AMENDMENT No. 1 TO SPLIT DOLLAR AGREEMENT ROBERTSON TRUST
Exhibit
10.12 (a)
AMENDMENT
No. 1 TO
XXXXXXXXX
TRUST
Reference
is made to that certain Split Dollar Agreement dated as of March 2, 1995 (the
"Agreement"), by and
between Frozen Food Express Industries, Inc., a Texas corporation (the
"Corporation"), and
Xxxxxx Xxxx Xxxxxxxxx as Trustee ("Trustee") of The
Xxxxxxxxx Irrevocable 1995
Trust (the "Trust").
PRELIMINARY
STATEMENTS
A.
The
Agreement may be amended in accordance with Section 11 of
the
Agreement.
B.
Capitalized
terms used in this amendment (the "Amendment"), but not
otherwise defined,
have the meaning for them set forth in the Agreement.
C.
The
parties desire to amend the Agreement to terminate any obligation of
the
Corporation
to make Premium (as defined below) payments under the Agreement with respect to
the
Policy.
D.
The
parties also desire to grant the Trust the right to repay the Corporation
directly for any
Premiums due to be repaid to the Corporation by the Trust under the Agreement
without the Trust having to wait to surrender the Policy for its cash value or
receipt of death benefits under the
Policy.
AMENDMENT
The
parties, intending to be legally bound, hereby agree as follows:
1.
Termination
of Premium Payment Obligations. Notwithstanding
anything to the contrary in the Agreement (including under Section 3 of the
Agreement), the parties hereby agree
that the Corporation shall no longer have any obligation to pay Premiums under
the Agreement
with respect to the Policy and that as of the date hereof the Trust shall be
solely obligated
to make any and all Premium payments under or with respect to the Policy. For
the avoidance
of doubt, Section 3 of the Agreement is hereby deleted in its entirety from the
Agreement
and shall be of no further force or effect.
2.
Repayment
of Premiums. Notwithstanding
anything to the contrary in the Agreement
(including Sections 2 and 5 of the Agreement), the Trust shall have the right,
at its sole and
absolute discretion, to repay Premiums owed to the Corporation under the
Agreement (including
under Section 2) at any time prior to the Trust surrendering the Policy for its
cash value or
receipt of death proceeds under the Policy. Nothing in this Amendment, however,
shall limit or
diminish the Trust's obligation to repay any unpaid Premiums in full no later
than as provided in Section 5 of the Agreement. As used herein and in the
context of the Agreement, "Premiums" shall
mean the total amount paid toward the premiums on the Policy by the
Corporation
under the Agreement prior to the date hereof and the total
amount that the Corporation
previously paid toward premiums on the Massachusetts Life Insurance Policy (less
any sums previously received by the Corporation with respect to the
Massachusetts Life Insurance
Policy), which Premium amounts currently owing total in the aggregate $497,806,
as
further
described on Exhibit
A.
3.
Ownership
Rights. Nothing
in this Amendment shall alter the ownership rights in the
Policy, which ownership rights shall remain with the Trust, subject only to the
Corporation's collateral
assignment rights set forth in the Agreement, which collateral assignment rights
shall terminate
on the earlier of repayment in full of the Premiums or as otherwise provided in
the
Agreement.
4. Succession. This
Amendment shall be binding upon and inure to the benefit of the
parties to this Amendment and their respective successors and permitted
assigns.
5.
Counterparts. This
Amendment may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one
and the same
instrument.
6.
Governing
Law. This
Amendment shall be governed by and construed in accordance
with the laws of the State of Texas without giving effect to any choice or
conflict of law
provision or rule (whether of the State of Texas or any other
jurisdiction).
7.
Severability. Any term
or provision of this Amendment that is invalid or unenforceable
in any situation in any jurisdiction shall not affect the validity or
enforceability of the
remaining terms and provisions hereof or the validity or enforceability of the
offending term or
provision in any other situation or in any other jurisdiction.
8.
Ratification. This
Amendment shall not affect any terms or provisions of the Agreement other than
those amended hereby and is only intended to amend, alter or modify the
Agreement
as expressly stated herein. Except as
amended hereby, the Agreement remains in effect,
enforceable against each of the parties, and is hereby ratified and acknowledged
by each
of the
parties. In the event of a conflict between this Amendment and the Agreement,
the terms of this
Amendment shall control.
9.
Further
Assurances. While the
Corporation and the Trust are the only parties to the
Agreement, both parties agree to take such actions as may be required by the
Insurer, or
which the
parties may reasonably request, to modify, amend or alter the collateral
assignment
documents
previously executed by the parties in
conjunction with the execution of the Agreement,
all in such manner as would be in furtherance with the spirit of this
Amendment.
The
parties hereto have executed this Amendment on November 12, 2003.
FROZEN
FOOD EXPRESS INDUSTRIES, INC.
By:
/s/ F.
Xxxxx XxXxxxx, Xx.
Name:
F. Xxxxx
XxXxxxx, Xx.
Title:
Senior Vice President & CFO
THE
XXXXXXXXX IRREVOCABLE 1995 TRUST
By:
/s/
Xxxxxx Xxxx Xxxxxxxxx
Name:
Xxxxxx Xxxx Xxxxxxxxx
Title:
Trustee
of The Xxxxxxxxx Irrevocable 1995 Trust
EXHIBIT
A
Outstanding
Premiums
as of
November 12, 2003
Analysis
of Split Dollar Premium Payments
Year |
Amount |
1992 |
37,680.00 |
1993 |
36,
655.00 |
1994 |
-0- |
1995 |
53,000.00 |
1995 |
(529.73) |
1996 |
53,000.00 |
1997 |
53,000.00 |
1998 |
53,000.00 |
1999 |
53,
000.00 |
2000 |
53,000.00 |
2001 |
53,000.00 |
2002 |
53,
000.00 |
|
497,805.27 |