FIFTH AMENDMENT
TO
EAGLE HARDWARE & GARDEN, INC.
PROFIT SHARING/RETIREMENT SAVINGS PLAN
Pursuant to authority vested in the corporate officers of Eagle Hardware
& Garden, Inc., a Washington corporation, by resolution of its Board of
Directors, the Eagle Hardware & Garden, Inc. Profit Sharing/Retirement
Savings Plan ("Plan") is hereby amended, effective January 1, 1998, as
follows:
1. INITIAL INVESTMENT ELECTION IN DIRECTED PORTFOLIO ACCOUNT -- Section
4.10(B)2 shall be amended to allow participants to make initial
investment fund elections in one percent (1%) increments.
2. INVESTMENT FUND IN DIRECTED PORTFOLIO ACCOUNT -- Section 4.10(B)1
shall be amended to delete the provision requiring the trustee to
follow a direction of the Committee to maintain cash or cash
equivalents as liquidity in the Trust Fund.
3. LIMITATIONS ON INVESTMENT CHANGES IN DIRECTED PORTFOLIO ACCOUNT --
Section 4.10(B)4 shall be amended to allow participants to change
investment accounts and future contribution rates on a daily basis.
Section 4.10(B)4 shall be further amended to allow participants to
make changes in existing investment elections in one percent (1%)
increments.
4. ELIMINATION OF GAP PERIOD INCOME FOR CORRECTIVE DISTRIBUTIONS --
Section 1.29 shall be amended to eliminate the requirement that "gap
period" income be included when calculating income for purposes of
making corrective distributions.
5. VALUATION DATE MEASURED BY NYSE -- Section 1.57.1 shall be amended
to provide that daily valuation shall take place on any business day
during the Plan Year during which the New York Stock Exchange is
open for business.
6. AUTHORIZED DISTRIBUTIONS FOR ACCOUNTS LESS THAN $5,000 -- Sections
6.4(a) and 6.5(b) shall be amended to change each reference to
$3,500 therein to $5,000.
7. TRUSTEE INVESTMENT POWERS AND DUTIES -- Sections 7.2 and 7.3 shall
be amended by deleting both of such sections in their entirety, and
replacing them with the new Section 7.2 set forth in the attached
Exhibit A, which is incorporated herein by this reference, and which
provides that the Trustee shall act as a nondiscretionary Trustee.
This document shall constitute one of the documents under which the Plan
is administered until the amendments made hereby are reflected in an
amendment and
restatement of the Plan. This amendment shall supersede any conflicting
provisions in the plan document, as previously amended.
EAGLE HARDWARE & GARDEN, INC. COMMITTEE UNDER THE
EAGLE HARDWARE &
GARDEN, INC. RETIREMENT
SAVINGS PLAN
By /s/ [Illegible] By: /s/ [Illegible]
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Its President/CEO Date: 6/1/98
------------------------- -------------------------
(Title of Officer)
Date: 6/1/98 By: /s/ [Illegible]
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Date: 6/1/98
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Exhibit A
Section 7.2 Investment Powers and Duties of the Trustee
A. Nondiscretionary Trustee
The Trustee shall be a nondiscretionary trustee. The Trustee shall have
no discretion or authority with respect to the investment of the Trust
Fund and shall act solely as a directed trustee of the funds contributed
to the Trust Fund.
B. Investment Directions
The Trustee shall effect and change investment of the Trust Fund
pursuant to proper directions as and when reported to the Trustee. If
participant direction of investments is permitted under the plan, the
Administrator shall establish procedures for a participant's proper
direction of investment. The Administrator shall communicate all
investment directions in writing. The Trustee shall neither effect nor
change any such investments without proper direction, and shall have no
right, duty, or responsibility to recommend investments or investment
changes.
