Exhibit 10(d)


 


THIRD
AMENDMENT


OF


TRUST
AGREEMENT FOR


TCF
FINANCIAL EXECUTIVE DEFERRED COMPENSATION


PLAN


 


THIS AGREEMENT is
made this 30th day of June, 2003 by and between TCF Financial Corporation, a
Delaware corporation, (“TCF Financial”) and The First National Bank in Sioux
Falls (the “Trustee”).


 


WITNESSETH:


 


WHEREAS, TCF
Financial and the Trustee have heretofore entered into a trust agreement, dated
as of October 1, 2000, (the “Agreement”) creating the Trust for TCF Financial
Executive Deferred Compensation Plan, which Agreement, as amended, is now in
full force and effect;


 


WHEREAS, TCF
Financial has reserved the power to amend the Agreement pursuant to Section 9.1
thereof; and


 


WHEREAS, TCF
Financial and the Trustee wish to amend the Agreement in certain respects;


 


NOW, THEREFORE, the
parties agree that the Agreement is hereby amended as follows:


 


1.             FUNDING
OBLIGATION.  Effective January 1, 2003,
Section 2.1 of the Agreement is amended to read in full as follows:


 


Section 2.1.  From time to time the Companies shall make
contributions of cash, TCF Financial common stock, and such other property as
may be acceptable to the Trustee.


 


(a)           Each contribution shall be
accompanied by either (i) a statement designating the Plan participant on
behalf of whom such contribution is being made and, if more than one account
has been established for such participant pursuant to Section 4, the account to
which such contribution will be credited, or (ii) a statement that the
contribution is not designated for any participant’s account, but instead is to
be applied to the payment of future Trust expenses.


 


(b)           The amounts contributed with respect
to each Plan participant shall be such amounts as are necessary to keep the
accounts for such Plan participant sufficient at all times to pay in full all
benefits payable with respect to such Plan participant.


 


(c)           In addition, within ten (10) business
days following the occurrence of a Change in Control, the Companies shall
contribute an amount equal to 300% of the aggregate expenses incurred by the
Companies and the Trustee in administering the Plan and the Trust during the
last full calendar year immediately preceding the occurrence of the Change in
Control.  This contribution will not be designated
for any participant’s account, but will instead be applied to the payment of
future trust expenses.  If the aggregate
expenses that were incurred by


 

















 


the Companies and the
Trustee in administering the Plan and the Trust during the last full calendar
year immediately preceding the occurrence of the Change in Control cannot be
determined with reasonable certainty prior to the date on which this
contribution is due, the amount of the contribution shall be $150,000.


 


The Trustee shall be
under no obligation to collect any such contributions, and all responsibility
for determining the amount, timing, and types of contributions made to the
Trustee shall be upon the Companies or their designees.


 


2.             DETERMINATION
OF INSOLVENCY.  Effective January 1,
2003, Section 2.3 of the Agreement is amended to read in full as follows:


 


No portion of the Trust
Fund shall be diverted to or used for any purpose other than the payment of
benefits pursuant to the Plan, or for the payment of expenses of administering
the Plan and the Trust, or for the payment of expenses incurred in the making
and administering of Trust investments pursuant to Sections 4 and 5, until such
time as the Companies’ obligations to make payments pursuant to the Plan have
been fully discharged; provided, and notwithstanding anything in this Agreement
to the contrary, at all times during the continuance of this Trust, the
principal and income of the Trust Fund shall be subject to the claims of the
general creditors of the Companies.  At
any time that the Trustee has actual knowledge, or has determined, that a
Company is “Insolvent,” it shall deliver any undistributed principal and income
to satisfy such claims as a court of competent jurisdiction may direct.  The Board of Directors and the Chief Executive
Officer of each Company shall have the duty to inform the Trustee of that
Company’s Insolvency.  If a Company or
any person claiming to be a creditor of a Company alleges in writing to the
Trustee that such Company has become Insolvent, and if the Trustee determines
such allegation is made in good faith and upon reasonable grounds, the Trustee
shall immediately suspend payments from the accounts established for
participants and shall hold all assets of such accounts subject to claims of
such Company’s creditors.  The Trustee
shall then request, within 10 days, from such Company sufficient information to
determine if the Company is Insolvent. 
If the Company shall fail or refuse to supply sufficient information
from which the Trustee may determine if the Company is Insolvent within 30 days
of the Trustee’s request, the Trustee shall promptly request such information
from the party which alleged that the Company is Insolvent.  If, on the basis of the information so
provided, the Trustee determines that the Company is not Insolvent, it shall immediately
resume payments from the accounts established for participants, together with
payment of any amounts held back by the Trustee while making a determination as
to Insolvency.  If the Trustee
determines that the Company is Insolvent, or if it has not received sufficient
information to make a determination as to the Company’s solvency, it shall
resume such payments (and make such payment for amounts withheld pending the
Trustee’s determination) only after the Trustee has determined that the Company
is not Insolvent or is no longer Insolvent. 
Unless the Trustee has actual knowledge of a Company’s Insolvency or has
received notice from the Company or a person claiming to be a creditor alleging
that the Company is Insolvent, it shall have no duty to inquire whether any
Company is Insolvent.  The Trustee may
in all events rely on such evidence concerning the Companies’ solvency as may
be furnished to the Trustee which will give it a reasonable basis for making a
determination concerning the Companies’ solvency, and nothing in this Agreement
shall in any way diminish any right of the Plan’s participants or their
beneficiaries to pursue


