Exhibit 25
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Registration No. 333-_______
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee
Check if an application to determine eligibility of a trustee pursuant to
Section 305(b)(2)
First Union National United States of America 00-0000000
Bank (Jurisdiction of (I.R.S. Employer
(Exact name of trustee incorporation or Identification Number)
as specified in its organization if not a
charter) US. national bank)
One First Union
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx
(Address of principal executive offices)
28288
(Zip code)
Xxxxx Xxxxx
First Union National Bank
Corporate Trust Department FLO122
000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
(000) 000-0000
(Name, address and telephone number of agent for service)
CNL American Properties Fund, Inc.
(Exact name of obligor as specified in its charter)
Florida
(State or other jurisdiction of incorporation or organization)
00-0000000
(I.R.S. Employer Identification No.)
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
(000) 000-0000
(Address of principal executive offices)
32801
(Zip code)
CNL American Properties Fund, Inc. Debt Securities to be issued from time to
time, in one or more series, and registered pursuant to the Form S-3 of the
obligor
(Title of the indenture securities)
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Item 1. General information. Furnish the following information as to the
trustee:
a. Name and address of each examining or supervising authority to which it is
subject.
NAME ADDRESS
---- ----------------
Board of Governors of the Federal Reserve System Washington, D.C.
Comptroller of the Currency 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.
Item 2. Affiliations with obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
The obligor is not an affiliate of the trustee. (See Note 1 on page 6.)
Item 3. Voting securities of the trustee. Furnish the following information as
to each class of voting securities of the trustee:
As of April 6, 1999 (insert date within 31 days)
COL. B
COL. A AMOUNT
TITLE OF CLASS OUTSTANDING
-------------- -----------
Common Stock 966,900,000
(See Note 1 on page 6.)
Item 4. Trusteeships under other indentures. If the trustee is a trustee under
another indenture under which any other securities, or certificates of interest
or participation in any other securities, of the obligor are outstanding,
furnish the following information:
a. Title of the securities outstanding under each such other indenture.
Not applicable.
b. A brief statement of the facts relied upon as a basis for the claim that no
conflicting interest within the meaning of Section 310(b)(1)of the Act
arises as a result of the trusteeship under any such other indenture,
including a statement as to how the indenture securities will rank as
compared with the securities issued under such other indenture.
Not Applicable.
Item 5. Interlocking directorates and similar relationships with the obligor or
underwriters. If the trustee or any of the directors or executive officers of
the trustee is a director, officer, partner, employee, appointee, or
representative of the obligor of any underwriter for the obligor, identify each
such person having any such connection and state the nature of each such
connection.
Not Applicable--see answer to Item 13.
Item 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.
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As of . (Insert date within 31 days).
COL. D
PERCENTAGE OF
VOTING SECURITIES
COL. C REPRESENTED BY
COL. A COL. B AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------ -----------------
Not Applicable--see answer to Item 13.
Item 7. Voting securities of the trustee owned by underwriters or their
officials. Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter:
As of . (Insert date within 31 days).
COL. D
PERCENTAGE OF
VOTING SECURITIES
COL. C REPRESENTED BY
COL. A COL. B AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------ -----------------
Not Applicable--see answer to Item 13.
Item 8. Securities of the obligor owned or held by the trustee. Furnish the
following information as to securities of the obligor owned beneficially or
held as collateral security for obligations in default by the trustee:
As of . (Insert date within 31 days).
COL. C
AMOUNT OWNED COL. D
COL. B BENEFICIALLY OR PERCENT OF CLASS
WHETHER THE SECURITIES HELD AS COLLATERAL REPRESENTED BY
COL. A ARE VOTING OR SECURITY FOR AMOUNT GIVEN
TITLE OF CLASS NONVOTING SECURITIES OBLIGATIONS IN DEFAULT IN COL. C
-------------- ---------------------- ---------------------- ----------------
Not Applicable--see answer to Item 13.
