors or
for any other purpose.
4. Redemption.
(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.
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(b) Procedures. Notice of every redemption of shares of
Non-Cumulative Preferred Stock shall be mailed by first class
mail, postage prepaid, addressed to the holders of record of
the shares to be redeemed at their respective last addresses
as they shall appear on the books of the Association. Such
mailing shall be at least 10 days and not more than 60 days
prior to the date fixed for redemption. Any notice which is
mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the
shareholder receives such notice, and failure duly to give
such notice by mail, or any defect in such notice, to any
holder of shares of Non-Cumulative Preferred Stock designated
for redemption shall not affect the validity of the
proceedings for the redemption of any other shares of
Non-Cumulative Preferred Stock.
In case of redemption of a part only of the shares of
Non-Cumulative Preferred Stock at the time outstanding the
redemption may be either pro rata or by lot or by such other
means as the Board of Directors of the Association in its
discretion shall determine. The Board of Directors shall have
full power and authority, subject to the provisions herein
contained, to prescribe the terms and conditions upon which
shares of the Non-Cumulative Preferred Stock shall be
redeemed from time to time.
If notice of redemption shall have been duly given, and, if
on or before the redemption date specified therein, all funds
necessary for such redemption shall have been set aside by
the Association, separate and apart from its other funds, in
trust for the pro rata benefit of the holders of the shares
called for redemption, so as to be and continue to be
available therefor, then, notwithstanding that any
certificate for shares so called for redemption shall not
have been surrendered for cancellation, all shares so called
for redemption shall no longer be deemed outstanding on and
after such redemption date, and all rights with respect to
such shares shall forthwith on such redemption date cease and
terminate, except only the right of the holders thereof to,
receive the amount payable on redemption thereof, without
interest.
If such notice of redemption shall have been duly given or if
the Association shall have given to the bank or trust company
hereinafter referred to irrevocable authorization promptly to
give such notice, and, if on or before the redemption date
specified therein, the funds necessary for such redemption
shall have been deposited by the Association with such bank
or trust company in trust for the pro rata benefit of the
holders of the shares called for redemption, then,
notwithstanding that any certificate for shares so called for
redemption shall not have been surrendered for cancellation,
from and after the time of such deposit, all
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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
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
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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 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.
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(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.
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
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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
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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 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.
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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.
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
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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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[COMPTROLLER OF THE CURRENCY LOGO]
Comptroller of the Currency Exhibit 2 to T-1
Administrator of National Banks
Large Bank Licensing, MS 7-13
250 E Street, S.W.
Washington, DC 20219
March 27, 2002
OCC Control Nr. 2002-ML-02-0001
Ms. Courtney D. Allison
Assistant General Counsel
Legal Division
Wachovia Corporation
301 South College Street (NC0630)
Charlotte, North Carolina 28288-0630
Dear Ms. Allison:
This letter is the official certification of the Comptroller of the Currency
(OCC) of the merger of Wachovia Bank, National Association, Winston-Salem,
North Carolina, Charter Nr. 1559, into and under the charter of First Union
National Bank, Charlotte, North Carolina, Charter Nr. 1 with the resulting
title of Wachovia Bank, National Association and headquarters at Charlotte,
North Carolina, effective April 1, 2002.
This letter is also the official authorization given to Wachovia Bank, N.A.,
Charter Nr. 1 (formerly First Union National Bank), to operate the former head
office of Wachovia Bank, N.A., Charter Nr. 1559 as a branch at the following
site:
Title : Downtown Winston-Salem Branch
Certificate Nr.: 122534A
Address : 100 North Main Street
Winston-Salem, North Carolina 27150
Branch authorizations previously granted to Wachovia Bank, N.A., Charter Nr.
1559, automatically convey to Wachovia Bank, N.A., Charter Nr. 1 (formerly
First Union National Bank), the resulting bank, and will not be reissued.
Please furnish a copy of this certificate to personnel responsible for branch
administration.
This letter also serves to certify that First Union National Bank, Charlotte,
North Carolina, Charter Nr. 1, now known as Wachovia Bank, National
Association, remains authorized to exercise the fiduciary powers previously
granted to it by the OCC.
Certification of Merger
First Union National Bank/Wachovia Bank, N.A.
Page 2 of 2
The OCC also authorizes the resulting bank, should the merger occur between
Call Report dates, to recalculate its legal lending limit. The new lending
limit should be calculated by using data from the last Call Report of the
individual banks filed prior to consummating the consolidation, as adjusted for
the combination. The resulting bank will then file a new Call Report and begin
calculating its legal lending limit according to 12 C.F.R. 32.4(a) at the end
of the quarter following consummation of the consolidation.
