EXHIBIT 10.3
FIRST AMENDMENT
AND
APPOINTMENT OF SUCCESSOR TRUSTEE
UNDER THE
GLOBAL MARINE BENEFIT EQUALIZATION
RETIREMENT TRUST
THIS AGREEMENT made and entered into as of the 1st day of
June, 1999, by and between GLOBAL MARINE CORPORATE SERVICES INC.,
a California corporation having its principal place of business in
Houston, Texas (the "Company"), and SEI TRUST COMPANY, a
Pennsylvania trust company having its principal place of business
in Oaks, Pennsylvania (the "Successor Trustee").
W I T N E S S E T H:
WHEREAS, by the Global Marine Benefit Equalization
Retirement Trust, dated effective as of January 1, 1990, by and
between the Company and Texas Commerce Bank, N.A., a national
banking association ("TCB"), the Company established a trust (the
"Trust Agreement") for the purpose of holding the assets
accumulated under the Global Marine Benefit Equalization Retirement
Plan, as adopted effective as of January 1, 1990, and as thereafter
amended (said Plan, together with any amendments thereto
hereinafter referred to as the "Plan"), and to provide for the
investment and administration of such assets; and
WHEREAS, Chase Bank of Texas, N.A., a national banking
association (the "Trustee") is the successor in interest to TCB;
and
WHEREAS, in accordance with Article IX of the Trust
Agreement, the Board of Directors of the Company has duly
authorized the Company to remove the Trustee and to appoint the
Successor Trustee as successor trustee under the Trust Agreement,
and the Trustee has been so advised; and
WHEREAS, the Successor Trustee desires to accept
appointment as successor trustee under the Trust Agreement, and, in
connection therewith, the Company desires to amend the Trust
Agreement;
NOW, THEREFORE, the Company and the Successor Trustee
hereby agree as follows:
1. The Company has provided the Trustee with written notice
of its removal as trustee under the Trust Agreement, effective
as of June 1, 1999, or as soon thereafter as practicable (the
"Succession Date"), pursuant to Article IX of the Trust
Agreement.
2. As of the Succession Date, the Company hereby appoints
the Successor Trustee to replace the Trustee as the trustee
under the Trust Agreement.
3. The Successor Trustee hereby accepts its appointment as
successor trustee under the Trust Agreement and agrees to be
bound by the terms of the Trust Agreement, as amended by
Paragraphs 5 through 13 hereof, effective as of the Succession
Date.
4. The Successor Trustee hereby agrees to hold such assets
as are delivered to it by the Trustee, and such assets as may
be received by it subsequent to the Succession Date, pursuant
to the terms of the Trust Agreement.
5. The Company and the Successor Trustee hereby agree that
Section 1.12 of the Trust Agreement shall be amended,
effective as of the Succession Date, to delete the phrase
"under the Texas Trust Code."
6. The Company and the Successor Trustee hereby agree that
the first sentence in the second paragraph of Section 2.2 of
the Trust Agreement shall be amended, effective as of the
Succession Date, to delete the phrase "within the meaning of
Section 111.004(4) of the Texas Trust Code."
7. The Company and the Successor Trustee hereby agree that
the text of Article V shall be designated as Section 5.1 and
entitled "Distribution and Authorized Investment," effective
as of the Succession Date.
8. The Company and the Successor Trustee hereby agree that
Section 5.1 shall be amended, effective as of the Succession
Date, by inserting after the second sentence thereof the
following:
"The foregoing sentence notwithstanding, if and so long
as an Investment Manager has been appointed by the
Administrator to direct the investment of the Trust Fund
in accordance with Section 5.2 of this Trust Agreement,
the Investment Manager, and not the Trustee, shall
manage, invest and reinvest the Trust Fund, all as
hereinafter provided."