Item 9. Securities of underwriters owned or held by the trustee. If the trustee
owns beneficially or hold as collateral security for obligations in default any
securities of an underwriter for the obligor, furnish the following information
as to each class of securities of such underwriter any of which are so owned or
held by the trustee:
As of (Insert date within 31 days).
COL. C COL. D
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY
TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN
AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
------------------ ----------- ------------------------- ----------------
Not Applicable -- see answer to Item 13.
Item 10. Ownership or holdings by the trustee of voting securities of certain
affiliates or security holders of the obligor. If the trustee owns beneficially
or holds as collateral security for obligations in default voting securities of
a person who, to the knowledge of the trustee (1) owns 10 percent or more of
the voting securities
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of the obligor or (2) is an affiliate, other than a subsidiary, of the obligor,
furnish the following information as to the voting securities of such person:
As of (Insert date within 31 days).
COL. C COL. D
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY
TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN
AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
------------------ ----------- ------------------------- ----------------
Not Applicable -- see answer to Item 13.
Item 11. Ownership or holdings by the trustee of any securities of a person
owning 50 percent or more of the voting securities of the obligor. If the
trustee owns beneficially or holds as collateral security for obligations in
default any securities of a person who, to the knowledge of the trustee, owns
50 percent or more of the voting securities of the obligor, furnish the
following information as to each class of securities of such person any of
which are so owned or held by the trustee:
As of (Insert date within 31 days).
COL. C COL. D
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY
TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN
AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
------------------ ----------- ------------------------- ----------------
Not Applicable -- See answer to Item 13.
Item 12. Indebtedness of the Obligor to the Trustee. Except as noted in the
instructions, if the obligor is indebted to the trustee, furnish the following
information:
As of (insert date within 31 days.)
COL. A COL. B COL.C
NATURE OF AMOUNT DATE
INDEBTEDNESS OUTSTANDING DUE
------------ ----------- -----
Not Applicable--See answer to Item 13.
Item 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.
Item 14. Affiliations with the Underwriters. If any underwriter is an affiliate
of the trustee, describe each such affiliation.
Not Applicable.
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Item 15. Foreign Trustee. Identify the order or rule pursuant to which the
foreign trustee is authorized to act as sole trustee under indentures qualified
or to be qualified under the Act.
Not Applicable.
Item 16. List of exhibits. List below all exhibits filed as a part of this
statement of eligibility.
1. Articles of Association of First Union National Bank as now in effect.*
2. Certificate of Authority of the trustee to commence business.*
3. Copy of the authorization of the trustee to exercise corporate trust
powers.*
4. Existing bylaws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.**
8. Not Applicable.
9. Not Applicable.
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Item 1.
* Previously filed with the Securities and Exchange Commission on March 20,
1998 as an Exhibit to Form T-1 in connection with Registration Statement
Number 333-24773 and incorporated herein by reference.
** Previously filed with the Securities and Exchange Commission on February 24,
1999 as an Exhibit to Form T-1 in connection with Registration Statement
Number 333-72899 and incorporated herein by reference.
NOTES:
Note 1: The trustee is a subsidiary of First Union Corporation, a bank
holding company; all of the voting securities of the trustee are held by First
Union Corporation. The voting securities of First Union Corporation are
described in Item 3.
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee,
First Union National Bank, a national banking association (state form of
organization) organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the city of
Jacksonville, and State (or other jurisdiction) of Florida, on the 6th day of
December, 1999.
First Union National Bank
(Trustee)
/s/ Xxxxx Xxxxx
By:__________________________________
Assistant Vice President
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EXHIBIT 6
First Union National Bank, pursuant to the requirements of Section 321(b) of
the Trust Indenture Act of 1939, as amended (the "Act") in connection with the
proposed issuance by CNL American Properties Fund, Inc., of its debt securities
to be issued from time to time hereby consents that reports of examination by
federal, state, territorial, or district authorities may be furnished by such
authorities to the Securities and Exchange Commission upon request therefor, as
contemplated by Section 321(b) of the Act.
