<PAGE>
-------------------------------
UNITED STATES OMB APPROVAL
SECURITIES AND EXCHANGE COMMISSION -------------------------------
Washington, D.C. 20549 OMB Number: 3235-0145
Expires: October 31, 1997
Estimated average burden
hours per response.......14.90
-------------------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1 )*
First Citizens BancShares, Inc.
------------------------------------------------------------------------------
(Name of Issuer)
Class A Common Stock, $1 Par Value
-------------------------------------------------------------------------------
(Title of Class of Securities)
31946M-10-3
----------------------------------------------------------------------
(CUSIP Number)
David L. Ward, Jr.
William R. Lathan, Jr.
Ward and Smith, P.A.
1001 College Court
New Bern, North Carolina 28562
(919) 633-1000
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
March 31, 1997
----------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box |_| .
Check the following box if a fee is being paid with the statement |_| .
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five
percent of the class of securities described in Item 1; and (2) has
filed no amendment subsequent thereto reporting beneficial ownership of
five percent or less of such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class
of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of
the Act (however, see the Notes).
<PAGE>
SCHEDULE 13D
- ------------------------------- ---------------------------------
CUSIP No. 31946M-10-3 Page 2 of 8 Pages
- ------------------------------- ---------------------------------
- --------------------------------------------------------------------------------
1
NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
George H. Broadrick
###-##-####
- --------------------------------------------------------------------------------
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3
SEC USE ONLY
- --------------------------------------------------------------------------------
4
SOURCE OF FUNDS*
PF; OO
- --------------------------------------------------------------------------------
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6
CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7
NUMBER OF SOLE VOTING POWER
SHARES
BENEFICIALLY 801,842
OWNED BY
EACH
REPORTING
PERSON
WITH
---------------------------------------------------
8
SHARED VOTING POWER
255,500
---------------------------------------------------
9
SOLE DISPOSITIVE POWER
801,842
---------------------------------------------------
10
SHARED DISPOSITIVE POWER
255,500
- --------------------------------------------------------------------------------
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,057,342
- --------------------------------------------------------------------------------
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.97%
- --------------------------------------------------------------------------------
14
TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
<PAGE>
This Amendment No. 1 to Schedule 13D is filed by George H. Broadrick, a
beneficial owner of more than five percent (5%) of the Class A Common Stock of
First Citizens BancShares, Inc., Raleigh, North Carolina. The initial Statement
filed with the Commission, dated March 2, 1987, as amended by this Amendment No.
1, is referred to herein as the "Statement."
Item 1. Security and Issuer.
This Statement relates to the Class A Common Stock, $1 par value per
share ("Class A Common Stock") of First Citizens BancShares, Inc. (the
"Issuer"), whose principal executive offices are located at 1328 Smoketree
Court, Raleigh, North Carolina 27604.
Item 2. Identity and Background.
(a)-(c) This Statement is filed by George H. Broadrick, whose business
address is Post Office Box 31727, Charlotte, North Carolina 28231. Mr. Broadrick
is the retired President of First Citizens BancShares, Inc. and its wholly-owned
subsidiary, First-Citizens Bank & Trust Company, a North Carolina-chartered
commercial bank whose principal executive offices are located at 3128 Smoketree
Court, Raleigh, North Carolina 27604. Mr. Broadrick currently serves as Chairman
of the Executive Committee of the Board of Directors and as a consultant to
First Citizens BancShares, Inc. and First-Citizens Bank & Trust Company.
(d) During the last five years, Mr. Broadrick has not been convicted in
any criminal proceedings (excluding traffic violations or similar misdemeanors).
(e) During the last five years, Mr. Broadrick has not been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
as a result of which he was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
(f) Mr. Broadrick is a United States citizen.
Item 3. Source and Amount of Funds or Other Consideration.
George H. Broadrick formerly was the beneficial owner of shares of
common stock of First Citizens Corporation, a North Carolina corporation ("FCC")
which merged on October 21, 1986 with the Issuer to effect the Delaware
reincorporation and recapitalization of the holding company of First-Citizens
Bank & Trust Company, a North Carolina-chartered commercial bank. In accordance
with an Agreement and Plan of Merger approved by the shareholders of FCC, each
outstanding share of FCC common stock was required to be surrendered and
exchanged for 100 shares of the Issuer's Class A common stock and 25 shares of
the Issuer's Class B common stock.
In addition to the shares acquired by Mr. Broadrick, individually and
in a fiduciary capacity, and by his immediate
3
<PAGE>
family, as a result of the share exchange pursuant to the merger, additional
shares have since been acquired by George H. Broadrick in a fiduciary capacity,
including but not limited to those described in Item 5(c) below, some of which
shares were acquired as gifts. Any shares of Class A Common Stock of the Issuer
purchased to date by Mr. Broadrick, his spouse, or by the third party trusts as
to which he serves in a fiduciary capacity as trustee, were purchased with cash.
Any shares of Class A Common Stock of the Issuer which may be purchased
following the date of this Amendment No. 1 by Mr. Broadrick, members of his
immediate family, or the trusts of which he serves as trustee, are expected to
be purchased with cash using each such individual's or trust's own funds.
Item 4. Purpose of Transaction.
As described in Item 3 above, the initial acquisition of shares of the
Issuer's Class A Common Stock resulted from the required exchange of FCC common
stock for the Issuer's Class A and Class B Common Stock issued due to the merger
of FCC into the Issuer on October 21, 1986. The purpose of the merger was to
effect the reincorporation in Delaware and the recapitalization of the holding
company of First-Citizens Bank & Trust Company. A full description of the
purpose of this transaction may be found in Registration Statement No. 33-7946
on Form S-4, as amended by Amendment No. 1, filed with the Securities and
Exchange Commission on September 17, 1986. Since the merger, various additional
shares of Class A and Class B Common Stock have been acquired for investment
purposes by Mr. Broadrick individually and as Trustee of various trusts for the
benefit of the adult children of Lewis R. Holding, who serves as Chairman of the
Board and Chief Executive Officer of the Issuer.
The Class A Common Stock beneficially owned by Mr. Broadrick is held
for investment purposes. Mr. Broadrick may consider purchasing additional shares
of the Issuer in the open market or in privately negotiated transactions.
Whether Mr. Broadrick, members of his immediate family, and/or the trusts of
which he serves as trustee, purchase any additional shares of the Issuer's Class
A Common Stock, and the amount and timing of any such purchases, will depend on
his continuing assessment of pertinent factors, including without limitation the
following: the availability of shares for purchase at particular price levels;
the Issuer's business and prospects; other business and investment opportunities
available to Mr. Broadrick; economic conditions; stock market and money market
conditions. Depending upon his assessment of these factors from time to time,
Mr. Broadrick may change his present intentions as stated above, subject to the
terms and conditions of the trust agreements described below.
Mr. Broadrick has no current plans which would result in any of the
consequences listed in (a)-(j) of Item 4 of Schedule 13D. However, as Chairman
of the Executive Committee of the Board of Directors of the Issuer, Mr.
Broadrick is actively involved in the management and policy-making functions of
the Issuer and, as such, would be involved in the decisions regarding any of the
matters described in Item 4.
4
<PAGE>
Item 5. Interest in Securities of the Issuer.
(a)-(b) George H. Broadrick beneficially owns an aggregate of 1,057,342
shares of Class A Common Stock, constituting 10.97% of the outstanding Class A
Common Stock of the Issuer (based on 9,637,882 shares outstanding).
As of the date hereof, Mr. Broadrick holds directly 55,742 shares
(0.58%) of Class A Common Stock. The remaining shares listed above as
beneficially owned by George H. Broadrick consist of an aggregate of 746,100
shares (7.74%) held by Mr. Broadrick in a fiduciary capacity as sole trustee of
two irrevocable trusts for the benefit of the adult children of Lewis R.
Holding; an aggregate of 245,500 shares (2.55%) held in a fiduciary capacity by
George H. Broadrick and the spouse of Lewis R. Holding as co-trustees of four
irrevocable trusts for the benefit of Mr. Holding's adult children; and 10,000
shares (0.10%) held directly by Mr. Broadrick's spouse.
George H. Broadrick exercises sole voting and dispositive power as to
801,842 shares (8.32%) held directly on his own behalf and in a fiduciary
capacity as sole trustee; he exercises shared voting and dispositive power as to
245,500 shares (2.55%) held in a fiduciary capacity as co-trustee; and, as to
10,000 shares (0.10%) held by his spouse, Mr. Broadrick disclaims beneficial
ownership as to such shares.
(c) On March 31, 1997, Mr. Broadrick, as sole trustee of two trusts for
the benefit of the adult children of Lewis R. Holding, disposed of 207,706
shares (2.16%) of the Issuer's Class A Common Stock held by such trusts in a
share-for-share exchange with Lewis R. Holding in return for a total of 207,706
shares of the Issuer's Class B Common Stock transferred from Lewis R. Holding,
which shares of Class B Common Stock were transferred from Mr. Holding's direct
ownership. The Issuer's Class A Common Stock and Class B Common Stock are
separate and distinct classes of equity securities with different voting rights
and are not convertible one to another.
No other transactions in the Class A Common Stock were effected by Mr.
Broadrick, members of his immediate family, or the trusts as to which he serves
in a fiduciary capacity, during the previous sixty (60) days.
(d) The trust agreements described in Item 6 below, under which George
H. Broadrick is trustee, contain certain terms and conditions as to whether
dividends on the shares held in trust, or proceeds from the sale thereof, may be
paid to the beneficiaries, accumulated as income or transferred to the principal
of the trusts. Reference is made to such trust agreements (which are
incorporated by reference herein as Exhibits) for their complete terms and
conditions. Otherwise, the record holders of the shares shown above as
beneficially owned by Mr. Broadrick have the rights to receive dividends and
proceeds from the sale of such shares.
(e) Not applicable.
5
<PAGE>
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
Pursuant to the trust agreements filed as Exhibits 7(a) and 7(b) below,
George H. Broadrick has sole voting and dispositive authority over shares of the
Class A Common Stock, but is directed to consult with such of the then current
beneficiaries who have reached age forty (40) years (neither of the current
beneficiaries have reached such age as of the date of this Statement). Certain
other voting and dispositive power contingencies also are contained in each of
such trust agreements, to which reference is made for their complete terms and
conditions.
Pursuant to the trust agreements filed as Exhibits 7(c), 7(d), 7(e) and
7(f) below, George H. Broadrick, as successor trustee to First-Citizens Bank &
Trust Company, has shared voting and dispositive authority with Carolyn S.
Holding, co-trustee, and the current beneficiaries. Certain other voting and
dispositive power contingencies also are contained in each of such trust
agreements, to which reference is made for their complete terms and conditions.
Except as described herein, there are no contracts, agreements,
arrangements or relationships (legal or otherwise) between Mr. Broadrick and any
other person with respect to any securities of the Issuer.
Item 7. Material to be Filed as Exhibits.
(a) Irrevocable Trust Agreement for Carmen P. Holding, dated March
28, 1990; Lewis R. Holding, Grantor; George H. Broadrick,
Trustee.
(b) Irrevocable Trust Agreement for Caroline R. Holding, dated
March 28, 1990; Lewis R. Holding, Grantor; George H.
Broadrick, Trustee.
(c) Irrevocable Trust Agreement for the benefit of Carmen P.
Holding, dated April 26, 1979; as amended by a Notice of
Removal of Trustee, Appointment of Successor Trustee, and
Acceptance of Appointment as Successor Trustee, dated January
30, 1991; Lewis R. Holding, Grantor; Carolyn S. Holding and
George H. Broadrick, Co-Trustees.
(d) Irrevocable Trust Agreement for the benefit of Caroline R.
Holding, dated April 26, 1979; as amended by a Notice of
Removal of Trustee, Appointment of Successor Trustee, and
Acceptance of Appointment as Successor Trustee, dated January
30, 1991; Lewis R. Holding, Grantor; Carolyn S. Holding and
George H. Broadrick, Co-Trustees.
(e) Irrevocable Trust Agreement for the benefit of Carmen P.
Holding, dated December 28, 1976; as amended by a Notice of
Removal of Trustee, Appointment of Successor Trustee, and
Acceptance of Appointment as Successor Trustee, dated
6
<PAGE>
January 30, 1991; Maggie B. Holding, Grantor; Carolyn S.
Holding and George H. Broadrick, Co-Trustees.
(f) Irrevocable Trust Agreement for the benefit of Caroline R.
Holding, dated December 28, 1976; as amended by a Notice of
Removal of Trustee, Appointment of Successor Trustee, and
Acceptance of Appointment as Successor Trustee, dated January
30, 1991; Maggie B. Holding, Grantor; Carolyn S. Holding and
George H. Broadrick, Co-Trustees.
7
<PAGE>
Signature
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
April 16, 1997 /s/George H. Broadrick
Date George H. Broadrick
8
<PAGE>
Exhibit 7(a)
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IRREVOCABLE TRUST AGREEMENT
FOR
CARMEN P. HOLDING
THIS AGREEMENT, made the 28th day of March, 1990, and executed
in duplicate, between LEWIS R. HOLDING of Wake County, North Carolina,
hereinafter called the Grantor, and GEORGE H. BROADRICK, hereinafter called the
Trustee,
W I T N E S S E T H :
ARTICLE I
TRUST CORPUS
Section 1. Trust Property. The Grantor has this day delivered
to the Trustee the property described in Schedule A attached hereto, and the
Trustee agrees to hold, administer and distribute all of the aforesaid assets
(together with all additions thereto and all reinvestments thereof) as the
principal of a trust estate in accordance with the terms and provisions
hereinafter set out.
Section 2. Additions to Corpus. The Grantor or any other
person may, at any time and from time to time, add cash, securities or other
property to the principal of the trust estate herein created, by deed, gift,
Will or other means, with the consent of the Trustee. Any additions to the trust
estate shall be held, administered and distributed as an integral part of the
principal thereof in accordance with all of the terms and provisions of this
Agreement.
ARTICLE II
TRUST IRREVOCABLE
This Agreement is hereby declared to be irrevocable and the
Grantor shall have no right to alter or amend same in any respect or particular.
1
<PAGE>
ARTICLE III
POWERS OF TRUSTEE
The Trustee shall receive, hold, manage, convert, sell,
exchange, assign, alter, invest, reinvest and otherwise deal with the
above-described properties as said Trustee in the Trustee's discretion shall
deem to be for the best interests of the beneficiaries hereunder. Without in any
way limiting the generality of the foregoing and subject to North Carolina
General Statute Section 32-26, the Grantor hereby grants to the Trustee all of
the powers set forth in North Carolina General Statute Section 32-27. These
powers hereby are incorporated by reference and made a part of this instrument,
and such powers are intended to be in addition to and not in substitution of
other powers conferred by law.
Section 1. Retention of Original Assets. The Trustee is
authorized to retain as an asset of this trust estate any property deposited to
the trust by the Grantor during the Grantor's lifetime or transferred to the
trust after the death of the Grantor under the terms of the Grantor's Will. Such
authority shall not impair the power of sale or exchange or any other powers or
discretion given the Trustee, but if said assets or any of them are retained by
the Trustee for the duration of the trust or any shorter period of time, the
Trustee shall not be responsible or liable for any loss or decrease in the value
of said assets or any of them, or the trust, by reason of such retention.
Section 2. Authorization for Business Enterprise. If any
interest in a business enterprise (whether operated in the form of a
corporation, a partnership or a sole proprietorship) shall form a part of any
trust created hereunder, the Grantor hereby vests the Trustee, including any
successor Trustee, with the power and authority (in addition to all other powers
granted herein) to retain and continue to operate the business for such period
as the Trustee may deem advisable (without regard to diversification in other
types of investments), or to sell or liquidate all or any
2
<PAGE>
part of any business at such time and price and upon such terms and conditions
(including credit) as the Trustee may determine.
The Grantor is aware that certain risks are inherent in the
operation of any business. Therefore, the Grantor directs that the Trustee shall
not be held liable for any loss resulting from the retention and operation of
any business unless such loss shall result directly from the Trustee's gross
negligence or willful misconduct. In determining any question of liability for
losses, it should be considered that the Trustee is engaging in a speculative
enterprise at the Grantor's express request.
Section 3. Retention of Bank Stock. The Grantor confers upon
the Trustee (in addition to the powers conferred by the laws of North Carolina
and those contained in the provisions of this Agreement, notwithstanding any
statute, rule of law or rule or regulation of any supervisory authority) the
following powers regarding any stock of FIRST CITIZENS BANCSHARES, INC., FIRST
CITIZENS BANCORPORATION OF SOUTH CAROLINA, INC., FIDELITY BANCSHARES (N.C.),
INC., SOUTHERN BANCSHARES (N.C.), INC., or any successor corporation, holding
company or any other entity of said corporations the following powers:
A. Retention. To retain any such shares of stock which the
Grantor shall own at the time of his death until the Trustee shall determine
that there exists some circumstances or condition (other than desirability of
diversification) which shall cause it to decide that the sale or other
conversion of all or any portion of said stock is definitely advisable and for
the best interests of the trust and beneficiaries concerned.
B. Voting. To vote any such shares of stock. Provided,
however, it is the Grantor's desire that the Trustee consult with such of the
then current income beneficiary or beneficiaries hereof as shall have attained
the age of forty (40) years in connection with the voting of such stock; but the
Grantor specifically directs that the Trustee shall not be bound to vote such
stock in accordance with the preference of any such beneficiary. Notwithstanding
any other provision herein, during such time as
3
<PAGE>
FIRST-CITIZENS BANK & TRUST COMPANY shall be serving as Trustee, such stock
shall be voted by the Trustee as directed by the Grantor's daughter, CARMEN P.
HOLDING, if she shall then be living, otherwise by the Grantor's daughter,
CAROLINE R. HOLDING, if she shall then be living. If the Grantor shall have no
children then living who shall have attained the age of twenty-one (21) years,
such shares shall be voted by the Trustee as directed by a majority of such of
the Grantor's grandchildren as shall then be living and shall have attained the
age of twenty-one (21) years. If the Grantor shall have no children or
grandchildren then living who shall have attained the age of twenty-one (21)
years, such shares shall be voted by the Trustee as directed by FRANK B. HOLDING
if he shall then be living, otherwise as directed by a majority of such of his
children as shall then be living and shall have attained the age of twenty-one
(21) years.
C. Acquisition. To acquire by purchase, exchange or otherwise
additional shares of stock in said corporations.
D. Receipt. To receive and retain shares of said stock issued
as a stock dividend.
E. Subscription. To subscribe for, receive, and retain the
proportion to which the trust may be entitled in any additional shares of stock
hereafter lawfully authorized by the stockholders and any decision of the
Trustee in connection with the retention, voting, sale or exchange of said stock
or stock in any other corporation held by it shall be conclusive and binding
upon all persons and for all purposes.
F. Trustee's Liability. The Trustee shall not be liable for
any loss or decrease in value which may arise by reason of the exercise of the
powers herein conferred.
Section 4. Employment of Agents. The Trustee is authorized to
employ accountants, attorneys and such agents as the Trustee may deem advisable
and to pay from funds of the trust reasonable compensation for their services.
In the event any suit or other legal action or proceeding is brought against
this trust, against the Trustee in the capacity of Trustee, or against the
4
<PAGE>
Trustee individually (but arising from or growing out of service as Trustee), or
against the Grantor or any other person (but arising from or connected with the
creation of said trust or any transfer of assets made into the said trust or
otherwise relating to said trust), then in such event, all of the attorney fees,
court costs and other expenses incident to such litigation or proceeding
incurred by said trust, Trustee, Grantor or other person shall be borne by this
trust as an expense hereof.
Section 5. Transactions with Grantor or Grantor's Spouse.
Provided that all such purchases, sales or exchanges shall be made at the fair
market value of such asset at the time of the transaction, the Trustee, in the
discretion of the Trustee, may acquire, purchase, sell, exchange or otherwise
transfer properties with the Grantor or the Grantor's spouse and hold or dispose
of them in accordance with the terms of this Trust Agreement.
Section 6. Dealing with Trustee. Anyone dealing with the
Trustee is not required to see to the application by the Trustee of the funds or
other properties it receives. The Trustee shall not be liable for depreciation
in the value of properties held in trust or for reasonable errors of judgment,
or for any act, or failure to act, not amounting to gross negligence, bad faith
or positive wrongdoing.
ARTICLE IV
DISPOSITIVE PROVISIONS
Trustee shall administer the trust estate created hereunder
upon the following terms and provisions and for the following uses and purposes
and shall disburse the income and corpus as hereinafter set forth:
Section 1. Withdrawal by Beneficiary. CARMEN P. HOLDING shall
have the right in any calendar year (following the year of creation of this
trust) to withdraw the full amount of any cash, securities, insurance policies
or other assets contributed to the trust in that calendar year. The Trustee
shall notify CARMEN P. HOLDING within thirty (30) days of such transfer or other
contribution to the trust. Such right of withdrawal shall be
5
<PAGE>
exercised in each case by written notification to the Trustee (received by the
Trustee within thirty (30) days of the date of mailing of the notification of
contribution) to that effect, specifying the cash or assets at current market
value to be withdrawn; and promptly thereafter the Trustee shall make such
distribution. All rights of withdrawal not exercised as hereinabove provided
shall lapse upon the expiration of the time provided. Such right of withdrawal
shall be non-cumulative, and any cash or assets not withdrawn within the time
set and by the procedure herein established shall be held and administered in
accordance with the terms and provisions of this trust. In creating this power,
it is the intent of the Grantor to create an annual non-cumulative power of
invasion which will qualify any transfer of property to the trust as a transfer
of a present interest under Section 2503(b) of the Internal Revenue Code and
will not be treated as a release of such power as that term is defined in
Section 2514(e) of said Code.
Section 2. Disbursements from Trust. After satisfying the
requests for withdrawals, if any, made pursuant to the provisions of Section 1
above, the Trustee shall continue to hold the remainder of this trust estate in
trust under the following terms and provisions:
A. Income. Until the death of the Grantor's daughter, CARMEN
P. HOLDING, all or any part of the net income derived from this trust estate may
be paid to or applied for the benefit of the Grantor's said daughter as the
Trustee in the Trustee's sole discretion shall from time to time determine. Any
income not so used may be accumulated as income or may be transferred to
principal and reinvested; and any funds so accumulated may subsequently be used
in any manner as provided herein.