9. The Company and the Successor Trustee hereby agree that
the Trust Agreement shall be amended, effective as of the
Succession Date, by adding the following Section 5.2 thereto:
"5.2. DIRECTION OF INVESTMENT: The Administrator
shall from time to time specify by written notice to the
Trustee whether the investment of the Trust Fund, in the
manner provided in Section 5.1, shall be managed solely
by the Trustee, or shall be directed in whole or in part
by one or more investment managers ("Investment
Managers") appointed by the Administrator, or whether
both the Trustee and one or more Investment Managers are
to participate in investment management and if so how the
investment responsibility is to be divided with respect
to assets, classes of assets or separate investment funds
specified and defined in such notice. Any such
Investment Manager shall either (i) be a registered
investment adviser under the Investment Advisers Act of
1940, (ii) be a bank, as defined in that Act or (iii) be
an insurance company qualified to perform investment
management services under the laws of more than one
state. If investment of the Trust Fund is to be directed
in whole or in part by an Investment Manager, the Trustee
shall be given copies of the instruments appointing the
Investment Manager and evidencing his acceptance of such
appointment and acknowledgment that he is a fiduciary of
the Plan, and a certificate evidencing the Investment
Manager's registration under said Act. The Trustee may
continue to rely upon such instruments and certificate
until otherwise notified in writing by the Administrator.
The Trustee shall follow the directions of the
Investment Manager regarding the investment and
reinvestment of the Trust Fund, or such portion thereof
as shall be under management by the Investment Manager,
and shall be under no duty or obligation to review any
investment to be acquired, held or disposed of pursuant
to such directions nor to make any recommendations with
respect to the disposition or continued retention of any
such investment. The Trustee shall have no liability or
responsibility for acting without question on the
direction of, or failing to act in the absence of any
direction from, the Investment Manager, unless the
Trustee knows that by such action or failure to act it
will be participating in a breach of fiduciary duty by
the Investment Manager.
The Investment Manager at any time and from time to
time may issue orders for the purchase or sale of
securities directly to a broker, and in order to
facilitate such transaction the Trustee upon request
shall execute and deliver appropriate trading
authorizations. Written notification of the issuance of
each such order shall be given promptly to the Trustee by
the Investment Manager, and the execution of each such
order shall be confirmed to the Trustee by the broker.
Such notification shall be authority for the Trustee to
pay for the securities purchased against receipt thereof
and to deliver securities sold against payment therefor,
as the case may be.
In the event that an Investment Manager should
resign or be removed by the Administrator, the Trustee
shall manage the investment of the Trust fund pursuant to
Section 5.1 unless and until it shall be notified of the
appointment of another Investment Manager as provided in
this Section 5.2."
10. The Company and the Successor Trustee hereby agree that
Section 8.6 of the Trust Agreement shall be amended, effective
as of the Succession Date, to read as follows:
"8.6 LAWS OF PENNSYLVANIA TO GOVERN: This Trust
Agreement and the Trust hereby created shall be governed,
construed, administered and regulated in all respects
under the laws of the Commonwealth of Pennsylvania."
11. The Company and the Successor Trustee hereby agree that
the third sentence of Section 9.3 of the Trust Agreement
shall be amended, effective as of the Succession Date, to read
as follows:
"In the event that a successor trustee has not been
appointed by the Company within twenty (20) days after
the Resignation Notice Date or the occurrence of a
vacancy in the position of Trustee, a Successor Trustee
may be appointed by any Pennsylvania or Texas or United
States District Court holding terms in Houston, Xxxxxx
County, Texas, or in Xxxxxxx County, Pennsylvania, upon
the application of Trustee."
12. The Company and the Successor Trustee hereby agree that
Section 11.2(d) of the Trust Agreement shall be amended,
effective as of the Succession Date, to delete the phrase
"under the Texas Trust Code."
13. The Company and the Successor Trustee hereby agree that
Section 12.3 of the Trust Agreement shall be amended,
effective as of the Succession Date, to delete the phrase "600
Xxxxxx, Xxxxxxx, Xxxxx, 00000" and insert in lieu thereof the
phrase "One Freedom Valley Drive, Oaks, Pennsylvania 19456."
14. In consideration of the acceptance by the Successor
Trustee of said successor trusteeship, the Company agrees with
the Successor Trustee as follows:
(a) The Successor Trustee shall have no duty or
responsibility to inquire into the acts or omissions of
the Trustee under the Trust Agreement, the Company or any
of its predecessors, subsidiaries or affiliates, any
member or members of the Administrator designated to
administer the Plan and the Trust Agreement or any agent
of the aforementioned entities to the extent that any
such acts or omissions may have occurred prior to the
Succession Date. Further, the Successor Trustee shall
have fiduciary responsibility, pursuant to the terms of
the Trust Agreement, only with respect to such assets as
are delivered to it by the Trustee, and such assets as
may be received by it subsequent to the Succession Date
during the period that the Successor Trustee is acting in
such fiduciary capacity.
