EXHIBIT 10-a-18
ACE HARDWARE CORPORATION
EXECUTIVE BENEFIT SECURITY TRUST
THIS TRUST AGREEMENT ( A AGREEMENT @ ) is made and entered
into this 1st day of January 1995 by Ace Hardware Corporation, a
Delaware corporation (the "Company"), and Xxxxxx Trust & Savings
Bank, and its successor or successors and assigns in the trust
hereby evidenced, as trustee (the "Trustee"),
WITNESSETH:
WHEREAS, the Company has adopted the Ace Hardware Corporation
Long-Term Incentive Compensation Deferral Option Plan and the
Ace Hardware Corporation Directors' Deferral Option Plan (the
"Plans") for the benefit of a select group of management and/or
highly compensated employees and directors of the Company; and
WHEREAS, the Company has incurred or expects to incur
liability under the terms of such Plans with respect to the
individuals participating in such Plans; and
WHEREAS, the Company wishes to establish a trust (hereinafter
called the "Trust") and to contribute to the Trust assets that
shall be held therein, subject to the claims of the Company's
creditors in the event of the Company's Insolvency, as herein
defined, until paid to participants of the Plans and their
beneficiaries in such manner and at such times as specified in
the Plans; and
WHEREAS, it is the intention of the parties that this Trust
shall constitute an unfunded arrangement and shall not affect
the status of the Plans as unfunded plans maintained for the
purpose of providing deferred compensation for a select group of
management or highly compensated employees and directors for
purposes of Title I of the Employee Retirement Income Security
Act of 1974; and
WHEREAS, it is the intention of the Company to make
contributions to the Trust to provide itself with a source of
funds to assist it in the meeting of its liabilities under the
Plans;
NOW, THEREFORE, the parties do hereby establish the Trust and
agree that the Trust shall be comprised, held and disposed of as
follows:
ARTICLE I
INTRODUCTION
1.01 The Trust, the Plans , Participants. This Agreement and
the Trust hereby evidenced shall be known as the "Ace
Hardware Corporation Executive Benefit Security Trust." The
Trust is established for the benefit of employees and
directors of the Company who are or become covered under
the Plans and their beneficiaries, as determined in
accordance with the provisions of the Plans, which
employees, directors and beneficiaries are referred to as
"Participants." However, the Participants shall not have
any right or security interest in any specific asset of the
Trust or beneficial ownership in or preferred claim on the
assets of the Trust, it being understood that the assets of
the Trust shall be available for the claims of the
Company's creditors as provided in Article V and all rights
created under the Plans or the Trust shall be unsecured
contractual rights against the Company.
1.02 Status of Trust. The Trust is intended to constitute a
grantor trust under Sections 671-678 of the Internal
Revenue Code, as amended, and shall be construed
accordingly.
(a) Company hereby deposits with Trustee in trust $100,
which shall become the principal of the Trust to be
held, administered and disposed of by the Trustee as
provided in this Agreement. At any time or from time
to time thereafter the Company may deliver to the
Trustee additional funds or other property to be held,
invested and distributed by the Trustee in accordance
with the provisions of this Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which
Company is the grantor, within the meaning of subpart
E, part I, subchapter J, chapter 1, subtitle A of the
Internal Revenue Code of 1986, as amended, and shall
be construed accordingly.
(d) The principal of the Trust, and any earnings thereon
shall be held separate and apart from other funds of
the Company and shall be used exclusively for the uses
and purposes of the Participants and general creditors
as herein set forth. Participants and their
beneficiaries shall have no preferred claim on, or any
beneficial ownership interest in, any assets of the
Trust. Any rights created under the Plans and this
Agreement shall be mere unsecured contractual rights
of Participants and their beneficiaries against the
Company. Any assets held by the Trust will be subject
to the claims of the Company's general creditors under
federal and state law in the event of Insolvency, as
defined in paragraph 5.01 herein.