Dated: December 6, 1999
First Union National Bank
/s/ Xxxxx Xxxxx
By:__________________________________
Assistant Vice President
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EXHIBIT 4
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BY-LAWS OF
FIRST UNION NATIONAL BANK
Charter No. 1
Effective May 18, 1998
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BY-LAWS OF
FIRST UNION NATIONAL BANK
ARTICLE 1
MEETINGS OF SHAREHOLDERS
Section 1.1 Annual Meeting. The annual meeting of the shareholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on the third Tuesday of April in
each year, commencing with the year 1998, except that the Board of Directors
may, from time to time and upon passage of a resolution specifically setting
forth its reasons, set such other date for such meeting during the month of
April as the Board of Directors may deem necessary or appropriate; provided,
however, that if an annual meeting would otherwise fall on a legal holiday,
then such annual meeting shall be held on the second business day following
such legal holiday. The holders of a majority of the outstanding shares
entitled to vote which are represented at any meeting of the shareholders may
choose persons to act as Chairman and as Secretary of the meeting.
Section 1.2 Special Meetings. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by the Board of Directors or by any three or more shareholders owning,
in the aggregate, not less than ten percent of the stock of the Association.
Every such special meeting, unless otherwise provided by law, shall be called
by mailing, postage prepaid, not less than ten days prior to the date fixed for
such meeting, to each shareholder at his address appearing on the books of the
Association, a notice stating the purpose of the meeting.
Section 1.3 Nominations for Directors. Nominations for election to the Board
of Directors may be made by the Board of Directors or by any stockholder of any
outstanding class of capital stock of the bank entitled to vote for the
election of directors. Nominations, other than those made by or on behalf of
the existing management of the bank, shall be made in writing and shall be
delivered or mailed to the President of the Bank and to the Comptroller of the
Currency, Washington, D.C., not less than 14 days nor more than 50 days prior
to any meeting of stockholders called for the election of directors, provided
however, that if less than 21 days' notice of such meeting is given to
shareholders, such nomination shall be mailed or delivered to the President of
the Bank and to the Comptroller of the Currency not later than the close of
business on the seventh day following the day on which the notice of meeting
was mailed. Such notification shall contain the following information to the
extent known to the notifying shareholder: (a) the name and address of each
proposed nominee; (b) the principal occupation of each proposed nominee; (c)
the total number of shares of capital stock of the bank that will be voted for
each proposed nominee; (d) the name and residence address of the notifying
shareholder; and (e) the number of shares of capital stock of the bank owned by
the notifying shareholder. Nominations not made in accordance herewith may, in
his discretion, be disregarded by the chairman of the meeting, and upon his
instructions, the vote tellers may disregard all votes cast for each such
nominee.
Section 1.4 Judges of Election. The Board may at any time appoint from among
the shareholders three or more persons to serve as Judges of Election at any
meeting of shareholders; to act as judges and tellers with respect to all votes
by ballot at such meeting and to file with the Secretary of the meeting a
Certificate under their hands, certifying the result thereof.
Section 1.5 Proxies. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing, but no officer or employee
of this Association shall act as proxy. Proxies shall be valid only for one
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
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notice. A majority of the votes cast shall decide every question or matter
submitted to the shareholders at any meeting, unless otherwise provided by law
or by the Articles of Association.
ARTICLE II
DIRECTORS
Section 2.1 Board of Directors. The Board of Directors (hereinafter referred
to as the "Board"), shall have power to manage and administer the business and
affairs of the Association. Except as expressly limited by law, all corporate
powers of the Association shall be vested in and may be exercised by said
Board.
Section 2.2 Number. The Board shall consist of not less than five nor more
than twenty-five directors, the exact number within such minimum and maximum
limits to be fixed and determined from time to time by resolution of a majority
of the full Board or by resolution of the shareholders at any meeting thereof;
provided, however, that a majority of the full Board of Directors may not
increase the number of directors to a number which, (1) exceeds by more than
two the number of directors last elected by shareholders where such number was
fifteen or less, and (2) to a number which exceeds by more than four the number
of directors last elected by shareholders where such number was sixteen or
more, but in no event shall the number of directors exceed twenty-five.
