Contract
EXHIBIT 10(f)
TRUST AGREEMENT FOR THE
TCF 401K SUPPLEMENTAL PLAN
THIS AGREEMENT is made this 19th day of October, 2017 by and between TCF
Financial Corporation, corporation organized under the laws of the State of Delaware and having
its principal office and place of business in 000 Xxxx Xxxxxx Xxxx, Xxxxxxx, XX 00000 (the
"Company") and Reliance Trust Company, a trust organization under the laws of Georgia and
having its principal office and place of business in Atlanta, Georgia, as trustee (the “Trustee”).
RECITALS
WHEREAS, the Company has adopted the TCF 401K Supplemental Plan which is an
unfunded executive benefit plan providing deferred compensation benefits to a select group of its
management or highly compensated employees (the “Plan”); and
WHEREAS, the Plan contemplates that employees of the Company may become
participants in the Plan; and
WHEREAS, the Company has incurred or expects to incur liability under the terms of the
Plan with respect to the employees who participate in the Plan (the “Participants”); and
WHEREAS, the Company has established a trust (the "Trust") and wishes to continue to
contribute to the Trust assets that shall be held therein, subject to the claims of the Company's
creditors in the event of the Company's insolvency, as herein defined, until paid to the Plan
participants and their beneficiaries in such manner and at such times as specified in the Plan or
paid to the Company in accordance herewith; and
WHEREAS, it is the intention of the parties that the Trust shall constitute an unfunded
arrangement and shall not affect the status of the Plan as an unfunded Plan maintained for the
purpose of providing deferred compensation for a select group of management or highly
compensated employees according to Title I of the Employee Retirement Income Security Act of
1974 as amended; and
WHEREAS, it is the intention of the Company to make contributions to the Trust to
provide a source of funds to assist it in the meeting of its liabilities under the Plan.
WHEREAS, the Company may designate one or more agents, to perform certain
recordkeeping, administrative, investment, custodial and other services with respect to the Plan,
and may authorize such an agent to direct the Trustee as provided for herein and defined in
Section 1(f).
NOW, THEREFORE, the parties do hereby establish and continue the Trust and agree that the
Trust shall be comprised, held and disposed of as follows:
Section 1. ESTABLISHMENT OF TRUST
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(a) The Company hereby deposits with
Trustee in trust $100.00, which shall become the principal
of the Trust to be held, administered and disposed of by
the Trustee as provided in this Trust Agreement. The
Company shall have the right to make additional deposits
from time to time in its sole discretion.
(b) The Trust hereby established shall only
be revocable as expressly provided in Section 13.
(c) The Trust is intended to be a grantor
trust, of which the Company is the grantor, within the
meaning of Subpart E, part I, subchapter J, chapter I,
subtitle A of the Internal Revenue Code of 1986, as
amended (the “Internal Revenue Code”), and shall be
construed accordingly.
(d) The Participants and their beneficiaries
shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights
created under the Plan and this Trust Agreement shall be
mere unsecured contractual rights of the Participants and
their beneficiaries against their Employer. Any assets
held by the Trust will be subject to the claims of the
Company's general creditors under federal and state law
in the event of Insolvency, as defined in Section 3(a)
herein.
(e) The Trustee agrees to accept additional
deposits made by the Company pursuant to Section 1 (a)
hereof, and contributions that are paid to it by the
Company in accordance with the terms of this Trust
Agreement. Such additional deposits and contributions
shall be in cash or in such other form that may be
acceptable to the Trustee, including but not limited to
policies of life insurance. The Trustee shall have no duty
to determine or collect contributions under the Plan and
shall have no responsibility for any property until it is
received and accepted by the Trustee. The Company shall
have the sole duty and responsibility for the determination
of the accuracy and sufficiency of the deposits and
contributions to be made under the Plan, the transmittal of
the same to the Trustee and compliance with any statute,
regulation or rule applicable to contributions.
