BANKERS TRUST COMPANY
EXCHANGE AGENT AGREEMENT
Bankers Trust Company
Corporate Trust and Agency Group
Four Albany Street, 4th Floor
New York, NY 10006
Attention: Corporate Market Services
Ladies and Gentlemen:
FCB/NC Capital Trust I (the "Issuer Trust"), a statutory business trust
created under the laws of the State of Delaware, together with First Citizens
BancShares, Inc., a Delaware corporation (the "Company"), is offering to
exchange (the "Exchange Offer") up to $150,000,000 aggregate liquidation
amount of its 8.05% Capital Securities (the "New Capital Securities") for an
equal principal amount of its outstanding 8.05% Capital Securities (the "Old
Capital Securities"), of which $150,000,000 aggregate liquidation amount is
outstanding (the "New Capital Securities" and the "Old Capital Securities" are
collectively referred to herein as the "Capital Securities"), pursuant to a
prospectus (the "Prospectus") included in the Company's Registration
Statement on Form S-4 (File No._____________________________) as amended (the
"Registration Statement"), filed with the Securities and Exchange
Commission (the "SEC"). The Term "Expiration Date" shall mean 5:00 p.m.,
New York City time, on ______________________, 1998, unless the Exchange
Offer is extended as provided in the Prospectus, in which case the term
"Expiration Date" shall mean the latest date and time to which the Exchange
Offer is extended. Upon execution of this Agreement, Bankers Trust Company
will act as the Exchange Agent for the Exchange Offer (the "Exchange Agent").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed thereto in the Prospectus.
A copy of each of the form of letter of transmittal (the "Letter of
Transmittal"), the form of the notice of guaranteed delivery (the "Notice of
Guaranteed Delivery"), the form of letter to brokers and the form of letter of
clients (collectively, the "Tender Documents") to be used by Holders of Old
Capital Securities in order to receive New Capital Securities pursuant to the
Exchange Offer are attached hereto as Exhibit A.
The Company hereby appoints you to act as Exchange Agent in connection with
the Exchange Offer. In carrying out your duties as Exchange Agent, you are to
act in accordance with the following provisions of this Agreement:
1. You are to mail the Prospectus and the Tender Documents to
all of the Holders and participants on the day that you are notified by the
Company that the Registration Statement has become effective under the
Securities Act of 1933, as amended, or as soon as practicable thereafter, and
to make mailings subsequent to the date thereof and to any persons who become
Holders prior to the Expiration Date and to any persons as may from time to
time be requested by the Company. All mailings pursuant to this Section 1
shall be by first class mail, postage prepaid, unless otherwise specified by
the Company. You shall also accept and comply with telephone requests for
information relating to the Exchange Offer provided that such information
shall relate only to the procedures for tendering Old Capital Securities in (or
withdrawing tenders of Old Capital Securities from) the Exchange Offer. All
other requests for information relating to the Exchange Offer shall be
directed to the Company, Attention: Kenneth A. Black
2. You are to examine Letters of Transmittal and the Old
Capital Securities and other documents delivered or mailed to you, by or for
the Holders, prior to the Expiration Date, to ascertain whether (i) the
Letters of Transmittal are properly executed and completed in accordance with
the instructions set forth therein, (ii) the Old Capital Securities are in
proper form for transfer and (iii) all other documents submitted to you are
in proper form. In each case where a Letter of Transmittal or other document
has been improperly executed or completed or, for any other reason, is not in
proper form, or some other irregularity exists, you are authorized to
endeavor to take such action as you consider appropriate to notify the
tendering Holder of such irregularity and as to the appropriate means of
resolving the same. Determination of questions as to the proper completion or
execution of the Letters of Transmittal, as to the proper form for transfer of
the Old Capital Securities, or as to any other irregularity in connection
with the submission of Letters of Transmittal and/or Old Capital
Securities and other documents in connection with the Exchange Offer,
shall be made by the officers of, or counsel for, the Company and the Issuer
Trust at their written instructions or oral direction confirmed by
facsimile. Any determination made by the Company and the Issuer Trust on
such questions shall be final and binding.
3. At the written request of the Company or its counsel, Ward
and Smith, P.A. , you shall notify tendering Holders of Old Capital Securities
of the termination of the Exchange Offer. In the event of any such
termination, you will return all tendered Old Capital Securities to the
persons entitled thereto, at the request and expense of the Company.