 


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their rights as general
creditors of the Companies with respect to benefits payable to them pursuant to
the Plan.  A Company shall be considered
“Insolvent” for the purposes of this Agreement if it is unable to pay its debts
as they mature, or if it is a party as a debtor to a proceeding pending under
the U.S. Bankruptcy Code or under any other applicable state or federal
bankruptcy law.


 


3.             PAYMENT
OF BENEFITS.  Effective January 1, 2003,
Section 3.1 of the Agreement is amended to read in full as follows:


 


Section 3.1.


 


The committee appointed
to administer the Plan (the “Committee”) shall provide the Trustee with
complete instructions regarding the form and time of payment of each account
maintained under this Agreement for each Plan participant as soon as
administratively feasible after a contribution is first credited to that
account.  If a participant’s payment
instructions with respect to an account change, the Committee shall provide the
Trustee with revised instructions as soon as administratively feasible after
any such change.  Any such revised
instructions that are not immediately effective shall indicate the date on
which they become effective.


 


If payment of a
participant’s account has not already commenced and the Trustee (i) has actual
knowledge of the occurrence of an event that requires payment of the account to
commence (a “payment event”), (ii) is notified by the Committee that a payment
event has occurred, (iii) determines (in the absence of actual knowledge and
any notice from the Committee) that a Change in Control has occurred as defined
in Section 5(j) of the Plan, or (iv) in the case of a participant’s termination
of employment, is notified in writing by the participant that the participant’s
termination of employment has occurred, the Trustee shall commence payment of
the participant’s account in accordance with the most recent applicable payment
instruction unless payment must be suspended due to a Company’s Insolvency as
otherwise provided in this Agreement. 
The Trustee shall make a determination with respect to whether a Change
in Control has occurred if the Trustee receives notice that a Change in Control
may have occurred from any source other than the Committee.  Promptly after receiving such notice of a
possible Change in Control, the Trustee shall request from the Committee all
information relevant to the Trustee’s determination.  If the Committee fails to provide information sufficient to
demonstrate the absence of a Change in Control within 30 days after the
Trustee’s request, and the other information received by the Trustee indicates
that a Change in Control has occurred, the Trustee shall commence payment of
accounts (that are not payable earlier) in the manner required upon the
occurrence of a Change in Control.


 


Payments made by the
Trustee from an account established for a participant shall be debited against
such account and shall cease when the balance credited to the account has been
reduced to zero or if earlier, when the Trustee determines, based upon its
review of the records of the Plan, that payment of any additional amounts from the
participant’s account will result in the payment of benefits in excess of those
required under the Plan.  The Trustee
shall have no obligation to perform such a review and consider such a
determination until after (i) the Committee notifies the Trustee and the
participant (or, if the participant has died, the participant’s beneficiary) of
the potential excess payment, (ii) the Trustee has been provided with all Plan
records that may be reasonably required by the Trustee to make its
determination, and (iii) the participant (or beneficiary) has had a reasonable
time (not less than 30 days) to respond. 
Pending its determination, the Trustee


 


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shall continue payment of
the affected account(s) in accordance with the applicable payment instructions.


 


The Trustee shall be held
harmless and shall not be liable for its acts with respect to distributions
from the Trust Fund if it has acted in good faith in accordance with the most
recent payment instructions provided by the Committee and the provisions of
this Section 3.1.


