Exhibit 10.29
LKQ CORPORATION
EMPLOYEES' RETIREMENT PLAN
NON-DISCRETIONARY TRUST AGREEMENT
TABLE OF CONTENTS
ARTICLE PAGE
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I Name 1
Parties 1
II Fiduciary Responsibility 2
III The Trust Fund and Its Administration 2
The Trust Fund 2
Certificate of Authority 3
Investment Powers 3
General Powers 3
Investment Managers 6
Compensation and Expenses 7
Common Fund 7
Trust Accounting 7
Limit of Trustee's Responsibility 8
IV Investment Funds 8
Investment Funds 8
Trustee's Investment of Amounts Credited
to Individually Directed Investment Accounts 8
V General Provisions 10
Action by Company 10
Warranty 10
Disagreement as to Acts 10
Courts 10
Evidence 10
Third Parties 10
No Reversion to Company 11
Interests Not Transferable 11
Indemnification 12
Litigation by Participants 12
Liabilities Mutually Exclusive 13
Waiver of Notice 13
Counterparts 13
Controlling Law 13
Gender and Number 13
Successors 13
Severability 13
Statutory References 14
(i)
ARTICLE PAGE
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VI Changes in Trustee 14
Resignation or Removal of Trustee 14
Appointment of Successor Trustee 14
Duties of Resigning or Removed Trustee
and of Successor Trustee 14
VII Amendment and Termination 15
Amendment 15
Termination 15
VIII Incorporation of Collective Investment Trusts 15
(ii)
LKQ CORPORATION EMPLOYEES' RETIREMENT PLAN
NON-DISCRETIONARY
TRUST AGREEMENT
THIS AGREEMENT, made this 1st day of August,1999, by and between
LKQ
Corporation, an Illinois corporation (the "Company"), and THE CHICAGO TRUST
COMPANY located at Chicago, Illinois, (the "Trustee"),
WITNESSETH THAT:
WHEREAS, the Company has established the
LKQ Corporation Employees'
Retirement Plan (the "Plan") effective August 1, 1999, a copy of which Plan, as
amended from time to time, will be identified by the Secretary of the Company
and filed with the Trustee; and
WHEREAS, this agreement is intended to implement the Plan and form a
part of it:
NOW THEREFORE, IT IS AGREED, that this agreement, on and after the day
and year first above written, shall constitute the sole
Trust Agreement between
the Company and the Trustee in connection with the Plan.
ARTICLE I
NAME
This agreement and the Trust hereby evidenced may be referred to as
LKQ Corporation Employees' Retirement Plan Trust ("Trust").
PARTIES
The Plan is sponsored by the Company. Upon written approval by Board
Resolution, the Company may allow another affiliated employer or member of the
Company's controlled group to adopt the Plan and as a result become a party to
this
Trust Agreement (a "Participating Employer"), without the execution of this
separate Trust, the terms of which are hereby incorporated by reference in the
Plan as adopted by the Company and any Participating Employer. The Company, as
original signatory to this Trust, shall continue to act as Named Fiduciary
hereunder and in providing all directions, instructions or other notices to the
Trustee, on behalf of itself and all Participating Employers that may adopt the
Plan
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and this
Trust Agreement.
ARTICLE II
FIDUCIARY RESPONSIBILITY
The Company, as Named Fiduciary, the Trustee, any Investment Manager
appointed pursuant to paragraph III-5, and any other fiduciaries with respect to
the Plan or Trust shall discharge their duties thereunder solely in the interest
of Participants and beneficiaries, for the exclusive purpose of providing their
benefits and defraying reasonable expenses of Plan and Trust administration,
with the care, skill, prudence and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like character and with
like aims.
ARTICLE III
THE TRUST FUND AND ITS ADMINISTRATION
III-1. THE TRUST FUND. The Trust Fund as at any date means all
property then held by the Trustee under this agreement ("Trust Fund").