(f) Company shall furnish the Trustee with
a written list of the names, signatures and extent of
authority of all persons authorized to direct Trustee and
otherwise act on behalf of the Company and the
Participants under the terms of this Trust Agreement
(“Authorized Agents”). The Trustee shall be entitled to
rely on and shall be fully protected in acting upon
direction from Authorized Agents until notified in writing
by the Company, as appropriate, of a change of the
identity of an Authorized Agent.
Section 2. PAYMENTS TO PARTICIPANTS
AND THEIR BENEFICIARIES
(a) From time to time, the Company or its
Authorized Agents may deliver to the Trustee a schedule
(the “Payment Schedule”) that indicates the amounts
payable in respect of each Participant (and his or her
beneficiaries), that provides a formula or other
instructions for determining the amounts payable, the
form in which such amounts are to be paid (as provided
for or available under the Plan), and the time of
commencement for payment of such amounts. Except as
otherwise provided herein, the Trustee shall make
payments to the Participants and their beneficiaries in
accordance with such Payment Schedule. The Trustee
shall make provision for the reporting and withholding of
any federal, state or local taxes that may be required to be
withheld with respect to the payment of benefits pursuant
to the terms of the Payment Schedule and shall pay
amounts withheld to the appropriate taxing authorities or
determine that such amount have been reported, withheld
and paid by the Company. If the principal of the Trust,
and any earnings thereon, are not sufficient to make
payments of benefits in accordance with the terms of the
Payment Schedule, the Company shall make the balance
of each such payment as it falls due. The Trustee shall
notify the Company where principal and earnings are not
sufficient.
(b) Upon the receipt by the Trustee of (i) a
written notice from the Company, indicating that the Plan
has been completely terminated and (ii) a Payment
Schedule, indicating how payments shall be made as a
result of the termination of the Plan, the Trustee shall pay
to each Participant his or her account balance under the
Plan in accordance with the terms of such Payment
Schedule. Notwithstanding the foregoing, upon the
termination of the Plan the Company shall be entitled to
make payment of benefits directly to the Participant or
their beneficiaries in accordance with subsection (e)
below.
(c) The Company hereby agrees that the
Authorized Agents (as defined Section 1(f)) shall have the
exclusive responsibility, and the Trustee shall not have
any responsibility or duty under this Trust Agreement for
determining that the Payment Schedule is in accordance
with the terms of the Plan and applicable law, including
without limitation, the amount, timing or method of
payment and the identity of each person to whom such
payments shall be made. The Trustee shall have no
responsibility or duty to determine the tax effect of any
payment or to see to the application of any payment.
(d) The entitlement of a Participant or his
or her beneficiaries to the benefits under the Plan shall be
determined by the Company or such Authorized Agent as
it shall designate under the Plan, and any claim for such
benefits shall be considered and reviewed under the
procedures set out in the Plan.
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(e) The Company may make payment of
benefits directly to the Participants or their beneficiaries
as they become due under the terms of the Plan. The
Company shall notify the Trustee of its decision to make
payment of benefits directly to Participants or their
beneficiaries. If the Company makes payments according
to this subsection the Company shall make provision for
the reporting and withholding of any federal, state or local
taxes that may be required to be withheld with respect to
the payment of benefits pursuant to the terms of the Plan
and shall pay amounts withheld to the appropriate taxing
authorities.
(f) In accordance with the procedures
mutually acceptable to the Company and Trustee, all
directions and instructions to the Trustee from an
Authorized Agent, including but not limited to the
Payment Schedule, shall be in writing, transmitted by
mail or by facsimile or shall be an electronic transmission,
provided the Trustee may, in its discretion, accept oral
directions and instructions and may require confirmation
in writing (“Authorized Instructions”).
