Exhibit 10.3
FIRST AMENDMENT TO TRUST AGREEMENT
This First Amendment to Trust Agreement (the "First
Amendment") is made as of this 17th day of February, 1998, by and
between The Interlake Corporation, a Delaware corporation
("Interlake"), and U.S. Trust Company of California, N.A. (the
"Trustee").
WITNESSETH:
WHEREAS, Interlake and Continental Illinois National Bank and Trust
Company of Chicago, a national banking association ("Continental Illinois")
established a trust (the "Trust") pursuant to an agreement entitled "TRUST
AGREEMENT" and dated September 30, 1988, under which Frederick C. Langenberg or
certain other beneficiaries are the Trust Beneficiaries (the "Agreement");
WHEREAS, Trustee is the successor trustee to CTC Illinois Trust
Company, a subsidiary of The Bank of New York Company, Inc., which was
substituted for Continental Illinois as trustee of the Trust;
WHEREAS, Interlake has transferred assets to the Trust that are being
held in trust by the Trustee, all pursuant to the terms of the Agreement;
WHEREAS, in accordance with Section 12(a) of the Agreement, Interlake
and the Trustee desire to amend the Agreement in certain respects, as set forth
in this First Amendment;
NOW, THEREFORE, the parties do hereby agree that the Agreement shall be
amended as follows:
1. The introductory paragraph of the preamble of the Agreement is
amended by deleting "(the "Trustee")" at the end thereof and by substituting
therefor the following:
("Continental Illinois"), and amended as of the 17th
day of February, 1998, pursuant to the First Amendment
to Trust Agreement between Interlake and U.S. Trust
Company of California, N.A. (the "Trustee"), as
Company of California, N.A. (the "Trustee"), as
successor to Continental Illinois.
2. Section 1(a) of the Agreement is amended by adding the
following after the first sentence thereof:
Neither the Trustee nor any Trust Beneficiary shall
have any right or duty to compel such additional
deposits or determine the sufficiency thereof.
3. The first sentence of Section 5 of the Agreement is
amended by adding immediately prior to the phrase "Compensation Committee of the
Interlake Board" the following phrase:
"Management Development and".
4. The third sentence of Section 5 of the Agreement is amended by
deleting the phrase "six months" and substituting therefor the phrase "10
years".
5. Section 5 of the Agreement is amended by adding the following at the
end thereof:
Nothing in this section shall be construed to mean the
Trustee assumes any responsibility for the performance
of any investment made by the Trustee in its capacity
as trustee under this Agreement.
6. The third sentence of Section 7(a) of the Agreement is
amended by deleting "60 calendar days" where it appears and substituting
therefor "90 calendar days".
7. Section 8 of the Agreement is amended by adding at the end thereof
the following:
(j) Interlake shall indemnify and hold the Trustee harmless
from and against all loss or liability (including expenses and
reasonable attorneys' fees), to which it may be subject by reason of
its execution of its duties under this Agreement, or by reason of any
acts taken in good faith in accordance with any directions, or acts
omitted in good faith due to absence of directions, from Interlake or a
Trust Beneficiary unless, and only to the extent, such loss or
liability is due to the Trustee's gross negligence or willful
misconduct.
(k) In the event that the Trustee is named as a defendant in a
lawsuit or proceeding involving the Plan or the Trust fund, the Trustee
shall be entitled to receive payments on a current basis pursuant to
the
indemnity provisions provided for in this section; provided however,
that if the final judgment entered in the lawsuit or proceeding holds
that the Trustee is guilty of gross negligence or willful misconduct
with respect to the Trust fund, the Trustee shall be required to refund
the indemnity payments that it has received.
(l) All releases and indemnities provided herein shall survive
the termination of this Agreement. 8. The first sentence of Section 10
of the Agreement is
amended by adding at the end thereof the following:
and as set forth from time to time and incorporated
herein by this reference.
9. Section 10 of the Agreement is amended by deleting the second
sentence thereof and substituting therefor the following:
The Trustee shall also be entitled to reimbursement of its reasonable
expenses incurred by it in the performance of its duties hereunder,
including, but not limited to fees and expenses incurred pursuant to
Sections 8(d), 8(e) and 8(g). 10. The first sentence of Section 11(a)
of the Agreement is
amended by adding immediately after the phrase "The Trustee may
be removed at any time" the following phrase: "upon not less than
90 days' notice in writing".
11. The last sentence of Section 11(a) of the Agreement is amended by
deleting ", wherever located, having a capital and surplus of at least
$500,000,000 in the aggregate".
12. Section 11(a) of the Agreement is amended by adding at the end
thereof the following:
If after making reasonable efforts to appoint a successor trustee as
provided above, the Trustee has been unable to do so, the Trustee shall
petition a
court of competent jurisdiction to appoint a successor
trustee.
13. Section 11 of the Agreement is amended by adding at the
end thereof the following:
(c) The successor trustee need not examine the records and
acts of any prior trustee and may retain or dispose of existing Trust
assets. The successor trustee shall not be responsible for, and
Interlake 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.
14. Sections 12(c) and 13(d) of the Agreement are each
amended by deleting the period at the end thereof and adding the
following:
in such amounts and in the manner instructed by Interlake, whereupon
the Trustee shall be released and discharged from all obligations
hereunder. From and after the date of termination, and until final
distribution of the Trust assets, the Trustee shall continue to have
all of the powers provided herein as are necessary or expedient for the
orderly liquidation and distribution of the Trust. 15. Section 14(c) is
amended by deleting the word
"Illinois" and by substituting therefor the word "California".
16. Section 15(a) is amended in its entirety to read as
follows:
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly given when
received:
If to the Trustee, to:
U.S. Trust Company of California, N.A.
515 South Flower Street, Suite 2700
Los Angeles, CA 90071-2291
Attention: Charles E. Wert
Executive Vice President
If to Interlake, to:
The Interlake Corporation
550 Warrenville Road
Lisle, IL 60532
Attention: Secretary
If to the Executive or to the Trust Beneficiaries,
to:
Frederick C. Langenberg
The Langand Corporation
2535 Washington Road, Suite 1131
Upper St. Clair, PA 15241
provided, however, that if any party or any Trust Beneficiary, or his
or her successors shall have designated a different address by notice
to the other parties, then to the last address so designated.
IN WITNESS WHEREOF, each of Interlake and the Trustee caused this First
Amendment to be executed on its behalf as of the date first above written.
THE INTERLAKE CORPORATION
By: /s/Stephen R. Smith
Title: Vice President, Secretary and General Counsel
U.S. TRUST COMPANY OF CALIFORNIA,
N.A.
By: /s/Robert S. Cummings
Title: Senior Vice President
To signify approval of Paragraph 4 of this First Amendment:
/s/F. C. Langenberg
F. C. Langenberg
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