In the event of questions, I may be contacted at (202) 874-5060 or by e-mail
at: largebanks@occ.treas.gov.
Sincerely,
/s/ Richard T. Erb
Richard T. Erb
Licensing Manager
2002-ML-02-0001
[LOGO]
- -------------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
- -------------------------------------------------------------------------------
Washington, D.C. 20219
Certificate
I, Julie L. Williams, Acting 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. 1)
is a National Banking Association formed under the laws of the United States and
is authorized thereunder to transact the business of banking and exercise
Fiduciary Powers on the date of this Certificate.
IN TESTIMONY WHERE, 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 3th day of November, 1998.
[SEAL] /s/ Julie L. Williams
-----------------------------------------
Acting Comptroller of the Currency
EXHIBIT 4 to T-1
BY-LAWS OF
WACHOVIA BANK, NATIONAL ASSOCIATION
Charter No. 1
EFFECTIVE APRIL 1, 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 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
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shareholders, such nomination shall be mailed or delivered to the President of
the Bank and to the Comptroller of the Currency not later than the close of
business on the seventh day following the day on which the notice of meeting was
mailed. Such notification shall contain the following information to the extent
known to the notifying shareholder: (a) the name and address of each proposed
nominee; (b) the principal occupation of each proposed nominee; (c) the total
number of shares of capital stock of the bank that will be voted for each
proposed nominee; (d) the name and residence address of the notifying
shareholder; and (e) the number of shares of capital stock of the bank owned by
the notifying shareholder. Nominations not made in accordance herewith may, in
his discretion, be disregarded by the chairman of the meeting, and upon his
instructions, the vote tellers may disregard all votes cast for each such
nominee.
Section 1.4 Judges of Election. The Board may at any time appoint from
among the shareholders three or more persons to serve as Judges of Election at
any meeting of shareholders; to act as judges and tellers with respect to all
votes by ballot at such meeting and to file with the Secretary of the meeting a
Certificate under their hands, certifying the result thereof.
Section 1.5 Proxies. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing, but no officer or employee
of this Association shall act as proxy. Proxies shall be valid only for one
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.
3
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
4
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 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
5
vacancies therein, discharge any committee or member thereof either with or
without cause at any time, and change at any time the authority and
responsibility of any such committee.
A majority of the members of any committee of the Board of Directors
may fix such committee's rules of procedure. All action by any committee shall
be reported to the Board of Directors at a meeting succeeding such action,
except such actions as the Board may not require to be reported to it in the
resolution creating any such committee. Any action by any committee shall be
subject to revision, alteration, and approval by the Board of Directors, except
to the extent otherwise provided in the resolution creating such committee;
provided, however, that no rights or acts of third parties shall be affected by
any such revision or alteration.
ARTICLE IV
Officers and Employees
Section 4.1 Officers. The officers of the Association may be a Chairman
of the Board, a Vice Chairman of the Board, one or more Chairmen or Vice
Chairmen (who shall not be required to be directors of the Association), a
President, one or more Vice Presidents, a Secretary, a Cashier or Treasurer, and
such other officers, including officers holding similar or equivalent titles to
the above in regions, divisions or functional units of the Association, as may
be appointed by the Board of Directors. The Chairman of the Board and the
President shall be members of the Board of Directors. Any two or more offices
may be held by one person, but no officer shall sign or execute any document in
more than one capacity.
Section 4.2 Election, Term of Office, and Qualification. Each officer
shall be chosen by the Board of Directors and shall hold office until the annual
meeting of the Board of Directors held next after his election or until his
successor shall have been duly chosen and qualified, or until his death, or
until he shall resign, or shall have been disqualified, or shall have been
removed from office.
Section 4.2(a) Officers Acting as Assistant Secretary. Notwithstanding
Section 1 of these By-laws, any Senior Vice President, Vice President, or
Assistant Vice President shall have, by virtue of his office, and by authority
of the By-laws, the authority from time to time to act as an Assistant Secretary
of the Bank, and to such extent, said officers are appointed to the office of
Assistant Secretary.
6
Section 4.3 Chief Executive Officer. The Board of Directors shall
designate one of its members to be the President of this Association, and the
officer so designated shall be an ex officio member of all committees of the
Association except the Examining Committee, and its Chief Executive Officer
unless some other officer is so designated by the Board of Directors.