B. Principal. The Trustee is authorized to pay to or apply for
the benefit of the Grantor's daughter, CARMEN P. HOLDING, so much of the
principal of this trust estate as the Trustee in the Trustee's sole discretion
shall from time to time determine.
6
<PAGE>
C. Distribution on Death of Daughter. So much of the principal
and accumulated income of this trust as shall remain in the hands of the Trustee
at the time of the death of the Grantor's daughter, CARMEN P. HOLDING, shall be
transferred and delivered, discharged of the trust to such appointee or
appointees of said daughter, including the daughter's estate, and in such
amounts or proportions and upon such terms and provisions as said daughter shall
appoint and direct in an effective Will or Codicil specifically referring to
this power of appointment. The Trustee may rely upon an instrument admitted to
probate in any jurisdiction as the Last Will of the said daughter, but if it has
no written notice of the existence of such a Will within a period of three
months after the death of the daughter, it may be presumed that the said
daughter died intestate and the Trustee shall be protected in acting in
accordance with such presumption. If this power of appointment shall not be
effectually exercised as aforesaid as to all or any portion of such principal or
accumulated income, so much of the said principal or accumulated income as shall
not have been disposed of by the effectual exercise of such power of appointment
shall vest in and be delivered to CARMEN P. HOLDING'S surviving issue per
stirpes. If she shall leave no issue surviving, the principal and accumulated
income shall vest in and be delivered to the Grantor's living issue per stirpes.
If no issue of the Grantor shall then be living, the principal and accumulated
income shall vest in and be delivered to the living issue per stirpes of the
Grantor's brother, FRANK B. HOLDING.
Notwithstanding the foregoing, if any portion of this trust
would otherwise pass to a child of the Grantor for whose benefit the Grantor has
established a trust with similar distribution, vesting and termination
provisions to those contained herein, and if said trust is still active and has
assets therein, then such child's portion shall pass directly to and be added to
the principal of said trust for such child, to be administered and disposed of
as a part of said trust.
7
<PAGE>
D. Holdback to Age 25. If any of the funds and properties
constituting a part of a trust shall vest in any person who shall be under
twenty-five (25) years of age at the time of the vesting thereof in accordance
with the foregoing provisions of this Article IV, such principal and accumulated
income so vesting nevertheless shall continue to be held in trust by the Trustee
under the provisions hereof and be administered as a separate trust and the net
income therefrom or the principal thereof shall be applied, in such manner and
at such intervals and in such amounts as the Trustee in the Trustee's sole
discretion shall deem requisite or desirable for the suitable health, education,
support and maintenance of such person until he or she shall attain the age of
twenty-five (25) years, or, if such person shall die prior to his or her
attainment of twenty-five (25) years, to such person's executors or
administrators.
E. Termination of Trusts. Notwithstanding any provisions
hereof to the contrary, if during the administration of any trust or trusts
hereunder, the Trustee in the Trustee's absolute discretion determines that the
value of any such trust is such that the continuation thereof is uneconomic, or
if the Trustee in the Trustee's absolute discretion determines that the
continuation of this trust is not in the best interests of the beneficiaries,
then the Trustee, in the Trustee's absolute discretion, may terminate any such
trust or trusts and deliver the assets, discharged of all trusts, to the living
beneficiaries who are then or would have been entitled to the income therefrom
and in the same proportions; but if no beneficiary is then entitled to a
specific portion of such income, then to the living income beneficiaries, per
stirpes.
ARTICLE V
SUCCESSOR TRUSTEE
GEORGE H. BROADRICK shall initially serve as sole Trustee of
all trusts created under this Trust Agreement with full power and authority to
exercise all powers and authority herein granted. GEORGE H. BROADRICK and any
successor Trustee (whether named herein or appointed pursuant to the following
provisions of this Article)
8
<PAGE>
shall have the right and authority to resign (without the approval of the Clerk
of Superior Court, any Court or any other person) or to renounce the right to
serve. Upon the death, incapacity or resignation of the said GEORGE H. BROADRICK
or any successor Trustee (whether named herein or appointed as hereinafter
provided), such Trustee shall have the right either during lifetime or at death
to appoint any other individual or individuals or any corporation or
corporations to serve as successor Trustee hereunder. Any Trustee so appointed
shall have the same authority to appoint one or more successor Trustees to
exercise all power herein conferred, including the power to appoint a further
successor Trustee.
Upon the death, incapacity or resignation of any Trustee then
serving without the appointment of a successor Trustee as provided herein, FRANK
B. HOLDING shall assume all duties and responsibilities as Trustee. Upon the
death, incapacity or resignation of the said FRANK B. HOLDING, without the
appointment of a successor Trustee as provided herein, ELLA ANN HOLDING shall
assume all duties and responsibilities as Trustee. Upon the death, incapacity or
resignation of the said ELLA ANN HOLDING, without appointment of a successor
Trustee as provided herein, FIRST-CITIZENS BANK & TRUST COMPANY shall assume all
duties and responsibilities as Trustee.
Any successor Trustee, whether named herein or appointed as
provided above, shall have no duty or responsibility to examine any action or
failure to act on the part of GEORGE H. BROADRICK or any other previous Trustee,
and any such successor Trustee shall not be liable or responsible for any loss
or decrease in value of the trust or for any other consequences of the action or
failure to act of the original or other previous Trustee hereunder. No approval
shall be required by any Court of the accounting or other records of any Trustee
hereunder specifically including the final accounting of the original or other
previous Trustee.
Notwithstanding any other provision of this Article, in no
event shall the Grantor, any beneficiary hereof, or anyone whose
9
<PAGE>
appointment would cause the Grantor or the Grantor's estate to be taxed on all
or any part of the principal or income of this trust, be appointed or be
eligible to serve as a successor Trustee.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 1. Governing Law. This Agreement (except as herein
otherwise expressly provided) shall be governed by and construed in accordance
with, and the administration of properties held in trust hereunder shall be
determined by, the laws of the State of North Carolina without regard to the
domicile or residence of the Grantor or the situs of any property held in trust
hereunder.
Section 2. Grammatical Usage. In construing this Agreement,
feminine or neuter pronouns shall be substituted for those masculine in form and
vice versa, and plural terms shall be substituted for singular and singular for
plural in any place in which the context so requires.
Section 3. Invalid Provision. If any provision herein or
application thereof to any circumstance or situation shall be invalid or
unenforceable, in whole or in part, the remainder hereof and the application of
said term or provision or covenant to any other circumstance or situation shall
not be affected thereby, and each term or provision and covenant herein shall be
valid and enforceable to the full extent permitted by the law.
Section 4. First-Citizens Bank & Trust Company. Any reference
contained herein to FIRST-CITIZENS BANK & TRUST COMPANY shall include any
successor resulting from a reorganization, merger or consolidation of such Bank.
Section 5. Duplicate Originals. There are duplicate originals
of this Trust Agreement.
Section 6. Merger. In the event that the Grantor or the
Grantor's spouse establishes another trust or trusts for the beneficiaries
hereof with similar objectives and termination provisions to those contained
herein for such beneficiaries, whether such trust or trusts are in existence at
the time of the
10
<PAGE>
creation of this trust or later come into existence, then the Grantor authorizes
and directs the Trustee to merge, combine and commingle the assets of any trust
or trusts created pursuant to this Trust Agreement with the assets of such trust
or trusts established by the Grantor or the spouse of Grantor. The Trustee shall
have the discretion to determine which of said trusts shall survive any merger
of assets hereunder, and the trust or trusts from which said assets are so
transferred shall terminate upon such transfer.
ARTICLE VII
COMPENSATION OF TRUSTEE
As compensation for his services, GEORGE H. BROADRICK (or any
individual successor Trustee) shall be entitled to retain from income (or
principal) reasonable compensation commensurate with the duties and
responsibilities assumed.
As compensation for its services, FIRST-CITIZENS BANK & TRUST
COMPANY (or any corporate successor Trustee) shall be entitled to retain from
income (or principal) the commissions stipulated in its regularly adopted
schedule of compensation in effect and applicable at the time of the performance
of such services.
IN WITNESS WHEREOF, the Grantor has signed this Agreement and
affixed the seal adopted by the Grantor; and the Trustee, in acceptance of the
trusts created hereunder, has signed this Agreement and affixed the seal adopted
by the Trustee; all as of the date first above stated.
/s/ Lewis R. Holding (SEAL)
LEWIS R. HOLDING
/s/ George H. Broadrick (SEAL)
GEORGE H. BROADRICK
11
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF WAKE
On this 28th day of March, 1990, before me, a Notary Public in
and for said County and State, personally appeared LEWIS R. HOLDING, known to me
to be the person whose name is subscribed to the within instrument and
acknowledged the due execution of the same.
WITNESS my hand and official seal.
/s/ Pauline L. McIver
Notary Public
My Commission expires:
5/16/94
STATE OF NORTH CAROLINA
COUNTY OF WAKE
On this 28th day of March, 1990, before me, a Notary Public in
and for said County and State, personally appeared GEORGE H. BROADRICK, Trustee,
known to me to be the person whose name is subscribed to the within instrument
and acknowledged the due execution of the same.
WITNESS my hand and official seal.
/s/ Pauline L. McIver
Notary Public
My Commission expires:
5/16/94
12
<PAGE>
LEWIS R. HOLDING
TRUST AGREEMENT
SCHEDULE A
GEORGE H. BROADRICK acknowledges receipt of the following
property for the purposes set forth in the foregoing Trust Agreement, of which
this page is specifically made a part:
Cash . . . . . . . . . . . . . . . $100.00
This 28th day of March, 1990.
/s/ George H. Broadrick
GEORGE H. BROADRICK
<PAGE>
Exhibit 7(b)
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IRREVOCABLE TRUST AGREEMENT
FOR
CAROLINE R. HOLDING
THIS AGREEMENT, made the 28th day of March, 1990, and executed
in duplicate, between LEWIS R. HOLDING of Wake County, North Carolina,
hereinafter called the Grantor, and GEORGE H. BROADRICK, hereinafter called the
Trustee,
W I T N E S S E T H :
ARTICLE I
TRUST CORPUS
Section 1. Trust Property. The Grantor has this day delivered
to the Trustee the property described in Schedule A attached hereto, and the
Trustee agrees to hold, administer and distribute all of the aforesaid assets
(together with all additions thereto and all reinvestments thereof) as the
principal of a trust estate in accordance with the terms and provisions
hereinafter set out.
Section 2. Additions to Corpus. The Grantor or any other
person may, at any time and from time to time, add cash, securities or other
property to the principal of the trust estate herein created, by deed, gift,
Will or other means, with the consent of the Trustee. Any additions to the trust
estate shall be held, administered and distributed as an integral part of the
principal thereof in accordance with all of the terms and provisions of this
Agreement.
ARTICLE II
TRUST IRREVOCABLE
This Agreement is hereby declared to be irrevocable and the
Grantor shall have no right to alter or amend same in any respect or particular.
1
<PAGE>
ARTICLE III
POWERS OF TRUSTEE
The Trustee shall receive, hold, manage, convert, sell,
exchange, assign, alter, invest, reinvest and otherwise deal with the
above-described properties as said Trustee in the Trustee's discretion shall
deem to be for the best interests of the beneficiaries hereunder. Without in any
way limiting the generality of the foregoing and subject to North Carolina
General Statute Section 32-26, the Grantor hereby grants to the Trustee all of
the powers set forth in North Carolina General Statute Section 32-27. These
powers hereby are incorporated by reference and made a part of this instrument,
and such powers are intended to be in addition to and not in substitution of
other powers conferred by law.
Section 1. Retention of Original Assets. The Trustee is
authorized to retain as an asset of this trust estate any property deposited to
the trust by the Grantor during the Grantor's lifetime or transferred to the
trust after the death of the Grantor under the terms of the Grantor's Will. Such
authority shall not impair the power of sale or exchange or any other powers or
discretion given the Trustee, but if said assets or any of them are retained by
the Trustee for the duration of the trust or any shorter period of time, the
Trustee shall not be responsible or liable for any loss or decrease in the value
of said assets or any of them, or the trust, by reason of such retention.
Section 2. Authorization for Business Enterprise. If any
interest in a business enterprise (whether operated in the form of a
corporation, a partnership or a sole proprietorship) shall form a part of any
trust created hereunder, the Grantor hereby vests the Trustee, including any
successor Trustee, with the power and authority (in addition to all other powers
granted herein) to retain and continue to operate the business for such period
as the Trustee may deem advisable (without regard to diversification in other
types of investments), or to sell or liquidate all or any
2
<PAGE>
part of any business at such time and price and upon such terms and conditions
(including credit) as the Trustee may determine.
The Grantor is aware that certain risks are inherent in the
operation of any business. Therefore, the Grantor directs that the Trustee shall
not be held liable for any loss resulting from the retention and operation of
any business unless such loss shall result directly from the Trustee's gross
negligence or willful misconduct. In determining any question of liability for
losses, it should be considered that the Trustee is engaging in a speculative
enterprise at the Grantor's express request.
Section 3. Retention of Bank Stock. The Grantor confers upon
the Trustee (in addition to the powers conferred by the laws of North Carolina
and those contained in the provisions of this Agreement, notwithstanding any
statute, rule of law or rule or regulation of any supervisory authority) the
following powers regarding any stock of FIRST CITIZENS BANCSHARES, INC., FIRST
CITIZENS BANCORPORATION OF SOUTH CAROLINA, INC., FIDELITY BANCSHARES (N.C.),
INC., SOUTHERN BANCSHARES (N.C.), INC., or any successor corporation, holding
company or any other entity of said corporations the following powers:
A. Retention. To retain any such shares of stock which the
Grantor shall own at the time of his death until the Trustee shall determine
that there exists some circumstances or condition (other than desirability of
diversification) which shall cause it to decide that the sale or other
conversion of all or any portion of said stock is definitely advisable and for
the best interests of the trust and beneficiaries concerned.
B. Voting. To vote any such shares of stock. Provided,
however, it is the Grantor's desire that the Trustee consult with such of the
then current income beneficiary or beneficiaries hereof as shall have attained
the age of forty (40) years in connection with the voting of such stock; but the
Grantor specifically directs that the Trustee shall not be bound to vote such
stock in accordance with the preference of any such beneficiary. Notwithstanding
any other provision herein, during such time as
3
<PAGE>
FIRST-CITIZENS BANK & TRUST COMPANY shall be serving as Trustee, such stock
shall be voted by the Trustee as directed by the Grantor's daughter, CAROLINE R.
HOLDING, if she shall then be living, otherwise by the Grantor's daughter,
CARMEN P. HOLDING, if she shall then be living. If the Grantor shall have no
children then living who shall have attained the age of twenty-one (21) years,
such shares shall be voted by the Trustee as directed by a majority of such of
the Grantor's grandchildren as shall then be living and shall have attained the
age of twenty-one (21) years. If the Grantor shall have no children or
grandchildren then living who shall have attained the age of twenty-one (21)
years, such shares shall be voted by the Trustee as directed by FRANK B. HOLDING
if he shall then be living, otherwise as directed by a majority of such of his
children as shall then be living and shall have attained the age of twenty-one
(21) years.
C. Acquisition. To acquire by purchase, exchange or otherwise
additional shares of stock in said corporations.
D. Receipt. To receive and retain shares of said stock issued
as a stock dividend.
E. Subscription. To subscribe for, receive, and retain the
proportion to which the trust may be entitled in any additional shares of stock
hereafter lawfully authorized by the stockholders and any decision of the
Trustee in connection with the retention, voting, sale or exchange of said stock
or stock in any other corporation held by it shall be conclusive and binding
upon all persons and for all purposes.
F. Trustee's Liability. The Trustee shall not be liable for
any loss or decrease in value which may arise by reason of the exercise of the
powers herein conferred.
Section 4. Employment of Agents. The Trustee is authorized to
employ accountants, attorneys and such agents as the Trustee may deem advisable
and to pay from funds of the trust reasonable compensation for their services.
In the event any suit or other legal action or proceeding is brought against
this trust, against the Trustee in the capacity of Trustee, or against the
4
<PAGE>
Trustee individually (but arising from or growing out of service as Trustee), or
against the Grantor or any other person (but arising from or connected with the
creation of said trust or any transfer of assets made into the said trust or
otherwise relating to said trust), then in such event, all of the attorney fees,
court costs and other expenses incident to such litigation or proceeding
incurred by said trust, Trustee, Grantor or other person shall be borne by this
trust as an expense hereof.
Section 5. Transactions with Grantor or Grantor's Spouse.
Provided that all such purchases, sales or exchanges shall be made at the fair
market value of such asset at the time of the transaction, the Trustee, in the
discretion of the Trustee, may acquire, purchase, sell, exchange or otherwise
transfer properties with the Grantor or the Grantor's spouse and hold or dispose
of them in accordance with the terms of this Trust Agreement.
Section 6. Dealing with Trustee. Anyone dealing with the
Trustee is not required to see to the application by the Trustee of the funds or
other properties it receives. The Trustee shall not be liable for depreciation
in the value of properties held in trust or for reasonable errors of judgment,
or for any act, or failure to act, not amounting to gross negligence, bad faith
or positive wrongdoing.
ARTICLE IV
DISPOSITIVE PROVISIONS
Trustee shall administer the trust estate created hereunder
upon the following terms and provisions and for the following uses and purposes
and shall disburse the income and corpus as hereinafter set forth:
Section 1. Withdrawal by Beneficiary. CAROLINE R. HOLDING
shall have the right in any calendar year (following the year of creation of
this trust) to withdraw the full amount of any cash, securities, insurance
policies or other assets contributed to the trust in that calendar year. The
Trustee shall notify CAROLINE R. HOLDING within thirty (30) days of such
transfer or other contribution to the trust. Such right of withdrawal shall be
5
<PAGE>
exercised in each case by written notification to the Trustee (received by the
Trustee within thirty (30) days of the date of mailing of the notification of
contribution) to that effect, specifying the cash or assets at current market
value to be withdrawn; and promptly thereafter the Trustee shall make such
distribution. All rights of withdrawal not exercised as hereinabove provided
shall lapse upon the expiration of the time provided. Such right of withdrawal
shall be non-cumulative, and any cash or assets not withdrawn within the time
set and by the procedure herein established shall be held and administered in
accordance with the terms and provisions of this trust. In creating this power,
it is the intent of the Grantor to create an annual non-cumulative power of
invasion which will qualify any transfer of property to the trust as a transfer
of a present interest under Section 2503(b) of the Internal Revenue Code and
will not be treated as a release of such power as that term is defined in
Section 2514(e) of said Code.
Section 2. Disbursements from Trust. After satisfying the
requests for withdrawals, if any, made pursuant to the provisions of Section 1
above, the Trustee shall continue to hold the remainder of this trust estate in
trust under the following terms and provisions:
A. Income. Until the death of the Grantor's daughter, CAROLINE
R. HOLDING, all or any part of the net income derived from this trust estate may
be paid to or applied for the benefit of the Grantor's said daughter as the
Trustee in the Trustee's sole discretion shall from time to time determine. Any
income not so used may be accumulated as income or may be transferred to
principal and reinvested; and any funds so accumulated may subsequently be used
in any manner as provided herein.
B. Principal. The Trustee is authorized to pay to or apply for
the benefit of the Grantor's daughter, CAROLINE R. HOLDING, so much of the
principal of this trust estate as the Trustee in the Trustee's sole discretion
shall from time to time determine.
6
<PAGE>
C. Distribution on Death of Daughter. So much of the principal
and accumulated income of this trust as shall remain in the hands of the Trustee
at the time of the death of the Grantor's daughter, CAROLINE R. HOLDING, shall
be transferred and delivered, discharged of the trust to such appointee or
appointees of said daughter, including the daughter's estate, and in such
amounts or proportions and upon such terms and provisions as said daughter shall
appoint and direct in an effective Will or Codicil specifically referring to
this power of appointment. The Trustee may rely upon an instrument admitted to
probate in any jurisdiction as the Last Will of the said daughter, but if it has
no written notice of the existence of such a Will within a period of three
months after the death of the daughter, it may be presumed that the said
daughter died intestate and the Trustee shall be protected in acting in
accordance with such presumption. If this power of appointment shall not be
effectually exercised as aforesaid as to all or any portion of such principal or
accumulated income, so much of the said principal or accumulated income as shall
not have been disposed of by the effectual exercise of such power of appointment
shall vest in and be delivered to CAROLINE R. HOLDING'S surviving issue per
stirpes. If she shall leave no issue surviving, the principal and accumulated
income shall vest in and be delivered to the Grantor's living issue per stirpes.
If no issue of the Grantor shall then be living, the principal and accumulated
income shall vest in and be delivered to the living issue per stirpes of the
Grantor's brother, FRANK B. HOLDING.
Notwithstanding the foregoing, if any portion of this trust
would otherwise pass to a child of the Grantor for whose benefit the Grantor has
established a trust with similar distribution, vesting and termination
provisions to those contained herein, and if said trust is still active and has
assets therein, then such child's portion shall pass directly to and be added to
the principal of said trust for such child, to be administered and disposed of
as a part of said trust.
7
<PAGE>
D. Holdback to Age 25. If any of the funds and properties
constituting a part of a trust shall vest in any person who shall be under
twenty-five (25) years of age at the time of the vesting thereof in accordance
with the foregoing provisions of this Article IV, such principal and accumulated
income so vesting nevertheless shall continue to be held in trust by the Trustee
under the provisions hereof and be administered as a separate trust and the net
income therefrom or the principal thereof shall be applied, in such manner and
at such intervals and in such amounts as the Trustee in the Trustee's sole
discretion shall deem requisite or desirable for the suitable health, education,
support and maintenance of such person until he or she shall attain the age of
twenty-five (25) years, or, if such person shall die prior to his or her
attainment of twenty-five (25) years, to such person's executors or
administrators.
E. Termination of Trusts. Notwithstanding any provisions
hereof to the contrary, if during the administration of any trust or trusts
hereunder, the Trustee in the Trustee's absolute discretion determines that the
value of any such trust is such that the continuation thereof is uneconomic, or
if the Trustee in the Trustee's absolute discretion determines that the
continuation of this trust is not in the best interests of the beneficiaries,
then the Trustee, in the Trustee's absolute discretion, may terminate any such
trust or trusts and deliver the assets, discharged of all trusts, to the living
beneficiaries who are then or would have been entitled to the income therefrom
and in the same proportions; but if no beneficiary is then entitled to a
specific portion of such income, then to the living income beneficiaries, per
stirpes.
