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) ___
FIRST UNION NATIONAL BANK
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(Name of Trustee)
22-1147033
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(I.R.S. Employer Identification No.)
301 South College Street, 1 First Union Center,
Charlotte, North Carolina
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(Address of Principal Executive Offices)
28288
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(Zip Code)
PECO ENERGY COMPANY
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(Exact name of registrants as specified in their charters)
PENNSYLVANIA
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(State of Incorporation)
23-0970240
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(I.R.S. Employer Identification No.)
P.O. BOX 8699, 2301 MARKET STREET
PHILADELPHIA, PA. 19101
(215-841-4000)
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(Address of Principal Executive Offices)
% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES, SERIES D
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(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:
Not applicable - see answer to item 13.
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5. Interlocking directorates and similar relationships with the
obligor or underwriters.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or
representative of the obligor 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
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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.
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.
4
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.
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.
2. Copy of the Certificate of the Comptroller of the Currency
dated January 11, 1994, evidencing the authority of the
trustee to transact business.*
3. Copy of the authorization of the trustee to exercise fiduciary
powers.*
_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 December 31, 1997, 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.
_____________________
*Previously filed with the Securities and Exchange Commission
on February 11, 1994 as an exhibit to Form T-1 in connection with
Registration Statement No. 22-73340 and incorporated herein by
reference.
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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.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, First Union National Bank, a national banking 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
Philadelphia and Commonwealth of Pennsylvania, on the 13th day of March,
1998.
FIRST UNION NATIONAL BANK
By:_____________________
/s/ George J. Rayzis
Vice President
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EXHIBIT 1
CHARTER NO. 22693
FIRST UNION NATIONAL BANK
ARTICLES OF ASSOCIATION
(AS RESTATED EFFECTIVE FEBRUARY 26, 1998)
For purposes of organizing an Association to carry on the
business of banking under the laws of the United States, the
undersigned do enter into the following Articles of
Association:
FIRST. The title of this Association shall be First
Union National Bank.
SECOND. The Main Office of the Association shall be in
Charlotte, County of Mecklenburg, State of North Carolina.
The general business of the Association shall be conducted at
its main office and its branches.
THIRD. The Board of Directors of this Association shall
consist of not less than five nor more than twenty-five
directors, the exact number of directors within such minimum
and maximum limits to be fixed and determined from time to
time by resolution of a majority of the full Board of
Directors or by resolution of the shareholders at any annual
or special meeting thereof. Unless otherwise provided by the
laws of the United States, any vacancy in the Board of
Directors for any reason, including an increase in the number
thereof, may be filled by action of the Board of Directors.
FOURTH. The annual meeting of the shareholders for the
election of directors and the transaction of whatever other
business may be brought before said meeting shall be held at
the main office or such other place as the Board of Directors
may designate, on the day of each year specified therefor in
the By-Laws, but if no election is held on that day, it may be
held on any subsequent day according to the provisions of law;
and all elections shall be held according to such lawful
regulations as may prescribed by the Board of Directors.
Nominations for election to the Board of Directors may be
made by the Board of Directors or by any stockholder of any
outstanding class of capital stock of the bank entitled to
vote for election of directors. Nominations, other than those
made by or on behalf of the existing management of the bank,
shall be made in writing and shall be delivered or mailed to
the President of the bank and to the Comptroller of the
Currency, Washington, D.C., not less than 14 days nor more
than 50 days prior to any meeting of stockholders called for
the election of directors, provided, however, that if less
than 21 days' notice of the meeting is given to shareholders,
such nomination shall be mailed or delivered to the President
of the Bank and to the Comptroller of the Currency not later
than the close of business on the seventh day following the
day on which the notice of meeting was mailed. Such
notification shall contain the following information to the
extent known to the notifying shareholder: (a) the name and
address of each proposed nominee; (b) the principal occupation
of each proposed nominee; (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
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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
partial dividend period shall be $83.75 per share multiplied
by the fraction produced by dividing the number of days since
such initial issuance or in such partial dividend period, as
the case may be, by 360.