Section 4.4 Duties of Officers. The duties of all officers shall be
prescribed by the Board of Directors. Nevertheless, the Board of Directors may
delegate to the Chief Executive Officer the authority to prescribe the duties of
other officers of the corporation not inconsistent with law, the charter, and
these By-laws, and to appoint other employees, prescribe their duties, and to
dismiss them. Notwithstanding such delegation of authority, any officer or
employee also may be dismissed at any time by the Board of Directors.
Section 4.5 Other Employees. The Board of Directors may appoint from
time to time such tellers, vault custodians, bookkeepers, and other clerks,
agents, and employees as it may deem advisable for the prompt and orderly
transaction of the business of the Association, define their duties, fix the
salary to be paid them, and dismiss them. Subject to the authority of the Board
of Directors, the Chief Executive Officer or any other officer of the
Association authorized by him, may appoint and dismiss all such tellers, vault
custodians, bookkeepers and other clerks, agents, and employees, prescribe their
duties and the conditions of their employment, and from time to time fix their
compensation.
Section 4.6 Removal and Resignation. Any officer or employee of the
Association may be removed either with or without cause by the Board of
Directors. Any employee other than an officer elected by the Board of Directors
may be dismissed in accordance with the provisions of the preceding Section 4.5.
Any officer may resign at any time by giving written notice to the Board of
Directors or to the Chief Executive Officer of the Association. Any such
resignation shall become effective upon its being accepted by the Board of
Directors, or the Chief Executive Officer.
ARTICLE V
Fiduciary Powers
Section 5.1 Capital Management Group. There shall be an area of this
Association known as the Capital Management Group which shall be responsible for
the exercise of the fiduciary powers of this Association. The Capital Management
Group shall consist of four service areas: Fiduciary Services, Retail Services,
Investments and Marketing. The Fiduciary Services unit shall consist of
7
personal trust, employee benefits, corporate trust and operations. The General
Office for the Fiduciary Services unit shall be located in Charlotte, N.C., with
additional Trust Offices in such locations as the Association shall determine
from time to time.
Section 5.2 Trust Officers. There shall be a General Trust Officer of
this Association whose duties shall be to manage, supervise and direct all the
activities of the Capital Management Group. Further, there shall be one or more
Senior Trust Officers designated to assist the General Trust Officer in the
performance of his duties. They shall do or cause to be done all things
necessary or proper in carrying out the business of the Capital Management Group
in accordance with provisions of applicable law and regulation.
Section 5.3 General Trust Committee. There shall be a 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 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 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 General Trust Committee shall appoint the
members of the following subcommittees: the Investment Policy Committee,
Personal Trust Administration Committee, Account Review Committee, and Corporate
and Institutional Accounts Committee. 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 fiduciary
activities of the Capital Management Group and may assign the administration and
performance of any fiduciary powers or duties to any officers or employees of
the Capital Management Group or to the Investment Policy Committee, Personal
Trust Administration Committee, Account Review Committee, or Corporate and
Institutional Accounts Committee, or other committees 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 Group. The Chairman of the General Trust
8
Committee shall be appointed by the Chairman of 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, approved by its Chairman and submitted to the Board of
Directors at its next regularly scheduled meeting following a meeting of the
General Trust Committee. The Board of Directors retains responsibility for the
proper exercise of this Association's fiduciary powers.
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
General Trust Committee. Each member shall serve until his or her successor is
appointed. Meetings shall be called by the Chairman or by 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 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 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 and/or employees of this Association, who shall be appointed annually
or from time to time by the General Trust Committee. Each member shall serve
until his or her successor is appointed. Meetings shall be called by the
Chairman or by 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
General Trust Committee. All actions 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 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 General
Trust Committee. Each member shall serve until his or her successor is
appointed. Meetings shall be called by the Chairman or by 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 General Trust Committee.
9
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 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 General Trust Committee. Each member shall
serve until his or her successor is appointed. Meetings shall be called by the
Chairman or by 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 perform such 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 submitted to the
General Trust Committee at its next ensuing regular meeting for its review and
approval."
ARTICLE VI
Stock and Stock Certificates
Section 6.1 Transfers. Shares of stock shall be transferable on the
books of the Association, and a transfer book shall be kept in which all
transfers of stock shall be recorded. Every person becoming a shareholder by
such transfer shall, in proportion to his shares, succeed to all rights and
liabilities of the prior holder of such shares.