Section 3. TRUSTEE RESPONSIBILITY
REGARDING PAYMENT TO TRUST
BENEFICIARY WHEN COMPANY IS
INSOLVENT
(a) The Trustee shall cease payment of
benefits to the Participants who are current or former
employees of the Company and their beneficiaries if it
receives notice that the Company is Insolvent. The
Company shall be considered “Insolvent” for purposes of
this Trust Agreement if (i) the Company is unable to pay
its debts as they become due, or (ii) the Company is
subject to a pending proceeding as a debtor under the
United States Bankruptcy Code.
(b) At all times during the continuance of
this Trust, as provided in Section 1(d) hereof, the
principal and income of the Trust shall be subject to
claims of general creditors of the Company under federal
and state law as set forth below.
(i) The Board of Directors and
the Chief Executive Officer of the Company shall have
the duty to inform the Trustee in writing of the
Company's Insolvency. If a person claiming to be a
creditor of the Company alleges in writing to the
Trustee that the Company has become Insolvent, the
Trustee shall determine whether the Company is
Insolvent and, pending such determination, the Trustee
may discontinue payment of benefits to the Participants
or their beneficiaries.
(ii) Unless the Trustee has actual
knowledge of the Company's Insolvency, or has
received notice from the Company or a person claiming
to be a creditor alleging that the Company is Insolvent,
the Trustee shall have no duty to inquire whether the
Company is Insolvent. The Trustee may in all events
rely on such evidence concerning the Company's
solvency as may be furnished to the Trustee and that
provides the Trustee with a reasonable basis for making
a determination concerning the Company's solvency.
(iii) If at any time the Trustee has
determined that the Company is Insolvent, the Trustee
shall discontinue payments of benefits to the
Participants and their beneficiaries and shall hold the
assets of the Trust for the benefit of the Company's
general creditors. Nothing in this Trust Agreement shall
in any way diminish any rights of the Participants or
their beneficiaries to pursue their rights as general
creditors of the Company with respect to benefits due
under the Plan or otherwise.
(iv) The Trustee shall resume the
payment of benefits to the Participants or their
beneficiaries in accordance with Section 2 of this Trust
Agreement only after the Trustee has determined that
the Company is not Insolvent (or is no longer
Insolvent). The Trustee may rely on evidence
concerning Insolvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable
basis for making a determination concerning
Insolvency. If there is a dispute about Insolvency, the
Trustee shall have the right to require the Company to
employ and pay for the services of an independent
expert to render a written opinion to the Trustee
addressing the question of Insolvency.
(c) Provided that there are sufficient assets,
if the Trustee discontinues the payment of benefits from
the Trust pursuant to Section 3(a) and (b) hereof and
subsequently resumes such payments, the first payment
following such discontinuance shall include the aggregate
amount of all payments due to the Participants or their
beneficiaries according to the terms of the Plan for the
period of such discontinuance, less the aggregate amount
of any payments made to Participants or their
beneficiaries by the Company in lieu of the payments
provided for hereunder during any such period of
discontinuance. The Trustee may require a new Payment
Schedule from the Company in such event.
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Section 4. PAYMENTS TO COMPANY
(a) Except as provided in Sections 3, 13, and in
this Section 4(b), the Company shall not have the right
or the power to direct the Trustee to return to the
Company or to divert to others any of the Trust assets
before all payment of benefits have been made to
Participants or their beneficiaries pursuant to the terms
of the Plan.
(b) In the event the Company makes payment of
benefits directly pursuant to Section 2(e) hereof, the
Company may file proof of such payment with the
Trustee and request to be reimbursed for said payment.
The Trustee shall reimburse the Company for amounts
not exceeding the Company’s costs of making Plan
payments. The Trustee shall not be obligated to verify
the amount of payment beyond receipt of reasonable
proof (e.g. cancelled check).
Section 5. INVESTMENT AUTHORITY
(a) The Trustee shall invest and reinvest the
principal and income of the Trust as directed by Company
or its properly designated Authorized Agent which
directions may be changed from time to time. To the
maximum extent permitted by law, the Trustee shall have
no duty or responsibility (i) to advise with respect to, or
inquire as to the propriety of, any such investment
direction or (ii) for any investment decisions made with
respect to the Trust by the Company. In the absence of
investment direction, the Trustee shall have no obligation
to invest Trust assets, but may invest Trust assets in any
manner permitted under Section 5(d).
