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EXHIBIT 10.9 (B)
TRUST UNDER THE XXXXXXX FAMILY RESTAURANTS, L.P.
DEFERRED COMPENSATION PLAN
This Agreement made as of this 1st day of January 1999, by and between
Xxxxxxx Family Restaurants, L.P. (Hereinafter referred to as the "Employer") and
Union Planters Bank, N.A., a Tennessee corporation (hereinafter referred to as
the "Trustee");
WHEREAS, the Employer has adopted the nonqualified Xxxxxxx Family
Restaurants, L.P. Deferred Compensation Plan and such other plans as may, by
agreement of the parties, be set forth in Appendix A (hereinafter referred to
collectively as the "Plan").
WHEREAS, the Employer has incurred or expects to incur liability under
the terms of such Plan with respect to the individuals participating in such
Plan;
WHEREAS, the Employer wishes to establish a trust (hereinafter referred
to as the "Trust") and to contribute to the Trust assets that shall be held
therein, subject to the claims of the Employer's creditors in the event of the
Employer's Insolvency, as herein defined, until paid to the Plan participants
and their beneficiaries in such manner and at such times as specified in the
Plan;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974,
as amended;
WHEREAS, it is the intention of the Employer to make contributions to
the Trust to provide itself with a source of funds to assist it in meeting its
liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
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1. ESTABLISHMENT OF TRUST.
(a) The Employer hereby deposits with the Trustee in trust one
dollar ($1.00), which shall become the principal of the Trust
to be held, administered and disposed of by the Trustee as
provided in this Trust.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which the
Employer 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 Employer and
shall be used exclusively for the uses and purposes of Plan
participants and general creditors as herein set forth. Plan
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 Plan and this Trust
shall be mere unsecured contractual rights of Plan
participants and their beneficiaries against the Employer. Any
assets held by the Trust will be subject to the claims of the
Employer's general creditors under federal and state law in
the event of Insolvency, as defined in section 3(a) hereof.
(e) The Employer, in its sole discretion, may be any time, or from
time to time, make additional deposits of cash or other
property in trust with the Trustee to augment the principal to
be held, administered and disposed of by the Trustee as
provided in this Trust Agreement. Neither the Trustee nor any
Plan participant or beneficiary shall have any right to compel
such additional deposits.
2. PAYMENTS TO PLAN PARTICIPANTS AND BENEFICIARIES.
(a) The Employer shall deliver to the Trustee the schedule (the
"Payment Schedule") that indicates the amounts payable with
respect to each Plan participant (and his or her
beneficiaries), that provides a formula or other instructions
acceptable to the Trustee for determining the amounts so
payable, the form in which such amount is to be paid (as
provided for or available under the Plan), and the time of
commencement for payment of such amounts. Except as otherwise
provided herein, the Trustee shall make payments to the Plan
participants and their beneficiaries in accordance with
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such Payment Schedule. 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 the
payment of benefits pursuant to the terms of the Plan and
shall pay amounts withheld to the appropriate taxing
authorities or determine that such amounts have been reported,
withheld and paid by the Employer.
(b) The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plan shall be determined
by the Employer or such party as it shall designate under the
Plan, and any claim for such benefits shall be considered an
reviewed under the procedures set out in the Plan.
(c) The Employer may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under
the terms of the Plan. The Employer shall notify the Trustee
of its decision to make payment of benefits directly prior to
the time amounts are payable to participants or their
beneficiaries. In addition, if the principal of the Trust, and
any earnings thereon, are not sufficient to make payments of
benefits in accordance with the terms of the Plan, the
Employer shall make the balance of each such payment as it
falls due. The Trustee shall notify the Employer where
principal and earnings are not sufficient.
3. Trustee Responsibility Regarding Payments to the Trust Beneficiary When
Employer is Insolvent.
(a) The Trustee shall cease payment of benefits to Plan
participants and their beneficiaries if the Employer is
Insolvent. The Employer shall be considered "Insolvent" for
purposes of this Trust if:
(i) the Employer is unable to pay its debts as they
become due; or
(ii) the Employer is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided
in section 1(d) hereof, the principal and income of the Trust
shall be subject to claims of general creditors of the
Employer under federal and state law as set forth below:
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(i) The Board of Directors and the Chief Executive
Officer (or, if there is no Chief Executive Officer,
the highest ranking officer of the Employer) of the
Employer shall have the duty to inform the Trustee in
writing of the Employer's Insolvency. If a person
claiming to be a creditor of the Employer alleges in
writing to the Trustee that the Employer has become
Insolvent, the Trustee shall determine whether the
Employer is Insolvent and, pending such
determination, the Trustee shall discontinue payment
of benefits to Plan participants or their
beneficiaries.