ARTICLE V
SUCCESSOR TRUSTEE
GEORGE H. BROADRICK shall initially serve as sole Trustee of
all trusts created under this Trust Agreement with full power and authority to
exercise all powers and authority herein granted. GEORGE H. BROADRICK and any
successor Trustee (whether named herein or appointed pursuant to the following
provisions of this Article)
8
<PAGE>
shall have the right and authority to resign (without the approval of the Clerk
of Superior Court, any Court or any other person) or to renounce the right to
serve. Upon the death, incapacity or resignation of the said GEORGE H. BROADRICK
or any successor Trustee (whether named herein or appointed as hereinafter
provided), such Trustee shall have the right either during lifetime or at death
to appoint any other individual or individuals or any corporation or
corporations to serve as successor Trustee hereunder. Any Trustee so appointed
shall have the same authority to appoint one or more successor Trustees to
exercise all power herein conferred, including the power to appoint a further
successor Trustee.
Upon the death, incapacity or resignation of any Trustee then
serving without the appointment of a successor Trustee as provided herein, FRANK
B. HOLDING shall assume all duties and responsibilities as Trustee. Upon the
death, incapacity or resignation of the said FRANK B. HOLDING, without the
appointment of a successor Trustee as provided herein, ELLA ANN HOLDING shall
assume all duties and responsibilities as Trustee. Upon the death, incapacity or
resignation of the said ELLA ANN HOLDING, without appointment of a successor
Trustee as provided herein, FIRST-CITIZENS BANK & TRUST COMPANY shall assume all
duties and responsibilities as Trustee.
Any successor Trustee, whether named herein or appointed as
provided above, shall have no duty or responsibility to examine any action or
failure to act on the part of GEORGE H. BROADRICK or any other previous Trustee,
and any such successor Trustee shall not be liable or responsible for any loss
or decrease in value of the trust or for any other consequences of the action or
failure to act of the original or other previous Trustee hereunder. No approval
shall be required by any Court of the accounting or other records of any Trustee
hereunder specifically including the final accounting of the original or other
previous Trustee.
Notwithstanding any other provision of this Article, in no
event shall the Grantor, any beneficiary hereof, or anyone whose
9
<PAGE>
appointment would cause the Grantor or the Grantor's estate to be taxed on all
or any part fof the principal or income of this trust, be appointed or be
eligible to serve as a successor Trustee.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 1. Governing Law. This Agreement (except as herein
otherwise expressly provided) shall be governed by and construed in accordance
with, and the administration of properties held in trust hereunder shall be
determined by, the laws of the State of North Carolina without regard to the
domicile or residence of the Grantor or the situs of any property held in trust
hereunder.
Section 2. Grammatical Usage. In construing this Agreement,
feminine or neuter pronouns shall be substituted for those masculine in form and
vice versa, and plural terms shall be substituted for singular and singular for
plural in any place in which the context so requires.
Section 3. Invalid Provision. If any provision herein or
application thereof to any circumstance or situation shall be invalid or
unenforceable, in whole or in part, the remainder hereof and the application of
said term or provision or covenant to any other circumstance or situation shall
not be affected thereby, and each term or provision and covenant herein shall be
valid and enforceable to the full extent permitted by the law.
Section 4. First-Citizens Bank & Trust Company. Any reference
contained herein to FIRST-CITIZENS BANK & TRUST COMPANY shall include any
successor resulting from a reorganization, merger or consolidation of such Bank.
Section 5. Duplicate Originals. There are duplicate originals
of this Trust Agreement.
Section 6. Merger. In the event that the Grantor or the
Grantor's spouse establishes another trust or trusts for the beneficiaries
hereof with similar objectives and termination provisions to those contained
herein for such beneficiaries, whether such trust or trusts are in existence at
the time of the
10
<PAGE>
creation of this trust or later come into existence, then the Grantor authorizes
and directs the Trustee to merge, combine and commingle the assets of any trust
or trusts created pursuant to this Trust Agreement with the assets of such trust
or trusts established by the Grantor or the spouse of Grantor. The Trustee shall
have the discretion to determine which of said trusts shall survive any merger
of assets hereunder, and the trust or trusts from which said assets are so
transferred shall terminate upon such transfer.
ARTICLE VII
COMPENSATION OF TRUSTEE
As compensation for his services, GEORGE H. BROADRICK (or any
individual successor Trustee) shall be entitled to retain from income (or
principal) reasonable compensation commensurate with the duties and
responsibilities assumed.
As compensation for its services, FIRST-CITIZENS BANK & TRUST
COMPANY (or any corporate successor Trustee) shall be entitled to retain from
income (or principal) the commissions stipulated in its regularly adopted
schedule of compensation in effect and applicable at the time of the performance
of such services.
IN WITNESS WHEREOF, the Grantor has signed this Agreement and
affixed the seal adopted by the Grantor; and the Trustee, in acceptance of the
trusts created hereunder, has signed this Agreement and affixed the seal adopted
by the Trustee; all as of the date first above stated.
/s/ Lewis R. Holding (SEAL)
LEWIS R. HOLDING
/s/ George H. Broadrick (SEAL)
GEORGE H. BROADRICK
11
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF WAKE
On this 28th day of March, 1990, before me, a Notary Public in
and for said County and State, personally appeared LEWIS R. HOLDING, known to me
to be the person whose name is subscribed to the within instrument and
acknowledged the due execution of the same.
WITNESS my hand and official seal.
/s/ Pauline L. McIver
Notary Public
My Commission expires:
5/16/94
STATE OF NORTH CAROLINA
COUNTY OF WAKE
On this 28th day of March, 1990, before me, a Notary Public in
and for said County and State, personally appeared GEORGE H. BROADRICK, Trustee,
known to me to be the person whose name is subscribed to the within instrument
and acknowledged the due execution of the same.
WITNESS my hand and official seal.
/s/ Pauline L. McIver
Notary Public
My Commission expires:
5/16/94
12
<PAGE>
LEWIS R. HOLDING
TRUST AGREEMENT
SCHEDULE A
GEORGE H. BROADRICK acknowledges receipt of the following
property for the purposes set forth in the foregoing Trust Agreement, of which
this page is specifically made a part:
Cash . . . . . . . . . . . . . . . $100.00
This 28th day of March, 1990.
/s/ George H. Broadrick
GEORGE H. BROADRICK
<PAGE>
Exhibit 7(c)
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IRREVOCABLE TRUST AGREEMENT
THIS IRREVOCABLE TRUST AGREEMENT, made and entered into this
the 26th day of April, 1979, by and between LEWIS R. HOLDING of Wake County,
North Carolina (hereinafter referred to as "Grantor"), party of the first part;
and FIRST-CITIZENS BANK & TRUST COMPANY, a North Carolina banking corporation,
CAROLYN S. HOLDING, of Wake County, North Carolina (hereinafter individually
referred to as "Corporate Trustee" and "Individual Trustee", respectively, and
collectively referred to as "Trustees"), parties of the second part;
W I T N E S S E T H :
ARTICLE I
CORPUS
Section 1. Trust Property. The Grantor hereby irrevocably
transfers, delivers and conveys to the Trustees all the property described on
"Exhibit A" attached hereto and specifically incorporated herein by reference,
the receipt of which is hereby acknowledged by the Trustees. The Trustees accept
such transfer and agree to hold and administer the aforesaid property in trust
for the uses and purposes and upon the express terms and conditions and with the
powers and limitations hereinafter set forth.
Section 2. Additions to Corpus. Additional property from time
to time may be transferred by the Grantor or by any other person or persons to
the Trustees, and such property thereupon shall become a part of the trust
estate and shall be held, managed, invested, reinvested, and disposed of on the
same terms and conditions as the property originally transferred.
ARTICLE II
DISPOSITIVE PROVISIONS
Section 1. General Provisions. The Trustees shall hold,
manage, invest and reinvest, and control the trust property, and shall collect
the income thereof, and after deducting all necessary expenses incident to the
management and administration of the trust
<PAGE>
property, shall disburse the net income and corpus for the benefit of CARMEN
PRICE HOLDING (hereinafter referred to as "Primary Beneficiary") and said
Primary Beneficiary's blood issue, as hereinafter provided.
Section 2. Distribution During Primary Beneficiary's Life. The
Trustees shall hold and distribute the net income and corpus during Primary
Beneficiary's life upon the following terms and conditions:
a. Income. The Trustees shall pay or apply the net income, at
least annually, or more frequently as may be determined by the
Trustees, to or for the benefit of Primary Beneficiary.
b. Corpus. The Trustees may, in their discretion, pay or apply
to or for the benefit of Primary Beneficiary such additional amounts
from corpus, in such manner and at such intervals and in such amounts
as the Trustees in their discretion from time to time shall deem
requisite or desirable; provided, however, in the case of each payment
of corpus, the Trustees shall first determine that such payment or
application of corpus is reasonably necessary to promote Primary
Beneficiary's education, support, maintenance, or health; or is
reasonably necessary for the reasonable support and comfort of Primary
Beneficiary; or is reasonably necessary to enable Primary Beneficiary
to maintain her accustomed standard of living; or is reasonably
necessary to meet an emergency. In making such determination under this
subsection 2b, the Trustees shall take into consideration any other
income (other than capital gains), or property known to the Trustees
which Primary Beneficiary may have or enjoy from sources other than
this trust estate.
Section 3. Distribution After Primary Beneficiary's Death.
Upon the death of Primary Beneficiary, the corpus of this trust, as it shall
then exist, and all undistributed income shall be held and distributed to or for
the benefit of Primary
2
<PAGE>
Beneficiary's blood issue, from time to time living, subject to the following
terms and conditions:
a. Income. The Trustees shall pay or apply the net income, at
least annually, to or for the benefit of Primary Beneficiary's blood
issue, from time to time living, in such manner and at such intervals
and in such amounts, not necessarily in equal shares or amounts, as the
Trustees in their discretion from time to time shall deem requisite or
desirable to promote the education, support, maintenance, or health of
such beneficiary; or for the reasonable support and comfort of such
beneficiary; or to enable such beneficiary to maintain his accustomed
standard of living; or to meet an emergency. Any portion of the net
income not distributed pursuant to the preceding sentence shall be paid
at least annually, to or for the benefit of Primary Beneficiary's blood
issue, from time to time living, in equal shares. Any such
disbursements from income to such blood issue shall not be charged
against any individual share subsequently distributed to any
beneficiary.
b. Corpus. The Trustees may, in their discretion, pay or apply
to or for the benefit of any of Primary Beneficiary's blood issue, from
time to time living, such additional amounts from corpus, in such
manner and at such intervals and in such amounts, not necessarily in
equal shares or amounts, as the Trustees in their discretion from time
to time shall deem requisite or desirable. Provided, however, in the
case of each payment or application of corpus, the Trustees shall first
determine that such payment or application of corpus is reasonably
necessary to promote the education, support, maintenance or health of
such beneficiary; or is reasonably necessary for the reasonable support
and comfort of such beneficiary; or is reasonably necessary to enable
such beneficiary to maintain his accustomed
3
<PAGE>
standard of living; or is reasonably necessary to meet an emergency. In
making such determination under this subsection 3b, the Trustees shall
take into consideration any other income (other than capital gains), or
property known to the Trustees which such beneficiary may have or enjoy
from sources other than this trust estate. Any such disbursements from
corpus shall not be charged against any individual share subsequently
distributed to any beneficiary.
Section 4. Termination and Distribution. This trust shall
terminate upon (1) the death of Primary Beneficiary with no surviving blood
issue or (2) the death of all surviving blood issue of Primary Beneficiary after
the death of Primary Beneficiary whether born before or after the death of
Primary Beneficiary, or (3) the expiration of the term of eighteen (18) years
from the death of Primary Beneficiary, whichever of said three events shall
first occur.
Upon termination of this trust, the Trustees shall transfer
and deliver the corpus and all undistributed income then constituting the trust
estate, discharged of this trust, as follows:
a. If any blood issue of Primary Beneficiary shall be living
at the time of said termination, then in equal shares to such of
Primary Beneficiary's natural children as shall then be living and to
the blood issue per stirpes of such of Primary Beneficiary's natural
children as shall be dead with blood issue then living--such blood
issue representing its parent.
b. If no blood issue of Primary Beneficiary shall be living at
the time of said termination, then to CAROLINE ROYALL HOLDING, the
child of Grantor, if she shall then be living, or to her blood issue
per stirpes if she shall be dead with blood issue then living;
provided, however, in the event that certain Irrevocable Trust
Agreement executed by Grantor of even date herewith for the primary
benefit of said CAROLINE
4
<PAGE>
ROYALL HOLDING and her blood issue (said trust being hereinafter
referred to as "Lewis R. Holding - Caroline Royall Holding Trust")
shall still be in existence at the time of said termination, then any
share otherwise payable to said CAROLINE ROYALL HOLDING or her blood
issue per stirpes pursuant to the provisions of this Section 4 shall
not be so paid but shall instead be transferred and delivered to the
Trustees of the said Lewis R. Holding - Caroline Royall Holding Trust
created for the primary benefit of said child and her blood issue. The
corpus and income so transferred shall be added to the corpus of said
Lewis R. Holding - Caroline Royall Holding Trust as an integral part
thereof to be held, administered, and distributed in accordance with
all of the terms, conditions, and limitations set forth in said Lewis
R. Holding - Caroline Royall Holding Trust.
c. If no blood issue of Primary Beneficiary shall be living at
the time of said termination, and if neither CAROLINE ROYALL HOLDING
nor any of her blood issue shall be living at the time of said
termination, and if the Lewis R. Holding - Caroline Royall Holding
Trust shall not be in existence at the time of said termination, then
the Trustees shall transfer and deliver the trust estate, as it shall
then exist, discharged of this trust, to FRANK B. HOLDING or his
successor as Trustee for the children of the Grantor's brother, FRANK
B. HOLDING, (namely: FRANK BROWN HOLDING, JR., HOPE LEE HOLDING, OLIVIA
BRITTON HOLDING, CLAIRE CHAMBLEE HOLDING, and ELIZABETH CARSON
HOLDING), and their blood issue. The assets so delivered shall be
divided by said Trustee into such number of equal shares as shall
provide one (1) share for each of said children then living and one (1)
share for the blood issue, per stirpes, of each of said children who is
then deceased, and the shares so established shall be held and
administered by said Trustee as follows:
(1) Share for Child of FRANK B. HOLDING. The equal
share established for each child of FRANK B. HOLDING
5
<PAGE>
shall be held in a separate trust for the benefit of such
child and the net income of such trust and all or any part of
the principal thereof shall be paid to or applied for the
benefit of such child in such manner and at such intervals and
in such amounts as the Trustee shall from time to time deem
requisite or desirable to promote the education, support,
maintenance, or health of such child; or to enable such child
to maintain his or her accustomed standard of living; or to
meet an emergency. Any portion of the net income not
distributed shall annually be added to principal and become a
part thereof. Upon the death of such child, the separate trust
estate of such child, as it then exists, shall vest in and
shall be distributed and conveyed to the blood issue of such
child per stirpes, or, if such child shall be survived by no
blood issue, shall be apportioned equally to the other shares
established as aforesaid for the children of said FRANK B.
HOLDING or their blood issue and shall be administered and
disposed of as part of and/or as provided herein with respect
to such shares, provided, however, that all such distributions
shall be subject to the provisions hereinafter set forth in
Section 7 of Article II with respect to property that vests in
and is distributable to persons who are under twenty-one (21)
years of age.
(2) Share for Blood Issue of Child of FRANK B.
HOLDING. The share established for the blood issue of each
deceased child of FRANK B. HOLDING shall vest in and shall be
distributed and conveyed to such blood issue per stirpes
subject, however, to the provisions hereinafter set forth in
Section 7 of Article II with respect to property that vests in
and is distributable to persons who are under twenty-one (21)
years of age.
d. If there is no person qualified to take under any of the
preceding provisions of this Section of this Article, then
6
<PAGE>
the Trustees shall distribute the aforesaid corpus and undistributed
income to the then living heirs of Primary Beneficiary, as "heirs" are
determined by the North Carolina Intestate Succession Act then in
effect, and this trust shall terminate. It is Grantor's intention that
the identity of such heirs and the respective shares to be distributed
to them, are to be determined by the provisions of the North Carolina
Intestate Succession Act then in force as if Primary Beneficiary died
at the time of the event causing termination of this trust.
Section 5. Payment to Minors. During the minority or legal
disability of any beneficiary to or for whom income or corpus is authorized or
directed to be paid hereunder, the Trustees may pay, transfer or assign the same
in any one or more of the following ways as well as any other permissible
method:
a. Directly to such beneficiary; or,
b. To the guardian of the person or of the property of such
beneficiary upon the agreement of such guardian to apply or expend such
income or corpus solely for the education, support, maintenance, or
health of the beneficiary; or for his reasonable support and comfort;
or to enable him to maintain his accustomed standard of living; or to
meet an emergency; or,
c. To a relative of such beneficiary upon the agreement of
such relative to expend or apply such income or corpus solely for the
education, support, maintenance, or health of the beneficiary; or for
his reasonable support and comfort; or to enable him to maintain his
accustomed standard of living; or to meet an emergency; or,
d. By expending such income or corpus directly for the
education, support, maintenance, or health of the beneficiary; or for
his reasonable support and comfort; or to enable him to maintain his
accustomed standard of living; or to meet an emergency.
7
<PAGE>
The Trustees shall be protected and relieved of all liability
hereunder in relying upon the written statement of a doctor of medicine in
determining whether a beneficiary is under any legal disability.
Section 6. Perpetuities. Anything herein contained to the
contrary notwithstanding, no trust (other than a trust of a vested interest)
created hereunder shall continue more than twenty-one (21) years after the death
of the last to die of the Grantor and Primary Beneficiary; and upon the
expiration of such period all trusts shall terminate and the assets thereof
shall be delivered and conveyed to the then living income beneficiaries pursuant
to the provisions of this Article.
Section 7. Payment to Persons under Age Twenty-One (21).
Notwithstanding anything herein contained to the contrary, whenever pursuant to
the provisions of this agreement all or any part of the corpus of a trust shall
vest in absolute ownership in and shall be distributable to a person under the
age of twenty-one (21), the Trustees are authorized and empowered in their
uncontrolled discretion, to hold the property so vested in such person, or any
part thereof, in a separate fund for the benefit of such person, notwithstanding
that such property may consist of investments not authorized by law for trust
funds, and to invest and reinvest the same, collect the income therefrom and,
until such person attains age twenty-one (21), to apply so much of the corpus
and so much of the net income thereof to the support, education, and maintenance
of such person as the Trustees shall see fit, and to accumulate, invest, and
reinvest the balance of the income until such person shall attain age twenty-one
(21), and thereupon to pay over the corpus, together with any accumulated and
undistributed income, to such person, and if such person shall die before
attaining age twenty-one (21), the corpus, together with any accumulated and
undistributed income, shall be paid over to the estate of such person. The
authority conferred upon the Trustees by this Section shall be construed as a
power only, and shall not operate to suspend the absolute ownership of such
property by such person or
8
<PAGE>
to prevent the absolute vesting thereof in such person. With respect to the
administration of any such property which shall vest in absolute ownership in
such person, and which shall be held by the Trustees as authorized in this
Section, the Trustees shall have all the powers vested in them under the
provisions of this trust.
ARTICLE III
POWERS OF TRUSTEES
Section 1. General Powers. Under and pursuant to the authority
granted by North Carolina General Statute Section 32-26, the Grantor hereby
grants to the Trustees all the powers set forth in North Carolina General
Statute Section 32-27 and these powers are hereby incorporated by reference and
made a part of this agreement, and such Powers are intended to be in addition
to, and not in substitution of, all other powers conferred by law; and provided
further that the reference in Section 32-27(29) to the Uniform Principal and
Income Act contained in Chapter 37 shall be deemed a reference to the Principal
and Income Act of 1973 contained in that Chapter. Such powers shall be subject
to the limitations and restrictions stated in North Carolina General Statute
Section 32-26(b) and elsewhere in this agreement and shall be exercised in a
fiduciary capacity, primarily in the interest of the beneficiaries. Trustees are
expressly authorized to retain any property which Trustees receive originally or
hereafter, real or personal, tangible or intangible, including shares of stock
in First-Citizens Bank & Trust Company, even though such retention would not be
appropriate apart from this provision and even though such property may not be
income-producing or may be a wasting asset. Trustees are hereby relieved from
any and all liability for any loss or depreciation arising out of such
retention. Trustees are also hereby relieved from any and all liabilities and
restrictions which would otherwise be imposed upon them by Article 5 entitled
"Uniform Trust Act" of Chapter 36 of the General Statutes of North Carolina.
Trustees are expressly given the power, subject to the limitations set forth in
this agreement (including, but not limited to, the restrictions hereinafter set
9
<PAGE>
forth in Article VII), to purchase, hold, and vote shares of stock, bonds or
other securities of First-Citizens Bank & Trust Company, or the stock, bonds or
other securities of any affiliate of First-Citizens Bank & Trust Company.
Section 2. Separate Duties of Corporate and Individual
Trustees. The powers, duties, and authorities of the Trustees shall be exercised
jointly; provided, however, unless Individual Trustee gives Corporate Trustee
written notice to the contrary, the following powers and duties, except as
otherwise provided in this trust agreement, may be exercised by corporate
Trustee alone:
a. To keep the books and records of the trust;
b. To open bank accounts and draw checks thereon;
c. To employ attorneys and accountants;
d. To list property for taxation and prepare and file
federal, state, municipal and county tax returns;
e. To collect claims and debts due the trust and give
receipts therefor;
f. To pay claims against and debts of the trust;
g. To compromise claims in favor of or against the
trust;
h. To have custody of property of the trust.
Except as otherwise provided, Individual Trustee may similarly
delegate any other power, duty or authority to Corporate Trustee by written
agreement signed by all Trustees and filed with the trust records provided said
delegation causes no tax liability to the trust or anyone interested in the
trust. Any such delegation or delegations shall remain effective for the time
therein specified or until earlier revocation by Individual Trustee by a written
notice delivered to Corporate Trustee and filed with the records of the trust.