(b) Non-cumulative Dividends. Dividends on the
shares of Non-Cumulative Stock shall not be cumulative and no
rights shall accrue to the holders of shares of Non-Cumulative
Preferred Stock by reason of the fact that the Association may
fail to declare or pay dividends on the shares of Non-
Cumulative Preferred Stock in any amount in any quarterly
dividend period, whether or not the earnings of the
Association in any quarterly dividend period were sufficient
to pay such dividends in whole or in part, and the Association
shall have no obligation at any time to pay any such dividend.
(c) Payment of Dividends. So long as any share of
Non-Cumulative Preferred Stock remains outstanding, no
dividend whatsoever shall be paid or declared and no
distribution made on any junior stock other than a dividend
payable in junior stock, and no shares of junior stock shall
be purchased, redeemed or otherwise acquired for consideration
by the Association, directly or indirectly (other than as a
result of a reclassification of junior stock, or the exchange or
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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 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 Non-Cumulative Stock (not withstanding 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 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.
(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
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at their respective last addresses as they shall appear on the
books of the Association. Such mailing shall be at least 10 days
and not more than 60 days prior to the date fixed for redemption.
Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
shareholder receives such notice, and failure duly to give such
notice by mail, or any defect in such notice, to any holder of
shares of Non-Cumulative Preferred Stock designated for
redemption shall not affect the validity of the proceedings for
the redemption of any other shares of Non-Cumulative Preferred
Stock.
In case of redemption of a part only of the shares of
Non-Cumulative Preferred Stock at the time outstanding the
redemption may be either pro rata or by lot or by such other
means as the Board of Directors of the Association in its
discretion shall determine. The Board of Directors shall have
full power and authority, subject to the provisions herein
contained, to prescribe the terms and conditions upon which
shares of the Non-Cumulative Preferred Stock shall be redeemed
from time to time.
If notice of redemption shall have been duly given, and,
if on or before the redemption date specified therein, all
funds necessary for such redemption shall have been set aside
by the Association, separate and apart from its other funds,
in trust for the pro rata benefit of the holders of the shares
called for redemption, so as to be and continue to be
available therefor, then, notwithstanding that any certificate
for shares so called for redemption shall not have been
surrendered for cancellation, all shares so called for
redemption shall no longer be deemed outstanding on and after
such redemption date, and all rights with respect to such
shares shall forthwith on such redemption date cease and
terminate, except only the right of the holders thereof to
receive the amount payable on redemption thereof, without
interest.
If such notice of redemption shall have been duly given
or if the Association shall have given to the bank or trust
company hereinafter referred to irrevocable authorization
promptly to give such notice, and, if on or before the
redemption date specified therein, the funds necessary for
such redemption shall have been deposited by the Association
with such bank or trust company in trust for the pro rata
benefit of the holders of the shares called for redemption,
then, notwithstanding that any certificate for shares so
called for redemption shall not have been surrendered for
cancellation, from and after the time of such deposit, all
shares so called for redemption shall no longer be deemed to
be outstanding and all rights with respect to such shares
shall forthwith cease and terminate, 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.
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5. Liquidation.
(a) Liquidation Preference. In the event of any
voluntary liquidation, dissolution or winding up of the
affairs of the Association, the holders of Non-Cumulative
Preferred Stock shall be entitled, before any distribution or
payment is made to the holders of any junior stock, to be paid
in full an amount per share equal to an amount equal to $1,000
plus an amount equal to the amount of accrued and unpaid
dividends per share from the immediately preceding dividend
payment date (but without any accumulation for unpaid
dividends for prior dividend periods on the shares of Non-
Cumulative Preferred Stock) per share to such distribution or
payment date (the "liquidation amount").
In the event of any involuntary liquidation, dissolution
or winding up of the affairs of the Association, then, before
any distribution or payment shall be made to the holders of
any junior stock, the holders of Non-Cumulative Preferred
Stock shall be entitled to be paid in full an amount per share
equal to the liquidation amount.
If such payment shall have been made in full to all
holders of shares of Non-Cumulative Preferred Stock, the
remaining assets of the Association shall be distributed among
the holders of junior stock, according to their respective
rights and preferences and in each case according to their
respective numbers of shares.
(b) Insufficient Assets. In the event that, upon any
such voluntary or involuntary liquidation, dissolution or
winding up, the available assets of the Association are
insufficient to pay such liquidation amount on all outstanding
shares of Non-Cumulative Preferred Stock, then the holders of
Non-Cumulative Preferred Stock shall share ratably in any
distribution of assets in proportion to the full amounts to
which they would otherwise be respectively entitled.