III-2. CERTIFICATE OF AUTHORITY. The Company is the Plan
Administrator and the Named Fiduciary under the plan. Benefits payable under the
Plan are distributed by the Trustee as directed by the Company. The Secretary of
the Company will certify to the Trustee from time to time the person or persons
authorized to act for the Company in its capacity as Named Fiduciary, or
otherwise under the Plan (the "Company Representatives"). The Trustee may rely
on the latest certificate received without further inquiry or verification. The
Trustee shall be responsible for the property received by it as Trustee, but
shall not be responsible for the administration of the Plan or for those assets
of the Plan which have not been delivered to and accepted by the Trustee. The
Trustee shall not have the duty or obligation to determine the adequacy of the
Trust Fund or whether contributions received by it comply with the provisions of
the Plan or with any resolution of the Board of Directors or to enforce the
collection from the Company of any contribution to the Trust. The Trustee shall
be fully protected in
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acting upon any instrument, certificate, paper or electronic data transmission
believed by it to be genuine and either signed or presented by the proper person
or persons, or by authorized electronic data transmission. Further, the Trustee
shall be under no duty to make any investigation or inquiry as to any statement
contained in any such writing or electronic data transmission, but may accept
the same as conclusive evidence of the truth and accuracy of the statement
therein contained.
III-3. INVESTMENT POWERS. The Trustee shall have no discretion with
respect to the investment of Plan assets but shall be limited to implementing
the directions provided by the Company, any Investment Manager described in
Section III-5 or, subject to Section IV-2, a Participant. The Trustee shall have
no responsibility for the selection of Investment Funds or for the investment of
Investment Accounts under the Plan and shall not render investment advice to any
person in connection with the selection of such options. The Company, as Named
Fiduciary , shall be responsible for the investment of the entire Trust Fund,
except for any portion of the Trust Fund assigned to an Investment Manager as
provided in Section III-5.
III-4. GENERAL POWERS. Subject to Section III-3 and the other
provisions of this agreement, the Trustee shall have the following powers,
rights and duties in addition to those provided elsewhere in this agreement, the
Plan or by law but only to the extent such powers, rights and duties are
consistent with the guidelines, investment objectives and restrictions of the
Investment Funds and Investment Accounts:
(a) To invest and reinvest part or all of the balance of the trust
fund in stocks, bonds, notes, mortgages, mutual fund shares
(including but not limited to those offered by the Trustee or
an affiliate) or other property of any kind, real or personal,
including, at the approval of the Company, units of collective
investment trusts (including but not limited to those offered
by the Trustee or an affiliate) and one or more group annuity,
deposit administration or separate account contracts issued by
a legal reserve life insurance company; To the extent assets
are invested in a collective investment trust, the declaration
of trust creating such collective investment trust are hereby
incorporated by reference.
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(b) To acquire upon the direction of the Company and become the
policyholder under group annuity contracts issued by a legal
reserve life insurance company; and to manage, sell, contract
to sell, grant options to purchase, convey, exchange,
transfer, abandon, improve, repair, insure, lease for any term
(although commencing in the future or extending beyond the
term of this Trust) and otherwise deal with all property, real
or personal, in such way, for such considerations, and on such
terms and conditions as the Trustee is empowered.
(c) To retain in cash such amounts as the Trustee considers
advisable and as are permitted by applicable law; to deposit
cash in any depository without liability for interest and,
without limiting the generality of the foregoing, to invest
cash in savings accounts or time certificates of deposit
bearing a reasonable rate of interest.
(d) To make any payment or distribution from the Trust Fund as
directed by the Company without inquiring as to whether a
payee or distributee is entitled thereto or as to whether it
is proper, and the Trustee shall not be liable for a payment
or distribution that is not proper under the terms of the Plan
or this agreement; to notify the Company as appropriate if a
payment or distribution is returned to the Trustee, upon which
return the Trustee shall have no obligation to search for or
ascertain the whereabouts of a payee or distributee.
(e) To the extent permitted by law, to borrow from anyone, with
the Company's approval, such sum or sums 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 retain any funds or property subject to any dispute without
liability for interest and to decline to make payment or
delivery thereof until final adjudication by a court of
competent jurisdiction or until an appropriate release is
obtained.