Section 3. Power to Minimize Taxes. The Trustees may upon
permission from a majority of the then current income beneficiaries surrender,
disclaim, release, relinquish or amend, either in whole or in part, or reduce in
scope any administrative provision of the trust which causes unanticipated tax
liability, or
10
<PAGE>
conform the administrative provisions of the trust to the requirements of the
taxing authorities. The Trustees, therefore, are expressly authorized to enter
into any and all agreements with the Internal Revenue Service or any other
governmental body or official or from time to time execute any declaration of
policy or disclaimers restricting the discretion given them as, determined in
the discretion of the Trustees, will tend to minimize the taxes engendered by
the trust.
Section 4. Limitations on Trustees' Powers. Notwithstanding
anything herein to the contrary, no power of the Trustees enumerated herein or
now or hereafter conferred upon trustees generally shall be construed to enable
the Grantor, or Trustees or either of them, or both of them together, or any
other person to purchase, exchange, or otherwise deal with or dispose of all or
any part of the corpus or income of the trust for less than an adequate
consideration in money or monies worth, or to the extent prohibited by Section
675 of the Internal Revenue Code of 1954, as amended, to enable the Grantor to
borrow all or any part of the corpus or income of the trust, directly or
indirectly, without adequate interest or security, or to allow the Grantor
directly or indirectly to borrow either corpus or income from the trust and not
completely repay such loan, including any interest, before the beginning of the
taxable year. No part of the corpus or income of the trust property shall be
used for or applied to the payment of premiums upon policies of insurance on the
life of the Grantor. Trustees shall neither have nor exercise the power to vote
or direct the voting of any shares or other securities of the trust except as
expressly directed in a signed, written authorization by a majority of the then
current income beneficiaries; nor shall the Trustees have or exercise the power
to purchase or sell any trust assets, including stock or securities, without
written and signed authorization from a majority of the then current income
beneficiaries. A majority of the then current income beneficiaries shall have
the power to cause trust assets (including stock, securities, real estate, or
any other type of
11
<PAGE>
property) to be sold or purchased (for either cash or on credit and, if
necessary, to use borrowed funds), by so indicating their intention in a signed,
written request delivered to the Trustees; provided, however, that the said
power of the beneficiaries to cause assets to be sold or purchased shall be
subject to the express approval of the Individual Trustee. For purposes of this
Section, the signed written authorization, direction or request of a minor
beneficiary shall be of equal force and effect as if said beneficiary had
attained the age of majority. The Trustees shall be relieved from any and all
liability for any loss or decrease in value in the trust estate that may result
from following such written directions of a majority of said income
beneficiaries.
ARTICLE IV
ADMINISTRATIVE PROVISIONS
Section 1. Records and Accounting. The Corporate Trustee shall
maintain adequate books and records reflecting all income and corpus
transactions, which books and records shall be open at all reasonable times to
the inspection of the then current income beneficiaries or the guardian or
person having custody of any minor or incompetent beneficiary. The Corporate
Trustee shall furnish at least annual statements of all receipts, disbursements
and transactions to the Grantor during his lifetime, to each adult beneficiary,
and to the guardian or person having custody of any minor or incompetent
beneficiary.
Section 2. Bond. No Trustee shall be required to furnish any
bond or surety for the performance of duties as trustee hereunder.
Section 3. Compensation. Individual Trustee shall receive no
compensation for her services hereunder but shall be entitled to reimbursements
or advancements for all expenses incurred in performing the duties of trustee
hereunder. Corporate Trustee, as compensation for its services as trustee
hereunder, shall receive the commissions stipulated in its regularly adopted
schedule of compensation in effect and applicable at the time of performance of
such services.
12
<PAGE>
ARTICLE V
SUCCESSOR TRUSTEES
Section 1. Resignation and Removal of Trustees. A trustee may
resign at any time by giving thirty (30) days' notice of such resignation to
Grantor, if living, and if not, to the then current income beneficiaries or
their guardians; provided, however, the Corporate Trustee shall not resign until
a successor trustee is appointed. Any successor trustee shall qualify under the
provisions set forth below in Section 3 of this Article. Grantor, during his
lifetime, and a majority of the then current income beneficiaries thereafter,
shall have the right to remove any trustee with or without cause by giving
thirty (30) days' notice of such removal to such trustee.
Section 2. Successor Trustee. The Grantor, during his
lifetime, and thereafter a majority of the then current income beneficiaries,
shall have the right to appoint a qualified successor trustee in the event of
the death, disability, resignation or removal of an acting trustee or in the
event any person named herein as Trustee (including FRANK B. HOLDING who is
named in Section 4 of Article II) is unable or fails for any reason to serve as
Trustee. Each successor trustee shall be appointed by a written instrument filed
with the records of the trust. If the Individual Trustee dies, resigns, is
removed, or becomes disabled and no successor is so appointed, the Corporate
Trustee may serve alone.
Section 3. Qualifications. A successor trustee may be (a) an
individual, or (b) a trust company or bank qualified to act as such in North
Carolina, and having combined capital and surplus of not less than Ten Million
Dollars ($10,000,000.00). Neither the Grantor nor any beneficiary shall act as
trustee and no more than one-half (1/2) of the trustees shall be a "related or
subordinate party," as defined by Section 672(c) of the Internal Revenue Code of
1954, as amended (or other similar statute then in force).
Section 4. Powers of Successor Trustee. A successor trustee
shall be vested with the same rights, powers and privileges
13
<PAGE>
of a predecessor trustee. A successor trustee shall have no responsibility or
accountability for the act of a predecessor trustee.
ARTICLE VI
SPENDTHRIFT PROVISION
To the extent permitted by law, the interests of the
beneficiaries shall not be subject to assignment, alienation, pledge,
attachment, or claims of creditors, and shall not otherwise be voluntarily or
involuntarily alienated or encumbered by any such beneficiary.
ARTICLE VII
VOTING OF STOCK HELD FOR BENEFIT OF
CHILDREN OF FRANK B. HOLDING OR THEIR ISSUE
If at any time there shall be any shares of First-Citizens
Bank & Trust Company or any affiliate thereof or successor thereto held as a
part of the trust established for the benefit of the children of Grantor's
brother, FRANK B. HOLDING, or their blood issue, pursuant to the provisions of
Article II, Section 4, such shares shall be voted by the Trustee as directed by
a majority of FRANK BROWN HOLDING, JR., HOPE LEE HOLDING, OLIVIA BRITTON
HOLDING, CLAIRE CHAMBLEE HOLDING, and ELIZABETH CARSON HOLDING, or the survivors
of them.
ARTICLE VIII
IRREVOCABILITY
This agreement and the trust hereby created shall be
irrevocable, and the Grantor hereby expressly acknowledges that he shall have no
right or power, whether alone or in conjunction with others, in whatever
capacity, to alter, amend, revoke or terminate the trust, or any of the terms of
this agreement, in whole or in part, or to designate the persons who shall
possess or enjoy the trust property or income therefrom. By this instrument, the
Grantor intends to and does hereby relinquish absolutely and forever, all
possession or enjoyment of, all right to the income from the trust property,
whether directly or indirectly or
14
<PAGE>
constructively, and every interest of any nature in the trust property.
ARTICLE IX
DEFINITIONS
Section 1. Trustees. "Trustees" shall include the trustees
herein appointed (including, whenever the context so requires, FRANK B. HOLDING)
and any successor Trustees.
Section 2. Death. The death of any person shall be evidenced
by presentation of a certified copy of such person's death certificate to the
Trustees.
Section 3. Blood Issue. The term "blood issue as used in this
instrument, means natural lineal descendants in any degree of an indicated
person and does not include adopted children, stepchildren, or foster children
and their issue.
Section 4. Interpretation. Whenever used herein, and to the
extent appropriate, the masculine, feminine or neuter gender shall include the
other two genders, the singular shall include the plural, and the plural shall
include the singular.
Section 5. Child. The term "child" or "children" as used in
this instrument, shall include only blood descendants in the first degree of the
ancestor to whom the term refers; adopted children, stepchildren, and foster
children are excluded.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 1. Governing Law. Notwithstanding that the Grantor or
the beneficiaries may now or at any future time be domiciled elsewhere than in
the State of North Carolina, this agreement shall be regarded for all purposes
as a North Carolina document; the validity and construction hereof shall be
determined and governed in all respects by the laws of the State of North
Carolina; and the trust, powers and provisions herein contained shall be
administered, exercised, and carried into effect according to the laws of the
State of North Carolina.
15
<PAGE>
Section 2. Unborn Person. A person en ventre sa mere shall be
considered as in being, provided said person is subsequently born alive.
Section 3. Good Faith Disbursements. Until and unless Trustees
receive actual notice of any event upon which right to payment from this trust
may depend, Trustees shall incur no liability to persons whose interests may
have been affected by such event for disbursements made in good faith.
Section 4. Invalid Provision. If any provision of this
agreement shall be invalid or unenforceable, the remaining provisions shall
continue to be fully effective.
Section 5. Notices. Whenever any notice, demand, request or
other communication is given or required to be given upon the Trustees, Grantor
or beneficiaries under this agreement, each such notice, demand, request or
other communication shall be in writing, and, any law or statute to the contrary
notwithstanding, shall not be effective for any purpose unless the same shall be
given or served by personally delivering such writing or by mailing it by
registered or certified mail, return receipt requested, to the person to whom it
is directed (unless such notice, demand, request or other communications is
waived or accepted by the person entitled thereto).
Any such notice, demand, request or other communication shall
be deemed to have been given at the time it was duly deposited in any office of
the United States Postal Service.
Section 6. Paragraph Headings. The paragraph headings are for
convenience of reference only and shall not be deemed a part of this agreement.
Section 7. Acceptance by Trustees. Trustees acknowledge
receipt from the Grantor of the properties described in the attached Exhibit A,
and do hereby accept this trust upon the terms set forth in this agreement.
IN WITNESS WHEREOF, and in triplicate originals, the Grantor
and the Individual Trustee have hereunto set their hands and seals, and the
Corporate Trustee has caused this agreement to
16
<PAGE>
be signed by one of its Vice Presidents and Trust Officers and attested by its
(Assistant) Secretary and its corporate seal to be affixed, all as of this 26th
day of April, 1979.
Grantor:
/s/ Lewis R. Holding (SEAL)
Lewis R. Holding
Individual Trustee:
/s/ Carolyn S. Holding (SEAL)
Carolyn S. Holding
Corporate Trustee:
ATTEST: FIRST-CITIZENS BANK & TRUST COMPANY
/s/ J. Glenn Creech By/s/ J. T. Woodward, Jr.
(Assistant) Secretary Senior Vice President and
Trust Officer
STATE OF NORTH CAROLINA
COUNTY OF WAKE
I, Alice W. Sherron (Penny), a Notary Public in and for said
County and State, do hereby certify that LEWIS R. HOLDING personally appeared
before me this day and acknowledged the due execution of the foregoing
instrument.
WITNESS my hand and notarial seal, this 26th day of April,
1979.
/s/ Alice W. Sherron (Penny)
Notary Public
My Commission Expires: September 18, 1979
17
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF WAKE
I, Alice W. Sherron (Penny), a Notary Public in and for said
County and State, do hereby certify that CAROLYN S. HOLDING personally appeared
before me this day and acknowledged the due execution of the foregoing
instrument.
WITNESS my hand and notarial seal, the 26th day of April,
1979.
/s/ Alice W. Sherron (Penny)
Notary Public
My Commission expires: September 18, 1979
STATE OF NORTH CAROLINA
COUNTY OF WAKE
I, Marie A. Southerland, a Notary public in and for the County
and State aforesaid, do hereby certify that on the 26th day of April, 1979,
before me personally appeared J. T. WOODWARD, JR., with whom I am personally
acquainted, who, being by me first duly sworn, says that he is a Vice president
and Trust Officer and that J. GLENN CREECH is (Assistant) Secretary of
First-Citizens Bank & Trust Company, the corporation described in and which
executed the foregoing instrument; that he knows the common seal of said
corporation; that the seal affixed to the foregoing instrument is said common
seal; that the name of the corporation was subscribed thereto by the said Vice
president and Trust Officer; that the said Vice President and Trust Officer and
the (Assistant) Secretary subscribed their names thereto and the said common
seal was affixed, all by order of the Board of Directors of said corporation;
and that the said instrument is the act and deed of said corporation.
WITNESS my hand and notarial seal, this the 26th day of April,
1979.
/s/ Marie A. Southerland
Notary Public
My Commission expires: December 23, 1983
18
<PAGE>
ACCEPTANCE OF FRANK B. HOLDING, TRUSTEE
FRANK B. HOLDING hereby accepts appointment as Trustee of the
trust established pursuant to the provisions of ARTICLE II, Section 4 of the
foregoing Trust Agreement for the benefit of the children and the blood issue of
the children of Frank B. Holding and agrees to act and to administer said trust
in accordance with its terms and provisions.
This 26th day of April, 1979.
/s/ Frank B. Holding (SEAL)
Frank B. Holding
19
<PAGE>
EXHIBIT A
TO
LEWIS R. HOLDING
IRREVOCABLE TRUST AGREEMENT
FOR
CARMEN PRICE HOLDING
1,104 shares of the common stock of First-Citizens
Bank & Trust Company
CAROLYN S. HOLDING and FIRST-CITIZENS BANK & TRUST COMPANY,
Trustees, acknowledge receipt of the foregoing property for the purposes set
forth in the foregoing Irrevocable Trust Agreement of which this page is
specifically made a part.
This the 26th day of April, 1979.
/s/ Carolyn S. Holding (SEAL)
Carolyn S. Holding, Trustee
ATTEST: FIRST-CITIZENS BANK & TRUST COMPANY
Trustee
/s/ J. G. Creech By /s/ J. T. Woodward, Jr.
<PAGE>
Appendix to Exhibit 7(c)
STATE OF NORTH CAROLINA
COUNTY OF WAKE
NOTICE OF REMOVAL OF TRUSTEE,
APPOINTMENT OF SUCCESSOR TRUSTEE AND
ACCEPTANCE OF APPOINTMENT AS SUCCESSOR TRUSTEE
TO: First-Citizens Bank & Trust Company, Post Office Box 151, Raleigh,
North Carolina 27602
RE: Irrevocable Trust Agreement for the Primary Benefit of Carmen Price
Holding, dated April 26, 1979 between Lewis R. Holding as Grantor and
First-Citizens Bank & Trust Company and Carolyn S. Holding as Trustees.
Pursuant to the authority granted under Section 1 of Article V
of the above-referenced Trust Agreement, the undersigned LEWIS R. HOLDING,
hereby removes FIRST-CITIZENS BANK & TRUST COMPANY as Corporate Trustee,
effective thirty (30) days from the date of the delivery of this Notice.
Further, pursuant to the authority granted in Section 2 in
Article V thereof, the undersigned LEWIS R. HOLDING hereby appoints GEORGE H.
BROADRICK to serve as Successor Co-Trustee in the place and stead of
FIRST-CITIZENS BANK & TRUST COMPANY.
The undersigned, GEORGE H. BROADRICK, accepts the appointment
as Successor Co-Trustee of the above-referenced Trust Agreement, effective upon
the effective date of the removal of FIRST-CITIZENS BANK & TRUST COMPANY, and
agrees to hold, administer and distribute all of the trust assets in accordance
with the terms and provisions of the above-referenced Trust Agreement upon
delivery of the Trust assets to me.
This 30th day of January, 1991.
/s/ Lewis R. Holding (SEAL)
LEWIS R. HOLDING
/s/ George H. Broadrick (SEAL)
GEORGE H. BROADRICK
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF WAKE
I, Nancy Narron, a Notary Public in and for said County and
State, do hereby certify that LEWIS R. HOLDING personally appeared before me
this day and acknowledged the due execution of the foregoing instrument.
WITNESS my hand and notarial seal, this the 28th day of
January, 1991.
/s/ Nancy Narron
Notary Public
My Commission Expires:
January 6, 1992
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
I, Sally B. Honeycutt, a Notary Public in and for said County
and State, do hereby certify that GEORGE H. BROADRICK personally appeared before
me this day and acknowledged the due execution of the foregoing instrument.
WITNESS my hand and notarial seal, this the 30th day of
January, 1991.
/s/ Sally B. Honeycutt
Notary Public
My Commission Expires:
February 24, 1993
<PAGE>
Exhibit 7(d)
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IRREVOCABLE TRUST AGREEMENT
THIS IRREVOCABLE TRUST AGREEMENT, made and entered into this
the 26th day of April, 1979, by and between LEWIS R. HOLDING of Wake County,
North Carolina (hereinafter referred to as "Grantor"), party of the first part;
and FIRST-CITIZENS BANK & TRUST COMPANY, a North Carolina banking corporation,
CAROLYN S. HOLDING, of Wake County, North Carolina (hereinafter individually
referred to as "Corporate Trustee" and "Individual Trustee", respectively, and
collectively referred to as "Trustees"), parties of the second part;
W I T N E S S E T H :
ARTICLE I
CORPUS
Section 1. Trust Property. The Grantor hereby irrevocably
transfers, delivers and conveys to the Trustees all the property described on
"Exhibit A" attached hereto and specifically incorporated herein by reference,
the receipt of which is hereby acknowledged by the Trustees. The Trustees accept
such transfer and agree to hold and administer the aforesaid property in trust
for the uses and purposes and upon the express terms and conditions and with the
powers and limitations hereinafter set forth.
Section 2. Additions to Corpus. Additional property from time
to time may be transferred by the Grantor or by any other person or persons to
the Trustees, and such property thereupon shall become a part of the trust
estate and shall be held, managed, invested, reinvested, and disposed of on the
same terms and conditions as the property originally transferred.
ARTICLE II
DISPOSITIVE PROVISIONS
Section 1. General Provisions. The Trustees shall hold,
manage, invest and reinvest, and control the trust property, and shall collect
the income thereof, and after deducting all necessary expenses incident to the
management and administration of the trust
<PAGE>
property, shall disburse the net income and corpus for the benefit of CAROLINE
ROYALL HOLDING (hereinafter referred to as "Primary Beneficiary") and said
Primary Beneficiary's blood issue, as hereinafter provided.
Section 2. Distribution During Primary Beneficiary's Life. The
Trustees shall hold and distribute the net income and corpus during Primary
Beneficiary's life upon the following terms and conditions:
a. Income. The Trustees shall pay or apply the net income, at
least annually, or more frequently as may be determined by the
Trustees, to or for the benefit of Primary Beneficiary.
b. Corpus. The Trustees may, in their discretion, pay or apply
to or for the benefit of Primary Beneficiary such additional amounts
from corpus, in such manner and at such intervals and in such amounts
as the Trustees in their discretion from time to time shall deem
requisite or desirable; provided, however, in the case of each payment
of corpus, the Trustees shall first determine that such payment or
application of corpus is reasonably necessary to promote Primary
Beneficiary's education, support, maintenance, or health; or is
reasonably necessary for the reasonable support and comfort of Primary
Beneficiary; or is reasonably necessary to enable Primary Beneficiary
to maintain her accustomed standard of living; or is reasonably
necessary to meet an emergency. In making such determination under this
subsection 2b, the Trustees shall take into consideration any other
income (other than capital gains), or property known to the Trustees
which Primary Beneficiary may have or enjoy from sources other than
this trust estate.
Section 3. Distribution After Primary Beneficiary's Death.
Upon the death of Primary Beneficiary, the corpus of this trust, as it shall
then exist, and all undistributed income shall be held and distributed to or for
the benefit of Primary
2
<PAGE>
Beneficiary's blood issue, from time to time living, subject to the following
terms and conditions:
a. Income. The Trustees shall pay or apply the net income, at
least annually, to or for the benefit of Primary Beneficiary's blood
issue, from time to time living, in such manner and at such intervals
and in such amounts, not necessarily in equal shares or amounts, as the
Trustees in their discretion from time to time shall deem requisite or
desirable to promote the education, support, maintenance, or health of
such beneficiary; or for the reasonable support and comfort of such
beneficiary; or to enable such beneficiary to maintain his accustomed
standard of living; or to meet an emergency. Any portion of the net
income not distributed pursuant to the preceding sentence shall be paid
at least annually, to or for the benefit of Primary Beneficiary's blood
issue, from time to time living, in equal shares. Any such
disbursements from income to such blood issue shall not be charged
against any individual share subsequently distributed to any
beneficiary.
b. Corpus. The Trustees may, in their discretion, pay or apply
to or for the benefit of any of Primary Beneficiary's blood issue, from
time to time living, such additional amounts from corpus, in such
manner and at such intervals and in such amounts, not necessarily in
equal shares or amounts, as the Trustees in their discretion from time
to time shall deem requisite or desirable. Provided, however, in the
case of each payment or application of corpus, the Trustees shall first
determine that such payment or application of corpus is reasonably
necessary to promote the education, support, maintenance or health of
such beneficiary; or is reasonably necessary for the reasonable support
and comfort of such beneficiary; or is reasonably necessary to enable
such beneficiary to maintain his accustomed
3
<PAGE>
standard of living; or is reasonably necessary to meet an emergency. In
making such determination under this subsection 3b, the Trustees shall
take into consideration any other income (other than capital gains), or
property known to the Trustees which such beneficiary may have or enjoy
from sources other than this trust estate. Any such disbursements from
corpus shall not be charged against any individual share subsequently
distributed to any beneficiary.
Section 4. Termination and Distribution. This trust shall
terminate upon (1) the death of Primary Beneficiary with no surviving blood
issue or (2) the death of all surviving blood issue of Primary Beneficiary after
the death of Primary Beneficiary whether born before or after the death of
Primary Beneficiary, or (3) the expiration of the term of eighteen (18) years
from the death of Primary Beneficiary, whichever of said three events shall
first occur.
Upon termination of this trust, the Trustees shall transfer
and deliver the corpus and all undistributed income then constituting the trust
estate, discharged of this trust, as follows:
a. If any blood issue of Primary Beneficiary shall be living
at the time of said termination, then in equal shares to such of
Primary Beneficiary's natural children as shall then be living and to
the blood issue per stirpes of such of Primary Beneficiary's natural
children as shall be dead with blood issue then living--such blood
issue representing its parent.
b. If no blood issue of Primary Beneficiary shall be living at
the time of said termination, then to CARMEN PRICE HOLDING, the child
of Grantor, if she shall then be living, or to her blood issue per
stirpes if she shall be dead with blood issue then living; provided,
however, in the event that certain Irrevocable Trust Agreement executed
by Grantor of even date herewith for the primary benefit of said CARMEN
4
<PAGE>
PRICE HOLDING and her blood issue (said trust being hereinafter
referred to as "Lewis R. Holding - Carmen Price Holding Trust") shall
still be in existence at the time of said termination, then any share
otherwise payable to said CARMEN PRICE HOLDING or her blood issue per
stirpes pursuant to the provisions of this Section 4 shall not be so
paid but shall instead be transferred and delivered to the Trustees of
the said Lewis R. Holding - Carmen Price Holding Trust created for the
primary benefit of said child and her blood issue. The corpus and
income so transferred shall be added to the corpus of said Lewis R.