C. Investment Manager
The Employer may from time to time in its sole discretion appoint, an
investment manager as defined in Section 3(38) of the Employee
Retirement Income Security Act of 1974. The Employer shall notify the
Trustee of any appointment of an investment manager by delivering to the
Trustee an executed copy of the instrument under which the investment
manager was appointed to act as such hereunder and shall specify to the
Trustee that portion of the Trust Fund which shall be subject to
investment management. During the term of such appointment, the
investment manager shall have the sole responsibility for the investment
and reinvestment of that portion of the Trust Fund subject to its
investment management. The Trustee may maintain a separate account
within the Trust Fund for the assets of the Trust Fund subject to
investment management. The Employer may terminate its appointment of an
investment manager at any time and shall in writing notify the Trustee
of such termination. Any investment manager shall exercise such of the
powers enumerated in Section D and otherwise contained in this Agreement
with respect to that portion of the Trust Fund subject to its investment
management as may be provided in the instrument under which the
investment manager was appointed to act as such hereunder.
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D. Investment Authority
With respect to any Plan asset which is not subject to the provisions of
Sections B and C of this Article II, the Trustee, as a directed trustee,
is authorized and empowered, by way of limitation, with the following
rights, powers and duties, each of which the nondiscretionary Trustee
exercises solely as directed Trustee in accordance with the written
direction of the Employer:
1. to invest all or any part of the assets of the Trust in any
collective investment trust or group trust which provides for the
pooling of the assets of plan described in Code Section 401(a) and
exempt from tax under Code Section 501(a). The provisions of the
documents governing such collective investment trusts or group
trusts, as amended from time to time, shall govern any investment
therein and are adopted by and made a part of the Plan and this
Trust Agreement. If this Trust fails to be treated as tax-exempt
under the Code or loses its status as such, the Employer shall
immediately so notify the Trustee and the Trustee shall, without
further notice or direction, remove the Trust assets from any such
collective investment trust or group trust maintained by the
Trustee, its affiliates, or other entity;
2. to invest and reinvest the Trust Fund in securities or other
property, real or personal, within or without the United States,
including, without limitation, interests or part interests in any
bond and mortgage or note and mortgage, certificates of deposit,
commercial paper and other short-term or demand obligations,
secured or unsecured, whether issued by governmental or
quasi-governmental agencies or corporations or by any firm or
corporation. Notwithstanding the foregoing, the Trustee shall not
make investments in securities or other property outside the United
States unless (i) the indicia of ownership thereof are held within
the jurisdiction of the District Courts of the United States or
(ii) the Secretary of the Department of Labor shall have granted
the Trustee permission to make such investments and in no event
shall anything contained herein be deemed to purport to authorize
any investment or reinvestment in violation of the requirements of
the Employee Retirement Income Security Act of 1974;
3. to enter into one or more insurance contracts with one or more
legal reserve life insurance companies and, subject to the
provisions of this Agreement, to remit any payments which it may
receive hereunder to any such insurance company, and to delegate
powers in connection with the administration of the portion of the
Trust Fund invested in any such insurance contract, to the
insurance company issuing such insurance contract;
4. to sell property at public or private sale for cash or upon credit
or partly for cash and partly upon credit and upon such terms and
conditions as it shall deem proper. No purchaser shall be bound or
liable for the application of the proceeds of any such sale;
5. to exchange any securities or property held by it for other
securities or property, or partly for such securities or property
and partly for cash, and to exercise conversion, subscription,
option and similar rights with respect to any securities held by
it, and to make payments in connection therewith;
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6. to vote in person or by proxy at corporate or other meetings and to
participate in or consent to any voting trust, reorganization,
dissolution, merger or other action affecting any securities in its
possession or the issuers thereof, and to make payments in
connection therewith;
7. to improve any real property;
8. to acquire, hold or dispose of property in unregistered form, or in
its name without designation of fiduciary capacity, or in the name
of its nominee, to deposit any property in a depository or clearing
corporation and to deposit with the federal reserve bank in its
district any securities the principal and interest of which the
United States or any department, agency or instrumentality thereof
has agreed to pay or has guaranteed payment;
9. to compromise and adjust all debts or claims due to or made against
it;
10. to make distributions in cash or in specific property, real or
personal, or an undivided interest therein, or partly in cash and
partly in such property; and
11. to retain in cash so much of the Trust Fund as the Administrator
may direct to satisfy liquidity needs of the Plan and to deposit
any cash held in the Trust Fund in any bank or savings account or
short term investment fund.
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