(g) To begin, maintain or defend any litigation necessary in
connection with the administration of the Plan or this Trust,
except that, unless otherwise required by law, the Trustee
shall not be obliged or required to do so unless indemnified
to the Trustee's satisfaction.
(h) To compromise, contest, arbitrate or abandon claims or
demands.
(i) To give proxies to vote stocks and other voting securities, to
join in or oppose (alone or jointly with others) voting
trusts, mergers, consolidations, foreclosures,
reorganizations, liquidations, or other changes in the
financial structure of any corporation, and to exercise or
sell stock subscription or conversion rights.
(j) To hold securities or other property in the name of a nominee,
in a depository, or in any other way, with or without
disclosing the trust
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relationship; provided however, that except as authorized by
regulations issued by the Secretary of Labor, the indicia of
ownership of the assets of the Trust Fund shall not be
maintained outside the jurisdiction of the district courts of
the United States.
(k) To report to the Company annually on or after the close of the
Plan Year, or as soon thereafter as practicable, or at such
other times as the Company may request, the then net worth of
the Trust Fund (that is, the fair market value of all assets
comprising the Trust Fund, less liabilities, if any, other
than liabilities to persons entitled to benefits under the
Plan) determined on the basis of such evidence, data or
information as the Trustee considers pertinent and reliable
and subject to the provisions of paragraph III-7 below.
(l) To furnish to the Company an annual account or an account for
such other period as the Company may specify or as may be
required under this agreement or the Plan, showing all
investments, receipts, disbursements, and other transactions
involving the Trust during the accounting period, and also
showing the assets of the Trust Fund held at the end of the
period, which, to the extent permitted by law, shall be
conclusive on all persons, including the Company, except as to
any act or transaction as to which the Company files with the
Trustee written exceptions or objections within one hundred
eighty days after receipt of the account.
(m) To pay any estate, inheritance, income or other tax, charge or
assessment attributable to any benefit payable under the Plan
out of such benefit after giving the Company notice as far in
advance as practicable; to defer making payment of any such
tax, charge or assessment if it is indemnified to its
satisfaction in the premises; and to require before making any
payment such release or other document from any lawful taxing
authority and such indemnity from the intended payee as the
Trustee considers necessary for its protection.
(n) To maintain records and accounts reflecting all receipts and
disbursements under this agreement and such other records and
accounts as the Company may specify, all of which shall be
open to the inspection of the Company at all reasonable times,
and may be audited from time to time by anyone named by the
Company.
(o) To employ agents, attorneys, accountants or other persons (who
also may be employed by the Company) and to delegate to them
such powers as the Trustee considers desirable (except that
the Trustee may not delegate its ERISA responsibilities as to
the management or control of the assets of the Trust Fund to
the extent such responsibilities are specified in this
Trust
Agreement), provided that such delegation, and the acceptance
thereof, by such agents, attorneys, accountants or to other
persons, shall be in writing; and, to the extent permitted by
law, the Trustee shall be protected in acting or refraining
from acting on the advice of persons so employed without court
action.
(p) To appoint a bank, trust company, or broker or dealer
registered under the
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Securities Exchange Act of 1934 to act as custodian with
respect to any portion of the Trust Fund; and a custodian so
appointed shall have custody of such assets as are deposited
with it and as custodian such rights, powers and duties with
respect thereto as shall be agreed upon from time to time by
the Trustee and such custodian.
(q) To furnish the Company with such information in the Trustee's
possession as the Company may need for tax or other purposes.
(r) At the direction of the Company, to receive, hold and invest
any funds or other property transferred to the Trustee from:
(i) any other trust forming a part of a plan intended to
meet the requirements of Section 401(a) of the Internal
Revenue Code;
(ii) an employee of the Company if such funds or property
qualify as an eligible rollover distribution described
in Section 402(c)(4) of the Internal Revenue Code; or
(iii) an individual retirement account or individual
retirement annuity maintained by an employee of the
Company, if such funds or property qualify as a
rollover contribution described in Section 408(d)(3) of
the Internal Revenue Code;
and to allocate, credit and distribute any such funds and
other property so transferred in accordance with the terms of
the Plan.