Holding - Carmen Price Holding Trust as an integral part thereof to be
held, administered, and distributed in accordance with all of the
terms, conditions, and limitations set forth in said Lewis R. Holding -
Carmen Price Holding Trust.
c. If no blood issue of Primary Beneficiary shall be living at
the time of said termination, and if neither CARMEN PRICE HOLDING nor
any of her blood issue shall be living at the time of said termination,
and if the Lewis R. Holding - Carmen Price Holding Trust shall not be
in existence at the time of said termination, then the Trustees shall
transfer and deliver the trust estate, as it shall then exist,
discharged of this trust, to FRANK B. HOLDING or his successor as
Trustee for the children of the Grantor's brother, FRANK B. HOLDING,
(namely: FRANK BROWN HOLDING, JR., HOPE LEE HOLDING, OLIVIA BRITTON
HOLDING, CLAIRE CHAMBLEE HOLDING, and ELIZABETH CARSON HOLDING), and
their blood issue. The assets so delivered shall be divided by said
Trustee into such number of equal shares as shall provide one (1) share
for each of said children then living and one (1) share for the blood
issue, per stirpes, of each of said children who is then deceased, and
the shares so established shall be held and administered by said
Trustee as follows:
(1) Share for Child of FRANK B. HOLDING. The equal
share established for each child of FRANK B. HOLDING
5
<PAGE>
shall be held in a separate trust for the benefit of such
child and the net income of such trust and all or any part of
the principal thereof shall be paid to or applied for the
benefit of such child in such manner and at such intervals and
in such amounts as the Trustee shall from time to time deem
requisite or desirable to promote the education, support,
maintenance, or health of such child; or to enable such child
to maintain his or her accustomed standard of living; or to
meet an emergency. Any portion of the net income not
distributed shall annually be added to principal and become a
part thereof. Upon the death of such child, the separate trust
estate of such child, as it then exists, shall vest in and
shall be distributed and conveyed to the blood issue of such
child per stirpes, or, if such child shall be survived by no
blood issue, shall be apportioned equally to the other shares
established as aforesaid for the children of said FRANK B.
HOLDING or their blood issue and shall be administered and
disposed of as part of and/or as provided herein with respect
to such shares, provided, however, that all such distributions
shall be subject to the provisions hereinafter set forth in
Section 7 of Article II with respect to property that vests in
and is distributable to persons who are under twenty-one (21)
years of age.
(2) Share for Blood Issue of Child of FRANK B.
HOLDING. The share established for the blood issue of each
deceased child of FRANK B. HOLDING shall vest in and shall be
distributed and conveyed to such blood issue per stirpes
subject, however, to the provisions hereinafter set forth in
Section 7 of Article II with respect to property that vests in
and is distributable to persons who are under twenty-one (21)
years of age.
d. If there is no person qualified to take under any of the
preceding provisions of this Section of this Article, then
6
<PAGE>
the Trustees shall distribute the aforesaid corpus and undistributed
income to the then living heirs of Primary Beneficiary, as "heirs" are
determined by the North Carolina Intestate Succession Act then in
effect, and this trust shall terminate. It is Grantor's intention that
the identity of such heirs and the respective shares to be distributed
to them, are to be determined by the provisions of the North Carolina
Intestate Succession Act then in force as if Primary Beneficiary died
at the time of the event causing termination of this trust.
Section 5. Payment to Minors. During the minority or legal
disability of any beneficiary to or for whom income or corpus is authorized or
directed to be paid hereunder, the Trustees may pay, transfer or assign the same
in any one or more of the following ways as well as any other permissible
method:
a. Directly to such beneficiary; or,
b. To the guardian of the person or of the property of such
beneficiary upon the agreement of such guardian to apply or expend such
income or corpus solely for the education, support, maintenance, or
health of the beneficiary; or for his reasonable support and comfort;
or to enable him to maintain his accustomed standard of living; or to
meet an emergency; or,
c. To a relative of such beneficiary upon the agreement of
such relative to expend or apply such income or corpus solely for the
education, support, maintenance, or health of the beneficiary; or for
his reasonable support and comfort; or to enable him to maintain his
accustomed standard of living; or to meet an emergency; or,
d. By expending such income or corpus directly for the
education, support, maintenance, or health of the beneficiary; or for
his reasonable support and comfort; or to enable him to maintain his
accustomed standard of living; or to meet an emergency.
7
<PAGE>
The Trustees shall be protected and relieved of all liability
hereunder in relying upon the written statement of a doctor of medicine in
determining whether a beneficiary is under any legal disability.
Section 6. Perpetuities. Anything herein contained to the
contrary notwithstanding, no trust (other than a trust of a vested interest)
created hereunder shall continue more than twenty-one (21) years after the death
of the last to die of the Grantor and Primary Beneficiary; and upon the
expiration of such period all trusts shall terminate and the assets thereof
shall be delivered and conveyed to the then living income beneficiaries pursuant
to the provisions of this Article.
Section 7. Payment to Persons under Age Twenty-One (21).
Notwithstanding anything herein contained to the contrary, whenever pursuant to
the provisions of this agreement all or any part of the corpus of a trust shall
vest in absolute ownership in and shall be distributable to a person under the
age of twenty-one (21), the Trustees are authorized and empowered in their
uncontrolled discretion, to hold the property so vested in such person, or any
part thereof, in a separate fund for the benefit of such person, notwithstanding
that such property may consist of investments not authorized by law for trust
funds, and to invest and reinvest the same, collect the income therefrom and,
until such person attains age twenty-one (21), to apply so much of the corpus
and so much of the net income thereof to the support, education, and maintenance
of such person as the Trustees shall see fit, and to accumulate, invest, and
reinvest the balance of the income until such person shall attain age twenty-one
(21), and thereupon to pay over the corpus, together with any accumulated and
undistributed income, to such person, and if such person shall die before
attaining age twenty-one (21), the corpus, together with any accumulated and
undistributed income, shall be paid over to the estate of such person. The
authority conferred upon the Trustees by this Section shall be construed as a
power only, and shall not operate to suspend the absolute ownership of such
property by such person or
8
<PAGE>
to prevent the absolute vesting thereof in such person. With respect to the
administration of any such property which shall vest in absolute ownership in
such person, and which shall be held by the Trustees as authorized in this
Section, the Trustees shall have all the powers vested in them under the
provisions of this trust.
ARTICLE III
POWERS OF TRUSTEES
Section 1. General Powers. Under and pursuant to the authority
granted by North Carolina General Statute Section 32-26, the Grantor hereby
grants to the Trustees all the powers set forth in North Carolina General
Statute Section 32-27 and these powers are hereby incorporated by reference and
made a part of this agreement, and such Powers are intended to be in addition
to, and not in substitution of, all other powers conferred by law; and provided
further that the reference in Section 32-27(29) to the Uniform Principal and
Income Act contained in Chapter 37 shall be deemed a reference to the Principal
and Income Act of 1973 contained in that Chapter. Such powers shall be subject
to the limitations and restrictions stated in North Carolina General Statute
Section 32-26(b) and elsewhere in this agreement and shall be exercised in a
fiduciary capacity, primarily in the interest of the beneficiaries. Trustees are
expressly authorized to retain any property which Trustees receive originally or
hereafter, real or personal, tangible or intangible, including shares of stock
in First-Citizens Bank & Trust Company, even though such retention would not be
appropriate apart from this provision and even though such property may not be
income-producing or may be a wasting asset. Trustees are hereby relieved from
any and all liability for any loss or depreciation arising out of such
retention. Trustees are also hereby relieved from any and all liabilities and
restrictions which would otherwise be imposed upon them by Article 5 entitled
"Uniform Trust Act" of Chapter 36 of the General Statutes of North Carolina.
Trustees are expressly given the power, subject to the limitations set forth in
this agreement (including, but not limited to, the restrictions hereinafter set
9
<PAGE>
forth in Article VII), to purchase, hold, and vote shares of stock, bonds or
other securities of First-Citizens Bank & Trust Company, or the stock, bonds or
other securities of any affiliate of First-Citizens Bank & Trust Company.
Section 2. Separate Duties of Corporate and Individual
Trustees. The powers, duties, and authorities of the Trustees shall be exercised
jointly; provided, however, unless Individual Trustee gives Corporate Trustee
written notice to the contrary, the following powers and duties, except as
otherwise provided in this trust agreement, may be exercised by corporate
Trustee alone:
a. To keep the books and records of the trust;
b. To open bank accounts and draw checks thereon;
c. To employ attorneys and accountants;
d. To list property for taxation and prepare and file
federal, state, municipal and county tax returns;
e. To collect claims and debts due the trust and give
receipts therefor;
f. To pay claims against and debts of the trust;
g. To compromise claims in favor of or against the
trust;
h. To have custody of property of the trust.
Except as otherwise provided, Individual Trustee may similarly
delegate any other power, duty or authority to Corporate Trustee by written
agreement signed by all Trustees and filed with the trust records provided said
delegation causes no tax liability to the trust or anyone interested in the
trust. Any such delegation or delegations shall remain effective for the time
therein specified or until earlier revocation by Individual Trustee by a written
notice delivered to Corporate Trustee and filed with the records of the trust.
Section 3. Power to Minimize Taxes. The Trustees may upon
permission from a majority of the then current income beneficiaries surrender,
disclaim, release, relinquish or amend, either in whole or in part, or reduce in
scope any administrative provision of the trust which causes unanticipated tax
liability, or
10
<PAGE>
conform the administrative provisions of the trust to the requirements of the
taxing authorities. The Trustees, therefore, are expressly authorized to enter
into any and all agreements with the Internal Revenue Service or any other
governmental body or official or from time to time execute any declaration of
policy or disclaimers restricting the discretion given them as, determined in
the discretion of the Trustees, will tend to minimize the taxes engendered by
the trust.
Section 4. Limitations on Trustees' Powers. Notwithstanding
anything herein to the contrary, no power of the Trustees enumerated herein or
now or hereafter conferred upon trustees generally shall be construed to enable
the Grantor, or Trustees or either of them, or both of them together, or any
other person to purchase, exchange, or otherwise deal with or dispose of all or
any part of the corpus or income of the trust for less than an adequate
consideration in money or monies worth, or to the extent prohibited by Section
675 of the Internal Revenue Code of 1954, as amended, to enable the Grantor to
borrow all or any part of the corpus or income of the trust, directly or
indirectly, without adequate interest or security, or to allow the Grantor
directly or indirectly to borrow either corpus or income from the trust and not
completely repay such loan, including any interest, before the beginning of the
taxable year. No part of the corpus or income of the trust property shall be
used for or applied to the payment of premiums upon policies of insurance on the
life of the Grantor. Trustees shall neither have nor exercise the power to vote
or direct the voting of any shares or other securities of the trust except as
expressly directed in a signed, written authorization by a majority of the then
current income beneficiaries; nor shall the Trustees have or exercise the power
to purchase or sell any trust assets, including stock or securities, without
written and signed authorization from a majority of the then current income
beneficiaries. A majority of the then current income beneficiaries shall have
the power to cause trust assets (including stock, securities, real estate, or
any other type of
11
<PAGE>
property) to be sold or purchased (for either cash or on credit and, if
necessary, to use borrowed funds), by so indicating their intention in a signed,
written request delivered to the Trustees; provided, however, that the said
power of the beneficiaries to cause assets to be sold or purchased shall be
subject to the express approval of the Individual Trustee. For purposes of this
Section, the signed written authorization, direction or request of a minor
beneficiary shall be of equal force and effect as if said beneficiary had
attained the age of majority. The Trustees shall be relieved from any and all
liability for any loss or decrease in value in the trust estate that may result
from following such written directions of a majority of said income
beneficiaries.
ARTICLE IV
ADMINISTRATIVE PROVISIONS
Section 1. Records and Accounting. The Corporate Trustee shall
maintain adequate books and records reflecting all income and corpus
transactions, which books and records shall be open at all reasonable times to
the inspection of the then current income beneficiaries or the guardian or
person having custody of any minor or incompetent beneficiary. The Corporate
Trustee shall furnish at least annual statements of all receipts, disbursements
and transactions to the Grantor during his lifetime, to each adult beneficiary,
and to the guardian or person having custody of any minor or incompetent
beneficiary.
Section 2. Bond. No Trustee shall be required to furnish any
bond or surety for the performance of duties as trustee hereunder.
Section 3. Compensation. Individual Trustee shall receive no
compensation for her services hereunder but shall be entitled to reimbursements
or advancements for all expenses incurred in performing the duties of trustee
hereunder. Corporate Trustee, as compensation for its services as trustee
hereunder, shall receive the commissions stipulated in its regularly adopted
schedule of compensation in effect and applicable at the time of performance of
such services.
12
<PAGE>
ARTICLE V
SUCCESSOR TRUSTEES
Section 1. Resignation and Removal of Trustees. A trustee may
resign at any time by giving thirty (30) days' notice of such resignation to
Grantor, if living, and if not, to the then current income beneficiaries or
their guardians; provided, however, the Corporate Trustee shall not resign until
a successor trustee is appointed. Any successor trustee shall qualify under the
provisions set forth below in Section 3 of this Article. Grantor, during his
lifetime, and a majority of the then current income beneficiaries thereafter,
shall have the right to remove any trustee with or without cause by giving
thirty (30) days' notice of such removal to such trustee.
Section 2. Successor Trustee. The Grantor, during his
lifetime, and thereafter a majority of the then current income beneficiaries,
shall have the right to appoint a qualified successor trustee in the event of
the death, disability, resignation or removal of an acting trustee or in the
event any person named herein as Trustee (including FRANK B. HOLDING who is
named in Section 4 of Article II) is unable or fails for any reason to serve as
Trustee. Each successor trustee shall be appointed by a written instrument filed
with the records of the trust. If the Individual Trustee dies, resigns, is
removed, or becomes disabled and no successor is so appointed, the Corporate
Trustee may serve alone.
Section 3. Qualifications. A successor trustee may be (a) an
individual, or (b) a trust company or bank qualified to act as such in North
Carolina, and having combined capital and surplus of not less than Ten Million
Dollars ($10,000,000.00). Neither the Grantor nor any beneficiary shall act as
trustee and no more than one-half (1/2) of the trustees shall be a "related or
subordinate party," as defined by Section 672(c) of the Internal Revenue Code of
1954, as amended (or other similar statute then in force).
Section 4. Powers of Successor Trustee. A successor trustee
shall be vested with the same rights, powers and privileges
13
<PAGE>
of a predecessor trustee. A successor trustee shall have no responsibility or
accountability for the act of a predecessor trustee.
ARTICLE VI
SPENDTHRIFT PROVISION
To the extent permitted by law, the interests of the
beneficiaries shall not be subject to assignment, alienation, pledge,
attachment, or claims of creditors, and shall not otherwise be voluntarily or
involuntarily alienated or encumbered by any such beneficiary.
ARTICLE VII
VOTING OF STOCK HELD FOR BENEFIT OF
CHILDREN OF FRANK B. HOLDING OR THEIR ISSUE
If at any time there shall be any shares of First-Citizens
Bank & Trust Company or any affiliate thereof or successor thereto held as a
part of the trust established for the benefit of the children of Grantor's
brother, FRANK B. HOLDING, or their blood issue, pursuant to the provisions of
Article II, Section 4, such shares shall be voted by the Trustee as directed by
a majority of FRANK BROWN HOLDING, JR., HOPE LEE HOLDING, OLIVIA BRITTON
HOLDING, CLAIRE CHAMBLEE HOLDING, and ELIZABETH CARSON HOLDING, or the survivors
of them.
ARTICLE VIII
IRREVOCABILITY
This agreement and the trust hereby created shall be
irrevocable, and the Grantor hereby expressly acknowledges that he shall have no
right or power, whether alone or in conjunction with others, in whatever
capacity, to alter, amend, revoke or terminate the trust, or any of the terms of
this agreement, in whole or in part, or to designate the persons who shall
possess or enjoy the trust property or income therefrom. By this instrument, the
Grantor intends to and does hereby relinquish absolutely and forever, all
possession or enjoyment of, all right to the income from the trust property,
whether directly or indirectly or
14
<PAGE>
constructively, and every interest of any nature in the trust property.
ARTICLE IX
DEFINITIONS
Section 1. Trustees. "Trustees" shall include the trustees
herein appointed (including, whenever the context so requires, FRANK B. HOLDING)
and any successor Trustees.
Section 2. Death. The death of any person shall be evidenced
by presentation of a certified copy of such person's death certificate to the
Trustees.
Section 3. Blood Issue. The term "blood issue as used in this
instrument, means natural lineal descendants in any degree of an indicated
person and does not include adopted children, stepchildren, or foster children
and their issue.
Section 4. Interpretation. Whenever used herein, and to the
extent appropriate, the masculine, feminine or neuter gender shall include the
other two genders, the singular shall include the plural, and the plural shall
include the singular.
Section 5. Child. The term "child" or "children" as used in
this instrument, shall include only blood descendants in the first degree of the
ancestor to whom the term refers; adopted children, stepchildren, and foster
children are excluded.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 1. Governing Law. Notwithstanding that the Grantor or
the beneficiaries may now or at any future time be domiciled elsewhere than in
the State of North Carolina, this agreement shall be regarded for all purposes
as a North Carolina document; the validity and construction hereof shall be
determined and governed in all respects by the laws of the State of North
Carolina; and the trust, powers and provisions herein contained shall be
administered, exercised, and carried into effect according to the laws of the
State of North Carolina.
15
<PAGE>
Section 2. Unborn Person. A person en ventre sa mere shall be
considered as in being, provided said person is subsequently born alive.
Section 3. Good Faith Disbursements. Until and unless Trustees
receive actual notice of any event upon which right to payment from this trust
may depend, Trustees shall incur no liability to persons whose interests may
have been affected by such event for disbursements made in good faith.
Section 4. Invalid Provision. If any provision of this
agreement shall be invalid or unenforceable, the remaining provisions shall
continue to be fully effective.
Section 5. Notices. Whenever any notice, demand, request or
other communication is given or required to be given upon the Trustees, Grantor
or beneficiaries under this agreement, each such notice, demand, request or
other communication shall be in writing, and, any law or statute to the contrary
notwithstanding, shall not be effective for any purpose unless the same shall be
given or served by personally delivering such writing or by mailing it by
registered or certified mail, return receipt requested, to the person to whom it
is directed (unless such notice, demand, request or other communications is
waived or accepted by the person entitled thereto).
Any such notice, demand, request or other communication shall
be deemed to have been given at the time it was duly deposited in any office of
the United States Postal Service.
Section 6. Paragraph Headings. The paragraph headings are for
convenience of reference only and shall not be deemed a part of this agreement.
Section 7. Acceptance by Trustees. Trustees acknowledge
receipt from the Grantor of the properties described in the attached Exhibit A,
and do hereby accept this trust upon the terms set forth in this agreement.
IN WITNESS WHEREOF, and in triplicate originals, the Grantor
and the Individual Trustee have hereunto set their hands and seals, and the
Corporate Trustee has caused this agreement to
16
<PAGE>
be signed by one of its Vice Presidents and Trust Officers and attested by its
(Assistant) Secretary and its corporate seal to be affixed, all as of this 26th
day of April, 1979.
Grantor:
/s/ Lewis R. Holding (SEAL)
Lewis R. Holding
Individual Trustee:
/s/ Carolyn S. Holding (SEAL)
Carolyn S. Holding
Corporate Trustee:
ATTEST: FIRST-CITIZENS BANK & TRUST COMPANY
/s/ J. Glenn Creech By/s/ J. T. Woodward, Jr.
(Assistant) Secretary Senior Vice President and
Trust Officer
STATE OF NORTH CAROLINA
COUNTY OF WAKE
I, Alice W. Sherron (Penny), a Notary Public in and for said
County and State, do hereby certify that LEWIS R. HOLDING personally appeared
before me this day and acknowledged the due execution of the foregoing
instrument.
WITNESS my hand and notarial seal, this 26th day of April,
1979.
/s/ Alice W. Sherron (Penny)
Notary Public
My Commission Expires: September 18, 1979
17
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF WAKE
I, Alice W. Sherron (Penny), a Notary Public in and for said
County and State, do hereby certify that CAROLYN S. HOLDING personally appeared
before me this day and acknowledged the due execution of the foregoing
instrument.
WITNESS my hand and notarial seal, the 26th day of April,
1979.
/s/ Alice W. Sherron (Penny)
Notary Public
My Commission expires: September 18, 1979
STATE OF NORTH CAROLINA
COUNTY OF WAKE
I, Marie A. Southerland, a Notary public in and for the County
and State aforesaid, do hereby certify that on the 26th day of April, 1979,
before me personally appeared J. T. WOODWARD, JR., with whom I am personally
acquainted, who, being by me first duly sworn, says that he is a Vice president
and Trust Officer and that J. GLENN CREECH is (Assistant) Secretary of
First-Citizens Bank & Trust Company, the corporation described in and which
executed the foregoing instrument; that he knows the common seal of said
corporation; that the seal affixed to the foregoing instrument is said common
seal; that the name of the corporation was subscribed thereto by the said Vice
president and Trust Officer; that the said Vice President and Trust Officer and
the (Assistant) Secretary subscribed their names thereto and the said common
seal was affixed, all by order of the Board of Directors of said corporation;
and that the said instrument is the act and deed of said corporation.
WITNESS my hand and notarial seal, this the 26th day of April,
1979.
/s/ Marie A. Southerland
Notary Public
My Commission expires: December 23, 1983
18
<PAGE>
ACCEPTANCE OF FRANK B. HOLDING, TRUSTEE
FRANK B. HOLDING hereby accepts appointment as Trustee of the
trust established pursuant to the provisions of ARTICLE II, Section 4 of the
foregoing Trust Agreement for the benefit of the children and the blood issue of
the children of Frank B. Holding and agrees to act and to administer said trust
in accordance with its terms and provisions.
This 26th day of April, 1979.