1.03 Acceptance. The Trustee accepts the duties and obligations
of the Trustee hereunder, agrees to accept delivery of
property delivered to it by the Company pursuant to
paragraph 1.02, and agrees to hold such property (and any
proceeds from the investment of such property) in trust in
accordance with this Agreement.
1.04 The Committee. The committee that is responsible for the
administration of the Plans is the Committee appointed to
administer the Plans pursuant to Article VI of the Plans.
The Committee has certain powers, rights and duties under
this Agreement as described below. An officer of the
Company will certify to the Trustee from time to time the
person or persons who are acting as the members of the
Committee or who have been delegated the authority to act
on behalf of the Committee. The Trustee may rely on the
latest certificate received without further inquiry or
verification.
ARTICLE II
MANAGEMENT OF THE TRUST FUND
2.01 The Trust Fund. Unless the context clearly implies or
indicates otherwise, the term "Trust Fund" as of any date
means all property of every kind then held under this
Agreement by the Trustee or any custodian.
2.02 Trustee's General Powers, Rights and Duties. With respect
to the Trust Fund and subject only to the limitations
expressly provided in this Agreement (including the powers
reserved to the Committee or imposed by applicable law),
the Trustee shall have the following powers, rights and
duties in addition to those vested in it elsewhere in this
Agreement or by law:
(a) When directed by the Committee, to invest and reinvest
part or all of the Trust Fund in any real or personal
property (including investments in any stocks, bonds,
debentures, mutual fund shares, notes, commercial
paper, treasury bills, any common, commingled or
collective trust funds or pooled investment funds
described in paragraph 2.03, any interest bearing
deposits held by any bank or similar financial
institution, and any other real or personal property).
(b) When directed by the Committee, to apply for, pay
premiums on and maintain in force on the lives of some
or all of the Participants individual, group term,
universal or other life insurance policies ("Policies"
or "Policy") to fund benefits under the Plans for
Participants on whose lives the Policies are issued
and containing such provisions as the Committee may
approve or direct; to receive or acquire such a Policy
from the Company or from the Participant on whose life
the Policy is issued, but the Trustee may purchase a
Policy only if the Trustee pays, transfers or
otherwise exchanges for the Policy no more than the
cash surrender value of the Policy and the Policy is
not subject to a mortgage or similar lien which the
Trustee would be required to assume; and to have with
respect to Policies any rights, powers, options,
privileges and benefits usually comprised in the term
"incidents of ownership" and normally vested in an
insured or owner of such Policies.
(c) To retain in cash such amounts as the Trustee
considers advisable and as are permitted by applicable
law and to deposit any cash so retained in any
depository (including any bank acting as Trustee)
which the Trustee may select.
(d) To manage, sell, insure and otherwise deal with all
real and personal property held by the Trustee on such
terms and conditions as the Trustee shall decide.
(e) To vote stock and other voting securities personally
or by proxy, to exercise subscription, conversion and
other rights and options, to take any action and to
abstain from taking any action with respect to any
reorganization, consolidation, merger, dissolution,
recapitalization, refinancing and any other program or
change affecting any property constituting a part of
the Trust Fund, to hold or register any property from
time to time in the Trustee's name or in the name of a
nominee or to hold it unregistered or in such form
that title shall pass by delivery and, with the
approval of the Committee, to borrow from anyone,
including any bank acting as Trustee, to the extent
permitted by law, such amounts from time to time as
the Trustee considers desirable to carry out this
Trust (and to mortgage or pledge all or part of the
Trust Fund as security).
(f) To make payments from the Trust Fund to provide
benefits that have become payable under the Plans
pursuant to paragraph 4.05 or that are required to be
made to the creditors of the Company pursuant to
paragraph 5.02.
(g) To maintain in the Trustee's discretion any litigation
the Trustee considers necessary in connection with the
Trust Fund.