4. Tender of the Old Capital Securities may be made only
as set forth in the Letter of Transmittal. Notwithstanding the foregoing,
tenders which the Company shall approve in writing as having been properly
delivered shall be considered to be properly tendered. Letters of Transmittal
and Notices of Guaranteed Delivery shall be recorded by you as to the date and
time of receipt and shall be preserved and retained by you at the Company's
expense for six years. New Capital Securities are to be issued in exchange
for Old Capital Securities pursuant to the Exchange Offer only (i) against
deposit with you on or prior to the Expiration Date or, in the case of a
tender in accordance with the guaranteed delivery procedures outlined in
Instruction 1 of the Letter of Transmittal, within five (5) New York Stock
Exchange trading days after the date of execution of the Notice of Guaranteed
Delivery, together with executed Letters of Transmittal and other documents
required by the Exchange Offer or (ii) in the event that the Holder is a
participant in the Depositary Trust Company ("DTC" system), by the
utilization of DTC's Automated Tender Offer Program ("ATOP") and any
evidence required by the Exchange Offer.
You are hereby directed to establish an account with respect
to the Capital Securities at The Depositary Trust Company (the "Book Entry
Transfer Facility") within two days after the date hereof in accordance with
SEC Regulation 240.17 Ad. Any financial institution that is a participant
in the Book Entry Transfer Facility system may, until the Expiration Date,
make book-entry delivery of the Old Capital Securities by causing the Book
Entry Facility to transfer such Old Capital Securities into your account in
accordance with the procedure for such transfer established by the Book
Entry Transfer Facility. In every case, however, a Letter of Transmittal
(or a manually executed facsimile thereof), or an Agent's Message,
properly completed and duly executed, with any required signature guarantees
and any other required documents, must be transmitted to and received by you
on or prior to the Expiration Date or the guaranteed delivery procedures
described in the Tender Documents must be complied with.
5. Upon oral or written request of the Company (with
written confirmation of any such oral request thereafter), you will transmit
by telephone, and promptly thereafter confirm in writing to Kenneth A. Black
or such other persons as the Company may reasonably request, the aggregate
number and principal amount of Old Capital Securities tendered to you and the
number and principal amount of Old Capital Securities property tendered that
day. In addition, you will also inform the aforementioned persons, upon
oral request made from time to time (with written confirmation of such
request thereafter) prior to the Expiration Date, of such information as
they or any of them may reasonable request.
6. Upon the terms and subject to the conditions of the
Exchange Offer, delivery of New Capital Securities will be made by you
promptly after acceptance of the tendered Old Capital Securities. You will
hold all items which are deposited for tender with you after 5:00 p.m. New
York City time, on the Expiration Date pending further instructions from an
officer of the Company.
7. If any Holder shall report to you that his or her failure to
surrender Old Capital Securities registered in his or her name is due to the
loss or destruction of a certificate or certificates, you shall request
such Holder (i) to furnish to you an affidavit of loss and, if required
by the Company, a bond of indemnity in an amount and evidenced by such
certificate or certificates of a surety, as may be satisfactory to you and
the Company, and (ii) to execute and deliver an agreement to indemnify the
Company and you in such form as is acceptable to you and the Company. The
obligees to be named in each such indemnity bond shall include the Company and
you. You shall report to the Company the names of all Holders who claim
that their Old Capital Securities have been lost or destroyed and the
Liquidation Amount of such Old Capital Securities.
8. As soon as practicable after the Expiration Date, you shall
mail or deliver via the Book Entry Transfer Facility's applicable procedures
to a Holder the New Capital Securities that such Holder may be entitled to
receive and you shall arrange for cancellation of the Old Capital Securities
submitted to you or returned by DTC in connection with ATOP. Such Old Capital
Securities shall be forwarded to ____________ for cancellation and retirement
as you are instructed by the Company (or a representative designated by the
Company) in writing.
9. For your services as the Exchange Agent hereunder, the
Company shall pay you in accordance with the schedule of fees attached hereto
as Exhibit B. The Company also will reimburse you for your reasonable
out-of-pocket expenses (including, but not limited to, reasonable attorneys'
fees not previously paid to you as set forth in Exhibit B) in connection with
your services promptly after submission to the Company of itemized
statements.