Section 6.2 Stock Certificates. Certificates of stock shall bear the
signature of the Chairman, the Vice Chairman, the President, or a Vice President
(which may be engraved, printed, or impressed), and shall be signed manually or
by facsimile process by the Secretary, Assistant Secretary, Cashier, Assistant
Cashier, or any other officer appointed by the Board of Directors for that
purpose, to be known as an Authorized Officer, and the seal of the Association
shall be engraved thereon. Each certificate shall recite on its face that the
stock represented thereby is transferable only upon the books of the Association
properly endorsed.
10
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 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
11
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.
12
Exhibit A
Wachovia Bank, National Association
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
13
resolutions shall be suspended until it shall be determined by an interim
Executive Committee acting under this section that it shall be to the advantage
of this Association to resume the conduct and management of its affairs and
business under all of the other provisions of these By-laws.
Officer Succession
BE IT RESOLVED, that if consequent upon war or warlike damage or
disaster, the Chief Executive Officer of this Association cannot be located by
the then acting Head Officer or is unable to assume or to continue normal
executive duties, then the authority and duties of the Chief Executive Officer
shall, without further action of the Board of Directors, be automatically
assumed by one of the following persons in the order designated:
Chairman
President
Division Head/Area Administrator - Within this officer class, officers
shall take seniority on the basis of length of service in such office
or, in the event of equality, length of service as an officer of the
Association.
Any one of the above persons who in accordance with this resolution
assumes the authority and duties of the Chief Executive Officer shall continue
to serve until he resigns or until five-sixths of the other officers who are
attached to the then acting Head Office decide in writing he is unable to
perform said duties or until the elected Chief Executive 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
14
relocated elsewhere in suitable quarters, in addition to or in lieu of the
locations heretofore mentioned, as may be designated by the Board of Directors
or by the Executive Committee or by such persons as are then, in accordance with
resolutions adopted from time to time by the Board of Directors dealing with the
exercise of authority in the time of such emergency, conducting the affairs of
this Association. Any temporarily relocated place of business of this
Association shall be returned to its legally authorized location as soon as
practicable and such temporary place of business shall then be discontinued.
Acting Head Offices
BE IT RESOLVED, that in case of and provided because of war or warlike
damage or disaster, the General Office of this Association, located in
Charlotte, North Carolina, is unable temporarily to continue its functions, the
Raleigh office, located in Raleigh, North Carolina, shall automatically and
without further action of this Board of Directors, become the "Acting Head
Office of this Association";
BE IT FURTHER RESOLVED, that if by reason of said war or warlike damage
or disaster, both the General Office of this Association and the said Raleigh
Office of this Association are unable to carry on their functions, then and in
such case, the Asheville Office of this Association, located in Asheville, North
Carolina, shall, without further action of this Board of Directors, become the
"Acting Head Office of this Association"; and if neither the Raleigh Office nor
the Asheville Office can carry on their functions, then the Greensboro Office of
this Association, located in Greensboro, North Carolina, shall, without further
action of this Board of Directors, become the "Acting Head Office of this
Association"; and if neither the Raleigh Office, the Asheville Office, nor the
Greensboro Office can carry on their functions, then the Lumberton Office of
this Association, located in Lumberton, North Carolina, shall, without further
action of this Board of Directors, become the "Acting Head Office of this
Association". The Head Office shall resume its functions at its legally
authorized location as soon as practicable.
15
Exhibit 7 to T-1
Legal Title of Bank: Wachovia Bank, National Association Call Date: 4/30/2002 FFIEC 031
Address: Two Wachovia Center Page RC-1
City, State, Zip: Charlotte, NC 28288-0201
FDIC Certificate #: 33869
-----
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED
SAVINGS BANKS FOR MARCH 31, 2002
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
C400
Dollar Amount in Thousands RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------
ASSETS /////////////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): /////////////////////////
a. Noninterest-bearing balances and currency and coin (1)....................... 0081 2,471,466 1.a.
b. Interest-bearing balances (2)................................................ 0071 298,663 1.b.
2. Securities: ////////////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A)................... 1754 8,824 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)................. 1773 6,320,594 2.b.
3. Federal funds sold and securities purchased under agreements to resell.......
a. Federal funds sold in domestic offices..................................... B987 114,600 3.a.
b. Securities purchased under agreements to resell (3)................... B989 951,441 3.b.
4. Loans and lease financing receivables
a. Loans and leases held for sale 5369 369,481 4.a.
b. Loans and leases, net of unearned income (from Schedule RC-C) B528 48,990,047 ///////////////////////// 4.b.
c. LESS: Allowance for loan and lease losses 3123 718,907 ///////////////////////// 4.c.
d. Loans and leases, net of unearned income, /////////////////////////
allowance, and reserve (item 4.b minus 4.c)................................. B529 47,990,047 4.d.