(h) To withhold, if the Trustee considers it advisable,
all or any part of any payment required to be made
hereunder as may be necessary and proper to protect
the Trustee or the Trust Fund against any liability or
claim on account of any estate, inheritance, income or
other tax or assessment attributable to any amount
payable hereunder, and to discharge any such liability
with any part or all of such payment so withheld,
provided that at least ten (10) days prior to
discharging any such liability with any amount so
withheld the Trustee shall notify the Committee in
writing of the Trustee's intent to do so.
(i) To maintain records reflecting all receipts and
payments under this Agreement and such other records
as the Committee specifies and the Trustee agrees to,
which records may be audited from time to time by the
Committee or anyone named by the Committee.
(j) To furnish periodic accounts to the Committee for such
periods as the Committee may specify, showing all
investments, receipts, disbursements and other
transactions involving the Trust during the applicable
period.
(k) To furnish the Company with such information in the
Trustee's possession as the Company may need for tax or
other purposes.
(l) To employ agents, attorneys, accountants, and other
persons (who also may be employed by the Company or
the Committee), to delegate discretionary powers to
such persons, to reasonably rely upon information and
advice furnished by such persons; provided that each
such delegation and the acceptance thereof by each
such person shall be in writing; and provided further
that the Trustee may not delegate its responsibilities
as to the management or control of the assets of the
Trust Fund.
(m) To perform all other acts which in the Trustee's
judgment are appropriate for the proper management,
investment and distribution of the Trust Fund.
(n) The Trustee shall act with the care, skill, prudence
and diligence under the circumstances then prevailing
that a prudent person acting in like capacity and
familiar with such matters would use in the conduct of
an enterprise of a like character and with like aims,
provided, however, that the Trustee shall incur no
liability to any person for any action taken pursuant
to a direction, request or approval given by the
Company which is contemplated by, and in conformity
with, the terms of the Plans or this Trust and is
given in writing by the Company. In the event of a
dispute between the Company and a party, the Trustee
may apply to a court of competent jurisdiction to
resolve the dispute.
(o) Notwithstanding any powers granted to the Trustee
pursuant to this Agreement or to applicable law, the
Trustee shall not have any power that could give this
Trust the objective of carrying on a business and
dividing the gains therefrom, within the meaning of
section 301.7701-2 of the Procedure and Administrative
Regulations promulgated pursuant to the Internal
Revenue Code.
2.03 Collective Investment Trusts. The Trustee may invest Trust
assets in any common, collective or commingled trust fund
or pooled investment fund that is maintained by a bank or
trust company (including a bank or trust company acting as
Trustee) provided such investments are consistent with the
investment guidelines agreed to in writing by the Company
and the Trustee. To the extent that any Trust assets are
invested in any such fund, the provisions of the documents
under which such common, collective or commingled trust
fund or pooled investment fund are maintained shall govern
any investments therein and such provisions are hereby
incorporated herein and made a part of this Agreement.
ARTICLE III
MANNER OF ACTION OF THE COMMITTEE
The Committee members may act by meeting, or by writing signed
without meeting, and may sign any document by signing one
document or concurrent documents. Any written action in lieu of
a meeting must be by unanimous consent of all disinterested
members. An action of a majority of disinterested members at a
meeting of the Committee shall be effective as if taken on or
made by all Committee members. If a member of the Committee
is a Participant, he/she may not decide or determine any matter
or questions concerning any payments to be made to him/her
from the Trust that he/she would not have the right to decide
or determine if he/she were not a member of the Committee.