 


4.             PAYMENT
OF EXPENSES.  Effective January 1, 2003,
Section 3.2 of the Agreement is amended to read in full as follows:


 


Section 3.2.  The Companies shall pay: (a) all broker fees
and other expenses incurred in connection with the sale or purchase of
investments; (b) all personal property taxes, income taxes, and other taxes of
any kind at any time levied and assessed under any present or future law upon,
or with respect to, the Trust Fund or any property included in the Trust Fund
(other than income tax amounts that are reasonably required to be withheld from
payments by the Trust to participants and beneficiaries); and (c) the Trustee’s
own compensation and all other reasonable expenses of administering the Plan
and Trust; provided, however, that payment of legal and/or professional fees
reasonably incurred by the Trustee and/or the Trust in making determinations
regarding Insolvency pursuant to Section 2.3 of this Agreement shall be made
only if TCF Financial is notified in advance of the Trustee’s retention of
legal counsel and TCF Financial or the Committee consents to such retention,
which consent shall not be unreasonably withheld.  Amounts due and payable to the Trustee that remain unpaid more
than thirty days after the Trustee gives TCF Financial notice of such amounts
shall incur interest at the highest rate of interest assessable by the Trustee
for overdue payments of any kind from any other customer.  In the event the Trustee files suit to collect
amounts due and unpaid under this Section 3.2, the Companies shall reimburse
the Trustee for the full amount of the Trustee’s reasonable costs and
attorneys’ fees incurred in connection with the initiation, maintenance and
resolution of such suit.  In any dispute
regarding amounts payable to the Trustee by the Companies pursuant to this
Section 3.2, the Companies shall have no right to any reduction in the amounts
payable to the Trustee based on the Trustee’s performance of its duties under
the Agreement (or any alleged failure to perform those duties), unless the
Trustee’s actions are shown by the Companies to have been arbitrary and
capricious.  Trust assets that are
attributable to contributions designated for the payment of plan expenses may
be used to pay the amounts payable pursuant to this Section 3.2.  None of the amounts payable pursuant to this
Section 3.2 shall be payable from Trust assets that have been designated for a
participant’s account unless and until the Trustee has exhausted all of its
other legal and equitable remedies.  In
that event all such remedies are exhausted, expenses shall be charged to the
Trust Fund without allocation among the accounts established pursuant to
Section 4, unless an expense is directly attributable to one or more accounts,
in which case such expense shall be charged directly to such accounts.  The Trustee may dispose of Trust
investments, if necessary, to provide cash assets for the payment of expenses.  The Trustee shall not delay or withhold
payment to any participant or beneficiary on account of any dispute regarding
payments due under this Section 3.2.


 


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5.             TAX
WITHHOLDING.  Effective January 1, 2003,
Section 3.3 of the Agreement is amended to read in full as follows:


 


Section 3.3.  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 payments from the Trust Fund, and shall
pay amounts withheld to the appropriate taxing authorities or determine that
such amounts have been reported, withheld and paid by the Companies.


 


6.             DELIVERY
OF DISTRIBUTIONS.  Effective January 1,
2003, Section 3.4 of the Agreement is amended to read in full as follows:


 


Section 3.4.  Distributions pursuant to Section 3.1 shall
be deemed to have been sufficiently made if they are sent by first class mail
to the participant or beneficiary at the address last provided to the Trustee
by the Committee, the participant or the beneficiary.  If any such distribution is returned to the Trustee unclaimed,
the Trustee shall notify the Committee and shall not make any further
distributions to such payee until a current address for such payee is
determined.  If the payee cannot be
located within twelve months after the Trustee’s notice to the Committee is
given, the Trustee shall solicit payment directions from the Committee.


 


7.             INVESTMENT
OF TRUST ASSETS.  Effective January 1,
2003, Section 4.1 of the Agreement is amended to read in full as follows:


 


Section 4.1.


 


a.             Except as otherwise specifically provided herein, and
subject to such investment guidelines as may be adopted by the Committee and
delivered to the Trustee, the Trustee may invest, reinvest, and hold the assets
of the Trust in whatever form of investment the Trustee may see fit.  The Trustee shall not be restricted to those
investments which are authorized by the laws of any state for the investment of
trust funds.  In addition, the Trustee
may, for reasonable periods of time, hold any part or all of the Trust Fund
uninvested or in cash without liability for interest thereon, pending the
investment of such funds or the payment of costs, expenses, or benefits payable
under the Plan in the banking department of any corporate Trustee serving
hereunder or of any other bank, trust company, or other financial institution,
including those affiliated in ownership.