(c) Interpretation. For the purposes of this paragraph
5, the consolidation or merger of the Association with any
other corporation or association shall not be deemed to
constitute a liquidation, dissolution or winding up of the
Association.
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 non-cumulative,
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 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
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proceeding upon receipt of an undertaking by the director or
executive officer to repay such amount if it shall be determined,
as provided in the last paragraph of this Article Tenth, that he
is not entitled to be indemnified by the Association against such
liabilities.
The indemnity against liability in the preceding
paragraph of this Article Tenth, including liabilities
incurred in defending a proceeding, shall be automatic and
self-operative.
Any director, officer or employee of this Association who
serves at the request of the Association as a director,
officer, employee or agent of a charitable, not-for-profit,
religious, educational or hospital corporation, partnership,
joint venture, trust or other enterprise, or a trade
association, or as a trustee or administrator under an
employee benefit plan, or who serves at the request of the
Association as a director, officer or employee of a business
corporation in connection with the administration of an estate
or trust by the Association, shall have the right to be
indemnified by the Association, subject to the provisions set
forth in the following paragraph of this Article Tenth,
against liabilities in any manner arising out of or
attributable to such status or activities in any such
capacity, except for any liability incurred on account of
activities which were at the time taken known or believed by
such person to be clearly in conflict with the best interests
of the Association, or of the corporation, partnership, joint
venture, trust, enterprise, Association or plan being served
by such person.
In the case of all persons except the directors and
executive officers of the Association, the determination of
whether a person is entitled to indemnification under the
preceding paragraph of this Article Tenth shall be made by and
in the sole discretion of the Chief Executive Officer of the
Association. In the case of the directors and executive
officers of the Association, the indemnity against liability
in the preceding paragraph of this Article Tenth shall be
automatic and self-operative.
For purposes of this Article Tenth of these Articles of
Association only, the following terms shall have the meanings
indicated:
(a) "Association" means First Union National Bank and
its direct and indirect wholly-owned subsidiaries.
(b) "Director" means an individual who is or was a
director of the Association.
(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 judgement,
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
13
consents in writing to such settlement.
The right to indemnification herein provided for shall
apply to persons who are directors, officers, or employees of
banks or other entities that are hereafter merged or otherwise
combined with the Association only after the effective date of
such merger or other combination and only as to their status
and activities after such date.
The right to indemnification herein provided for shall
inure to the benefit of the heirs and legal representatives of
any person entitled to such right.
No revocation of, change in, or adoption of any resolution
or provision in the Articles of Association or By-laws of the
Association inconsistent with, this Article Tenth shall
adversely affect the rights of any director, officer, or
employee of the Association with respect to (i) any proceeding
commenced or threatened prior to such revocation, change, or
adoption, or (ii) any proceeding arising out of any act or
omission occurring prior to such revocation, change, or
adoption, in either case, without the written consent of such
director, officer, or employee.
The rights hereunder shall be in addition to and not
exclusive of any other rights to which a director, officer, or
employee of the Association may be entitled under any statue,
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 the 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.
14
EXHIBIT 4
BY-LAWS OF
FIRST UNION NATIONAL BANK
Charter No. 22693
As Restated Effective February 26, 1998
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
15
an annual meeting would otherwise fall on a legal holiday, then
such annual meeting shall be held on the second business day
following such legal holiday. The holders of a majority of the
outstanding shares entitled to vote which are represented at any
meeting of the shareholders may choose persons to act as Chairman
and as Secretary of the meeting.
Section 1.2. Special Meetings. Except as otherwise
specifically provided by statute, special meetings of the
shareholders may be called for any purpose at any time by the
Board of Directors or by any three or more shareholders
owning, in the aggregate, not less than ten percent of the
stock of the Association. Every such special meeting, unless
otherwise provided by law, shall be called by mailing, postage
prepaid, not less than ten days prior to the date fixed for
such meeting, to each shareholder at his address appearing on
the books of the Association, a notice stating the purpose of
the meeting.