Section 2.3 Organization Meeting. The Secretary of the meeting upon
receiving the certificate of the judges, of the result of any election, shall
notify the directors-elect of their election and of the time at which they are
required to meet at the Main Office of the Association for the purpose of
organizing the new Board and electing and appointing officers of the
Association for the succeeding year. Such meeting shall be held as soon
thereafter as practicable. If, at the time fixed for such meeting, there shall
not be a quorum present, the directors present may adjourn the meeting from
time to time, until a quorum is obtained.
Section 2.4 Regular Meetings. Regular meetings of the Board of Directors
shall be held at such place and time as may be designated by resolution of the
Board of Directors. Upon adoption of such resolution, no further notice of such
meeting dates or the places or times thereof shall be required. Upon the
failure of the Board of Directors to adopt such a resolution, regular meetings
of the Board of Directors shall be held, without notice, on the third Tuesday
in February, April, June, August, October and December, commencing with the
year 1997, at the main office or at such other place and time as may be
designated by the Board of Directors. When any regular meeting of the Board
would otherwise fall on a holiday, the meeting shall be held on the next
business day unless the Board shall designate some other day.
Section 2.5 Special Meetings. Special meetings of the Board of Directors may
be called by the President of the Association, or at the request of three (3)
or more directors. Each member of the Board of Directors shall be given notice
stating the time and place, by telegram, letter, or in person, of each such
special meeting.
Section 2.6 Quorum. A majority of the directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a less number may
adjourn any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice.
Section 2.7 Vacancies. When any vacancy occurs among the directors, the
remaining members of the Board, in accordance with the laws of the United
States, may appoint a director to fill such vacancy at any regular meeting of
the Board, or at a special meeting called for that purpose.
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.
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The senior officer in such state, or such officers as directed by such senior
officer, may appoint advisory boards for geographic regions within such state
and may consult with the State Advisory Boards prior to such appointments.
ARTICLE III
COMMITTEES OF THE BOARD
Section 3.1 The Board of Directors, by resolution adopted by a majority of
the number of directors fixed by these By-Laws, may designate two or more
directors to constitute an Executive Committee and other committees, each of
which, to the extent authorized by law and provided in such resolution, shall
have and may exercise all of the authority of the Board of Directors and the
management of the Association. The designation of any committee and the
delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility or liability imposed
upon it or any member of the Board of Directors by law. The Board of Directors
reserves to itself alone the power to act on (1) dissolution, merger or
consolidation, or disposition of substantially all corporate property, (2)
designation of committees or filling vacancies on the Board of Directors or on
a committee of the Board (except as hereinafter provided), (3) adoption,
amendment or repeal of By-laws, (4) amendment or repeal of any resolution of
the Board which by its terms is not so amendable or repealable, and (5)
declaration of dividends, issuance of stock, or recommendations to stockholders
of any action requiring stockholder approval.
The Board of Directors or the Chairman of the Board of Directors of the
Association may change the membership of any committee at any time, fill
vacancies therein, discharge any committee or member thereof either with or
without cause at any time, and change at any time the authority and
responsibility of any such committee.
A majority of the members of any committee of the Board of Directors may fix
such committee's rules of procedure. All action by any committee shall be
reported to the Board of Directors at a meeting succeeding such action, except
such actions as the Board may not require to be reported to it in the
resolution creating any such committee. Any action by any committee shall be
subject to revision, alteration, and approval by the Board of Directors, except
to the extent otherwise provided in the resolution creating such committee;
provided, however, that no rights or acts of third parties shall be affected by
any such revision or alteration.