10. You are not authorized to pay any concessions, commissions
or solicitation fees to any broker, dealer, bank or other person or to engage
or utilize any person to solicit tenders.
11. As the Exchange Agent hereunder you:
a. shall have no duties or obligations other than
those specifically set forth herein or in the
Exhibits attached hereto or as may be subsequently
requested in writing of you by the Company and agreed
to by you in writing with respect to the Exchange
Offer;
b. will be regarded as making no representations and
having no responsibilities as to the validity,
accuracy, sufficiency, value or genuineness of
any Old Capital Securities deposited with you
hereunder, any New Capital Securities, or any
Tender Documents or other documents prepared by the
Company in connection with the Exchange Offer;
c. shall not be obligated to take any legal
action hereunder which might in your judgment
involve any expense or liability unless you shall
have been furnished with an indemnity reasonably
satisfactory to you;
d. may rely on, and shall be fully protected and
indemnified as provided in Section 12 hereof in
acting upon, the written or oral instructions
with respect to any matter relating to your acting
as Exchange Agent specifically covered by this
Agreement or supplementing or qualifying any such
action of any officer or agent, or such other
person or persons as may be designated or whom
you reasonably believe have been designated by,
the Company;
e. may consult with counsel satisfactory to you,
including counsel for the Company, and the advice of
such counsel shall be full and complete
authorization and protection in respect of any
action taken, suffered or omitted by you in good
faith and in accordance with such advice of such
counsel;
f. shall not at any time advise any person as to
the wisdom of the Exchange Offer or as to the
market value or decline or appreciation in market
value of any Old Capital Securities or New Capital
Securities; and
g. shall not be liable for any action which you
may do or refrain from doing in connection with
this Agreement except for your gross negligence,
willful misconduct or bad faith.
12. The Company covenants and agrees to indemnify and hold
harmless Bankers Trust Company and its officers, directors, employees, agents
and affiliates (collectively, the "Indemnified Parties" and each an
"Indemnified Party") against any loss, liability or reasonable expense of
any nature (including reasonable attorneys' and other fees and expenses)
incurred in connection with the administration of the duties of the
Indemnified Parties hereunder in accordance with this Agreement except when
caused by an Indemnified Party's gross negligence, willful misconduct or bad
faith; provided, however, such Indemnified Party shall use its best effort to
notify the Company by letter, or by cable, telex or telecopier confirmed
by letter, of the written assertion of a claim against such Indemnified Party,
or of any action commenced against such Indemnified Party, promptly after but
in any event within 10 days of the date such Indemnified Party shall have
received any such written assertion of a claim or shall have been served with a
summons, or other legal process, giving information as to the nature and
basis of the claim; provided, however, that failure to so notify the
Company shall not relieve the Company of any liability which it may otherwise
have hereunder except such liability that is a direct result of such
Indemnified Party's failure to so notify the Company. The Company shall
be entitled to participate at its own expense in the defense of any such
claim or legal action and if the Company so elects, or if the Indemnified
Party in such notice to the Company so directs, the Company shall assume the
defense of any suit brought to enforce any such claim and shall not be liable
for any separate legal fees and expenses of the Indemnified Party after it has
assumed such defense; provided, however, that in the event that there may be a
conflict of interest between the positions of the Indemnified Party and the
Company in conducting the defense of such claim, the Indemnified Party shall be
entitled to separate counsel, the reasonable fees and expenses of which shall be
paid by the Company. You shall not enter into a settlement or other compromise
with respect to any indemnified loss, liability or expense without the prior
written consent of the Company, which shall not be unreasonably withheld or
delayed.
13. This Agreement and your appointment as the Exchange Agent
shall be construed and enforced in accordance with the laws of the State of New
York and shall inure to the benefit of, and the obligations created hereby
shall be binding upon, the successors and assigns of the parties hereto. No
other person shall acquire or have any rights under or by virtue of this
Agreement.
14. The parties hereto hereby irrevocably submit to the venue
and jurisdiction of any New York State or federal court sitting in the
Borough of Manhattan in New York City in any action or proceeding arising out
of or relating to this Agreement, and the parties hereby irrevocably agree
that all claims in respect of such action or proceeding arising out of or
relating to this Agreement shall be heard and determined in such a New York
State or federal court. The parties hereby consent to and grant to any such
court jurisdiction over the persons of such parties and over the subject
matter of any such dispute and agree that delivery or mailing of any process or
other papers in the manner provided herein, or in such other manner as may be
permitted by law, shall be valid and sufficient service thereof.