/s/ Frank B. Holding (SEAL)
Frank B. Holding
19
<PAGE>
EXHIBIT A
TO
LEWIS R. HOLDING
IRREVOCABLE TRUST AGREEMENT
FOR
CAROLINE ROYALL HOLDING
1,104 shares of the common stock of First-Citizens
Bank & Trust Company
CAROLYN S. HOLDING and FIRST-CITIZENS BANK & TRUST COMPANY,
Trustees, acknowledge receipt of the foregoing property for the purposes set
forth in the foregoing Irrevocable Trust Agreement of which this page is
specifically made a part.
This the 26th day of April, 1979.
/s/ Carolyn S. Holding (SEAL)
Carolyn S. Holding, Trustee
ATTEST: FIRST-CITIZENS BANK & TRUST COMPANY
Trustee
/s/ J. Glenn Creech By /s/ J. T. Woodward, Jr.
<PAGE>
Appendix to Exhibit 7(d)
STATE OF NORTH CAROLINA
COUNTY OF WAKE
NOTICE OF REMOVAL OF TRUSTEE,
APPOINTMENT OF SUCCESSOR TRUSTEE AND
ACCEPTANCE OF APPOINTMENT AS SUCCESSOR TRUSTEE
TO: First-Citizens Bank & Trust Company, Post Office Box 151, Raleigh,
North Carolina 27602
RE: Irrevocable Trust Agreement for the Primary Benefit of Caroline Royall
Holding, dated April 26, 1979 between Lewis R. Holding as Grantor and
First-Citizens Bank & Trust Company and Carolyn S. Holding as Trustees.
Pursuant to the authority granted under Section 1 of Article V
of the above-referenced Trust Agreement, the undersigned LEWIS R. HOLDING,
hereby removes FIRST-CITIZENS BANK & TRUST COMPANY as Corporate Trustee,
effective thirty (30) days from the date of the delivery of this Notice.
Further, pursuant to the authority granted in Section 2 in
Article V thereof, the undersigned LEWIS R. HOLDING hereby appoints GEORGE H.
BROADRICK to serve as Successor Co-Trustee in the place and stead of
FIRST-CITIZENS BANK & TRUST COMPANY.
The undersigned, GEORGE H. BROADRICK, accepts the appointment
as Successor Co-Trustee of the above-referenced Trust Agreement, effective upon
the effective date of the removal of FIRST-CITIZENS BANK & TRUST COMPANY, and
agrees to hold, administer and distribute all of the trust assets in accordance
with the terms and provisions of the above-referenced Trust Agreement upon
delivery of the Trust assets to me.
This 30 day of January, 1991.
/s/ Lewis R. Holding (SEAL)
LEWIS R. HOLDING
/s/ George H. Broadrick (SEAL)
GEORGE H. BROADRICK
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF WAKE
I, Nancy Narron, a Notary Public in and for said County and
State, do hereby certify that LEWIS R. HOLDING personally appeared before me
this day and acknowledged the due execution of the foregoing instrument.
WITNESS my hand and notarial seal, this the 28 day of January,
1991.
/s/ Nancy Narron
Notary Public
My Commission Expires:
January 6, 1992
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
I, Sally B. Honeycutt, a Notary Public in and for said County
and State, do hereby certify that GEORGE H. BROADRICK personally appeared before
me this day and acknowledged the due execution of the foregoing instrument.
WITNESS my hand and notarial seal, this the 30 day of January,
1991.
/s/ Sally B. Honeycutt
Notary Public
My Commission Expires:
2/24/93
<PAGE>
Exhibit 7(e)
STATE OF NORTH CAROLINA
COUNTY OF JOHNSTON
IRREVOCABLE TRUST AGREEMENT
THIS IRREVOCABLE TRUST AGREEMENT, made and entered into this
the 28th day of December, 1976, by and between MAGGIE B. HOLDING, of Johnston
County, North Carolina (hereinafter referred to as "Grantor"), party of the
first part; and FIRST-CITIZENS BANK & TRUST COMPANY, a North Carolina banking
corporation, and CAROLYN S. HOLDING, of Wake County, North Carolina (hereinafter
individually referred to as "Corporate Trustee" and "Individual Trustee"
respectively, and collectively referred to as "Trustees"), parties of the second
part;
W I T N E S S E T H :
ARTICLE I
CORPUS
Section 1. Trust Property. The Grantor hereby irrevocably
transfers, delivers and conveys to the Trustees all the property described on
"Exhibit A" attached hereto and specifically incorporated herein by reference,
the receipt of which is hereby acknowledged by the Trustees. The Trustees accept
such transfer and agree to hold and administer the aforesaid property in trust
for the uses and purposes and upon the express terms and conditions and with the
powers and limitations hereinafter set forth.
Section 2. Additions To Corpus. Additional property from time
to time may be transferred by the Grantor or by any other person or persons to
the Trustees, and such property thereupon shall become a part of the trust
estate and shall be held, managed, invested, reinvested, and disposed of on the
same terms and conditions as the property originally transferred.
ARTICLE II
DISPOSITIVE PROVISIONS
Section 1. General Provisions. The Trustees shall hold,
manage, invest and reinvest, and control the trust property, and
1
<PAGE>
shall collect the income thereof, and after deducting all necessary expenses
incident to the management and administration of the trust property, shall
disburse the net income and corpus for the benefit of CARMEN PRICE HOLDING
(hereinafter referred to as "Primary Beneficiary") and said Primary
Beneficiary's blood issue, as hereinafter provided.
Section 2. Distribution During Primary Beneficiary's Life. The
Trustees shall hold and distribute the net income and corpus during Primary
Beneficiary's life upon the following terms and conditions:
a. Income -- The Trustees shall pay or apply the net
income, at least annually, or more frequently as may be determined by the
Trustees, to or for the benefit of Primary Beneficiary.
b. Corpus -- The Trustees may, in their discretion,
pay or apply to or for the benefit of Primary Beneficiary such additional
amounts from corpus, in such manner and at such intervals and in such amounts as
the Trustees in their discretion from time to time shall deem requisite or
desirable; provided, however, in the case of each payment of corpus, the
Trustees shall first determine that such payment or application of corpus is
reasonably necessary to promote Primary Beneficiary's education, support,
maintenance, or health; or is reasonably necessary for the reasonable support
and comfort of Primary Beneficiary; or is reasonably necessary to enable Primary
Beneficiary to maintain her accustomed standard of living; or is reasonably
necessary to meet an emergency. In making such determination under this
subsection 2b, the Trustees shall take into consideration any other income
(other than capital gains), or property known to the Trustees which Primary
Beneficiary may have or enjoy from sources other than this trust estate.
Section 3. Distribution After Primary Beneficiary's Death.
Upon the death of Primary Beneficiary, the corpus of this trust, as it shall
then exist, and all undistributed income shall be held and distributed to or for
the benefit of Primary
2
<PAGE>
Beneficiary's blood issue, from time to time living, subject to the following
terms and conditions:
a. Income -- The Trustees shall pay or apply the net
income, at least annually, to or for the benefit of Primary Beneficiary's blood
issue, from time to time living, in such manner and at such intervals and in
such amounts, not necessarily in equal shares or amounts, as the Trustees in
their discretion from time to time shall deem requisite or desirable to promote
the education, support, maintenance, or health of such beneficiary; or for the
reasonable support and comfort of such beneficiary; or to enable such
beneficiary to maintain his accustomed standard of living; or to meet an
emergency. Any portion of the net income not distributed pursuant to the
preceding sentence shall be paid at least annually, to or for the benefit of
Primary Beneficiary's blood issue, from time to time living, in equal shares.
Any such disbursements from income to such blood issue shall not be charged
against any individual share subsequently distributed to any beneficiary.
b. Corpus -- The Trustees may, in their discretion,
pay or apply to or for the benefit of any of Primary Beneficiary's blood issue,
from time to time living, such additional amounts from corpus, in such manner
and at such intervals and in such amounts, not necessarily in equal shares or
amounts, as the Trustees in their discretion from time to time shall deem
requisite or desirable. Provided, however, in the case of each payment or
application of corpus, the Trustees shall first determine that such payment or
application of corpus is reasonably necessary to promote the education, support,
maintenance or health of such beneficiary; or is reasonably necessary for the
reasonable support and comfort of such beneficiary; or is reasonably necessary
to enable such beneficiary to maintain his accustomed standard of living; or is
reasonably necessary to meet an emergency. In making such determination under
this subsection 3b, the Trustees shall take into consideration any other income
(other than capital
3
<PAGE>
gains), or property known to the Trustees which such beneficiary may have or
enjoy from sources other than this trust estate. Any such disbursements from
corpus shall not be charged against any individual share subsequently
distributed to any beneficiary.
Section 4. Termination and Distribution. This trust shall
terminate upon the (1) the death of Primary Beneficiary with no surviving blood
issue or (2) the death of all surviving blood issue of Primary Beneficiary after
the death of Primary Beneficiary whether born before or after the death of
Primary Beneficiary, or (3) the expiration of the term of eighteen (18) years
from the death of Primary Beneficiary, whichever of said three events shall
first occur.
Upon termination of this trust, the Trustees shall transfer
and deliver the corpus and all undistributed income then constituting the trust
estate, discharged of this trust, as follows:
a. If any blood issue of Primary Beneficiary is
living at the time of said termination, then in equal shares to such of Primary
Beneficiary's natural children as shall then be living and to the blood issue
per stirpes of such of Primary Beneficiary's natural children as shall be dead
with blood issue then living--such blood issue representing its parent.
b. If no blood issue of Primary Beneficiary shall be
living at the time of said termination, then to CAROLINE ROYALL HOLDING, the
child of LEWIS R. HOLDING, if she shall then be living, or to her blood issue
per stirpes if she shall be dead with blood issue then living; provided,
however, in the event that certain Irrevocable Trust Agreement executed by
Grantor of even date herewith for the primary benefit of said CAROLINE ROYALL
HOLDING and her blood issue (said trust being hereinafter referred to as "Lewis
R. Holding Sibling - Trust") is still in existence at the time of said
termination, then any share otherwise payable to said CAROLINE ROYALL HOLDING or
her blood issue per stirpes shall instead be transferred and delivered to the
Trustees of the said Lewis R. Holding - Sibling Trust created for the primary
benefit of
4
<PAGE>
said child and his blood issue. The corpus and income so transferred shall be
added to the corpus of said Lewis R. Holding - Sibling Trust as an integral part
thereof to be held, administered, and distributed in accordance with all of the
terms, conditions, and limitations set forth in said Lewis R. Holding - Sibling
Trust.
c. If no blood issue of Primary Beneficiary is living
at the time of said termination, and if none of the above-named children of
LEWIS R. HOLDING or their blood issue is living at the time of said termination,
and if none of the Lewis R. Holding - Sibling Trusts is in existence at the time
of said termination, then the Trustees shall apportion said trust estate in
equal shares so that there is one such equal share apportioned for the
below-named children of FRANK B. HOLDING and their blood issue and one such
equal share for the below-named children of ROBERT P. HOLDING, JR. and their
blood issue (or if but one of the aforesaid named individuals have any of the
above-named children or blood issue of said children then living, then all of
said trust estate for the below-named children of said individual and their
blood issue) and said share or shares so apportioned shall be transferred and
delivered, discharged of this trust, as follows:
(1) The share, if any, so apportioned for the said
children of FRANK B. HOLDING and their blood issue shall be transferred and
delivered in equal shares to such of the following children of FRANK B. HOLDING
as shall be living and the blood issue of such of said children as shall be dead
with blood issue then living--such blood issue representing its parent: FRANK
BROWN HOLDING, JR., HOPE LEE HOLDING, OLIVIA BRITTON HOLDING, CLAIRE CHAMBLEE
HOLDING, and ELIZABETH CARSON HOLDING; provided however, in the event any one or
more of those certain Irrevocable Trust Agreements executed by Grantor of even
date herewith for the primary benefit of each of the above-named children of
FRANK B. HOLDING and their blood issue (said trusts hereinafter collectively
referred to as "Frank B. Holding - Sibling Trusts") is still in existence at the
time of said termination, then any share or shares
5
<PAGE>
otherwise payable to one or more of the above-named children of FRANK B.
HOLDING, or their blood issue per stirpes whose Frank B. Holding - Sibling Trust
is still in existence, shall instead be transferred and delivered to the
Trustees of the said Frank B. Holding - Sibling Trust created for the primary
benefit of said child and his blood issue. The corpus and income so distributed
shall be added to the corpus of said Frank B. Holding - Sibling Trust as an
integral part thereof to be held, administered, and distributed in accordance
with all of the terms, conditions and limitations set forth in said Frank B.
Holding Sibling Trust.
(2) The share, if any, so apportioned for the said
children of ROBERT P. HOLDING, JR. and their blood issue shall be transferred
and delivered in equal shares to such of the following children of ROBERT P.
HOLDING, JR. as shall be living and the blood issue of such of said children, as
shall be dead with blood issue then living--such blood issue representing its
parent: JANE HOLDING EIL, TEMPIE ANN BELL HOLDING, FRANK ROYALL HOLDING and
GEORGE EDWARD BELL HOLDING; provided however, in the event any one or more of
those certain Irrevocable Trust Agreements executed by Grantor of even date
herewith for the primary benefit of each of the above-named children of ROBERT
P. HOLDING, JR. and their blood issue (said trusts hereinafter collectively
referred to as "Robert P. Holding, Jr. - Sibling Trusts") is still in existence
at the time of said termination, then any share or shares otherwise payable to
one or more of the above-named children of ROBERT P. HOLDING, JR., or their
blood issue per stirpes, whose Robert P. Holding, Jr. - Sibling Trust is still
in existence, shall instead be transferred and delivered to the Trustees of the
said Robert P. Holding, Jr. - Sibling Trust created for the primary benefit of
said child and his blood issue. The corpus and income so distributed shall be
added to the corpus of said Robert P. Holding, Jr. - Sibling Trust as an
integral part thereof to be held, administered, and distributed in accordance
with all of the terms, conditions, and limitations set forth in said Robert P.
Holding, Jr. - Sibling Trust.
6
<PAGE>
d. If there is no person qualified to take under any
of the preceding provisions of this Section of this Article, then the Trustees
shall distribute the aforesaid corpus and undistributed income to the then
living heirs of Primary Beneficiary, as "heirs" are determined by the North
Carolina Intestate Succession Act then in effect, and this trust shall
terminate. It is Grantor's intention that the identity of such heirs and the
respective shares to be distributed to them, are to be determined by the
provisions of the North Carolina Intestate Succession Act then in force as if
Primary Beneficiary died at the time of the event causing termination of this
trust.
Section 5. Payment to Minors. During the minority or
legal disability of any beneficiary to or for whom income or corpus is
authorized or directed to be paid hereunder, the Trustees may pay, transfer or
assign the same in any one or more of the following ways as well as any other
permissible method:
a Directly to such beneficiary; or,
b. To the guardian of the person or of the property
of such beneficiary upon the agreement of such guardian to apply or expend such
income or corpus solely for the education, support, maintenance, or health of
the beneficiary; or for his reasonable support and comfort; or to enable him to
maintain his accustomed standard of living; or to meet an emergency; or,
c. To a relative of such beneficiary upon the
agreement of such relative to expend or apply such income or corpus solely for
the education, support, maintenance, or health of the beneficiary; or for his
reasonable support and comfort; or to enable him to maintain his accustomed
standard of living; or to meet an emergency; or,
d. By expending such income or corpus directly for
the education, support, maintenance, or health of the beneficiary; or for his
reasonable support and comfort; or to enable him to maintain his accustomed
standard of living; or to meet an emergency.
7
<PAGE>
The Trustees shall be protected and relieved of all liability
hereunder in relying upon the written statement of a doctor of medicine in
determining whether a beneficiary is under any legal disability.
Section 6. Perpetuities. Anything herein contained to the
contrary notwithstanding, no trust (other than a trust of a vested interest)
created hereunder shall continue more than twenty-one (21) years after the death
of the last to die of the Grantor and Primary Beneficiary; and upon the
expiration of such period all trusts shall terminate and the assets thereof
shall be delivered and conveyed to the then living income beneficiaries pursuant
to the provisions of this Article.
Section 7. Payment to Persons Under Age 21. Notwithstanding
anything herein contained to the contrary, whenever pursuant to the provisions
of this agreement all or any part of the corpus of a trust shall vest in
absolute ownership in a person under the age of 21, the Trustees are authorized
and empowered in their uncontrolled discretion, to hold the property so vested
in such person, or any part thereof, in a separate fund for the benefit of such
person, notwithstanding that such property may consist of investments not
authorized by law for trust funds, and to invest and reinvest the same, collect
the income therefrom and, until such person attains age 21, to apply so much of
the corpus and so much of the net income thereof to the support, education, and
maintenance of such person as the Trustees shall see fit, and to accumulate,
invest, and reinvest the balance of the income until such person shall attain
age 21, and thereupon to pay over the corpus, together with any accumulated and
undistributed income, to such person, and if such person shall die before
attaining age 21, the corpus, together with any accumulated and undistributed
income, shall be paid over to the estate of such person. The authority conferred
upon the Trustees by this Section shall be construed as a power only, and shall
not operate to suspend the absolute ownership of such property by such person or
to prevent the absolute vesting thereof in such person. With respect to the
8
<PAGE>
administration of any such property which shall vest in absolute ownership in
such person, and which shall be held by the Trustees as authorized in this
Section, the Trustees shall have all the powers vested in them under the
provisions of this trust.
ARTICLE III
POWERS OF TRUSTEES
Section 1. General Powers. Under and pursuant to the authority
granted by North Carolina General Statute ss. 32-26, the Grantor hereby grants
to the Trustees all the powers set forth in North Carolina General Statute ss.
32-27 and these powers are hereby incorporated by reference and made a part of
this agreement, and such powers are intended to be in addition to, and not in
substitution of, all other powers conferred by law; and provided further that
the reference in Section 32-27(29) to the Uniform Principal and Income Act
contained in Chapter 37 shall be deemed a reference to the Principal and Income
Act of 1973 contained in that Chapter. Such powers shall be subject to the
limitations and restrictions stated in North Carolina General Statute ss.
32-26(b) and elsewhere in this agreement and shall be exercised in a fiduciary
capacity, primarily in the interest of the beneficiaries. Trustees are expressly
authorized to retain any property which Trustees receive originally or
hereafter, real or personal, tangible or intangible, including shares of stock
in First-Citizens Bank & Trust Company, even though such retention would not be
appropriate apart from this provision and even though such property may not be
income-producing or may be a wasting asset. Trustees are hereby relieved from
any and all liability for any loss or depreciation arising out of such
retention. Trustees are also hereby relieved from any and all liabilities and
restrictions which would other be imposed upon them by Article 5 entitled
"Uniform Trust Act" of Chapter 36 of the General Statutes of North Carolina.
Trustees are expressly given the power, subject to the limitations set forth in
this agreement, to purchase, hold, and vote shares of stock, bonds or other
securities of First-Citizens Bank & Trust
9
<PAGE>
Company, or the stock, bonds or other securities of any affiliate of First
Citizens Bank & Trust Company.
Section 2. Separate Duties of Corporate and Individual
Trustees. The powers, duties, and authorities of the Trustees shall be exercised
jointly; provided however, unless Individual Trustee gives Corporate Trustee
written notice to the contrary, the following powers and duties, except as
otherwise provided in this trust agreement, may be exercised by corporate
Trustee alone:
a. To keep the books and records of the trust;
b. To open bank accounts and draw checks
thereon;
c. To employ attorneys and accountants;
d. To list property for taxation and prepare
and file federal, state, municipal and
county tax returns;
e. To collect claims and debts due the trust
and give receipts therefor;
f. To pay claims against and debts of the
trust;
g. to compromise claims in favor of or against
the trust;
h. To have custody of property of the trust;
Except as otherwise provided, Individual
Trustee may similarly delegate any other
power, duty or authority to Corporate
Trustee by written agreement signed by all
Trustees and filed with the trust records
provided said delegation causes no tax
liability to the trust or anyone interested
in the trust. Any such delegation or
delegations shall remain effective for the
time therein specified or until earlier
revocation by Individual Trustee by a
written notice delivered to Corporate
Trustee and filed with the records of the
trust.
Section 3. Power to Minimize Taxes. The Trustees may upon
permission from a majority of the then current income beneficiaries surrender,
disclaim, release, relinquish or amend, either in whole or in part, or reduce in
scope any administrative provision of the trust which causes unanticipated tax
liability, or conform the administrative provisions of the trust to the
requirements of the taxing authorities. The Trustees, therefore,
10
<PAGE>
are expressly authorized to enter into any and all agreements with the Internal
Revenue Service or any other governmental body or official or from time to time
to execute any declaration of policy or disclaimers restricting the discretion
given them as, determined in the discretion of the Trustees, will tend to
minimize the taxes engendered by the trust.
Section 4. Limitations on Trustees' Powers. Notwithstanding
anything herein to the contrary, no power of the Trustees enumerated herein or
now or hereafter conferred upon trustees generally shall be construed to enable
the Grantor, or Trustees or either of them, or both of them together, or any
other person to purchase, exchange, or otherwise deal with or dispose of all or
any part of the corpus or income of the trust for less than an adequate
consideration in money or monies worth, or to the extent prohibited by Section
675 of the Internal Revenue Code of 1954, as amended, to enable the Grantor to
borrow all or any part of the corpus or income of the trust, directly or
indirectly, without adequate interest or security, or the power to allow the
Grantor directly or indirectly to borrow either corpus or income from the trust
and not completely repay such loan, including any interest, before the beginning
of the taxable year. No part of the corpus or income of the trust property shall
be used for or applied to the payment of premiums upon policies of insurance on
the life of the Grantor. Trustees shall neither have nor exercise the power to
vote or direct the voting of any shares or other securities of the trust except
as expressly directed in a signed, written authorization by a majority of the
then current income beneficiaries; nor shall the Trustees have or exercise the
power to purchase or sell any trust assets, including stock or securities,
without written and signed authorization from a majority of the then current
income beneficiaries. A majority of the then current income beneficiaries shall
have the power to cause trust assets, including stock or securities, to be sold
or purchased, by so indicating their intention in a signed, written request
delivered to the Trustees; provided, however, that the said power of the
11
<PAGE>
beneficiaries to cause assets to be sold or purchased shall be subject to the
express approval of the Individual Trustee. For purposes of this Section, the
signed written authorization, direction or request of a minor beneficiary shall
be of equal force and effect as if said beneficiary had attained the age of
majority. The Trustees shall be relieved from any and all liability for any loss
or decrease in value in the trust estate that may result from following such
written directions of a majority of said income beneficiaries.