ARTICLE IV
GENERAL PROVISIONS
4.01 Restrictions on Reversion. The Company shall not have any
right, title or interest in the assets of the Trust Fund,
nor will any part of the assets of the Trust Fund revert or
be repaid to the Company until all benefits due under the
Plans have been paid pursuant to the terms of the Plans and
in accordance with the provisions of paragraph 4.05, except
as follows:
(a) The assets of the Trust shall be available for the
claims of the Company's creditors under the
circumstances specified in Article V;
(b) If the Company ceases to maintain the Plans, any
balance remaining in the Trust after all benefits have
been paid pursuant to the terms of the Plans and in
accordance with the provisions of paragraph 4.05 shall
revert to the Company;
(c) Except in the event of a Change of Control (as defined
below), upon the written request of the Committee at
any time, the Trustee shall repay to the Company any
excess assets (as defined below) in the Trust,
provided that the Committee furnishes to the Trustee a
certified statement of an independent actuary as to
the then value of vested accrued benefits (as defined
below) under the Plans. For these purposes, "excess
assets" means any amount by which the sum of the cash
surrender value of Policies held in the Trust and the
fair market value of all other assets in the Trust, as
determined by the Trustee, exceeds 110 percent (110%)
of the value of vested accrued benefits under the
Plans. For purposes of this Trust, "vested accrued
benefits" shall mean the sum of (i) all Deferred
Benefit Accounts (as defined in the Plans) of
Participants, including interest credited at the
Retirement Interest Yield (as defined in the Plans),
and (ii) the present value of all other projected
benefit obligations under the Plans.
In the event of a "Change of Control", no assets of the Trust
Fund shall revert or be repaid to the Company, under any
circumstances, until all benefits due under the Plans have been
paid pursuant to the terms of the Plans and in accordance with
the provisions of paragraph 4.05. For purposes of this Trust, a
"Change of Control" shall mean the sale of the Company or
substantially all of its assets, in any form whatsoever,
including merger, consolidation, or other reorganization or the
sale of a substantial portion of the Company or its assets or
any substantial change in ownership of the outstanding shares of
stock of the Company or which the Company, in its sole
discretion, determines to be a change in control under this
paragraph.
4.02 Nonalienation of Trust Assets. To the extent permitted by
law, the rights or interests of any Participants to any
benefits or future payments hereunder shall not be subject
to attachment, garnishment, levy, execution or other legal
or equitable process by any creditor of any such
Participant, nor shall any such Participant have any right
to alienate, anticipate, commute, pledge, encumber or
assign (either at law or in equity) any of the benefits or
rights which he/she may expect to receive (contingently or
otherwise) under this Agreement, except as may be required
by the tax withholding provisions of the Internal Revenue
Code or of a state's income tax act.
4.03 Litigation. Any final judgment that is not appealed or
appealable and which may be entered in any action or
proceeding regarding this Trust shall be binding and
conclusive on the parties hereto and all persons having or
claiming to have an interest in the Trust. If the Trustee
undertakes or defends any litigation arising in connection
with this Trust, the Company agrees to indemnify the
Trustee against the Trustee's costs, expenses and
liabilities (including, without limitation, attorneys' fees
and expenses) relating thereto and to be primarily liable
for such payments. If the Company does not pay such costs,
expenses and liabilities in a reasonably timely manner, the
Trustee may obtain payment from the Trust.
4.04 Trustee's Actions Conclusive. Except as otherwise provided
by law, the Trustee's exercise or non-exercise of its
powers and discretion in good faith shall be conclusive on
all persons. No one shall be obliged to see to the
application of any money paid or property delivered to the
Trustee. The certificate of the Trustee that it is acting
in accordance with this Agreement will fully protect all
persons dealing with the Trustee. If there is a
disagreement between the Trustee and anyone as to any act
or transaction reported in any accounting, the Trustee
shall have the right to a settlement of its account by any
proper court.