(ii) Unless the Trustee has actual knowledge of the
Employer's Insolvency, or has received notice from
the Employer or a person claiming to be a creditor
alleging that the Employer is Insolvent, the Trustee
shall have no duty to inquire where the Employer is
Insolvent. The Trustee may in all events rely on such
evidence concerning the Employer's solvency as may be
furnished to the Trustee and that provides the
Trustee with a reasonable basis for making a
determination concerning the Employer's solvency.
(iii) If at any time the Trustee has determined that the
Employer is Insolvent, the Trustee shall discontinue
payments to Plan participants or their beneficiaries
and shall hold the assets of the Trust for the
benefit of the Employer's general creditors. Nothing
in this Trust shall in any way diminish any rights of
Plan participants or their beneficiaries to pursue
their rights as general creditors of the Employer
with respect to benefits due under the Plan or
otherwise.
(iv) The Trustee shall resume the payment of benefits to
Plan participants or their beneficiaries in
accordance with section 2 of this Trust only after
the Trustee has determined that the Employer is not
Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant
to section 3(b) hereof and subsequently resumes such payments,
the first payment following such discontinuance shall include
the aggregate amount of all payments due to Plan participants
or their beneficiaries under the terms of the Plan for the
period of such discontinuance, less the aggregate amount of
any payments made to Plan participants or their beneficiaries
by the Employer in lieu of the payments provided for hereunder
during any such period of discontinuance.
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4. PAYMENTS TO EMPLOYER. Except as provided in section 3 hereof, after the
Trust has become irrevocable, the Employer shall have no right or power
to direct the Trustee to return to the Employer or to divert to others
any of the Trust assets before all payment of benefits have been made
to Plan participants and their beneficiaries pursuant to the terms of
the Plan.
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5. INVESTMENT AUTHORITY.
(a) The Trustee may invest in securities (including stock or
rights to acquire stock) or obligations issued by the
Employer. All rights associated with assets of the Trust shall
be exercised by the Trustee or the person designated by the
Trustee and shall in no event be exercisable by or rest with
Plan participants. Voting rights with respect to Trust assets
will be exercised by the Employer.
(b) The Employer shall direct the investments of the Trust, if
any; provided, however, the Employer, in its sole discretion,
may, from time to time, delegate such investment authority to
any other person(s) or entity(ies).
6. DISPOSITION OF INCOME. During the term of this Trust, all income
received by the Trust, net of expenses and taxes, shall be accumulated
and reinvested.
7. ACCOUNTING BY TRUSTEE. The Trustee shall keep accurate and detailed
records of all investments, receipts, disbursements, and all other
transactions required to be made, including such specific records as
shall be agreed upon in writing between the Employer and the Trustee.
Within sixty (60) days following the close of calendar year and within
sixty (60) days after the removal or resignation of the Trustee, the
Trustee shall deliver to the Employer a written account of its
administration of the Trust during such year or during the period from
the close of the last preceding year to the date of such removal or
resignation, setting forth all investments, receipts, disbursements and
other transactions effected by it, including a description of all
securities and investments purchased and sold with the cost or net
proceeds of such purchases or sales (accrued interest paid or
receivable being shown separately), and showing all cash, securities
and other property held in the Trust at the end of such year or as of
the date of such removal or resignation as the case may be.
8. RESPONSIBILITY OF TRUSTEE.
(a) The Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a
prudent person acting a 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 Employer which is contemplated by, and in conformity with,
the terms of the Plan or
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this Trust and is given in writing by the Employer. In the
event of dispute between the Employer and a party, the Trustee
may apply to a court of competent jurisdiction to resolve the
dispute.
(b) If the Trustee undertakes or defends any litigation arising in
connection with this Trust, the Employer agrees to indemnify
the Trustee against 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 Employer does not pay such costs, expenses and
liabilities in a reasonably timely manner, the Trustee may
obtain payment from the Trust.
(c) The Trustee may consult with legal counsel (who may also be
counsel for the Employer generally) with respect to any of its
duties or obligations hereunder.