ARTICLE IV
ADMINISTRATIVE PROVISIONS
Section 1. Records and Accounting. The Corporate Trustee shall
maintain adequate books and records reflecting all income and corpus
transactions, which books and records shall be open at all reasonable times to
the inspection of the then current income beneficiaries or the guardian or
person having custody of any minor or incompetent beneficiary. The Corporate
Trustee shall furnish at least annual statements of all receipts, disbursements
and transactions to each adult beneficiary and the guardian or person having
custody of any minor or incompetent beneficiary.
Section 2. Bond. No Trustee shall be required to furnish any
bond or surety for the performance of his duties hereunder.
Section 3. Compensation. Individual Trustee shall receive no
compensation for her services hereunder but shall be entitled to reimbursements
or advancements for all expenses incurred in performing the duties of trustee
hereunder. Corporate Trustee, as compensation for its services as trustee
hereunder, shall receive the commissions stipulated in its regularly adopted
schedule of compensation in effect and applicable at the time of performance of
such services.
ARTICLE V
SUCCESSOR TRUSTEES
Section 1. Resignation and Removal of Trustees. A trustee may
resign at any time by giving thirty (30) days notice of
12
<PAGE>
such resignation to Grantor, if living and if not, to the then current income
beneficiaries or their guardians; provided, however, the Corporate Trustee shall
not resign until a successor trustee is appointed. Any successor trustee shall
qualify under the provisions set forth below in Section 3 of this Article.
Grantor, during her lifetime, and a majority of the then current income
beneficiaries thereafter, shall have the right to remove any trustee with or
without cause by giving thirty (30) days notice of such removal to such trustee.
Section 2. Successor Trustee. The Grantor during her lifetime,
and thereafter a majority of the then current income beneficiaries, shall have
the right to appoint a qualified successor trustee in the event of the death,
disability, resignation or removal of an acting trustee. Each successor trustee
shall be appointed by a written instrument filed with the records of the trust.
If the Individual Co-Trustee dies, resigns, is removed, or becomes disabled and
no successor is so appointed, the Corporate Trustee may serve alone.
Section 3. Qualifications. A successor trustee may be (a) an
individual or (a) a trust company or bank qualified to act as such in North
Carolina, and having combined capital and surplus of not less than One Million
Dollars ($1,000,000). Neither the Grantor nor any beneficiary shall act as
trustee and no more than one-half (1/2) of the trustees shall be a "related or
subordinate party," as defined by Section 672(c) of the Internal Revenue Code of
1954, as amended (or other similar statute then in force)
Section 4. Powers of Successor Trustee. A successor trustee
shall be vested with the same rights, powers and privileges of his predecessor
trustee. A successor trustee shall have no responsibility or accountability for
the act of a predecessor trustee.
ARTICLE VI
SPENDTHRIFT PROVISION
To the extent permitted by law, the interests of the
beneficiaries shall not be subject to assignment, alienation,
13
<PAGE>
pledge, attachment, or claims of creditors, and shall not otherwise be
voluntarily or involuntarily alienated or encumbered by any such beneficiary.
ARTICLE VII
IRREVOCABILITY
This agreement and the trust hereby created shall be
irrevocable, and the Grantor hereby expressly acknowledges that she shall have
no right or power, whether alone or in conjunction with others, in whatever
capacity, to alter, amend, revoke or terminate the trust, or any of the terms of
this agreement, in whole or in part, or to designate the persons who shall
possess or enjoy the trust property or income therefrom. By this instrument, the
Grantor intends to and does hereby relinquish absolutely and forever, all
possession or enjoyment of, all right to the income from the trust property,
whether directly or indirectly or constructively, and every interest of any
nature in the trust property.
ARTICLE VIII
DEFINITIONS
Section 1. Trustees. "Trustees" shall include the trustees
herein appointed and any successor Trustees.
Section 2. Death. The death of any person shall be evidenced
by presentation of a certified copy of such person's death certificate to the
Trustees.
Section 3. Blood Issue. The term "blood issue" as used in this
instrument, means all natural lineal descendants in any degree of the ancestor
to whom the term refers; provided, however adopted children, stepchildren, and
foster children and their issue are excluded.
Section 4. Interpretation. Whenever used herein, and to the
extent appropriate, the masculine, feminine or neuter gender shall include the
other two genders, the singular shall include the plural, and the plural shall
include the singular.
Section 5. Child. The term "child" or "children" as used in
this instrument, shall include only blood descendants in
14
<PAGE>
the first degree of the ancestor to whom the term refers; adopted children,
stepchildren, and foster children are excluded.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 1. Governing Law. Notwithstanding that the Grantor or
the beneficiaries may now or at any future time be domiciled elsewhere than in
the State of North Carolina, this agreement shall be regarded for all purposes
as a North Carolina document; the validity and construction hereof shall be
determined and governed in all respects by the laws of the State of North
Carolina; and the trust, powers and provisions herein contained shall be
administered, exercised, and carried into effect according to the laws of the
State of North Carolina.
Section 2. Unborn Person. A person en ventre sa mere shall be
considered as in being, provided said person is subsequently born alive.
Section 3. Good Faith Disbursements. Until and unless Trustees
receive actual notice of any event upon which right to payment from this trust
may depend, Trustees shall incur no liability to persons whose interests may
have been affected by such event for disbursements made in good faith.
Section 4. Invalid Provision. If any provision of this
agreement shall be invalid or unenforceable, the remaining provisions shall
continue to be fully effective.
Section 5. Notices. Whenever any notice, demand, request or
other communication is given or required to be given upon the Trustees, Grantor
or beneficiaries under this agreement, each such notice, demand, request or
other communication shall be in writing, and, any law or statute to the contrary
notwithstanding, shall not be effective for any purpose unless the same shall be
given or served by personally delivering such writing or by mailing it by
registered or certified mail, return receipt requested, to the person to whom it
is directed (unless such notice, demand, request or other communications is
waived or accepted by the person entitled thereto).
15
<PAGE>
Any such notice, demand, request or other communication shall
be deemed to have been given at the time it was duly deposited in any office of
the United States Postal Service.
Section 6. Acceptance by Trustees. Trustees acknowledge
receipt from the Grantor of the properties described in the attached Exhibit A,
and do hereby accept this trust upon the terms set forth in this agreement.
IN WITNESS WHEREOF, and in triplicate originals, the Grantor
and the Individual Trustee have hereunto set their hands and adopted as their
seals the typewritten word "SEAL" appearing beside their names; and the
Corporate Trustee has caused this agreement to be signed by one of its Vice
Presidents and attested by its Trust Officer or one of its Assistant Trust
Officers, and its corporate seal to be affixed, all as of the day and year first
above written.
GRANTOR:
/s/ Maggie B. Holding (SEAL)
MAGGIE B. HOLDING
INDIVIDUAL TRUSTEE:
Carolyn S. Holding
By: /s/ N. A. Townsend, Jr. (SEAL)
Attorney in Fact
FIRST-CITIZENS BANK & TRUST COMPANY
By: /s/ J. T. Woodward, Jr.
Senior Vice President and
Trust Officer
ATTEST:
/s/ J. G. Creech
Assistant Secretary
16
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF JOHNSTON
I, Virginia S. Hopkins, a Notary Public in and for said County
and State, do hereby certify that MAGGIE B. HOLDING personally appeared before
me this day and acknowledged the due execution of the foregoing instrument.
Witness my hand and notarial seal this the 28th day of
December, 1976.
/s/ Virginia S. Hopkins
Notary Public
My Commission expires:
September 10, 1977
STATE OF NORTH CAROLINA
COUNTY OF WAKE
I, Lee W. Butts, a Notary Public in and for said County and
State, do hereby certify that on the 28th day December, 1976, before me
personally appeared J. T. WOODWARD, JR. with whom I am personal acquainted, who,
being by me duly sworn, says that he is Senior Vice President and that J. G.
CREECH is Assistant Secretary of FIRST-CITIZENS BANK & TRUST COMPANY, the
corporation described in and which executed the foregoing instrument; that he
knows the common seal of said corporation; that the seal affixed to the
foregoing instrument is said common seal; that the name of the corporation was
subscribed thereto by the said Senior Vice President; that the said Senior Vice
President and Assistant Secretary subscribed their names thereto and the said
common seal was affixed, all by order of the Board of Directors of said
corporation; and that the said instrument is the act and deed of said
corporation.
WITNESS my hand and notarial seal, this the 28th day of
December, 1976.
/s/ Lee W. Butts
Notary Public
My Commission expires:
9/5/78
17
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF WAKE
THIS IS TO CERTIFY that N. A. Townsend, Jr., personally
appeared before me this day and, being first duly sworn, states that he is duly
authorized to execute the foregoing instrument for and on behalf of Carolyn S.
Holding; that as her attorney in fact he acknowledges the execution of the
foregoing instrument for and on behalf of Carolyn S. Holding; and that the
foregoing instrument is the act and deed of said Carolyn S.
Holding.
WITNESS my hand and notarial seal, this 31st day of December,
1976.
/s/ Alice W. Sherron (Penny)
Notary Public
My Commission expires:
9-18-79
18
<PAGE>
EXHIBIT A
TO
MAGGIE B. HOLDING
IRREVOCABLE TRUST AGREEMENT
FOR
CARMEN PRICE HOLDING
FIRST-CITIZENS BANK & TRUST COMPANY, and CAROLYN S. HOLDING,
Trustees, acknowledge receipt of the foregoing property for the purposes set
forth in the foregoing Irrevocable Trust Agreement of which this page is
specifically made a part.
This the 31st day of December, 1976.
FIRST-CITIZENS BANK & TRUST COMPANY
By: /s/ J. T. Woodward, Jr.
Senior Vice President and
Trust Officer
Carolyn S. Holding
By: /s/ N. A. Townsend, Jr. (SEAL)
Attorney in Fact
<PAGE>
Appendix to Exhibit 7(e)
STATE OF NORTH CAROLINA
COUNTY OF WAKE
NOTICE OF REMOVAL OF TRUSTEE,
APPOINTMENT OF SUCCESSOR TRUSTEE AND
ACCEPTANCE OF APPOINTMENT AS SUCCESSOR TRUSTEE
TO: First-Citizens Bank & Trust Company, Post Office Box 151, Raleigh, North
Carolina 27602
RE: Irrevocable Trust Agreement for the Primary Benefit of Carmen Price
Holding, dated December 28, 1976 between Maggie B. Holding as Grantor
and First-Citizens Bank & Trust Company and Carolyn S. Holding as
Trustees.
Pursuant to the authority granted under Section 1 of Article V
of the above-referenced Trust Agreement, the undersigned CARMEN PRICE HOLDING,
hereby removes FIRST-CITIZENS BANK & TRUST COMPANY as Corporate Trustee,
effective thirty (30) days from the date of the delivery of this Notice.
Further, pursuant to the authority granted in Section 2 in
Article V thereof, the undersigned CARMEN PRICE HOLDING hereby appoints GEORGE
H. BROADRICK to serve as Successor Co-Trustee in the place and stead of
FIRST-CITIZENS BANK & TRUST COMPANY.
The undersigned, GEORGE H. BROADRICK, accepts the appointment
as Successor Co-Trustee of the above-referenced Trust Agreement, effective upon
the effective date of the removal of FIRST-CITIZENS BANK & TRUST COMPANY, and
agrees to hold, administer and distribute all of the trust assets in accordance
with the terms and provisions of the above-referenced Trust Agreement upon
delivery of the Trust assets to me.
This 30th day of January, 1991.
/s/ Carmen Price Holding (SEAL)
CARMEN PRICE HOLDING
/s/ George H. Broadrick (SEAL)
GEORGE H. BROADRICK
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
I, Sally B. Honeycutt, a Notary Public in and for said County
and State, do hereby certify that CARMEN PRICE HOLDING personally appeared
before me this day and acknowledged the due execution of the foregoing
instrument.
WITNESS my hand and notarial seal, this the 30 day of January,
1991.
/s/ Sally B. Honecutt
Notary Public
My Commission Expires:
2/24/93
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
I, Sally B. Honeycutt, a Notary Public in and for said County
and State, do hereby certify that GEORGE H. BROADRICK personally appeared before
me this day and acknowledged the due execution of the foregoing instrument.
WITNESS my hand and notarial seal, this the 30 day of January,
1991.
/s/ Sally B. Honeycutt
Notary Public
My Commission Expires:
2/24/93
2
<PAGE>
Exhibit 7(f)
STATE OF NORTH CAROLINA
COUNTY OF JOHNSTON
IRREVOCABLE TRUST AGREEMENT
THIS IRREVOCABLE TRUST AGREEMENT, made and entered into this
the 28th day of December, 1976, by and between MAGGIE B. HOLDING, of Johnston
County, North Carolina (hereinafter referred to as "Grantor"), party of the
first part; and FIRST-CITIZENS BANK & TRUST COMPANY, a North Carolina banking
corporation, and CAROLYN S. HOLDING, of Wake County, North Carolina (hereinafter
individually referred to as "Corporate Trustee" and "Individual Trustee"
respectively, and collectively referred to as "Trustees"), parties of the second
part;
W I T N E S S E T H :
ARTICLE I
CORPUS
Section 1. Trust Property. The Grantor hereby irrevocably
transfers, delivers and conveys to the Trustees all the property described on
"Exhibit A" attached hereto and specifically incorporated herein by reference,
the receipt of which is hereby acknowledged by the Trustees. The Trustees accept
such transfer and agree to hold and administer the aforesaid property in trust
for the uses and purposes and upon the express terms and conditions and with the
powers and limitations hereinafter set forth.
Section 2. Additions To Corpus. Additional property from time
to time may be transferred by the Grantor or by any other person or persons to
the Trustees, and such property thereupon shall become a part of the trust
estate and shall be held, managed, invested, reinvested, and disposed of on the
same terms and conditions as the property originally transferred.
ARTICLE II
DISPOSITIVE PROVISIONS
Section 1. General Provisions. The Trustees shall hold,
manage, invest and reinvest, and control the trust property, and
1
<PAGE>
shall collect the income thereof, and after deducting all necessary expenses
incident to the management and administration of the trust property, shall
disburse the net income and corpus for the benefit of CAROLINE ROYALL HOLDING
(hereinafter referred to as "Primary Beneficiary") and said Primary
Beneficiary's blood issue, as hereinafter provided.
Section 2. Distribution During Primary Beneficiary's Life. The
Trustees shall hold and distribute the net income and corpus during Primary
Beneficiary's life upon the following terms and conditions:
a. Income -- The Trustees shall pay or apply the net
income, at least annually, or more frequently as may be determined by the
Trustees, to or for the benefit of Primary Beneficiary.
b. Corpus -- The Trustees may, in their discretion,
pay or apply to or for the benefit of Primary Beneficiary such additional
amounts from corpus, in such manner and at such intervals and in such amounts as
the Trustees in their discretion from time to time shall deem requisite or
desirable; provided, however, in the case of each payment of corpus, the
Trustees shall first determine that such payment or application of corpus is
reasonably necessary to promote Primary Beneficiary's education, support,
maintenance, or health; or is reasonably necessary for the reasonable support
and comfort of Primary Beneficiary; or is reasonably necessary to enable Primary
Beneficiary to maintain her accustomed standard of living; or is reasonably
necessary to meet an emergency. In making such determination under this
subsection 2b, the Trustees shall take into consideration any other income
(other than capital gains), or property known to the Trustees which Primary
Beneficiary may have or enjoy from sources other than this trust estate.
Section 3. Distribution After Primary Beneficiary's Death.
Upon the death of Primary Beneficiary, the corpus of this trust, as it shall
then exist, and all undistributed income shall be held and distributed to or for
the benefit of Primary
2
<PAGE>
Beneficiary's blood issue, from time to time living, subject to the following
terms and conditions:
a. Income -- The Trustees shall pay or apply the net
income, at least annually, to or for the benefit of Primary Beneficiary's blood
issue, from time to time living, in such manner and at such intervals and in
such amounts, not necessarily in equal shares or amounts, as the Trustees in
their discretion from time to time shall deem requisite or desirable to promote
the education, support, maintenance, or health of such beneficiary; or for the
reasonable support and comfort of such beneficiary; or to enable such
beneficiary to maintain his accustomed standard of living; or to meet an
emergency. Any portion of the net income not distributed pursuant to the
preceding sentence shall be paid at least annually, to or for the benefit of
Primary Beneficiary's blood issue, from time to time living, in equal shares.
Any such disbursements from income to such blood issue shall not be charged
against any individual share subsequently distributed to any beneficiary.
b. Corpus -- The Trustees may, in their discretion,
pay or apply to or for the benefit of any of Primary Beneficiary's blood issue,
from time to time living, such additional amounts from corpus, in such manner
and at such intervals and in such amounts, not necessarily in equal shares or
amounts, as the Trustees in their discretion from time to time shall deem
requisite or desirable. Provided, however, in the case of each payment or
application of corpus, the Trustees shall first determine that such payment or
application of corpus is reasonably necessary to promote the education, support,
maintenance or health of such beneficiary; or is reasonably necessary for the
reasonable support and comfort of such beneficiary; or is reasonably necessary
to enable such beneficiary to maintain his accustomed standard of living; or is
reasonably necessary to meet an emergency. In making such determination under
this subsection 3b, the Trustees shall take into consideration any other income
(other than capital
3
<PAGE>
gains), or property known to the Trustees which such beneficiary may have or
enjoy from sources other than this trust estate. Any such disbursements from
corpus shall not be charged against any individual share subsequently
distributed to any beneficiary.
Section 4. Termination and Distribution. This trust shall
terminate upon the (1) the death of Primary Beneficiary with no surviving blood
issue or (2) the death of all surviving blood issue of Primary Beneficiary after
the death of Primary Beneficiary whether born before or after the death of
Primary Beneficiary, or (3) the expiration of the term of eighteen (18) years
from the death of Primary Beneficiary, whichever of said three events shall
first occur.
Upon termination of this trust, the Trustees shall transfer
and deliver the corpus and all undistributed income then constituting the trust
estate, discharged of this trust, as follows:
a. If any blood issue of Primary Beneficiary is
living at the time of said termination, then in equal shares to such of Primary
Beneficiary's natural children as shall then be living and to the blood issue
per stirpes of such of Primary Beneficiary's natural children as shall be dead
with blood issue then living--such blood issue representing its parent.
b. If no blood issue of Primary Beneficiary shall be
living at the time of said termination, then to CARMEN PRICE HOLDING, the child
of LEWIS R. HOLDING, if she shall then be living, or to her blood issue per
stirpes if she shall be dead with blood issue then living; provided, however, in
the event that certain Irrevocable Trust Agreement executed by Grantor of even
date herewith for the primary benefit of said CARMEN PRICE HOLDING and her blood
issue (said trust being hereinafter referred to as "Lewis R. Holding Sibling -
Trust") is still in existence at the time of said termination, then any share
otherwise payable to said CARMEN PRICE HOLDING or her blood issue per stirpes
shall instead be transferred and delivered to the Trustees of the said Lewis R.
Holding - Sibling Trust created for the primary benefit of said
4
<PAGE>
child and his blood issue. The corpus and income so transferred shall be added
to the corpus of said Lewis R. Holding - Sibling Trust as an integral part
thereof to be held, administered, and distributed in accordance with all of the
terms, conditions, and limitations set forth in said Lewis R. Holding - Sibling
Trust.
c. If no blood issue of Primary Beneficiary is living
at the time of said termination, and if none of the above-named children of
LEWIS R. HOLDING or their blood issue is living at the time of said termination,
and if none of the Lewis R. Holding - Sibling Trusts is in existence at the time
of said termination, then the Trustees shall apportion said trust estate in
equal shares so that there is one such equal share apportioned for the
below-named children of FRANK B. HOLDING and their blood issue and one such
equal share for the below-named children of ROBERT P. HOLDING, JR. and their
blood issue (or if but one of the aforesaid named individuals have any of the
above-named children or blood issue of said children then living, then all of
said trust estate for the below-named children of said individual and their
blood issue) and said share or shares so apportioned shall be transferred and
delivered, discharged of this trust, as follows:
(1) The share, if any, so apportioned for
the said children of FRANK B. HOLDING and their blood issue shall be transferred
and delivered in equal shares to such of the following children of FRANK B.
HOLDING as shall be living and the blood issue of such of said children as shall
be dead with blood issue then living--such blood issue representing its parent:
FRANK BROWN HOLDING, JR., HOPE LEE HOLDING, OLIVIA BRITTON HOLDING, CLAIRE
CHAMBLEE HOLDING, and ELIZABETH CARSON HOLDING; provided however, in the event
any one or more of those certain Irrevocable Trust Agreements executed by
Grantor of even date herewith for the primary benefit of each of the above-named
children of FRANK B. HOLDING and their blood issue (said trusts hereinafter
collectively referred to as "Frank B. Holding - Sibling Trusts") is still in
existence at the time of said termination, then any share or shares otherwise
payable to one or more of the above-named children of
5
<PAGE>
FRANK B. HOLDING, or their blood issue per stirpes whose Frank B. Holding -
Sibling Trust is still in existence, shall instead be transferred and delivered
to the Trustees of the said Frank B. Holding - Sibling Trust created for the
primary benefit of said child and his blood issue. The corpus and income so
distributed shall be added to the corpus of said Frank B. Holding - Sibling
Trust as an integral part thereof to be held, administered, and distributed in
accordance with all of the terms, conditions and limitations set forth in said
Frank B. Holding Sibling Trust.