(b) The Trustee may invest in securities
(including stock or rights to acquire stock) or obligations
issued by the Company. All rights associated with assets
of the Trust shall be exercised by the Trustee and shall in
no event be exercised by or rest with Plan participants,
except that voting rights with respect to Trust assets will
be exercised by the Company, unless an investment
adviser has been appointed pursuant to Section 5(a) and
voting authority has been delegated to such investment
adviser.
(c) The Company shall have the right at
any time, and from time to time in its sole discretion, to
substitute assets of equal fair market value, for any asset
held by the Trust. This right is exercisable by the
Company in a non-fiduciary capacity without the
approval or consent of any person in a fiduciary capacity.
(d) In administering the Trust and carrying
out the instructions of the Company in accordance with
Section 5(a) above, the Trustee shall be specifically
authorized to:
(i) To invest and reinvest the Trust assets,
together with the income therefrom, in
common stock, preferred stock, convertible
preferred stock, bonds, debentures,
convertible debentures and bonds,
mortgages, notes, commercial paper and
other evidences of indebtedness (including
those issued by the Trustee), shares of
mutual funds, guaranteed investment
contracts, bank investment contracts, other
securities, policies of life insurance, other
insurance contracts, annuity contracts,
options, options to buy or sell securities or
other assets, and all other property of any
type (personal, real or mixed, and tangible
or intangible);
(ii) To deposit or invest all or any part of the
assets of the Trust in savings accounts or
certificates of deposit or other deposits in a
bank or savings and loan association or
other depository institution, provided such
deposits bear a reasonable interest rate;
(iii) To submit or cause to be submitted to the
Company, all information received by the
Trustee regarding ownership rights
pertaining to property held in the Trust;
(iv) To hold, manage, improve, repair and control
all property, real or personal, forming part of
the Trust; to sell, convey, transfer, exchange,
partition, lease for any term, even extending
beyond the duration of this Trust, and
otherwise dispose of the same from time to
time;
(v) To make, execute and deliver any and all
documents, agreements or other instruments
in writing as are necessary or desirable for
the accomplishment of any of the powers
and duties set forth in this Trust Agreement;
(vi) To hold in cash, without liability for interest,
such portion of the Trust as is pending
investment, or payment of expenses, or the
distribution of benefits;
(vii) To take such actions as may be necessary or
desirable to protect the Trust from loss due
to the default on mortgages held in the Trust
including with the consent of an Authorized
Party the appointment of agents or trustees
in such other jurisdictions as may seem
desirable, the transfer of property to such
agents or trustees as is necessary, or the
grant to such agents such powers as are
necessary or desirable to protect the Trust.
(viii) To vote in person or by general or limited
proxy, as directed by an Authorized Party,
any securities in which the Trust is invested
and similarly to exercise, personally or by
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general or limited power of attorney, as
directed by an Authorized Party, any right
appurtenant to any authorized investment
held in the Trust.
(ix) To maintain accounts at, execute transactions
through, and lend on an adequately secured
basis stocks, bonds or other securities to,
any brokerage or other firm, including any
firm which is an affiliate of Trustee;
(x) To exercise all of the further rights, powers,
options and privileges granted, provided for,
or vested in trustees generally under the
laws of the state in which the Trustee has its
principal place of business so that the
powers conferred upon the Trustee herein
shall not be in limitation of any authority
conferred by law, but shall be in addition
thereto.
(e) The Trustee may exercise the powers
described in this Section 5(d) with or without
Authorized Instructions, but where the Trustee acts on
Authorized Instructions, the Trustee shall be fully
protected as described in Section 9.
Section 6. ADDITIONAL POWERS OF
TRUSTEE.