Section 1.3 Nominations for Directors. Nominations for
election to the Board of Directors may be made by the Board of
Directors or by any stockholder of any outstanding class of
capital stock of the bank entitled to vote for the election of
directors. Nominations, other than those made by or on behalf
of the existing management of the bank, shall be made in
writing and shall be delivered or mailed to the President of
the Bank and to the Comptroller of the Currency, Washington,
D.C., not less than 14 days nor more than 50 days prior to any
meeting of stockholders called for the election of directors,
provided however, that if less than 21 days' notice of such
meeting is given to shareholders, such nomination shall be
mailed or delivered to the President of the Bank and to the
Comptroller of the Currency not later than the close of
business on the seventh day following the day on which the
notice of meeting was mailed. Such notification shall contain
the following information to the extent known to the notifying
shareholder: (a) the name and address of each proposed
nominee; (b) the principal occupation of each proposed
nominee; (c) the total number of shares of capital stock of
the bank that will be voted for each proposed nominee; (d) the
name and residence address of the notifying shareholder; and
(e) the number of the 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 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
16
meeting of shareholders, unless otherwise provided by law; but
less than a quorum may adjourn any meeting, from time to time,
and the meeting may be held, as adjourned, without further
notice. A majority of the votes cast shall decide every question
or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
Directors
---------
Section 2.1 Board of Directors. The Board of Directors
(hereinafter referred to as the "Board"), shall have power to
manage and administer the business and affairs of the
Association. Except as expressly limited by law, all
corporate powers of the Association shall be vested in and may
be exercised by said Board.
Section 2.2 Number. The Board shall consist of not less
than five nor more than twenty-five persons, 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, August, October and December, commencing with the year
1997, at the main office or such other place and time as may
be designated by the Board of Directors. When any regular
meeting of the Board would otherwise fall on a holiday, the
meeting shall be held on the next business day unless the
Board shall designate some other day.
Section 2.5 Special Meetings. Special meetings of the
Board of Directors may be called by the President of the
Association, or at the request of three (3) or more directors.
Each member of the Board of Directors shall be given notice
stating the time and place, by telegram, letter, or in person,
of each such special meeting.
Section 2.6 Quorum. A majority of the directors shall
constitute a quorum at any meeting, except when otherwise
provided by law; but a less number may adjourn any meeting,
from time to time, and the meeting may be held, as adjourned,
without further notice.
Section 2.7 Vacancies. When any vacancy occurs among the
directors,
17
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 of liability imposed upon it or any member of
the Board of Directors by law. The Board of Directors reserves
to itself alone the power to act on (1) dissolution, merger or
consolidation, or disposition of substantially all corporate
property, (2) designation of committees or filling vacancies
on the Board of Directors or on a committee of the Board
(except as hereinafter provided), (3) adoption, amendment or
repeal of By-laws, (4) amendment or repeal of any resolution
of the Board which by its terms is not so amendable or
repealable, and (5) declaration of dividends, issuance of
stock, or recommendations to stockholders of any action
requiring stockholder approval.
The Board of Directors or the Chairman of the Board of
Directors of the Association may change the membership of any
committee at any time, fill vacancies therein, discharge any
committee or member thereof either with or without cause at
any time, and change at any time the authority and
responsibility of any such committee.
A majority of the members of any committee of the Board of
Directors may fix such committee's rules of procedure. All
action by any committee shall be reported to the Board of
Directors at a meeting succeeding such action, except such
actions as the Board may not require to be reported to it in
the resolution creating any such committee. Any action by any
committee shall be subject to revision, alteration, and
approval by the Board of Directors, except to the extent
otherwise provided in the resolution creating such
committee; provided, however, that no rights or acts of third
parties shall be affected by any such revision of 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 Chairman or Vice Chairman (who shall not be required
to be directors of
18
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 amy 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 of 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 disqualified, or shall have been removed from
office.
Section 4.2(a) Officers acting as Assistant Secretary.
Notwithstanding Section 1 of these By-laws, any Senior Vice
President, Vice President, or Assistant Vice President shall
have, by virtue of his office, and by authority of the By-
laws, the authority from time to time to act as an Assistant
Secretary of the Bank, and to such extent, said officers are
appointed to the office of Assistant Secretary.