(2) The share, if any, so apportioned for
the said children of ROBERT P. HOLDING, JR. and their blood issue shall be
transferred and delivered in equal shares to such of the following children of
ROBERT P. HOLDING, JR. as shall be living and the blood issue of such of said
children, as shall be dead with blood issue then living--such blood issue
representing its parent: JANE HOLDING EIL, TEMPIE ANN BELL HOLDING, FRANK ROYALL
HOLDING and GEORGE EDWARD BELL HOLDING; provided however, in the event any one
or more of those certain Irrevocable Trust Agreements executed by Grantor of
even date herewith for the primary benefit of each of the above-named children
of ROBERT P. HOLDING, JR. and their blood issue (said trusts hereinafter
collectively referred to as "Robert P. Holding, Jr. - Sibling Trusts") is still
in existence at the time of said termination, then any share or shares otherwise
payable to one or more of the above-named children of ROBERT P. HOLDING, JR., or
their blood issue per stirpes, whose Robert P. Holding, Jr. - Sibling Trust is
still in existence, shall instead be transferred and delivered to the Trustees
of the said Robert P. Holding, Jr. - Sibling Trust created for the primary
benefit of said child and his blood issue. The corpus and income so distributed
shall be added to the corpus of said Robert P. Holding, Jr. - Sibling Trust as
an integral part thereof to be held, administered, and distributed in accordance
with all of the terms, conditions, and limitations set forth in said Robert P.
Holding, Jr. - Sibling Trust.
6
<PAGE>
d. If there is no person qualified to take under any
of the preceding provisions of this Section of this Article, then the Trustees
shall distribute the aforesaid corpus and undistributed income to the then
living heirs of Primary Beneficiary, as "heirs" are determined by the North
Carolina Intestate Succession Act then in effect, and this trust shall
terminate. It is Grantor's intention that the identity of such heirs and the
respective shares to be distributed to them, are to be determined by the
provisions of the North Carolina Intestate Succession Act then in force as if
Primary Beneficiary died at the time of the event causing termination of this
trust.
Section 5. Payment to Minors. During the minority or legal
disability of any beneficiary to or for whom income or corpus is authorized or
directed to be paid hereunder, the Trustees may pay, transfer or assign the same
in any one or more of the following ways as well as any other permissible
method:
a Directly to such beneficiary; or,
b. To the guardian of the person or of the property
of such beneficiary upon the agreement of such guardian to apply or expend such
income or corpus solely for the education, support, maintenance, or health of
the beneficiary; or for his reasonable support and comfort; or to enable him to
maintain his accustomed standard of living; or to meet an emergency; or,
c. To a relative of such beneficiary upon the
agreement of such relative to expend or apply such income or corpus solely for
the education, support, maintenance, or health of the beneficiary; or for his
reasonable support and comfort; or to enable him to maintain his accustomed
standard of living; or to meet an emergency; or,
d. By expending such income or corpus directly for
the education, support, maintenance, or health of the beneficiary; or for his
reasonable support and comfort; or to enable him to maintain his accustomed
standard of living; or to meet an emergency.
7
<PAGE>
The Trustees shall be protected and relieved of all liability
hereunder in relying upon the written statement of a doctor of medicine in
determining whether a beneficiary is under any legal disability.
Section 6. Perpetuities. Anything herein contained to the
contrary notwithstanding, no trust (other than a trust of a vested interest)
created hereunder shall continue more than twenty-one (21) years after the death
of the last to die of the Grantor and Primary Beneficiary; and upon the
expiration of such period all trusts shall terminate and the assets thereof
shall be delivered and conveyed to the then living income beneficiaries pursuant
to the provisions of this Article.
Section 7. Payment to Persons Under Age 21. Notwithstanding
anything herein contained to the contrary, whenever pursuant to the provisions
of this agreement all or any part of the corpus of a trust shall vest in
absolute ownership in a person under the age of 21, the Trustees are authorized
and empowered in their uncontrolled discretion, to hold the property so vested
in such person, or any part thereof, in a separate fund for the benefit of such
person, notwithstanding that such property may consist of investments not
authorized by law for trust funds, and to invest and reinvest the same, collect
the income therefrom and, until such person attains age 21, to apply so much of
the corpus and so much of the net income thereof to the support, education, and
maintenance of such person as the Trustees shall see fit, and to accumulate,
invest, and reinvest the balance of the income until such person shall attain
age 21, and thereupon to pay over the corpus, together with any accumulated and
undistributed income, to such person, and if such person shall die before
attaining age 21, the corpus, together with any accumulated and undistributed
income, shall be paid over to the estate of such person. The authority conferred
upon the Trustees by this Section shall be construed as a power only, and shall
not operate to suspend the absolute ownership of such property by such person or
to prevent the absolute vesting thereof in such person. With respect to the
8
<PAGE>
administration of any such property which shall vest in absolute ownership in
such person, and which shall be held by the Trustees as authorized in this
Section, the Trustees shall have all the powers vested in them under the
provisions of this trust.
ARTICLE III
POWERS OF TRUSTEES
Section 1. General Powers. Under and pursuant to the authority
granted by North Carolina General Statute ss. 32-26, the Grantor hereby grants
to the Trustees all the powers set forth in North Carolina General Statute ss.
32-27 and these powers are hereby incorporated by reference and made a part of
this agreement, and such powers are intended to be in addition to, and not in
substitution of, all other powers conferred by law; and provided further that
the reference in Section 32-27(29) to the Uniform Principal and Income Act
contained in Chapter 37 shall be deemed a reference to the Principal and Income
Act of 1973 contained in that Chapter. Such powers shall be subject to the
limitations and restrictions stated in North Carolina General Statute ss.
32-26(b) and elsewhere in this agreement and shall be exercised in a fiduciary
capacity, primarily in the interest of the beneficiaries. Trustees are expressly
authorized to retain any property which Trustees receive originally or
hereafter, real or personal, tangible or intangible, including shares of stock
in First-Citizens Bank & Trust Company, even though such retention would not be
appropriate apart from this provision and even though such property may not be
income-producing or may be a wasting asset. Trustees are hereby relieved from
any and all liability for any loss or depreciation arising out of such
retention. Trustees are also hereby relieved from any and all liabilities and
restrictions which would other be imposed upon them by Article 5 entitled
"Uniform Trust Act" of Chapter 36 of the General Statutes of North Carolina.
Trustees are expressly given the power, subject to the limitations set forth in
this agreement, to purchase, hold, and vote shares of stock, bonds or other
securities of First-Citizens Bank & Trust
9
<PAGE>
Company, or the stock, bonds or other securities of any affiliate of First
Citizens Bank & Trust Company.
Section 2. Separate Duties of Corporate and Individual
Trustees. The powers, duties, and authorities of the Trustees shall be exercised
jointly; provided however, unless Individual Trustee gives Corporate Trustee
written notice to the contrary, the following powers and duties, except as
otherwise provided in this trust agreement, may be exercised by corporate
Trustee alone:
a. To keep the books and records of the trust;
b. To open bank accounts and draw checks
thereon;
c. To employ attorneys and accountants;
d. To list property for taxation and prepare
and file federal, state, municipal and
county tax returns;
e. To collect claims and debts due the trust
and give receipts therefor;
f. To pay claims against and debts of the
trust;
g. to compromise claims in favor of or against
the trust;
h. To have custody of property of the trust;
Except as otherwise provided, Individual
Trustee may similarly delegate any other
power, duty or authority to Corporate
Trustee by written agreement signed by all
Trustees and filed with the trust records
provided said delegation causes no tax
liability to the trust or anyone interested
in the trust. Any such delegation or
delegations shall remain effective for the
time therein specified or until earlier
revocation by Individual Trustee by a
written notice delivered to Corporate
Trustee and filed with the records of the
trust.
Section 3. Power to Minimize Taxes. The Trustees may upon
permission from a majority of the then current income beneficiaries surrender,
disclaim, release, relinquish or amend, either in whole or in part, or reduce in
scope any administrative provision of the trust which causes unanticipated tax
liability, or conform the administrative provisions of the trust to the
requirements of the taxing authorities. The Trustees, therefore,
10
<PAGE>
are expressly authorized to enter into any and all agreements with the Internal
Revenue Service or any other governmental body or official or from time to time
to execute any declaration of policy or disclaimers restricting the discretion
given them as, determined in the discretion of the Trustees, will tend to
minimize the taxes engendered by the trust.
Section 4. Limitations on Trustees' Powers. Notwithstanding
anything herein to the contrary, no power of the Trustees enumerated herein or
now or hereafter conferred upon trustees generally shall be construed to enable
the Grantor, or Trustees or either of them, or both of them together, or any
other person to purchase, exchange, or otherwise deal with or dispose of all or
any part of the corpus or income of the trust for less than an adequate
consideration in money or monies worth, or to the extent prohibited by Section
675 of the Internal Revenue Code of 1954, as amended, to enable the Grantor to
borrow all or any part of the corpus or income of the trust, directly or
indirectly, without adequate interest or security, or the power to allow the
Grantor directly or indirectly to borrow either corpus or income from the trust
and not completely repay such loan, including any interest, before the beginning
of the taxable year. No part of the corpus or income of the trust property shall
be used for or applied to the payment of premiums upon policies of insurance on
the life of the Grantor. Trustees shall neither have nor exercise the power to
vote or direct the voting of any shares or other securities of the trust except
as expressly directed in a signed, written authorization by a majority of the
then current income beneficiaries; nor shall the Trustees have or exercise the
power to purchase or sell any trust assets, including stock or securities,
without written and signed authorization from a majority of the then current
income beneficiaries. A majority of the then current income beneficiaries shall
have the power to cause trust assets, including stock or securities, to be sold
or purchased, by so indicating their intention in a signed, written request
delivered to the Trustees; provided, however, that the said power of the
11
<PAGE>
beneficiaries to cause assets to be sold or purchased shall be subject to the
express approval of the Individual Trustee. For purposes of this Section, the
signed written authorization, direction or request of a minor beneficiary shall
be of equal force and effect as if said beneficiary had attained the age of
majority. The Trustees shall be relieved from any and all liability for any loss
or decrease in value in the trust estate that may result from following such
written directions of a majority of said income beneficiaries.
ARTICLE IV
ADMINISTRATIVE PROVISIONS
Section 1. Records and Accounting. The Corporate Trustee shall
maintain adequate books and records reflecting all income and corpus
transactions, which books and records shall be open at all reasonable times to
the inspection of the then current income beneficiaries or the guardian or
person having custody of any minor or incompetent beneficiary. The Corporate
Trustee shall furnish at least annual statements of all receipts, disbursements
and transactions to each adult beneficiary and the guardian or person having
custody of any minor or incompetent beneficiary.
Section 2. Bond. No Trustee shall be required to furnish any
bond or surety for the performance of his duties hereunder.
Section 3. Compensation. Individual Trustee shall receive no
compensation for her services hereunder but shall be entitled to reimbursements
or advancements for all expenses incurred in performing the duties of trustee
hereunder. Corporate Trustee, as compensation for its services as trustee
hereunder, shall receive the commissions stipulated in its regularly adopted
schedule of compensation in effect and applicable at the time of performance of
such services.
ARTICLE V
SUCCESSOR TRUSTEES
Section 1. Resignation and Removal of Trustees. A trustee may
resign at any time by giving thirty (30) days notice of
12
<PAGE>
such resignation to Grantor, if living and if not, to the then current income
beneficiaries or their guardians; provided, however, the Corporate Trustee shall
not resign until a successor trustee is appointed. Any successor trustee shall
qualify under the provisions set forth below in Section 3 of this Article.
Grantor, during her lifetime, and a majority of the then current income
beneficiaries thereafter, shall have the right to remove any trustee with or
without cause by giving thirty (30) days notice of such removal to such trustee.
Section 2. Successor Trustee. The Grantor during her lifetime,
and thereafter a majority of the then current income beneficiaries, shall have
the right to appoint a qualified successor trustee in the event of the death,
disability, resignation or removal of an acting trustee. Each successor trustee
shall be appointed by a written instrument filed with the records of the trust.
If the Individual Co-Trustee dies, resigns, is removed, or becomes disabled and
no successor is so appointed, the Corporate Trustee may serve alone.
Section 3. Qualifications. A successor trustee may be (a) an
individual or (a) a trust company or bank qualified to act as such in North
Carolina, and having combined capital and surplus of not less than One Million
Dollars ($1,000,000). Neither the Grantor nor any beneficiary shall act as
trustee and no more than one-half (1/2) of the trustees shall be a "related or
subordinate party," as defined by Section 672(c) of the Internal Revenue Code of
1954, as amended (or other similar statute then in force)
Section 4. Powers of Successor Trustee. A successor trustee
shall be vested with the same rights, powers and privileges of his predecessor
trustee. A successor trustee shall have no responsibility or accountability for
the act of a predecessor trustee.
ARTICLE VI
SPENDTHRIFT PROVISION
To the extent permitted by law, the interests of the
beneficiaries shall not be subject to assignment, alienation,
13
<PAGE>
pledge, attachment, or claims of creditors, and shall not otherwise be
voluntarily or involuntarily alienated or encumbered by any such beneficiary.
ARTICLE VII
IRREVOCABILITY
This agreement and the trust hereby created shall be
irrevocable, and the Grantor hereby expressly acknowledges that she shall have
no right or power, whether alone or in conjunction with others, in whatever
capacity, to alter, amend, revoke or terminate the trust, or any of the terms of
this agreement, in whole or in part, or to designate the persons who shall
possess or enjoy the trust property or income therefrom. By this instrument, the
Grantor intends to and does hereby relinquish absolutely and forever, all
possession or enjoyment of, all right to the income from the trust property,
whether directly or indirectly or constructively, and every interest of any
nature in the trust property.
ARTICLE VIII
DEFINITIONS
Section 1. Trustees. "Trustees" shall include the trustees
herein appointed and any successor Trustees.
Section 2. Death. The death of any person shall be evidenced
by presentation of a certified copy of such person's death certificate to the
Trustees.
Section 3. Blood Issue. The term "blood issue" as used in this
instrument, means all natural lineal descendants in any degree of the ancestor
to whom the term refers; provided, however adopted children, stepchildren, and
foster children and their issue are excluded.
Section 4. Interpretation. Whenever used herein, and to the
extent appropriate, the masculine, feminine or neuter gender shall include the
other two genders, the singular shall include the plural, and the plural shall
include the singular.
Section 5. Child. The term "child" or "children" as used in
this instrument, shall include only blood descendants in
14
<PAGE>
the first degree of the ancestor to whom the term refers; adopted children,
stepchildren, and foster children are excluded.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 1. Governing Law. Notwithstanding that the Grantor or
the beneficiaries may now or at any future time be domiciled elsewhere than in
the State of North Carolina, this agreement shall be regarded for all purposes
as a North Carolina document; the validity and construction hereof shall be
determined and governed in all respects by the laws of the State of North
Carolina; and the trust, powers and provisions herein contained shall be
administered, exercised, and carried into effect according to the laws of the
State of North Carolina.
Section 2. Unborn Person. A person en ventre sa mere shall be
considered as in being, provided said person is subsequently born alive.
Section 3. Good Faith Disbursements. Until and unless Trustees
receive actual notice of any event upon which right to payment from this trust
may depend, Trustees shall incur no liability to persons whose interests may
have been affected by such event for disbursements made in good faith.
Section 4. Invalid Provision. If any provision of this
agreement shall be invalid or unenforceable, the remaining provisions shall
continue to be fully effective.
Section 5. Notices. Whenever any notice, demand, request or
other communication is given or required to be given upon the Trustees, Grantor
or beneficiaries under this agreement, each such notice, demand, request or
other communication shall be in writing, and, any law or statute to the contrary
notwithstanding, shall not be effective for any purpose unless the same shall be
given or served by personally delivering such writing or by mailing it by
registered or certified mail, return receipt requested, to the person to whom it
is directed (unless such notice, demand, request or other communications is
waived or accepted by the person entitled thereto).
15
<PAGE>
Any such notice, demand, request or other communication shall
be deemed to have been given at the time it was duly deposited in any office of
the United States Postal Service.
Section 6. Acceptance by Trustees. Trustees acknowledge
receipt from the Grantor of the properties described in the attached Exhibit A,
and do hereby accept this trust upon the terms set forth in this agreement.
IN WITNESS WHEREOF, and in triplicate originals, the Grantor
and the Individual Trustee have hereunto set their hands and adopted as their
seals the typewritten word "SEAL" appearing beside their names; and the
Corporate Trustee has caused this agreement to be signed by one of its Vice
Presidents and attested by its Trust Officer or one of its Assistant Trust
Officers, and its corporate seal to be affixed, all as of the day and year first
above written.
GRANTOR:
/s/ Maggie B. Holding (SEAL)
MAGGIE B. HOLDING
INDIVIDUAL TRUSTEE:
Carolyn S. Holding
By: /s/ N. A. Townsend, Jr. (SEAL)
Attorney in Fact
FIRST-CITIZENS BANK & TRUST COMPANY
By: /s/ J. T. Woodward, Jr.
Senior Vice President and
Trust Officer
ATTEST:
/s/ J. G. Creech
Assistant Secretary
16
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF JOHNSTON
I, Virginia S. Hopkins, a Notary Public in and for said County
and State, do hereby certify that MAGGIE B. HOLDING personally appeared before
me this day and acknowledged the due execution of the foregoing instrument.
Witness my hand and notarial seal this the 28th day of
December, 1976.
/s/ Virginia S. Hopkins
Notary Public
My Commission expires:
September 10, 1977
STATE OF NORTH CAROLINA
COUNTY OF WAKE
I, Lee W. Butts, a Notary Public in and for said County and
State, do hereby certify that on the 28th day December, 1976, before me
personally appeared J. T. WOODWARD, JR. with whom I am personal acquainted, who,
being by me duly sworn, says that he is Senior Vice President and that J. G.
CREECH is Assistant Secretary of FIRST-CITIZENS BANK & TRUST COMPANY, the
corporation described in and which executed the foregoing instrument; that he
knows the common seal of said corporation; that the seal affixed to the
foregoing instrument is said common seal; that the name of the corporation was
subscribed thereto by the said Senior Vice President; that the said Senior Vice
President and Assistant Secretary subscribed their names thereto and the said
common seal was affixed, all by order of the Board of Directors of said
corporation; and that the said instrument is the act and deed of said
corporation.
WITNESS my hand and notarial seal, this the 28th day of
December, 1976.
/s/ Lee W. Butts
Notary Public
My Commission expires:
9/5/78
17
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF WAKE
THIS IS TO CERTIFY that N. A. Townsend, Jr., personally
appeared before me this day and, being first duly sworn, states that he is duly
authorized to execute the foregoing instrument for and on behalf of Carolyn S.
Holding; that as her attorney in fact he acknowledges the execution of the
foregoing instrument for and on behalf of Carolyn S. Holding; and that the
foregoing instrument is the act and deed of said Carolyn S.
Holding.
WITNESS my hand and notarial seal, this 31st day of December,
1976.
/s/ Alice W. Sherron (Penny)
Notary Public
My Commission expires:
9-18-79
<PAGE>
EXHIBIT A
TO
MAGGIE B. HOLDING
IRREVOCABLE TRUST AGREEMENT
FOR
CAROLINE ROYALL HOLDING
417 shares of common stock of Stockton-White Co.
93 shares of common stock of First-Citizens Bank & Trust Co.
152 shares of preferred stock of First-Citizens Bank & Trust Co.,
Series C
9 shares of preferred stock of First-Citizens Bank & Trust Co.,
Series A
550 shares of common stock of Southern Bank & Trust Co. 1,493 shares of Exchange
Bank of Kingstree 634 shares of common stock of United Carolina Bancshares 333
shares of common stock of Bank of Williston
Southern Bank & Trust Co. 7-1/2% Capital Note - Principal Amount
of $6,000.00
FIRST-CITIZENS BANK & TRUST COMPANY, and CAROLYN S. HOLDING,
Trustees, acknowledge receipt of the foregoing property for the purposes set
forth in the foregoing Irrevocable Trust Agreement of which this page is
specifically made a part.
This the 31st day of December, 1976.
FIRST-CITIZENS BANK & TRUST COMPANY
By: /s/ J. T. Woodward, Jr.
Senior Vice President and
Trust Officer
Carolyn S. Holding
By: /s/ N. A. Townsend, Jr. (SEAL)
Attorney in Fact
CAROLYN S. HOLDING
<PAGE>
Appendix to Exhibit 7(f)
STATE OF NORTH CAROLINA
COUNTY OF WAKE
NOTICE OF REMOVAL OF TRUSTEE,
APPOINTMENT OF SUCCESSOR TRUSTEE AND
ACCEPTANCE OF APPOINTMENT AS SUCCESSOR TRUSTEE
TO: First-Citizens Bank & Trust Company, Post Office Box 151, Raleigh, North
Carolina 27602
RE: Irrevocable Trust Agreement for the Primary Benefit of Caroline Royall
Holding, dated December 28, 1976 between Maggie B. Holding as Grantor
and First-Citizens Bank & Trust Company and Carolyn S. Holding as
Trustees.
Pursuant to the authority granted under Section 1 of Article V
of the above-referenced Trust Agreement, the undersigned CAROLINE ROYALL
HOLDING, hereby removes FIRST-CITIZENS BANK & TRUST COMPANY as Corporate
Trustee, effective
thirty (30) days from the date of the delivery of this Notice.
Further, pursuant to the authority granted in Section 2 in
Article V thereof, the undersigned CAROLINE ROYALL HOLDING hereby appoints
GEORGE H. BROADRICK to serve as Successor Co-Trustee in the place and stead of
FIRST-CITIZENS BANK & TRUST COMPANY.
The undersigned, GEORGE H. BROADRICK, accepts the appointment
as Successor Co-Trustee of the above-referenced Trust Agreement, effective upon
the effective date of the removal of FIRST-CITIZENS BANK & TRUST COMPANY, and
agrees to hold, administer and distribute all of the trust assets in accordance
with the terms and provisions of the above-referenced Trust Agreement upon
delivery of the Trust assets to me.
This 30th day of January, 1991.
/s/ Caroline Royall Holding (SEAL)
CAROLINE ROYALL HOLDING
/s/ George H. Broadrick (SEAL)
GEORGE H. BROADRICK
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF WAKE
I, Nancy Narron, a Notary Public in and for said County and
State, do hereby certify that CAROLINE ROYALL HOLDING personally appeared before
me this day and acknowledged the due execution of the foregoing instrument.
WITNESS my hand and notarial seal, this the 28th day of
January, 1991.
/s/ Nancy Narron
Notary Public
My Commission Expires:
January 6, 1992
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
I, Sally B. Honeycutt, a Notary Public in and for said County
and State, do hereby certify that GEORGE H. BROADRICK personally appeared before
me this day and acknowledged the due execution of the foregoing instrument.
WITNESS my hand and notarial seal, this the 30th day of
January, 1991.
/s/ Sally B. Honeycutt
Notary Public
My Commission Expires:
February 24, 1993