(d) The Trustee may hire agents, accountants, actuaries,
investment advisors, financial consultants or other
professionals to assist it in performing any of its duties or
obligations hereunder.
(e) The Trustee shall have, without exclusion, all powers
conferred on trustees by applicable law, unless expressly
provided otherwise herein, provided, however, that if an
insurance policy is held as an asset of the Trust, the Trustee
shall have no power to name a beneficiary of the policy other
than the Trust, to assign the policy (as distinct from
conversion if the policy to a different form) other than to a
successor Trustee, or to loan to any person the proceeds of
any borrowing against such policy.
(f) However, notwithstanding the provisions of section 8(e) above,
the Trustee may loan to the Employer the proceeds of any
borrowing against an insurance policy held as an asset of the
Trust.
(g) Notwithstanding any powers granted to the Trustee pursuant to
this Trust 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.
9. COMPENSATION AND EXPENSES OF THE TRUSTEE. The Employer shall pay all
administrative and Trustee's fees and expenses. If not so paid, the
fees and expenses shall be paid from the trust.
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10. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) The Trustee may resign at any time by written notice to the
Employer, which shall be effective thirty (30) days after
receipt of such notice unless the Employer and the Trustee
agree otherwise.
(b) The Trustee may be removed by the Employer upon thirty (30)
days notice or upon shorter notice accepted by the Trustee.
(c) Upon resignation or removal of the Trustee and appointment of
a successor Trustee, all assets shall subsequently be
transferred to the successor Trustee. The transfer shall be
completed within sixty (60) days after receipt of notice of
resignation, removal or transfer, unless the Employer extends
the time limit.
(d) If the Trustee resigns or is removed, a successor shall be
appointed, in accordance with section 11 hereof, by the
effective date of the resignation or removal under paragraph
(a) or (b) of this section. If no such appointment as been
made, the Trustee may apply to a court of competent
jurisdiction for appointment of a successor or for
instructions. All expenses of the Trustee in connection with
the proceeding shall be allowed as administrative expenses of
the Trust.
11. APPOINTMENT OF SUCCESSOR.
(a) If the Trustee resigns (or is removed) in accordance with
section 10(a) or (b) hereof, the Employer may appoint any
third party, such as a bank trust department or other party
that may be granted corporate trustee powers under state law,
as a successor to replace the Trustee upon resignation or
removal. The appointment shall be effective when accepted in
writing by the new Trustee, who shall have all of the rights
and powers of the form trustee. The former Trustee shall
execute any instrument necessary or reasonably requested by
the Employer or the successor Trustee to evidence the
transfer.
(b) The successor Trustee need not examine the records and acts of
any prior Trustee and may retain or dispose of existing Trust
assets, subject to sections 7 and 8 hereof. The successor
Trustee shall not be responsible for and the Employer shall
indemnify and defend the successor Trustee from any claim or
liability resulting from any action or
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inaction of any prior Trustee or from any other past event, or
any condition existing at the time it becomes successor
Trustee.
12. AMENDMENT OR TERMINATION.
(a) This Trust may be amended by a written instrument executed by
the Trustee and the Employer. Notwithstanding the foregoing,
no such amendment shall conflict with the terms of the Plan or
shall make the Trust revocable after it has become irrevocable
in accordance with section 1(b) hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plan. Upon termination
of this Trust any assets remaining in this Trust shall be
returned to the Employer.
(c) Upon written approval of participants or beneficiaries
entitled to payment of benefits pursuant to the terms of the
Plan, the Employer may terminate this Trust prior to the time
all benefit payments under the Plan have been made. All assets
in the Trust at termination shall be returned to the Employer.
13. MISCELLANEOUS.
(a) Any provision of this Trust prohibited by law shall be
ineffective to the extent of any such prohibition, without
invalidating the remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries
under this Trust may not be anticipated, assigned (either at
law or in equity), alienated, pledged, encumbered or subjected
to attachment, garnishment, levy, execution or other legal or
equitable process.
(c) This Trust shall be governed by and construed in accordance
with the laws of the State of Tennessee.
14. EFFECTIVE DATE. The effective date of this Trust shall be January 1,
1999.
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Attest: XXXXXXX FAMILY RESTAURANTS, L.P.
By: Xxxxxxx Management Company, Inc.
General Partner
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Secretary
By:
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Xxxxxxx X. Xxxxxxxx
Vice President
UNION PLANTERS BANK , N.A.
By:
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Name and Title
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