ARTICLE IV
OFFICERS AND EMPLOYEES
Section 4.1 Officers. The officers of the Association may be a Chairman of
the Board, a Vice Chairman of the Board, one or more Chairmen or Vice Chairmen
(who shall not be required to be directors of the Association), a President,
one or more Vice Presidents, a Secretary, a Cashier or Treasurer, and such
other officers, including officers holding similar or equivalent titles to the
above in regions, divisions or functional units of the Association, as may be
appointed by the Board of Directors. The Chairman of the Board and the
President shall be members of the Board of Directors. Any two or more offices
may be held by one person, but no officer shall sign or execute any document in
more than one capacity.
Section 4.2 Election, Term of Office, and Qualification. Each officer shall
be chosen by the Board of Directors and shall hold office until the annual
meeting of the Board of Directors held next after his election or until his
successor shall have been duly chosen and qualified, or until his death, or
until he shall resign, or shall have been disqualified, or shall have been
removed from office.
Section 4.2(a) Officers Action 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
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authority of the By-laws, the authority from time to time to act as an
Assistant Secretary of the Bank, and to such extent, said officers are
appointed to the office of Assistant Secretary.
Section 4.3 Chief Executive Officer. The Board of Directors shall designate
one of its members to be the President of this Association, and the officer so
designated shall be an ex-officio member of all committees of the Association
except the Examining Committee, and its Chief Executive Officer unless some
other officer is so designated by the Board of Directors.
Section 4.4 Duties of Officers. The duties of all officers shall be
prescribed by the Board of Directors. Nevertheless, the Board of Directors may
delegate to the Chief Executive Officer the authority to prescribe the duties
of other officers of the corporation not inconsistent with law, the charter,
and these By-laws, and to appoint other employees, prescribe their duties, and
to dismiss them. Notwithstanding such delegation of authority, any officer or
employee also may be dismissed at any time by the Board of Directors.
Section 4.5 Other Employees. The Board of Directors may appoint from time to
time such tellers, vault custodians, bookkeepers, and other clerks, agents, and
employees as it may deem advisable for the prompt and orderly transaction of
the business of the Association, define their duties, fix the salary to be paid
them, and dismiss them. Subject to the authority of the Board of Directors, the
Chief Executive Officer or any other officer of the Association authorized by
him, may appoint and dismiss all such tellers, vault custodians, bookkeepers
and other clerks, agents and employees, prescribe their duties and the
conditions of their employment, and from time to time fix their compensation.
Section 4.6 Removal and Resignation. Any officer or employee of the
Association may be removed either with or without cause by the Board of
Directors. Any employee other than an officer elected by the Board of Directors
may be dismissed in accordance with the provisions of the preceding Section
4.5. Any officer may resign at any time by giving written notice to the Board
of Directors or to the Chief Executive Officer of the Association. Any such
resignation shall become effective upon its being accepted by the Board of
Directors, or the Chief Executive Officer.
ARTICLE V
FIDUCIARY POWERS
Section 5.1 Capital Management Group. There shall be an area of this
Association known as the Capital Management Group which shall be responsible
for the exercise of the fiduciary powers of this Association. The Capital
Management Group shall consist of four service areas: Fiduciary Services,
Retail Services, Investments and Marketing. The Fiduciary Services unit shall
consist of personal trust, employee benefits, corporate trust and operations.
The General Office for the Fiduciary Services unit shall be located in
Charlotte, N.C., with City Trust Offices located in such cities within the
State of North Carolina as designated by the Board of Directors.
Section 5.2 Trust Officers. There shall be a General Trust Officer of this
Association whose duties shall be to manage, supervise and direct all the
activities of the Capital Management Group. Further, there shall be one or more
Senior Trust Officers designated to assist the General Trust Officer in the
performance of his duties. They shall do or cause to be done all things
necessary or proper in carrying out the business of the Capital Management
Group in accordance with provisions of applicable law and regulation.