Section 4.3 Chief Executive Officer. The Board of
Directors shall designate one of its members to be the
President of this Association, and the officer so designated
shall be an ex officio member of all committees of the
Association except the Examining Committee, and its Chief
Executive Officer unless some other officer is so designated
by the Board of Directors.
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
19
upon its being accepted by the Board of Directors, or the Chief
Executive Officer.
ARTICLE V
Fiduciary Powers
----------------
Section 5.1 Capital Management Group. There shall be an
area of this Association known as the Capital Management Group
which shall be responsible for the exercise of the fiduciary
powers of this Association. The Capital Management Group shall
consist of four service areas: Fiduciary Services, Retail
Services, Investments, and Marketing. The Fiduciary Services
unit shall consist of personal trust, employee benefits,
corporate trust and operations. The General Office for the
Fiduciary Services unit shall be located in Charlotte, N.C.,
with City Trust Offices located in such cities within the
State of North Carolina as designated by the Board of
Directors.
Section 5.2 Trust Officers. There shall be a General
Trust Officer of this Association whose duties shall be to
manage, supervise and direct all the activities of the Capital
Management Group. Further, there shall be one or more Senior
Trust Officers designated to assist the General Trust Officers
designated to assist the General Trust Officer in the
performance of his duties. They shall do or cause to be done
all things necessary or proper in carrying out the business of
the Capital Management Group in accordance with provisions of
applicable law and regulation.
Section 5.3 Capital Management/General Trust Committee.
There shall be a Capital management/General Trust Committee
composed of not less than four (4) members of the Board of
Directors of officers of this Association who shall be
appointed annually or from time to time by the Board of
Directors of the Association. The General Trust Officer shall
serve as an ex-officio member of the Committee. Each member
shall serve until his successor is appointed. The Board of
Directors or the Chairman of the Board may change the
membership of the Capital Management/General Trust Committee
at any time, fill vacancies therein, or discharge any member
thereof with or without cause at any time. The Committee shall
counsel and advise on all matters relating to the business or
affairs of the Capital Management Group and shall adopt
overall policies for the conduct of the business of the
Capital Management Group including but not limited to:
investment policies, new business development, and review for
approval of major assignments of functional responsibilities.
The Committee shall meet at least quarterly or as called for
by its Chairman or any three (3) members of the Committee. A
quorum shall consist of three (3) members. In carrying out its
responsibilities, the Capital Management/General Trust
Committee shall review the actions of all officers, employees
and committees utilized by this Association in connection with
the activities of the Capital Management Group and may assign
the administration and performance of any fiduciary powers or
duties to any of such officers or employees or to the
Investment Policy Committee, Personal Trust Administration
Committee, Account Review Committee, Corporate and
Institutional Accounts Committee, or any other committees it
shall designate. One of the methods to be used in the review
process will be the thorough scrutiny of the Report of
Examination by the Office of the Comptroller of the Currency
and the reports of the Audit Division of First Union
Corporation, as they relate to the activities of the Capital
Management Group. These reviews shall be in addition to
reviews of such reports by the Audit Committee of the
20
Board of Directors. The Chairman of the Capital
Management/General Trust Committee shall be appointed by the
Chairman of the Board of Directors. He shall cause to be
recorded in appropriate minutes all actions taken by the
Committee. The minutes shall be signed by its Secretary and
approved by its Chairman. Further, the Committee shall summarize
all actions taken by it and shall submit a report of its
proceedings to the Board of Directors at its next regularly
scheduled meeting following a meeting of the Capital
Management/General Trust Committee. As required by Section 9.7
of Regulation 9 of the Comptroller of the Currency, the Board of
Directors retains responsibility for the proper exercise of the
fiduciary powers of this Association.
The Fiduciary Services unit of the Capital Management
Group will maintain a list of securities approved for
investment in fiduciary accounts and will from time to time
provide the Capital Management/General Trust Committee with
current information relative to such list and also with
respect to transactions in other securities not on such list.
It is the policy of this Association that members of the
Capital Management/General Trust Committee should not buy,
sell or trade in securities which are on such approved list or
in any other securities in which the Fiduciary Services unit
has taken, or intends to take, a position in fiduciary
accounts in any circumstances in which any such transaction
could be viewed as a possible conflict of interest or could
constitute a violation of applicable law or regulation.