 


b.             The Committee may from time to time direct the Trustee
in the investment, reinvestment, or disposition of the assets of the Trust.  The Trustee will follow such directions and
will have no duty to question or make inquiries as to any investment direction
of the Committee given as provided herein; provided, that the Trustee shall invest, reinvest,
and hold any assets of the Trust with
respect to which it has not received investment directions in its
discretion as provided in paragraph a.


 


c.             The Trustee shall not be liable for any action taken or
omitted by it pursuant to such written directions of the Committee.


 


8.             CONTRIBUTIONS.  Effective January 1, 2003, the penultimate
sentence of Section 4.2 of the Agreement is amended to read in full as follows:


 


All contributions
received by the Trustee on behalf of a participant, and all dividends or
distributions made with respect to property allocated to such participant’s
account, shall be credited to such account.


 


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9.             SUBJECT
TO CLAIMS OF CREDITORS.  Effective
January 1, 2003, Section 4.3 of the Agreement is amended to read in full as follows:


 


Section 4.3.  Notwithstanding the foregoing, the rights of
each Plan participant to the amounts credited to his account shall be subject
to the claims of the Companies’ general creditors.


 


10.          BORROWING.  Effective January 1, 2003, Section 4.4 of the
Agreement is deleted without being replaced.


 


11.          BORROWING.  Effective January 1, 2003, paragraph f of
Section 5.1 of the Agreement is amended to read in full as follows:


 


f.              At the direction of the Committee, to borrow money from
any person and to pledge assets of the Trust Fund as security for repayment of
any such loan.


 


12.          DIRECTIONS.  Effective January 1, 2003, the last sentence
of paragraph h of Section 5.1 of the Agreement is deleted without being
replaced.


 


13.          DIRECTIONS.  Effective January 1, 2003, paragraph c of
Section 7.1 of the Agreement is amended to read in full as follows:


 


c.             Any notice, direction, certification, or other writing,
given by a Plan participant pursuant to this Agreement which is believed by the
Trustee to be genuine and to have been sent by such participant.


 


14.          INDEMNIFICATION.  Effective January 1, 2003, the second
sentence of Section 7.2 of the Agreement is amended to read in full as follows:


 


The Trustee shall be held
harmless and shall be fully indemnified by TCF Financial, its successors and
assigns from any liability, including reasonable legal and professional
services expenses, for any actions directed pursuant to this Agreement by TCF
Financial, the Committee, or any Plan participant or beneficiary.


 


15.          APPOINTMENT
AND REMOVAL OF TRUSTEES.  Effective
January 1, 2003, Sections 8.1 and 8.2 of the Agreement shall be amended to read
in full as follows:


 


Section 8.1.  The Trustee acting hereunder shall be one or
more qualified corporations appointed by TCF Financial to serve in such
capacity.  The number of Trustees shall
not be increased or decreased except with the written consent of at least
two-thirds of the aggregate of (i) the Plan’s participants  who are active employees, (ii) the
participants who are former employees but who are entitled to benefits under
the Plan and (iii) the beneficiaries of deceased participants who are entitled
to benefits under the Plan (counting the multiple beneficiaries of a single
participant as one beneficiary, whose consent is given only if a majority of
such beneficiaries give their consent). 
Upon any determination to increase the number of Trustees, or upon the
removal or resignation of any Trustee, the vacancy or vacancies so created
shall be filled by such qualified corporations as may be appointed by the Board
of Directors of TCF Financial and approved in writing by at least two-thirds of
the aggregate of (i) the Plan’s participants who are active employees, (ii) the
participants who are former employees but who are entitled to benefits under
the Plan and (iii) the beneficiaries of deceased participants who are entitled
to benefits under the Plan (counting the multiple beneficiaries of a single
participant as one beneficiary, whose consent is given only if a majority of
such beneficiaries give their consent). 
If the Board of Directors of TCF Financial fails to make such an
appointment or the appointed corporation fails to receive the required written
consent, and if there is no other Trustee then acting, a successor Trustee or
Trustees shall


 


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be appointed by a court
of competent jurisdiction.  Any such
appointment shall be effective upon the acceptance thereof in writing by the
qualified corporation so appointed and delivery of a signed copy of such
acceptance to the Trustee then in office.