(s) To transfer all or any portion of the Trust Fund to another
trust or trusts forming a part of a plan or plans that are
intended to meet the requirements of Section 401(a) of the
Internal Revenue Code, as directed by the Company.
(t) To perform any and all other acts which in the Trustee's
judgment are appropriate for the proper management, investment
and distribution of the Trust Fund.
III-5. INVESTMENT MANAGERS. The Company may appoint one or more
Investment Managers to manage the investment of any part of the assets of the
Trust Fund. An Investment Manager so appointed pursuant to this paragraph shall
be either a registered investment adviser under the Investment Advisers Act of
1940, a bank, as defined in said Act, or an insurance company qualified to
manage, acquire and dispose of the assets of the Plan under the laws of more
than one state of the United States. Except as otherwise provided by law, the
Trustee shall have no obligation for investment of any assets of the Trust Fund
which are subject to management by an Investment Manager. Appointment of
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an Investment Manager shall be made by written notice to the Investment Manager
and the Trustee, which notice shall specify those powers, rights and duties of
the Trustee under this agreement that are allocated to the Investment Manager
and that portion of the assets of the Trust Fund subject to such appointment.
Any such Investment Manager shall acknowledge to the Company in writing that it
accepts such appointment and that it is a fiduciary with respect to the Plan and
Trust. An Investment Manager may resign at any time upon advance written notice
to the Trustee and the Company. The Company may remove an Investment Manager at
any time by advance written notice to the Investment Manager and the Trustee.
III-6. COMPENSATION AND EXPENSES. Except as otherwise provided in
this agreement, all reasonable costs, charges, and expenses incurred in the
administration of this Trust and the Plan, including compensation to the Trustee
(as agreed upon between the Company and the Trustee), compensation to an
Investment Manager (as agreed upon between the Company and the Investment
Manager), and any compensation to agents, attorneys, accountants and other
persons employed by the Trustee, will be paid from the Trust Fund to the extent
not paid by the Company. 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.
III-7. COMMON FUND. The Trustee shall not be required to make any
separate investment of the Trust Fund for the account of the Plan as applied to
multiple employers and may administer and invest all contributions made under
the Plan as one Trust Fund. If, for any purpose, it becomes necessary to
determine as of any date the portion of the Trust Fund allocable to all or any
group of Participants employed by any separate employer, the Company shall
specify such date as a special accounting date and, after all adjustments
required as of the date have been made, such portion of the Trust Fund shall be
an amount equal to the aggregate of the account balances of such Participants.
Any such determination by the Company shall be binding upon all of the
employers, Participants and all other persons. The Trustee will have no duty or
responsibility to question any determination or direction by the Company
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under this paragraph III-7.
III-8. TRUST ACCOUNTING. For purposes of determining the value of
assets in the Trust, the Trustee shall value such assets in accordance with the
Trustee's procedures for determining fair market value as of any date for which
such valuation or accounting is required and in accordance with the procedures
for valuation of any interests in any collective investment trust described in
Article VIII.
III-9. LIMIT OF TRUSTEE'S RESPONSIBILITY. No power, duty or
responsibility is imposed upon the Trustee under the Plan, except as set forth
in this agreement. Until they determine or are advised to the contrary, the
Trustee and any Investment Manager (appointed as provided in paragraph III-5)
may assume that this Plan is qualified under Section 401(a), and that the Trust
is entitled to tax exemption under Section 501(a), of the Internal Revenue Code.