15. This Agreement may not be modified, amended or
supplemented without an express written agreement executed by the parties
hereto. Any inconsistency between this Agreement and the Tender Documents, as
they may from time to time be supplemented or amended, shall be resolved in
favor of the latter, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent.
16. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
17. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
18. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date.
Notwithstanding the foregoing, Sections 9 and 12 shall survive the termination
of this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Property Trustee any certificates for Old Capital Securities or
New Capital Securities, funds or property then held by you as Exchange Agent
under this Agreement.
19. All notices and communications hereunder shall be in
writing and shall be deemed to be duly given if delivered or mailed first class
certified or registered mail, postage prepaid, or telecopied as follows:
If to Company: First Citizens BancShares, Inc.
3128 Smoketree Court
Raleigh, NC 27604
Attn: Kenneth A. Black
Telephone:
Telecopier No:
and a copy to: Ward and Smith, P.A.
1001 College Court
Post Office Box 867
New Bern, North Carolina 28563-0867
Attn: William R. Lathan, Jr.
Telephone: (252) 633-1000
Facsimile: (252) 636-2121
If to you: Bankers Trust Company
Corporate Trust and Agency Group
Four Albany Street - 4th Floor
New York, NY 10006
Attn.:
Telephone: 212-250-
Telecopier: 212-250-6392/6961
or such other address or telecopy number as any of the above may have
furnished to the other parties in writing for such purposes.
20. This Letter Agreement and all of the obligations
hereunder shall be assumed by any and all successors and assigns of the
Company.
If the foregoing is in accordance with your understanding, would you
please indicate your agreement by signing and returning the enclosed copy of
this Agreement to the Company.
Very truly yours,
FIRST CITIZENS BANCSHARES, INC.
By:_________________________
Title:
Agreed to this _____ day of __________, 1998
BANKERS TRUST COMPANY, as Exchange Agent
By: ___________________________________
Title:
EXHIBIT A
[FORM OF TENDER DOCUMENTS]
EXHIBIT B
Bankers Trust Company
Corporate Trust and Agency Group
SCHEDULE OF FEES
Exchange Agent $5,000
Covers review of the Exchange Agent Agreement, the Letter of
Transmittal and other related documentation; establishment of accounts and
systems link with depositories; operational and administrative charges and
time spent in connection with the review, receipt and processing of Letters
of Transmittal, and Agent's Messages.
Note: The fees set forth in this schedule are subject to review of
documentation. The fees are also subject to change should circumstances
warrant. Out-of-pocket expenses and disbursements, including counsel
fees, incurred in the performance of our duties will be added to the billed
fees. Fees for any services not covered in this or related schedules will be
based upon our appraisal of the services rendered. We may place orders to
buy/sell financial instruments with outside broker-dealers that we select,
as well as with BT or its affiliates. These transactions (for which
normal and customary spreads or other compensation may be earned by such
broker-dealers, including BT or its affiliates, in addition to the charges
quoted above) will be executed on a riskless principal basis solely for your
account(s) and without recourse to us or our affiliates. If you choose to
invest in any mutual fund, BT and/or our affiliates may earn investment
management fees and other service fees/expenses associated with these
funds as disclosed in the mutual fund prospectus provided to you, in addition
to the charges quoted above. Likewise, BT has entered into agreements with
certain mutual funds or their agents to provide shareholder services to those
funds. For providing these shareholder services, BT is paid a fee by these
mutual funds that calculated on an annual basis does not exceed 25 basis
points of the amount of your investment in these mutual funds. In addition,
if you choose to use other services provided by BT or its affiliates,
Corporate Trust or other BT affiliates may be allocated a portion of the fees
earned. We will provide periodic account statements describing
transactions executed for your account(s). Trade confirms will be available
upon your request at no additional charge. If a transaction should fail to
close for reasons beyond our control, we reserve the right to charge
our acceptance fee plus reimbursement for legal fees incurred.
Shares of mutual funds are not deposits or obligations of, or guaranteed by,
Bankers Trust Company or any of its affiliates and are not insured by the
Federal Deposit Insurance Corporation or any other agency of the U.S.
Government. Investments in the mutual funds involve the possible loss of
principal. Please read the prospectus carefully before investing.