(b) Successor Trustee shall not be liable or
responsible, in any manner whatsoever, for any action or
omitted action in connection with the administration of
the Plan and Trust Agreement prior to the Succession Date
by the Trustee, person serving as Administrator, the
Company or any of its predecessors, subsidiaries or
affiliates, or any agent of the aforementioned entities.
15. Upon the transfer by the Trustee to the Successor Trustee
of all of the trust properties held by the Trustee under the
Trust Agreement (and the records relating thereto) after the
Succession Date, the Successor Trustee hereby agrees to
acknowledge receipt of said trust properties and hereby agrees
to hold and invest said trust properties as part of the Trust
to be held and invested pursuant to the terms and provisions
of the Trust Agreement.
16. It is the intention of the parties hereto that the
provisions and covenants of this Agreement shall be binding
upon the successors and assigns of the Company and the
Successor Trustee, respectively.
IN WITNESS WHEREOF, the Company and the Successor Trustee
have executed this instrument in multiple counterparts, each of
which shall have the force and effect of an original, but all of
which shall together constitute but one and the same instrument, as
of the day and year first above written.
GLOBAL MARINE CORPORATE
SERVICES INC.
By: /s/ W. Xxxx Xxxxx
Name: W. Xxxx Xxxxx
Title: Vice President and Treasurer
ATTEST: Xxxxxx X. Driver
SEI TRUST COMPANY,
Successor Trustee
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President and Loan Officer
ATTEST: Xxxxxxx X. Xxxxx
THE STATE OF TEXAS
COUNTY OF XXXXXX
BEFORE ME, the undersigned authority, on this day
personally appeared W. Xxxx Xxxxx, Vice President & Treasurer of
GLOBAL MARINE CORPORATE SERVICES INC., known to me to be the
person and officer whose name is subscribed to the foregoing
instrument, and acknowledged to me that the same was the act of
said GLOBAL MARINE CORPORATE SERVICES INC., a California corporation,
and that he executed the same as the act and deed of such corporation for
the purposes and consideration therein expressed, and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 17th day
of May, 1999.
/s/ Xxxxx X. Xxxxxx
Notary Public, State of Texas
Seal
My Commission Expires
May 27, 2002
THE COMMONWEALTH OF PENNSYLVANIA
COUNTY OF XXXXXXX
BEFORE ME, the undersigned authority, on this day
personally appeared Xxxx Xxxxxxx, Xxxx Xxxxx of, SEI TRUST
COMPANY known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that
he executed the same as the act of the said SEI TRUST COMPANY, a
Pennsylvania trust company, and that he was duly authorized to perform
the same and that he executed the same as the act and deed of such trust
company for the purposes and consideration therein expressed and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 25 day
of May, 1999.
/s/ Xxxxxxx X. Xxxxxx
Notary Public, Commonwealth of
Pennsylvania
SEAL
My Commission Expires
June 21, 1999
IN WITNESS WHEREOF, the Trustee acknowledges of the
foregoing instrument, as of the day and year first above written.
CHASE BANK OF TEXAS, N.A., Trustee
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Trust Officer
ATTEST: Xxxxxx X. Good, A.V.P.
THE STATE OF TEXAS
COUNTY OF XXXXXX
BEFORE ME, the undersigned authority, on this day
personally appeared Xxxxx X. Xxxxxx, Vice President and Trust Officer
of Chase Bank of Texas, N.A., known to me to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to
me that he executed the same as the act of the said Chase Bank of Texas,
N.A., a national banking association, and that he was duly authorized to
perform the same and that he executed the same as the act and deed of such
national association for the purposes and consideration therein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 27th day
of May, 1999.
/s/ Xxxxx X. Xxxxx
Notary Public, State of Texas
Seal
My Commission Expires
June 5, 2001