4.05 Benefit Payments. The Committee from time to time shall
direct the Trustee in writing to make distributions of
benefits from the Trust Fund that have become payable, but
that have not been paid by the Company, under the Plans to
Participants, including the amount and manner of payment of
any such benefit. If a payment required under the terms of
the Plans has not been made to a Participant (whether due
to the failure of the Committee to notify the Trustee as
required by this paragraph or otherwise), then the
Participant may notify the Trustee in writing of the amount
(or a reasonable estimate of the amount) owed to him/her
pursuant to the Plans, and the date or dates such amount
was due and payable. The Trustee shall notify the Committee
and the Company within fifteen (15) calendar days of the
receipt of such payment request. If the Committee or the
Company does not provide the Trustee with a certified
statement from either an independent actuary or from any
other independent party agreed to by the Trustee, the
Committee and the Participant, as to the proper amount due
and payable to the Participant within thirty (30) days of
the date the Trustee notified the Committee and the Company
of the payment request, the Trustee shall make the payment
or payments requested by the Participant from the Trust
Fund and may conclusively rely on such payment or payments
being the appropriate amount. The Trustee shall also notify
the Committee and the Company of any such payments. Payment
shall be made to a Participant from the Trust Fund in
accordance with the terms of the Plans until the earlier
of: (i) all benefit commitments due the Participant under
the Plans as requested by the Participant in his/her
notification to the Trustee, have been satisfied; or (ii)
the Committee or the Company provide a certified statement
as described above. If a certified statement is so
provided, appropriate adjustment, if any, in the amount
paid and to be paid to the Participant shall be made. The
Trustee shall be fully protected in acting without
Committee direction under this paragraph and shall be
indemnified and saved harmless as provided in paragraph
4.08. The Trustee shall make such distributions from the
Trust Fund in accordance with the provisions of this
paragraph 4.05, subject to the provisions of Article V. If
Trust assets are not sufficient to pay the benefits from
the Plans, the Company shall make the balance of each such
payment when due.
4.06 Missing Persons. If any payment directed to be made by the
Trustee from the Trust Fund is not claimed by the person
entitled thereto, the Trustee shall notify the Committee of
that fact. Neither the Company, the Committee nor the
Trustee shall have any obligation to search for or
ascertain the whereabouts of any payee under this Trust.
4.07 Liabilities Mutually Exclusive. To the extent permitted by
law, the Company, the Trustee, the Committee and each
member thereof shall be responsible only for their own acts
or omissions.
4.08 Indemnification. To the extent permitted by law, neither
the Trustee, any present or former Committee member, nor
any person who is or was a director, officer, or employee
of the Company, shall be personally liable for any act
done, or omitted to be done, in good faith in the
administration of this Trust. Any person to whom the
Committee or the Company has delegated any portion of its
responsibilities under the Trust, any person who is or was
a director or officer of the Company, members and former
members of the Committee, and each of them, shall, to the
extent permitted by law, be indemnified and saved harmless
by the Company (to the extent not indemnified or saved
harmless under any liability insurance or other
indemnification arrangement with respect to this Trust)
from and against any and all liability or claim of
liability to which they may be subjected by reason of any
act done or omitted to be done in good faith in connection
with the administration of the Trust or the investment of
the Trust Fund, including all expenses reasonably incurred
in their defense if the Company fails to provide such
defense after having been requested to do so in writing.
The Trustee shall be indemnified and saved harmless by the
Company (to the extent not indemnified or saved harmless
under any liability insurance or other indemnification
arrangement with respect to this Trust) only with respect
to liability or claim of liability to which the Trustee
shall be subjected by reason of its good faith compliance
with any directions given in accordance with the provisions
of the Trust by the Committee including all expenses
reasonably incurred in the Trustee's defense if the Company
fails to provide such defense after having been requested
to do so in writing.
4.09 Compensation and Expenses. All reasonable costs, charges
and expenses incurred by the Trustee pursuant to
subparagraph 2.02(g) shall be paid from the Trust Fund to
the extent not paid by the Company, and all other
reasonable compensation, costs, charges and expenses
incurred in the administration of this Trust, as agreed
upon between the Committee and the Trustee, will, to the
extent not paid by the Company be paid from the Trust Fund;
provided that expenses incurred in connection with the
sale, investment and reinvestment of the Trust Fund (such
as brokerage, postage, express and insurance charges and
transfer taxes) shall be paid from the Trust Fund.
4.10 Action by the Company. Any action with respect to this
Trust required or permitted to be taken by the Company
shall be by resolution of its Board of Directors, by a duly
authorized committee of its Board of Directors, or by a
person or persons authorized by resolution of its Board of
Directors or such committee.
