Exhibit
10(m)


 


05/06/03


 


SECOND AMENDMENT


OF


TRUST AGREEMENT FOR TCF FINANCIAL

SENIOR OFFICERS 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 Senior Officers 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


 


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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 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


 


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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 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 ull 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.


 


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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.


 


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


 


11.                               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.


 


12.                               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.


 


13.                               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


 


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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 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.


 


14.                               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.


 


15.                               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


 


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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.


 


*  *  *  *  *


 


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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