(a) To the extent necessary or which it
deems appropriate to implement its powers under Section
5 or otherwise to fulfill any of its duties and
responsibilities as Trustee of the Trust, the Trustee shall
have the following additional powers and authority:
(i) To register securities, or any other
property, in its name or in the name of any
nominee, including the name of any
affiliate or the nominee name designated
by any affiliate, with or without indication
of the capacity in which property shall be
held, or to hold securities in bearer form
and to deposit any securities or other
property in a depository or clearing
corporation;
(ii) Upon receiving the consent of an
Authorized Party, to designate and engage
the services of, and to delegate powers
and responsibilities to, such agents,
representatives, advisers, counsel and
accountants as the Trustee considers
necessary or appropriate and, as part of its
expenses under this Trust Agreement, to
pay their reasonable expenses and
compensation;
(iii) To make, execute and deliver, as Trustee,
any and all deeds, leases, mortgages,
conveyances, waivers, releases or other
instruments in writing necessary or
appropriate for the accomplishment of any
of the powers listed in this Trust
Agreement; and
(iv) Generally to do all other acts which the
Trustee deems necessary or appropriate
for the protection of the Trust.
(v) The Trustee at the direction of the
Company may appoint a Custodian,
acceptable to the Company, to safeguard
the assets of the Trust. The Company
hereby authorizes and directs the Trustee
to enter into such agreements with the
Custodian as may be necessary to
establish an account with the Custodian.
For administrative purposes, contributions
deposited to the appointed Custodian shall
be deemed as contributions deposited with
the Trustee on behalf of the Trust.
Section 7. DISPOSITION OF INCOME.
During the term of this Trust, all income
received by the Trust, net of expenses and taxes, shall
be accumulated and reinvested.
Section 8. ACCOUNTING BY TRUSTEE.
(a) The Trustee shall keep accurate and
detailed records of all investments, receipts,
disbursements, and all other transactions required to be
made, including such specific records as shall be agreed
upon in writing between the Company and the Trustee.
Within 90 days following the close of each calendar
quarter, or at such other additional times as may be
reasonably requested by the Company, and within 90 days
after removal or resignation of the Trustee, the Trustee
shall deliver to the Company a written account of its
administration of the Trust during such year or during the
period from the close of the last preceding year to the date
of such removal or resignation, setting forth all
investments, receipts, disbursements and other
transactions effected by it, including a description of all
securities and investments purchased and sold with the
cost or net proceeds of such purchases or sales (accrued
interest paid or receivable being shown separately), and
showing all cash, securities and other property held in the
Trust at the end of such year or as of the date of such
removal or resignation, as the case may be.
(b) The Trustee shall be entitled to rely on the
Recordkeeper (the provider of recordkeeping services for
the Plan Administrator) or the Custodial Agent (the
custodian of investments), if any other than Trustee, for the
maintenance and provision of all records specified in this
Section 8.
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Section 9. RESPONSIBILITY AND
INDEMNITY OF THE TRUSTEE.
(a) The Trustee shall act with the care, skill,
prudence and diligence under the circumstances then
prevailing that a prudent person acting in like capacity
and familiar with such matters would use in the conduct
of an enterprise of a like character and with like aims,
provided, however, that the Trustee shall incur no liability
to any person for any action taken pursuant to a direction,
request or approval given by the Company or its
Authorized Agent which is contemplated by, and in
conformity with, the terms of the Plan(s) and this Trust
and is given in writing by the Company or in such other
manner prescribed by the Trustee. In the absence of
direction, request or approval from the Company, the
Trustee shall also incur no liability to any person for any
failure to perform an act not contemplated by or in
conformity with, the terms of this Trust. In the event of a
dispute between the Company and a party, the Trustee
may apply to a court of competent jurisdiction to resolve
the dispute.