4.11 Warranty. The Company warrants that all directions or
authorizations by the Committee, whether for the payment of
money or otherwise, will comply with the provisions of the
Plans and this Trust.
4.12 Evidence. Evidence required of anyone under this Agreement
shall be signed, made or presented by the proper party or
parties and may be by certificate, affidavit, document or
other information which the person acting on it considers
pertinent and reliable.
4.13 Waiver of Notice. Any notice required under this Agreement
may be waived by the person entitled to such notice.
4.14 Counterparts. This Agreement may be executed in two or more
counterparts, any one of which will be an original without
reference to the others.
4.15 Gender and Number. Where the context admits, words denoting
the masculine gender shall include the feminine gender, the
singular shall include the plural, and the plural shall
include the singular.
4.16 Scope of this Agreement. The Plans and this Trust will be
binding on all persons entitled to benefits hereunder and
their respective heirs and legal representatives, and upon
the Company, the Committee, the Trustee, and their
successors and assigns.
4.17 Severability. If any provision of this Agreement is held to
be illegal or invalid, such illegality or invalidity shall
not affect the remaining provisions of this Agreement, and
they shall be construed and enforced as if such illegal or
invalid provision had never been inserted herein.
4.18 Statutory References. Any references in this Agreement to a
section of the Internal Revenue Code shall include any
comparable section or sections of any future legislation
that amends, supplements or supersedes that section.
4.19 Applicable Law. The Trust shall be construed in accordance
with the laws of the State of Illinois.
ARTICLE V
INSOLVENCY
5.01 Insolvency. The Company shall be considered "Insolvent" for
purposes of this Trust if the Company's debts are not paid
as they mature or if its affairs become the subject of
reorganization or liquidation proceedings as a debtor under
federal bankruptcy laws.
5.02 Payments During Insolvency. At all times during the
existence of this Trust, assets and rights of the Trust
shall be subject to the claims of the Company's general
creditors. Therefore, if the Trustee knows that the Company
is Insolvent (as defined in paragraph 5.01), the Trustee
shall discontinue benefit payments that otherwise would be
paid and will deliver or otherwise make available assets of
the Trust to satisfy the claims of the Company's creditors
as directed by a court of competent jurisdiction. If the
Company becomes Insolvent, its Board of Directors and its
President shall have the duty to promptly inform the
Trustee of the Company's Insolvency. The Committee shall
have the same duty if and when it becomes aware that the
Company has become Insolvent or upon an inquiry of the
Company's solvency by the Trustee. Participants shall not
be granted greater rights to the Trust Fund by virtue of
their rights under the Plans than other general creditors
of the Company, but no provision of the Trust shall
diminish the rights of a Participant to pursue his/her
rights as a general creditor of the Company with respect to
any benefits he/she is entitled to under the Plans, or
otherwise. The Trustee shall resume payments of benefits in
accordance with the Plans after the Trustee has been
notified by the Board of Directors or the President that
the Company is no longer Insolvent.
5.03 Trustee's Reliance. Unless the Trustee has actual knowledge
of the Company's Insolvency, or has received notice from
Company or a person claiming to be a creditor alleging that
the Company is Insolvent, Trustee shall have no duty to
inquire whether the Company is Insolvent. The Trustee may
in all events rely on such evidence concerning the
Company's solvency as may be furnished to the Trustee and
that provides the Trustee with a reasonable basis for
making a determination concerning the Company's solvency.
ARTICLE VI
STATEMENT AND ACCOUNTS OF THE TRUSTEE
6.01 The Trustee shall maintain accurate and detailed records
and accounts of all investments, receipts, disbursements
and other transactions under this Agreement. All accounts,
books, and records of the Trustee under this Agreement
shall be open at all reasonable times to inspection and
audit by any person designated by the Company.