ARTICLE IV
INVESTMENT FUNDS AND INVESTMENT ACCOUNTS
IV-1. INVESTMENT FUNDS. The Company hereby authorizes at its
direction the establishment of separate alternatives for the investment of Plan
assets under the Plan ("Investment Funds"). To implement the same, the Company
shall so direct the Trustee to constitute the Trust Fund in such Investment
Funds to be offered under the Plan. The Company shall establish corresponding
written guidelines and objectives for each Investment Fund under the Plan, which
it shall communicate to the Trustee. Except as otherwise directed by an
Investment Manager appointed by the Company, the Trustee shall invest
contributions and account balances among the Investment Funds in the proportions
specified by the Company or as directed by Participants under Section IV-2 and
in accordance with the provisions of the Plan. The Trustee shall have no duty to
verify such directions and shall have no responsibility or liability for any
loss to any Participant or beneficiary which results from following such
directions.
IV-2. TRUSTEE'S INVESTMENT OF AMOUNTS CREDITED TO INDIVIDUALLY
DIRECTED INVESTMENT ACCOUNTS. If the Company has provided for Participants to
individually direct the investment of contributions and/or account balances
("Investment Accounts") in one or more of the Investment Funds
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described in paragraph IV-1, the Trustee shall, upon receipt of Participant
directions made in accordance with the Plan documents, invest and reinvest
amounts credited to such Participant's Investment Account as follows:
(a) Except as otherwise provided below, the Trustee shall make
investments in such Investment Funds including applicable
contributions, withdrawals, transfers or liquidations only as
the Company, as a "Named Fiduciary", as described in ERISA, or
an Investment Manager directs in writing and the Trustee shall
be under no obligation to inquire as to the propriety of such
direction or as to the amount to be invested in each such
Investment Account on behalf of such Participant.
(b) In the event that the Trustee shall be directed by a
Participant, the Trustee shall have no liability with respect
to the investment of such assets, but shall be responsible
only to execute such investment instructions as so directed.
(c) The Trustee shall be entitled to rely fully on the
instructions of a Participant made by voice recognition or
other electronic means of transmission as if the same were
provided in writing by the Company, and shall not be liable
for any loss or other liability, resulting from such direction
(or lack of direction) of the investment of any part of the
Plan assets.
(d) The Trustee may delegate the duty to execute such Participant
instructions to any fiduciary or nonfiduciary agent.
(e) The Trustee may refuse to comply with any direction from a
Participant in the event the Trustee, in its sole and absolute
discretion, deems such directions improper by virtue of
applicable law. The Trustee shall not be responsible or liable
for any loss or expense which may result from the Trustee's
refusal or failure to comply with any directions from the
Participant. A Participant shall not direct the Trustee to
enter into any prohibited transaction (as defined in Code
Section 4975).
(f) Any costs and expenses related to compliance with the
Participant's directions may be borne by the Participant's
Investment Accounts, to the extent permitted by the Plan.
(g) The Trustee shall have the power to invest any portion of the
assets in a Participant's Investment Account which is held in
cash or cash equivalents in short term, fixed income
investment pending receipt of instructions from the Company
regarding the investment of a Participant's accounts. While an
Investment Fund transfer is pending, a Participant will not
share in any gains or losses in the fund to which such amount
is transferred until the trade into such fund is settled by
the Trustee.
(h) The Company shall indemnify and hold the Trustee harmless for
any losses suffered as a result of investments and
reinvestments made by the Trustee in reliance upon any
investment direction given by such Participant under the
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Plan.
(i) Notwithstanding paragraph III-6, all expenses incurred in
connection with the sale, investment and reinvestment of
assets in an Investment Fund (such as brokerage, postage,
express and insurance charges and transfer taxes) may be
charged by the Trustee to the appropriate Investment Fund, to
the extent not paid by the Company or the Plan.
(j) The Trustee makes no warranty that the Plan complies with
ERISA Section 404(c). Should the Company intend to comply with
the mitigation of liability provisions of ERISA 404(c), the
Company, as Plan Administrator, shall be responsible for
developing and implementing such procedures, providing such
information, and observing such other conditions as may be
necessary or appropriate to comply therewith.