(b) The Company hereby indemnifies the
Trustee and each of its affiliates (collectively, the
"Indemnified Parties") against, and shall hold them
harmless from, any and all loss, claims, liability, and
expense, including reasonable attorneys' fees, imposed
upon or incurred by any Indemnified Party as a result of
any acts taken, or any failure to act, in accordance with
the directions from the Company or any designee of the
Company including Authorized Agents, or by reason of
the Indemnified Party's good faith execution of its duties
with respect to the Trust, including, but not limited to, its
holding of assets of the Trust. The Company's obligations
in the foregoing regard shall be satisfied promptly by the
Company, provided that in the event the loss, claim,
liability or expense involved is determined by a no longer
appealable final judgment entered in a lawsuit or
proceeding to have resulted from the negligence or
misconduct of the Trustee, the Trustee shall promptly on
request thereafter return to the Company any amount
previously received by the Trustee under this Section 9(b)
with respect to such loss, claim, liability or expense. If
the Company does not pay such costs, expenses and
liabilities in a reasonably timely manner, the Trustee may
obtain payment from the Trust without direction from the
Company.
(c) The Trustee shall incur no liability to
anyone for any action that it or the Custodian as its delegate
takes pursuant to a direction, request or approval given by
the Company, Authorized Agents, Participants, the
Investment Committee, the Administrator or by any other
party (including, without limitation, the Recordkeeper and
any of its agents) to whom authority to give such directions,
requests or approvals is delegated under the powers
conferred upon the Company, Participants, the Investment
Committee, the Administrator or such other party under this
Agreement.
(d) The Trustee, upon receipt of the consent
of an Authorized Agent, at the expense of the Trust or the
Company, may consult with legal counsel (who may also
be counsel for Company generally) with respect to any of
its duties or obligations hereunder and may rely on any
determination made by such agents and information
provided to it by the Company.
(e) The Trustee, upon receipt of the consent
of an Authorized Agent, may hire agents, accountants,
actuaries, investment advisers, financial consultants or
other professionals to assist it in performing any of its
duties or obligations hereunder.
(f) The Trustee shall have, without exclusion,
all powers conferred on the Trustee by applicable law,
unless expressly provided herein.
(g) Notwithstanding any powers granted to
the Trustee pursuant to this Trust Agreement or applicable
law, the Trustee shall not have any power that could give
this Trust the objective of carrying on a business and
dividing the gains therefrom, within the meaning of
section 301.7701-2 of the Procedure and Administrative
Regulations promulgated pursuant to the Internal Revenue
Code.
(h) The Trustee shall not be liable for any
expense, loss, claim or damage (including counsel fees)
suffered by the Participants arising out of or caused by
any delay in, or failure of, performance by the Trustee, in
whole or in part, arising out of, or caused by,
circumstances beyond the Trustee’s control, including
without limitation: acts of God, interruption, delay in, or
loss (partial or complete) of electrical power or external
computer (hardware or software) or communication
services (including access to book-entry securities
systems maintained by Federal Reserve Bank of New
York and/or any clearing corporation); act of civil or
military authority; sabotage; natural emergency;
epidemic; war or other government actions; civil
disturbance; flood, earthquake, fire, other catastrophe;
strike or other labor disturbance by employees of
nonaffiliates; governmental, judicial, or self regulatory
organization order, rule or regulation; riot; energy or
natural resource difficulty or shortage; and inability to
obtain materials, equipment or transportation.