6.02 Within sixty (60) days following the close of (i) the date
of the removal or resignation of the Trustee or (ii) the
close of other periods agreed on by the Trustee and the
Company, the Trustee shall file with the Company a written
account setting forth a description of all securities and
other property purchased and sold, all liabilities
incurred, all receipts, disbursements and other
transactions effected by it during such period, at their
cost and fair market values, and all incurred but unpaid
liabilities as of the end of such period. Special reports
and accounts shall be provided by the Trustee to the
Company on a periodic basis as is mutually agreeable.
6.03 The Company shall review such written accounts within 120
days after receipt. Such accounting shall be deemed
approved, and the Trustee shall be released and discharged,
as to all items set forth in such account except with
respect to any such acts or transactions as to which the
Company shall within such 120 day period file written
objections with the Trustee.
ARTICLE VII
RESIGNATION OR REMOVAL OF TRUSTEE
7.01 Resignation or Removal of Trustee. The Trustee may resign
at any time by giving thirty (30) days advance written
notice to the Company and the Committee. The Committee may
remove a Trustee by giving written notice to the Trustee
and the Company provided that such removal shall not become
effective until the time immediately preceding the
appointment of a successor Trustee pursuant to paragraph
7.02.
7.02 Successor Trustees. In the event of the resignation or
removal of the Trustee, a successor Trustee shall be
appointed by the Committee in writing as soon as
practicable. Written notice of such appointment shall be
given by the Committee to the Company and the predecessor
Trustee.
7.03 Duties of Predecessor Trustee and Successor Trustee. A
Trustee that resigns or is removed shall promptly furnish
to the Committee and the successor Trustee a final account
of its administration of the Trust. A successor Trustee
shall succeed to the right and title of the predecessor
Trustee in the assets of the Trust Fund and, within thirty
(30) days after notice of resignation or removal is given,
the predecessor Trustee shall deliver the property
comprising the Trust Fund to the successor Trustee together
with any instruments of transfer, conveyance, assignment
and further assurances as the successor Trustee may
reasonably require. Each successor Trustee shall have all
the powers, rights and duties conferred by this Agreement
as if named the initial Trustee. Subject to applicable law,
no successor Trustee shall be personally liable for any act
or failure to act of a predecessor Trustee.
ARTICLE VIII
AMENDMENT AND TERMINATION
8.01 Amendment. This Trust may be amended from time to time by
the Company, except as follows:
(a) The duties and liabilities of the Committee and the
Trustee under this Agreement cannot be changed
substantially without their consent.
(b) Under no condition shall any amendment result in the
return or repayment to the Company of any portion of
the Trust Fund or the income therefrom except to the
extent permitted under paragraph 4.01, or result in
the distribution of the Trust Fund for any purposes
other than payment of obligations of the Company to
its creditors, including Participants.
(c) This Trust may not be amended so as to cause the
reduction or cessation of any benefits a Participant
would receive under the terms of the Plans nor may the
Trust be amended to make the Trust revocable.
8.02 Termination. This Trust shall not terminate, and all the
rights, titles, powers, duties, discretions and immunities
on or reserved to the Trustee, the Company and the
Committee shall continue in effect with respect to the
Trust, until all benefits payable to Participants under the
Plans have been paid and all assets have been distributed
by the Trustee under the Trust and the Plans.
Notwithstanding any other provision of this Trust, the
Trust shall terminate one day prior to the expiration of a
period of twenty-one (21) years after the death of the last
to die of employees or directors of the Company who are
Participants in the Plans on the day and year first above
written. Upon termination of the Trust, any assets
remaining in the Trust shall be returned to the Company.
IN WITNESS WHEREOF, the Company and the Trustee have caused
this Agreement to be executed on their behalf and by their
respective officers thereunto duly authorized, the day and year
first above written.
ACE HARDWARE CORPORATION
ATTEST/WITNESS: XXXX XXXX By XXXXX X. XXXXXX
Its President & COO
Xxxxxx Trust & Savings Bank
ATTEST/WITNESS: XXXXX XXXXXX by XXXXX X. XXXX
Its Vice-President