 


Section 8.2.  The Trustee, and any successor to any
Trustee, may be removed by the Board of Directors of TCF Financial at any time
upon the receipt by the Board of Directors of TCF Financial of the consent of
at least two-thirds of the aggregate of (i) the Plan’s participants who are
active employees, (ii) the participants who are former employees but who are
entitled to benefits under the Plan and (iii) the beneficiaries of deceased
participants who are entitled to benefits under the Plan (counting the multiple
beneficiaries of a single participant as one beneficiary, whose consent is
given only if a majority of such beneficiaries give their consent) to such
removal and upon the giving of 30 days’ prior written notice to such Trustee
and to any other Trustee then acting. 
Such removal shall be effective on the date specified in such written
notice; provided, that notice shall theretofore have been given to the Trustee
of the appointment of a successor Trustee or Trustees in the manner hereinafter
set forth.


 


16.          AMENDMENT
OF TRUST.  Effective January 1, 2003,
Section 9.1 of the Agreement is amended to read in full as follows:


 


Section 9.1.  This Agreement may be amended at any time
and from time to time upon the approval of the Board of Directors of TCF
Financial; provided, however, that no amendment shall be effective unless it
has the written consent of all participants, all participants who are former
employees but who are entitled to benefits under the Plan, and all
beneficiaries of deceased participants who are entitled to benefits under the
Plan.  (If a single participant has
multiple beneficiaries, all of such beneficiaries shall be deemed to have consented
if a majority of such beneficiaries consent, and none of such beneficiaries
shall be deemed to have consented if less than a majority of such beneficiaries
consent.)  In the event that all of the
Plan’s participants and beneficiaries do not consent to a proposed amendment,
such amendment shall not take effect but the Trust assets credited to the
accounts of the consenting participants and beneficiaries shall be transferred
to a separate trust established pursuant to an agreement that is identical to
this Agreement in all respects except that it may include the proposed
amendment.


 


17.          TERMINATION
OF TRUST.  Effective January 1, 2003,
Section 9.2 of the Agreement is amended to read in full as follows:


 


Section 9.2.  The Trust shall not be terminated until such
time as all of the Companies’ obligations to make distributions pursuant to the
Plan have been fully discharged unless all of the participants and
beneficiaries who are entitled to benefits under the Plan consent in writing to
an earlier termination.  (If a single
participant has multiple beneficiaries, all of such beneficiaries shall be
deemed to have consented if a majority of such beneficiaries consent, and none
of such beneficiaries shall be deemed to have consented if less than a majority
of such beneficiaries consent.)  If all
of such participants and beneficiaries do not consent to an early termination,
the Trust shall terminate only with respect to the consenting participants and
beneficiaries but shall continue in effect with respect to the nonconsenting
participants and beneficiaries.  Upon a
termination or partial termination of the Trust, the Trust assets, if any, that
remain in the accounts established for the consenting participants and
beneficiaries shall be paid or distributed to TCF Financial or its successors
in interest.


 


*  * 
*  *  *


 


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IN WITNESS WHEREOF,
TCF Financial and the Trustee have executed this instrument as of the date
first written above.


 


	
   

  	
  TCF FINANCIAL CORPORATION

  	
   

  
	
   

  
	
   

  
	
   

  	
  By:

  	
   /s/Gregory J. Pulles

  	
   

  
	
   

  	
  Title: 

  	
  Vice Chairman, General
  Counsel and

  	
   

  
	
   

  	
  Secretary

  	
   

  	
   

  
	
   

  
	
  [NO SEAL]

  
	
  Attest:

  
	
   

  
	
   

  
	
  By:

  	
   /s/ Diane O. Stockman

  	
   

  
	
  As its: 

  	
  General Counsel for
  Corporate Affairs

  	
   

  
	
   

  
	
   

  
	
   

  	
  THE FIRST NATIONAL BANK IN

  SIOUX FALLS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Dick J. Corcoran

  	
   

  
	
   

  	
  Title:

  	
   Executive Vice
  President

  	
   

  
	
   

  
	
  [NO SEAL]

  
	
  Attest:

  
	
   

  
	
   

  
	
  By:

  	
   /s/ Tom Mark

  	
   

  
	
  As its: 

  	
  Vice President and
  Trust Officer

  	
   

  
																		



 


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