Accordingly, if any such securities are owned by any member of
the Capital Management/General Trust Committee at the time of
appointment to such Committee, the Capital Management Group
shall be promptly so informed in writing. If any member of the
Capital Management/General Trust Committee intends to buy,
sell, or trade in any such securities while serving as a
member of the Committee, he should first notify the Capital
Management Group in order to make certain that any proposed
transaction will not constitute a violation of this policy or
of applicable law or regulation.
Section 5.4 Investment Policy Committee. There shall be
an Investment Policy Committee composed of not less than seven
(7) officers and/or employees of this Association who shall be
appointed annually or from time to time by the Board of
Directors. Each member shall serve until his successor is
appointed. Meetings shall be called by the Chairman or any two
(2) members of the Committee. A quorum shall consist of five
(5) members. The Investment Policy Committee shall exercise
such fiduciary powers and perform such duties as may be
assigned to it by the Capital Management/General trust
Committee. All actions taken by the Investment Policy
Committee shall be recorded inappropriate minutes, signed by
the Secretary thereof, approved by its Chairman and submitted
to the Capital Management/General Trust Committee at its next
ensuing regular meeting for its review and approval.
Section 5.5 Personal Trust Administration Committee.
There shall be a Personal Trust Administration Committee
composed of not less than five (5) officers, who shall be
appointed annually or from time to time by the Board of
Directors. Each member shall serve until his successor is
appointed. Meetings shall be called by the Chairman or any
three (3) members of the Committee. A quorum shall consist of
three (3) members. The Personal Trust Administration Committee
shall exercise such fiduciary powers and perform such duties
as may be assigned to it by the Capital Management/General
Trust Committee. All action taken by the Personal Trust
Administration Committee shall be recorded in appropriate
21
minutes signed by the Secretary thereof, approved by its
Chairman, and submitted to the Capital Management/General
Trust Committee at its next ensuing regular meeting for its
review and approval.
Section 5.6 Account Review Committee. There shall be an
Account Review Committee composed of not less than four (4)
officers and/or employees of this Association, who shall be
appointed annually or from time to time by the Board of
Directors. Each member shall serve until his successor is
appointed. Meetings shall be called by the Chairman or any two
(2) members of the Committee. A quorum shall consist of three
(3) members. The Account Review Committee shall exercise such
fiduciary powers and perform such duties as may be assigned to
it by the Capital Management/General Trust Committee. All
actions taken by the Account Review Committee shall be
recorded in appropriate minutes, signed by the Secretary
thereof, approved by its Chairman and submitted to the Capital
Management/General Trust Committee at its next ensuing regular
meeting for its review and approval.
Section 5.7 Corporate and Institutional Accounts
Committee. There shall be a Corporate and Institutional
Accounts Committee composed of not less than five (5) officers
and/or employees of this Association, who shall be appointed
annually, or from time to time, by the Capital
Management/General Trust Committee and approved by the Board
of Directors. Meetings may be called by the Chairman or any
two (2) members of the Committee. A quorum shall consist of
three (3) members. The Corporate and Institutional Accounts
Committee shall exercise such fiduciary powers and duties as
may be assigned to it by the General Trust Committee. All
actions taken by the Corporate and Institutional Accounts
Committee shall be recorded in appropriate minutes, signed by
the Secretary thereof, approved by its Chairman and made
available to the General Trust Committee at its next ensuing
regular meeting for its review and approval.
ARTICLE VI
Stock and Stock Certificates
----------------------------
Section 6.1 Transfers. Shares of stock shall be
transferable on the books of the Association, and a transfer
book shall be kept in which all transfers of stock shall be
recorded. Every person becoming a shareholder by such transfer
shall, in proportion to its 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 transferrable only upon
the books of the Association properly endorsed.
ARTICLE VII
Corporate Seal
--------------
Section 7.1 The President, the Cashier, the Secretary,
or any Assistant Cashier, or Assistant Secretary, or other
thereunto designated
22
by the Board of Directors shall have authority to affix the
corporate seal to any document requiring such seal, and to attest
the same. Such seal shall be substantially in the following
form.
ARTICLE VIII
Miscellaneous Provisions
------------------------
Section 8.1 Fiscal Year. The fiscal year of the
Association shall be the calendar year.