(i) If (1) there is any disagreement or dispute
in connection with the Trust or the subject matter hereof,
including any dispute between the Trustee, the Company,
Authorized Agent or any Participant, or between the
Company, Authorized Agent and, any Participant or any
person not a party to the Trust or (2) there are adverse or
inconsistent claims or demands upon, or inconsistent with
instructions to the Trustee, or (3) the Trustee in good faith
is in doubt as to what action to take pursuant to the Trust,
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the Trustee may at its election refuse to comply with any
such claims, demands or instructions, or refuse to take
any other action pursuant to this Trust until (i) the rights
of all persons involved in the dispute have been fully and
finally adjudicated by a court of competent jurisdiction or
the Trustee has resolved any such doubts to its good faith
satisfaction; or (ii) all disputes have been resolved
between the persons involved and the Trustee has
received written notice thereof satisfactory to it from all
such persons. Without limiting the generality of the
foregoing, the Trustee may at its election interplead the
subject matter of this Trust Agreement with a court of
competent jurisdiction, or commence judicial proceedings
for a declaratory judgment, and the Trustee shall be
entitled to recover from the Company or the Trust, both
collectively and individually, the Trustee’s attorneys’
fees, expenses and costs in connection with any such
interpleader or declaratory judgment action
(j) The Trustee is not a party to, and has no
duties or responsibilities under, the Plan other than those
that may be expressly contained in this Trust Agreement.
In any case in which a provision of this Trust Agreement
conflicts with any provision of the Plan, the Plan shall
control. The Trustee shall have no duties, responsibilities
or liability with respect to the acts or omissions of any
prior or successor trustee.
Section 10. COMPENSATION AND EXPENSES
OF TRUSTEE
(a) The Company shall pay all administrative
and Trustee's fees and expenses under this Trust
Agreement as mutually agreed and, if not so paid, such
fees and expenses may be withdrawn from the Trust by
the Trustee. If the Trustee advances cash or securities for
any purpose, including the purchase or sale of foreign
exchange or of contracts for foreign exchange, or in the
event that the Trustee shall incur or be assessed taxes,
interest, charges, expenses, assessments, or other
liabilities in connection with the performance of this Trust
Agreement, except such as may arise from its own
negligent action, negligent failure to act or misconduct,
any property at any time held for the Trust shall be
security therefor and the Trustee shall be entitled to
collect from the Company or, if not paid, from the Trust
sufficient cash for reimbursement of such taxes, interest,
charges, expenses, assessments or other liabilities. If cash
is insufficient, the Trustee may dispose of the assets of the
Trust to the extent necessary to obtain the aforesaid
reimbursement. To the extent the Trustee advances funds
to the Trust for disbursements or to effect the settlement
of purchase transactions, the Trustee shall be entitled to
collect from the Company or, if not so paid, from the
Trust either (i) with respect to domestic assets, an amount
equal to what would have been earned on the sums
advanced (an amount approximating the “federal funds”
interest rate) or (ii) with respect to non-domestic assets,
the rate applicable to the appropriate foreign market.
Section 11. RESIGNATION AND REMOVAL OF
TRUSTEE
(a) The Trustee may resign at any time by
written notice to the Company, which shall be effective
30 days after receipt of such notice unless the Company
and the Trustee agree otherwise.
(b) The Trustee may be removed by the
Company on 60 days notice or upon shorter notice
accepted by the Trustee.
(c) Upon resignation or removal of the
Trustee and appointment of a successor trustee, all assets
shall subsequently be transferred to the successor trustee.
The transfer shall be completed within 120 days after
receipt of notice of resignation, removal or transfer,
unless the Company extends the time limit.
(d) If the Trustee resigns or is removed, a
successor shall be appointed, in accordance with Section
12 hereof, by the effective date of resignation or removal
under paragraphs (a) or (b) of this Section. If no such
appointment has been made, the Trustee may apply to a
court of competent jurisdiction for appointment of a
successor or for instructions. All expenses of the Trustee
in connection with the proceeding shall be allowed as
administrative expenses of the Trust.
Section 12. APPOINTMENT OF SUCCESSOR.
(a) If the Trustee resigns or is removed in
accordance with Section 11(a) or (b) hereof, subject to the
requirements of Section 11, the Company may appoint
any third party, such as a bank trust department or other
entity that may be granted corporate trustee powers under
state law, as a successor to replace the Trustee upon
resignation or removal. The appointment shall be
effective when accepted in writing by the new trustee,
who shall have all of the rights and powers of the former
trustee, including ownership rights in the Trust assets.