Section 5.3 Capital Management/General Trust Committee. There shall be a
Capital Management/General Trust Committee composed of not less than four (4)
members of the Board of Directors or officers of this Association who shall be
appointed annually or from time to time by the Board of Directors of the
Association. The General Trust Officer shall serve as an ex-officio member of
the Committee. Each member shall serve until his successor is 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,
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or discharge any member thereof with or without cause at any time. The
Committee shall counsel and advise on all matters relating to the business or
affairs of the Capital Management Group and shall adopt overall policies for
the conduct of the business of the Capital Management Group including but not
limited to: general administration, investment policies, new business
development, and review for approval or major assignments of functional
responsibilities. The Committee shall meet at least quarterly or as called for
by its Chairman or any three (3) members of the Committee. A quorum shall
consist of three (3) members. In carrying out its responsibilities, the Capital
Management/General Trust Committee shall review the actions of all officers,
employees and committees utilized by this Association in connection with the
activities of the Capital Management Group and may assign the administration
and performance of any fiduciary powers or duties to any of such officers or
employees or to the Investment Policy Committee, Personal Trust Administration
Committee, Account Review Committee, Corporate and Institutional Accounts
Committee, or any other committees it shall designate. One of the methods to be
used in the review process will be the thorough scrutiny of the Report of
Examination by the Office of the Comptroller of the Currency and the reports of
the Audit Division of First Union Corporation, as they relate to the activities
of the Capital Management Group. These reviews shall be in addition to reviews
of such reports by the Audit Committee of the Board of Directors. The Chairman
of the Capital Management/General Trust Committee shall be appointed by the
Chairman of the Board of Directors. He shall cause to be recorded in
appropriate minutes all actions taken by the Committee. The minutes shall be
signed by its Secretary and approved by its Chairman. Further, the Committee
shall summarize all actions taken by it and shall submit a report of its
proceedings to the Board of Directors at its next regularly scheduled meeting
following a meeting of the Capital Management/General Trust Committee. As
required by Section 9.7 of Regulation 9 of the Comptroller of the Currency, the
Board of Directors retains responsibility for the proper exercise of the
fiduciary powers of this Association.
The Fiduciary Services unit of the Capital Management Group will maintain a
list of securities approved for investment in fiduciary accounts and will from
time to time provide the Capital Management/General Trust Committee with
current information relative to such list and also with respect to transactions
in other securities not on such list. It is the policy of this Association that
members of the Capital Management/General Trust Committee should not buy, sell
or trade in securities which are on such approved list or in any other
securities in which the Fiduciary Services unit has taken, or intends to take,
a position in fiduciary accounts in any circumstances in which any such
transaction could be viewed as a possible conflict of interest or could
constitute a violation of applicable law or regulation. Accordingly, if any
such securities are owned by any member of the Capital Management/General Trust
Committee at the time of appointment to such Committee, the Capital Management
Group shall be promptly so informed in writing. If any member of the Capital
Management/General Trust Committee intends to buy, sell, or trade in any such
securities while serving as a member of the Committee, he should first notify
the Capital Management Group in order to make certain that any proposed
transaction will not constitute a violation of this policy or of applicable law
or regulation.
Section 5.4 Investment Policy Committee. There shall be an Investment Policy
Committee composed of not less than seven (7) officers and/or employees of this
Association who shall be appointed annually or from time to time by the Board
of Directors. Each member shall serve until his successor is appointed.
Meetings shall be called by the Chairman or any two (2) members of the
Committee. A quorum shall consist of five (5) members. The Investment Policy
Committee shall exercise such fiduciary powers and perform such duties as may
be assigned to it by the Capital Management/General Trust Committee. All
actions taken by the Investment Policy Committee shall be recorded in
appropriate minutes, signed by the Secretary thereof, approved by its Chairman
and submitted to the Capital Management/General Trust Committee at its next
ensuing regular meeting for its review and approval.