(k) Except to the extent otherwise required by law, the Trustee
shall not be liable or responsible for any loss resulting to
an Investment Fund or Investment Account by reason of any
investment or reinvestment made by the Trustee at the
direction of the Participant or the Company, and the Trustee
is relieved of any duty to review from time to time such
amounts or property held in any Investment Fund or Investment
Account.
ARTICLE V
GENERAL PROVISIONS
V-1. ACTION BY COMPANY. Any action required or permitted to be
taken by the Company under the Trust shall be by resolution of its Board of
Directors, by resolution of 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.
V-2. WARRANTY. The Company warrants that all directions or
authorizations by the Company representatives, whether for the payment of money
or otherwise, will comply with the Plan and this Trust.
V-3. DISAGREEMENT AS TO ACTS. 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.
V-4. COURTS. Except as otherwise provided by law, in case of any
court proceedings involving a Participating Employer, the Trustee or the Trust
Fund, only the Employer concerned and the
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Trustee shall be necessary parties to the proceedings, and no other person shall
be entitled to notice of process. A final judgment entered in any such
proceedings shall be conclusive.
V-5. EVIDENCE. Evidence required of anyone under this agreement may
be by certificate, affidavit, document or other information which the person
acting on it considers pertinent and reliable, and signed, made or presented by
the proper party or parties.
V-6. THIRD PARTIES. Except as otherwise provided by law, the
Trustee's exercise or non-exercise of its powers and discretions 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, except to
the extent such person is acting as an Investment Manager as respects such money
or property. The certificate of the Trustee that it is acting according to this
agreement will fully protect all persons dealing with the Trustee. An insurance
company may assume that this agreement and the Plan have not been amended or
changed unless notice of such amendment or change is received by the insurance
company at its home office.
V-7. NO REVERSION TO COMPANY. The Company shall have no right,
title or interest in the Trust Fund, nor shall any part of the Trust Fund revert
or be repaid to the Company, directly or indirectly, unless:
(a) the Internal Revenue Service initially determines that the
Plan, as applied to the Company or any Participating Employer,
does not meet the requirements of Section 401(a) of the
Internal Revenue Code, in which event the contributions made
to the Plan by the Company shall be returned to it;
(b) a contribution is made by the Company or any Participating
Employer by mistake of fact and such contribution is returned
to the employer within one year after payment to the Trustee;
or
(c) a contribution conditioned on the deductibility thereof is
disallowed as an expense for federal income tax purposes and
such contribution (to the extent disallowed) is returned to
the Company or any Participating Employer within one year
after the disallowance of the deduction.
The amount of any contribution that may be returned pursuant to subparagraph (b)
or (c) above must be reduced by any portion thereof previously distributed from
the Trust Fund and by any losses of the Trust
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Fund allocable thereto, and in no event may the return of such contribution
cause any Participant's account balances to be less than the amount of such
balances had the contribution not been made under the Plan.
V-8. INTERESTS NOT TRANSFERABLE. The interests of persons entitled
to benefits under the Plan are not subject to their debts or other obligations
and, except as may be required by the tax withholding provisions of the Internal
Revenue Code or any state's income tax act or pursuant to a qualified domestic
relations order as defined in Section 414(p) of the Internal Revenue Code, may
not be voluntarily or involuntarily sold, transferred, alienated, assigned or
encumbered.
V-9. INDEMNIFICATION. To the extent permitted by law, the Trustee
shall not be liable for any act done or omitted to be done in good faith. The
Trustee shall be indemnified and saved harmless by the Company and any
Participating Employer (to the extent not indemnified or saved harmless under
any liability insurance or other indemnification arrangement with respect to the
Plan or 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 this Trust or the
investment of the Trust Fund, or good faith compliance with any directions given
in accordance with the provisions of the Plan or this Trust by an Investment
Manager, the Company, or any person duly authorized by the Company, a
Participant, or by reason of its failure to take any action with respect to any
assets of the Trust Fund which are subject to investment direction from the
Company, an Investment Manager, or a Participant, in the absence of proper
directions from same, including without limitation all expenses reasonably
incurred in its defense if the Company fails to provide such defense through
mutually acceptable counsel after having been requested to do so in writing. The
Trustee will not be liable or responsible for delays or errors by acts of God or
by reason of circumstances beyond its control, including without limitation acts
of civil or military authority, national emergencies, labor difficulties,
mechanical breakdown, insurrection, war, riots, or failure or unavailability of
transportation, communication or power supply, fire, flood or other catastrophe,
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extreme market volatility or trading volumes, to the extent permitted by
applicable law.