Section 8.2 Execution of Instruments. All agreements,
indentures, mortgages, deeds, conveyances, transfers,
certificates, declarations, receipts, discharges, releases,
satisfactions, settlements, petitions, notices, applications,
schedules, accounts, affidavits, bonds, undertakings, proxies
and other instruments or documents may be signed, executed,
acknowledged, verified, delivered or accepted in behalf of the
Association by the Chairman of the Board, the Vice Chairman of
the Board, any Chairman or Vice Chairman, the President, any
Vice President, or Assistant Vice President, the Secretary or
Assistant Secretary, the Cashier or Treasurer or any Assistant
Cashier or Assistant Treasurer, or any officer holding similar
or equivalent titles to the above in any regions, divisions,
or functional units of the Association, or, if in connection
with the exercise of fiduciary powers of the Association, by
any of said officers or by any Trust Officer or Assistant
Trust Officer (or equivalent titles); provided, however, that
where required, any such instrument shall be attested by one
of said officers other than the officer executing such
instrument. Any such instruments may also be executed,
acknowledged, verified, delivered or accepted in behalf of the
Association in such other manner and by such other officers as
the Board of Directors may from time to time direct. The
Provisions of this Section 8.2 are supplementary to any other
provision of these By-laws.
Section 8.3 Records. The Articles of Association, the
By-laws, and the proceedings of all meetings of the
shareholders, the Board of Directors, standing committees of
the Board, shall be recorded in appropriate minute books
provided for the purpose. The minutes of each meeting shall be
signed by the Secretary, Cashier, or other officer appointed
to act as Secretary of the meeting.
ARTICLE IX
By-laws
-------
Section 9.1 Inspection. A copy of the By-laws, with all
amendments thereto, shall at all times be kept in a convenient
place at the Head Office of the Association, and shall be open
for inspection to all shareholders, during banking hours.
Section 9.2 Amendments. The By-laws may be amended,
altered or repealed at any regular or special meeting of the
Board of Directors by a vote of a majority of the whole number
of Directors.
23
Exhibit A
First Union National Bank
ARTICLE X
Emergency By-laws
-----------------
In the event of an emergency declared by the President of the United
States or the person performing his functions, the officers and
employees of this Association will continue to conduct the affairs of
the Association under such guidance from the directors or the Executive
Committee as amy 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 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 such
implementary resolutions shall be suspended until it shall be determined
by an interim Executive Committee acting under this section that it
shall be to the advantage of this Association to resume the conduct and
management of its affairs and business under all of the other provisions
of these By-laws.
OFFICER SUCCESSION
BE IT RESOLVED, that if consequent upon war or warlike damage or
disaster, the Chief Executive Officer of this Association cannot be
located by the then acting Head Officer or is unable to assume or to
continue normal executive duties, then the authority and duties of the
Chief Executive Officer shall, without further action of the Board of
Directors, be automatically assumed by one of the following persons in
the order designated:
24
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 certificate by any three officers that a specified individual
is acting as Chief Executive Officer in accordance with this resolution;
and that anyone accepting such certification may continue to consider it
in force until notified in writing of a change, said notice of change to
carry the signatures of three officers of the Association.
ALTERNATE LOCATIONS
The offices of the Association at which its business shall be conducted
shall be the main office thereof in each city which is designated as a
City Office (and branches, if any), and any other legally authorized
location which may be leased or acquired by this Association to carry on
its business. During an emergency resulting in any authorized place of
business of this Association being unable to function, the business
ordinarily conducted at such location shall be relocated elsewhere in
suitable quarters, in addition to or in lieu of the locations heretofore
mentioned, as may be designated by the Board of Directors or by the
Executive Committee or by such persons as are then, in accordance with
resolutions adopted from time to time by the Board of Directors dealing
with the exercise of authority in the time of such emergency, conducting
the affairs of this Association. Any temporary relocated place of
business of this Association shall be returned to its legally authorized
location as soon as practicable and such temporary place of business
shall then be discontinued.