Section 5.5 Personal Trust Administration Committee. There shall be a
Personal Trust Administration Committee composed of not less than five (5)
officers, who shall be appointed annually or from time to time by the Board of
Directors. Each member shall serve until his successor is appointed. Meetings
shall be called by the Chairman or any three (3) members of the Committee. A
quorum shall consist of three (3) members. The Personal Trust Administration
Committee shall exercise such fiduciary powers and perform such duties as may
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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 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. Meeting may be called by the
Chairman or any two (2) members of the Committee. A quorum shall consist of
three (3) members. The Corporate and Institutional Accounts Committee shall
exercise such fiduciary powers and duties as may be assigned to it by the
General Trust Committee. All actions taken by the Corporate and Institutional
Accounts Committee shall be recorded in appropriate minutes, signed by the
Secretary thereof, approved by its Chairman and made available to the General
Trust Committee at its next ensuing regular meeting for its review and
approval.
ARTICLE VI
STOCK AND STOCK CERTIFICATES
Section 6.1 Transfers. Shares of stock shall be transferable on the books of
the Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to his shares, succeed to all rights and liabilities of
the prior holder of such shares.
Section 6.2 Stock Certificates. Certificates of stock shall bear the
signature of the Chairman, the Vice Chairman, the President, or a Vice
President (which may be engraved, printed, or impressed), and shall be signed
manually or by facsimile process by the Secretary, Assistant Secretary,
Cashier, Assistant Cashier, or any other officer appointed by the Board of
Directors for that purpose, to be known as an Authorized Officer, and the seal
of the Association shall be engraved thereon. Each certificate shall recite on
its face that the stock represented thereby is transferable only upon the books
of the Association properly endorsed.
ARTICLE VII
CORPORATE SEAL
Section 7.1. The President, the Cashier, the Secretary, or any Assistant
Cashier, or Assistant Secretary, or other officer thereunto designated by the
Board of Directors shall have authority to affix the corporate seal to any
document requiring such seal, and to attest the same. Such seal shall be
substantially in the following form.
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Fiscal Year. The fiscal year of the Association shall be the
calendar year.
Section 8.2 Execution of Instruments. All agreements, indentures, mortgages,
deeds, conveyances, transfers, certificates, declarations, receipts,
discharges, releases, satisfactions, settlements, petitions, notices,
applications, schedules, accounts, affidavits, bonds, undertakings, proxies,
and other instruments or documents may be signed, executed, acknowledged,
verified, delivered or accepted in behalf of the Association by the Chairman of
the Board, the Vice Chairman of the Board, any Chairman or Vice Chairman, the
President, any Vice President or Assistant Vice President, the Secretary or any
Assistant Secretary, the Cashier or Treasurer or any Assistant Cashier or
Assistant Treasurer, or any officer holding similar or equivalent titles to the
above in any regions, divisions or functional units of the Association, or, if
in connection with the exercise of fiduciary powers of the Association, by any
of said officers or by any Trust Officer or Assistant Trust Officer (or
equivalent titles); provided, however, that where required, any such instrument
shall be attested by one of said officers other than the officer executing such
instrument. Any such instruments may also be executed, acknowledged, verified,
delivered or accepted in behalf of the Association in such other manner and by
such other officers as the Board of Directors may from time to time direct. The
provisions of this Section 8.2 are supplementary to any other provision of
these By-laws.
Section 8.3 Records. The Articles of Association, the By-laws, and the
proceedings of all meetings of the shareholders, the Board of Directors,
standing committees of the Board, shall be recorded in appropriate minute books
provided for the purpose. The minutes of each meeting shall be signed by the
Secretary, Cashier, or other officer appointed to act as Secretary of the
meeting.
ARTICLE IX
BY-LAWS
Section 9.1 Inspection. A copy of the By-laws, with all amendments thereto,
shall at all times be kept in a convenient place at the Head Office of the
Association, and shall be open for inspection to all shareholders, during
banking hours.
Section 9.2 Amendments. The By-laws may be amended, altered or repealed, at
any regular or special meeting of the Board of Directors, by a vote of a
majority of the whole number of Directors.