V-10. LITIGATION BY PARTICIPANTS. If a legal action begun against
the Trustee, the Company or any Participating Employer by or on behalf of any
person results adversely to that person, or if a legal action arises because of
conflicting claims to a Participant's or other person's benefits, the cost to
the Trustee, the Company or any Participating Employer of defending the action
will be charged to the extent permitted by law to the sums, if any, which were
involved in the action or were payable to the person concerned.
V-11. LIABILITIES MUTUALLY EXCLUSIVE. To the extent permitted by
law, the Trustee, an Investment Manager and the Company shall be responsible
only for its own acts or omissions and the Trustee shall not be required to
collect any contribution from the Company or any Participating Employer or any
other person or to verify that it is in the proper amount. No insurance company
shall be a party to this agreement for any purpose or be responsible for the
validity of this agreement, it being intended that an insurance company shall be
liable only for the obligations set forth in the contracts issued by it.
V-12. WAIVER OF NOTICE. Any notice required under this agreement may
be waived by the person entitled to such notice.
V-13. COUNTERPARTS. This agreement may be executed in two or more
counterparts, any one of which will be an original without reference to the
others.
V-14. CONTROLLING LAW. Except to the extent superseded by laws of
the United States, the laws of Illinois shall be controlling in all matters
relating to this agreement.
V-15. GENDER AND NUMBER. Where the context admits, words in the
masculine gender shall include the feminine and neuter genders, the singular
shall include the plural, and the plural shall include the singular.
V-16. SUCCESSORS. This agreement shall be binding on all persons
entitled to benefits under the Plan and their respective heirs and legal
representatives, on the Company and their successors
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and assigns and on the Trustee and its successors. The term Company as used in
the Plan and this agreement includes any entity that continues the Plan and this
Trust in effect, as provided in the Plan; and, if the employer concerned is the
Company, the term "Company" also shall include such entity.
V-17. SEVERABILITY. If any provision of the Plan or this agreement
is held to be illegal or invalid, such illegality or invalidity shall not affect
the remaining provisions of the Plan and this agreement, and they shall be
construed and enforced as if such illegal or invalid provision had never been
inserted therein.
V-18. STATUTORY REFERENCES. Any references in the Plan or this
agreement to a Section of the Internal Revenue Code of 1986 (the "Code") or the
Employee Retirement Income Security Act of 1974 ("ERISA") shall include any
comparable section or sections of any future legislation which amends,
supplements or supersedes said Section.
ARTICLE VI
CHANGES IN TRUSTEE
VI-1. RESIGNATION OR REMOVAL OF TRUSTEE. The Trustee may resign at
any time by giving thirty (30) days' advance written notice to the Company,
which advance notice may be waived by the Company upon the appointment of a
Successor Trustee. The Company may remove a Trustee by advance written notice to
the Trustee.
VI-2. APPOINTMENT OF SUCCESSOR TRUSTEE. The Company shall fill any
vacancy in the office of Trustee as soon as practicable and shall give prompt
written notice thereof to the person or corporation appointed to fill the
vacancy who should indicate its acceptance in writing.
VI-3. DUTIES OF RESIGNING OR REMOVED TRUSTEE AND OF SUCCESSOR
TRUSTEE. A Trustee that resigns or is removed shall furnish promptly to the
employers and the Successor Trustee an account of its administration of the
Trust from the date of its last account. The Trustee, upon the rendering of such
account, shall, on the earlier of its acceptance by the Successor Trustee or on
the expiration of sixty (60) days from the accounting, be fully discharged as to
all liability with respect to its duties thereunder.