ACTING HEAD OFFICES
BE IT RESOLVED, that in case of and provided because of war or warlike
damage or disaster, the General Office of this Association, located in
Charlotte, North Carolina, is unable temporarily to continue its
functions, the Raleigh office, located in Raleigh, North Carolina, shall
automatically and without further action of this Board of Directors,
become the "Acting Head Office of this Association";
BE IT FURTHER RESOLVED, that if by reason of said war or warlike damage
or disaster, both the General Office of this Association and the said
Raleigh Office of this Association are unable to carry on their
functions, then and in such case, the Asheville Office of this
Association, located in Asheville, North Carolina, shall, without
further action of this Board of Directors, become the "Acting Head
Office of this Association"; and if neither the Raleigh Office nor the
Asheville Office can carry on their functions, then the Greensboro
Office of this Association, located in Greensboro, North Carolina,
shall, without further action of this Board of Directors, become the
"Acting Head Office of this Association"; and if neither the Raleigh
Office, the Asheville Office, nor the Greensboro Office can carry on
their functions, then the Lumberton Office of this Association, located
in Lumberton, North Carolina, shall, without further action of this
Board of Directors, become the "Acting Head Office of this Association".
The Head Office shall resume its functions at its legally authorized
location as soon as practicable.
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EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust
Indenture Act of 1939, and in connection with the proposed issue of PECO
Energy Company, Subordinated Deferrable Interest Debentures, Series D, we
hereby consent 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.
FIRST UNION NATIONAL BANK
By: ____________________
/s/ George J. Rayzis
Vice President
Philadelphia, PA
March 13, 1998
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EXHIBIT 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the First Union
National Bank, Avondale, Pennsylvania, at the close of business on
December 31, 1997, published in response to call made by Comptroller of
the Currency, under title 12, United States Code, Section 161. Charter
Number 22693 Comptroller of the Currency Northeastern District.
STATEMENT OF RESOURCES AND LIABILITIES
ASSETS
Thousand of Dollars
-------------------
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin......... 1,725,148
Interest-bearing balances.................................. 4,216,934
Securities................................................... /////////
Hold-to-maturity securities................................ 337,471
Available-for-sale securities.............................. 3,949,655
Federal funds sold and securities purchased under agreements //////////
to resell ................................................. 51,999
Loans and lease financing receivables:
Loan and leases, net of unearned income .........15,757,193
LESS: Allowance for loan and lease losses ....... 196,929
LESS: Allocated transfer risk reserve ........... 0
27
Loans and leases, net of unearned income, allowance, and
reserve................................................. 15,560,264
Assets held in trading accounts........................... 0
Premises and fixed assets (including capitalized leases).. 418,837
Other real estate owned................................... 36,598
Investment in unconsolidated subsidiaries and associated //////////
companies............................................... 37,868
Customer's liability to this bank on acceptances
outstanding............................................. 91,787
Intangible assets......................................... 382,749
Other assets.............................................. 1,043,467
Total assets.............................................. 27,852,777
LIABILITIES
Deposits:
In domestic offices..................................... 20,810,085
Noninterest-bearing........................... 3,480,114
Interest-bearing...............................17,329,971
In foreign offices, Edge and Agreement subsidiaries,
and IBFs.............................................. 736,612
Noninterest-bearing............................ 136
Interest-bearing............................... 736,476
Federal funds purchased and securities sold under //////////
agreements to repurchase ................................ 2,581,021
Demand notes issued to the U.S. Treasury................... 64,236
Trading liabilities........................................ 0
Other borrowed money:...................................... /////////
With a remaining maturity of one year or less............ 0
With a remaining maturity of one year through
three years............................................ 7,510
With a remaining maturity of more than three years....... 5,777
Not Applicable ............................................ ////////
Bank's liability on acceptances executed and outstanding... 93,594
Subordinated notes and debentures.......................... 450,000
Other liabilities.......................................... 812,999
Total liabilities.......................................... 25,561,834
EQUITY CAPITAL
Perpetual preferred stock and related surplus.............. 160,540
Common Stock............................................... 452,156
Surplus.................................................... 1,303,224
Undivided profits and capital reserves..................... 342,689
Net unrealized holding gains (losses) on available-for-sale /////////
securities............................................... 32,334
Cumulative foreign currency translation adjustments........ 0
Total equity capital....................................... 2,290,943
Total liabilities and equity .............................. 27,852,777
28