Exhibit 7(b)
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IRREVOCABLE TRUST AGREEMENT
FOR
XXXXXXXX X. HOLDING
THIS AGREEMENT, made the 28th day of March, 1990, and executed
in duplicate, between XXXXX X. HOLDING of Wake County, North Carolina,
hereinafter called the Grantor, and XXXXXX X. XXXXXXXXX, 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.
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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
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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
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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, XXXXXXXX X.
HOLDING, if she shall then be living, otherwise by the Grantor's daughter,
XXXXXX X. 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 XXXXX X. 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
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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. XXXXXXXX X. 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 XXXXXXXX X. HOLDING within thirty (30) days of such
transfer or other contribution to the trust. Such right of withdrawal shall be
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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, XXXXXXXX
X. 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, XXXXXXXX X. 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.
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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, XXXXXXXX X. 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 XXXXXXXX X. 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, XXXXX X. 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.
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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
XXXXXX X. XXXXXXXXX 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. XXXXXX X. XXXXXXXXX and any
successor Trustee (whether named herein or appointed pursuant to the following
provisions of this Article)
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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 XXXXXX X. XXXXXXXXX
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, XXXXX
X. HOLDING shall assume all duties and responsibilities as Trustee. Upon the
death, incapacity or resignation of the said XXXXX X. HOLDING, without the
appointment of a successor Trustee as provided herein, XXXX XXX HOLDING shall
assume all duties and responsibilities as Trustee. Upon the death, incapacity or
resignation of the said XXXX XXX 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 XXXXXX X. XXXXXXXXX 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
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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
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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, XXXXXX X. XXXXXXXXX (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/ Xxxxx X. Holding (SEAL)
XXXXX X. HOLDING
/s/ Xxxxxx X. Xxxxxxxxx (SEAL)
XXXXXX X. XXXXXXXXX
00
XXXXX XX XXXXX XXXXXXXX
XXXXXX XX XXXX
Xx this 28th day of March, 1990, before me, a Notary Public in
and for said County and State, personally appeared XXXXX X. 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/ Xxxxxxx X. XxXxxx
Notary Public
My Commission expires:
0/00/00
XXXXX XX XXXXX XXXXXXXX
XXXXXX XX XXXX
Xx this 28th day of March, 1990, before me, a Notary Public in
and for said County and State, personally appeared XXXXXX X. XXXXXXXXX, 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/ Xxxxxxx X. XxXxxx
Notary Public
My Commission expires:
5/16/94
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XXXXX X. HOLDING
TRUST AGREEMENT
SCHEDULE A
XXXXXX X. XXXXXXXXX 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/ Xxxxxx X. Xxxxxxxxx
XXXXXX X. XXXXXXXXX