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With the approval of the Company, a Successor Trustee may accept the account
furnished and the property delivered by a predecessor Trustee without incurring
any liability for so doing. Each Successor Trustee shall succeed to the title to
the Trust Fund vested in its predecessor without the signing or filing of any
instrument, but each predecessor Trustee shall execute all documents and do all
acts necessary to vest such title of record in the successor Trustee. Each
Successor Trustee shall have all the powers conferred by this agreement as if
originally named Trustee. No Successor Trustee shall be personally liable for
any act or failure to act of a predecessor Trustee.
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ARTICLE VII
AMENDMENT AND TERMINATION
VII-1. AMENDMENT. This Trust may be amended from time to time by the
Company, except as follows:
(a) The duties and liabilities of the Trustee cannot be changed
without its consent.
(b) Except as provided in paragraph V-7, under no condition shall
an amendment result in the return or repayment to an employer
of any part of the Trust Fund or the income from it or result
in the distribution of the Trust Fund for the benefit of
anyone other than persons entitled to benefits under the Plan.
VII-2. TERMINATION. If the Plan is terminated, this Trust, including
all rights, titles, powers, duties, discretions and immunities imposed on or
reserved to the Trustee and the Company nevertheless shall continue in effect
until all assets have been distributed by the Trustee as directed by the Company
under the Plan.
ARTICLE VIII
INCORPORATION OF COLLECTIVE INVESTMENT TRUSTS
VIII-1. The Declaration of Trust, executed by Chicago Title and Trust
Company on January 17, 1968, establishing "Chicago Title and Trust Company
Investment Trust for the Employee Benefit Plans," as it may be amended from time
to time, is hereby adopted as a part of this agreement. The Trustee may, subject
to the direction of Investment Managers under paragraph III-4 or as limited
pursuant to Article IV hereof, cause any part or all of the assets held
hereunder to be commingled with the assets of other trusts by investment as part
of any fund established under said Declaration of Trust, and the assets so
invested shall be subject to all of the provisions of said Declaration of Trust
as it may be amended from time to time.
VIII-2. The Declaration of Trust executed by Chicago Title and Trust
Company on April 24, 1985, establishing "Chicago Title and Trust Company Stated
Principal Value Investment Trust for
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Employee Benefit Plans," as it may be amended from time to time, is hereby
adopted as a part of this agreement. The Trustee may, subject to the direction
of Investment Managers under paragraph III-4 or as limited pursuant to Article
IV hereof, cause any part or all of the assets held hereunder to be commingled
with the assets of other trusts by investment as part of any fund established
under said Declaration of Trust, and the assets so invested shall be subject to
all of the provisions of said Declaration of Trust as it may be amended from
time to time. The Declaration of Trust executed by The Chicago Trust Company on
June 18, 1996, establishing "The Chicago Trust Company Stable Value Investment
Trust for Employee Benefit Plans," as it may be amended from time to time, is
hereby adopted as a part of this
Trust Agreement. Notwithstanding any other
provisions of this
Trust Agreement, the Trustee may cause any part or all of the
assets held hereunder to be commingled with the assets of other trusts by
investment as part of any fund established under said Declaration of Trust, and
the assets so invested shall be subject to all of the provisions of said
Declaration of Trust as it may be amended from time to time.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to
be signed and their respective corporate seals affixed and attested by their
respective officers, the day and year first above written; the Trustee hereby
evidencing its acceptance of the Trust, and its agreement to perform the duties
given to or required of it by the Trust.
LKQ CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Its: Vice President
-----------------------------------
(Corporate Seal)
ATTEST:
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Its: Assistant Secretary
-------------------------------------
THE CHICAGO TRUST COMPANY
By: /s/ Xxxxx Xxxxxx
------------------------------------
Its: Senior Vice President
-----------------------------------
(Corporate Seal)
ATTEST:
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Its: Assistant Secretary
-------------------------------------
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