The former trustee shall execute any instrument necessary
or reasonably requested by the Company or the successor
trustee to evidence the transfer.
(b) The successor trustee need not examine
the records and acts of any prior trustee and may retain or
dispose of existing Trust assets, subject to Sections 8 and
9 hereof. The successor trustee shall not be responsible
for and the Company shall indemnify and defend the
successor trustee from any claim or liability resulting
from any action or inaction of any prior trustee or from
any other past event, or any condition existing at the time
it becomes successor trustee.
Section 13. AMENDMENT OR TERMINATION
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(a) This Trust Agreement may be amended
by a written instrument executed by the Trustee and the
Company. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plan
without the written consent of all Participants and any
eligible survivor of such Participants, who have any
benefits accrued under this Trust.
(b) Following a Change in Control, the Trust
shall not terminate until the date on which Participants
and their Beneficiaries have received all of the benefits
due to them under the terms and conditions of the Plan.
(c) The Trust shall not terminate until the date
on which the Participants and their beneficiaries are no
longer entitled to benefits pursuant to the terms of the
Plan. Upon termination of the Trust, any assets remaining
in the Trust shall be returned to the Company.
(d) Upon written approval of the Participants
or beneficiaries entitled to payment of benefits pursuant to
the terms of the Plan, the Company may terminate this
Trust prior to the time all benefit payments under the Plan
have been made. All assets in the Trust at termination
shall be returned to the Company.
Section 14. MISCELLANEOUS.
(a) Any provision of this Trust Agreement
prohibited by law shall be ineffective to the extent of any
such prohibition, without invalidating the remaining
provisions hereof.
(b) Benefits payable to Participants and their
beneficiaries under this Trust Agreement may not be
anticipated, assigned (either at law or in equity),
alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal
equitable process.
(c) This Trust Agreement shall be governed
by and construed in accordance with the laws of the State
of Georgia.
(d) For purposes of this Trust Agreement, a
Change in Control is determined pursuant to the definition
identified in governing plan document.
(e) Neither the Company nor the Trustee
may assign this Trust Agreement without the prior written
consent of the other. This Trust Agreement shall be
binding upon, and inure to the benefit of, the Company,
the Trustee and their respective successors and permitted
assigns. Any entity, which shall by merger,
consolidation, purchase, or otherwise, succeed to
substantially all the trust business of the Trustee shall,
upon each succession and without any appointment or
other action by the Company, be and become successor
trustee hereunder, upon notification to Company.
(f) The provisions of this Trust Agreement
are intended to benefit only the parties hereto, their
respective successors and assigns, and the Participants
and their beneficiaries under the Plan. There are no other
third party beneficiaries.
(g) The Company and the Trustee hereby
each represents and warrants to the other that it has full
authority to enter into this Trust Agreement upon the
terms and conditions hereof and that the individual
executing this Trust Agreement on its behalf has the
requisite authority to bind the Company or the Trustee to
this Trust Agreement.
(h) This Trust Agreement may be executed in
any number of counterparts, each of which shall be
deemed an original and such counterparts shall constitute
but one and the same instrument and may be sufficiently
evidenced by one counterpart.
Section 15. EFFECTIVE DATE
The effective date of this Trust Agreement shall be
November 1, 2017.
EXHIBIT 10(f)
[Signature Page to Reliance Trust Agreement]
IN WITNESS WHEREOF, the Company and the Trustee have executed this Trust Agreement each
by action of a duly authorized person.
TCF FINANCIAL CORPORATION (Company)
By: /s/ Xxxxxx X. Xxxxxxxx (Signature)
Name/Title: Xxxxxx X. Xxxxxxxx, Executive Vice President
Date: October 19, 2017
RELIANCE TRUST COMPANY (Trustee)
By: /s/ Xxxxxxxxx Xxxxxx (Signature)
Name/Title: Xxxxxxxxx Xxxxxx, Vice President
Date: October 31, 2017