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EXHIBIT A
FIRST UNION NATIONAL BANK
ARTICLE X
EMERGENCY BY-LAWS
In the event of an emergency declared by the President of the United States
or the person performing his functions, the officers and employees of this
Association will continue to conduct the affairs of the Association under such
guidance from the directors or the Executive Committee as may be available
except as to matters which by statute require specific approval of the Board of
Directors and subject to conformance with any applicable governmental
directives during the emergency.
OFFICERS PRO TEMPORE AND DISASTER
Section 1. The surviving members of the Board of Directors or the Executive
Committee shall have the power, in the absence or disability of any officer, or
upon the refusal of any officer to act, to delegate and prescribe such
officer's powers and duties to any other officer, or to any director, for the
time being.
Section 2. In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of this
Association by its directors and officers as contemplated by these By-laws, any
two or more available members of the then incumbent Executive Committee shall
constitute a quorum of that Committee for the full conduct and management of
the affairs and business of the Association in accordance with the provisions
of Article II of these By-laws; and in addition, such Committee shall be
empowered to exercise all of the powers reserved to the General Trust Committee
under Section 5.3 of Article V hereof. In the event of the unavailability, at
such time, of a minimum of two members of the then incumbent Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of
the Association in accordance with the foregoing provisions of this section.
This By-law shall be subject to implementation by resolutions of the Board of
Directors passed from time to time for that purpose, and any provisions of
these By-laws (other than this section) and any resolutions which are contrary
to the provisions of this section or to the provisions of any such implementary
resolutions shall be suspended until it shall be 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
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are attached to the then acting Head Office decide in writing he is unable to
perform said duties or until the elected Chief Executive Officer of this
Association, or a person higher on the above list, shall become available to
perform the duties of Chief Executive Officer of the Association.
BE IT FURTHER RESOLVED, that anyone dealing with this Association may accept
a certification by any three officers that a specified individual is acting as
Chief Executive Officer in accordance with this resolution; and that anyone
accepting such certification may continue to consider it in force until
notified in writing of a change, said notice of change to carry the signatures
of three officers of the Association.
ALTERNATE LOCATIONS
The offices of the Association at which its business shall be conducted
shall be the main office thereof in each city which is designated as a City
Office (and branches, if any), and any other legally authorized location which
may be leased or acquired by this Association to carry on its business. During
an emergency resulting in any authorized place of business of this Association
being unable to function, the business ordinarily conducted at such location
shall be relocated elsewhere in suitable quarters, in addition to or in lieu of
the locations heretofore mentioned, as may be designated by the Board of
Directors or by the Executive Committee or by such persons as are then, in
accordance with resolutions adopted from time to time by the Board of Directors
dealing with the exercise of authority in the time of such emergency,
conducting the affairs of this Association. Any temporarily relocated place of
business of this Association shall be returned to its legally authorized
location as soon as practicable and such temporary place of business shall then
be discontinued.
ACTING HEAD OFFICES
BE IT RESOLVED, that in case of and provided because of war or warlike
damage or disaster, the General Office of this Association, located in
Charlotte, North Carolina, is unable temporarily to continue its functions, the
Raleigh office, located in Raleigh, North Carolina, shall automatically and
without further action of this Board of Directors, become the "Acting Head
Office of this Association";
BE IT FURTHER RESOLVED, that if by reason of said war or warlike damage or
disaster, both the General Office of this Association and the said Raleigh
Office of this Association are unable to carry on their functions, then and in
such case, the Asheville Office of this Association, located in Asheville,
North Carolina, shall, without further action of this Board of Directors,
become the "Acting Head Office of this Association"; and if neither the Raleigh
Office nor the Asheville Office can carry on their functions, then the
Greensboro Office of this Association, located in Greensboro, North Carolina,
shall, without further action of this Board of Directors, become the "Acting
Head Office of this Association"; and if neither the Raleigh Office, the
Asheville Office, nor the Greensboro Office can carry on their functions, then
the Lumberton Office of this Association, located in Lumberton, North Carolina,
shall, without further action of this Board of Directors, become the "Acting
Head Office of this Association". The Head Office shall resume its functions at
its legally authorized location as soon as practicable.
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