5. Trading assets (from Schedule RC-D............................................... 3545 586,517 5.
6. Premises and fixed assets (including capitalized leases)......................... 2145 835,290 6.
7. Other real estate owned (from Schedule RC-M)..................................... 2150 19,794 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding..................... 2155 14,270 9.
10. Intangible assets (from Schedule RC-M)........................................... /////////////////////////////
a. Goodwill................................................................... 3163 7,076,522 10.a.
b. Other Intangible assets (from Schedule RC-M)............................... 0426 1,865,824 10.b.
11. Other assets (from Schedule RC-F)................................................ 2160 3,194,125 11.
12. Total assets (sum of items 1 through 11)......................................... 2170 72,117,458 12.
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
(3) Includes all securities resale agreements in domestic and foreign offices,
regardless of maturity.
Address:
Schedule RC--Continued
Dollar Amounts in Thousands Bil Mil Thou
- --------------------------------------------------------------------------------------------------------------------
LIABILITIES ////////////////////////////////
13. Deposits: ////////////////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, ////////////////////////////////
part I)..................................................................... RCON 2200 42,721,166 13.a.
(1) Noninterest-bearing (1) RCON 6631 7,505,623 /////////////////////////////// 13.a.(1)
(2) Interest-bearing................................... RCON 6636 35,215,543 /////////////////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule ///////////////////////////////
RC-E, part II).............................................................. RCFN 2200 12,861,000 13.b.
(1) Noninterest-bearing................................RCFN 6631 0 /////////////////////////////// 13.b.(1)
(2) Interest-bearing...................................RCFN 6636 4,232,893 /////////////////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase...... ///////////////////////////////
a. Federal funds purchased in domestic offices(2).............................. RCON B993 967,756 14.a.
b. Securities sold under agreements to repurchase(3)........................... RCON B995 2,224,162 14.b.
15 Trading liabilities (from Schedule RC-D)........................................ RCFD 3548 519957 15
16. Other borrowed money (includes mortgage indebtedness and obligations under ///////////////////////////////
capitalized leases) (from Schedule RC-M).................................... 3190 3,772,435 16
17. Not applicable.................................................................. ///////////////////////////////
18. Bank's liability on acceptances executed and outstanding........................ RCFD 2920 14,270 18.
19. Subordinated notes and debentures (4)........................................... RCFD 3200 2,325,300 19.
20. Other liabilities (from Schedule RC-G).......................................... RCFD 2930 1,528,389 20.
21. Total liabilities (sum of items 13 through 20).................................. RCFD 2948 58,306,328 21.
22. Not applicable.................................................................. ///////////////////////////////
EQUITY CAPITAL ///////////////////////////////
23. Perpetual preferred stock and related surplus................................... RCFD 3838 0 23.
24. Common stock.................................................................... RCFD 3230 53,182 24.
25. Surplus (exclude all surplus related to preferred stock)........................ RCFD 3839 13,390,540 25.
26. a. Retained Earnings........................................................... RCFD 3632 338,026 26.a.
b. Accumulated other comprehensive income(5)................................... RCFD B530 29,382 26.b.
27. Other equity capital components(6).............................................. RCFD A130 0 27.
28. Total equity capital (sum of items 23 through 27)............................... RCFD 3210 13,811,130 28.
29. Total liabilities, minority interest and equity capital (sum of items 21, 22 and 28) RCFD 3300 72,117,458 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 2001............................................ RCFD 6724 2 M.1.
1 =Independent audit of the bank conducted in accordance with generally accepted
auditing standards by a certified public accounting firm which submits a report
on the bank
2 =Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company (but
not on the bank separately)
3 =Attestation on bank management's assertion on the effectiveness of the
bank's 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 bank's financial statements by external auditors
7 =Compilation of the bank's financial statements by external auditors
8 =Other audit procedures (excluding tax preparation work)
9 =No external audit work
(1) Includes total demand deposits and noninterest-bearing time and savings
deposit.
(2) Report overnight Federal Home Loan Bank advances in Schedule RC, item
16, "Other borrowed money".
(3) Includes all securities repurchase agreements in domestic and foreign
offices, regardless of maturity
(4) Includes limited-life preferred stock and related surplus
(5) 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
(6) Includes treasury stock and unearned Employee Stock Ownership Plan
shares