1
EXHIBIT 10.57
SPLIT DOLLAR AGREEMENT AND COLLATERAL ASSIGNMENT
THIS AGREEMENT ("Agreement") effective on or around April,
1998, by and between the XXXX XXXXXX FAMILY TRUST u/a/d March 1, 1990 (the
"Xxxxxx Family Trust") and PRECISION RESPONSE CORPORATION, a Florida corporation
(the "Company"), whose address is 0000 X.X. 000 Xxxxxx, Xxxxx, Xxxxxxx 00000.
WHEREAS, the Xxxxxx Family Trust desires to insure the lives
of Xxxx X. Xxxxxx (the "Husband") and his wife, Xxxx Xxxxxx ("Wife") for the
benefit and protection of the Husband's family under a policy or policies issued
by Sun Life Assurance Company of Canada or such other life insurance companies
selected by the Xxxxxx Family Trust (the "Insurance Company");
WHEREAS, the Trustees will surrender certain insurance
policies (the "Surrendered Policies") on the life of Husband and utilize, with
the consent of the Company, the cash surrender value of the Surrendered Policies
to acquire new insurance policy(ies) on the joint lives of Husband and Wife;
WHEREAS, the Company desires to help the Xxxxxx Family Trust
provide insurance by contributing a portion of the premiums due on the policies
on the Husband's and Wife's lives under a continuing "Split Dollar" arrangement;
and
WHEREAS, the Xxxxxx Family Trust will be the owner of the
insurance policies acquired pursuant to the terms of this Agreement and the
policies will be collaterally assigned to the Company as security for the
repayment of the amounts which the Company has contributed or will contribute as
premiums due on the Surrendered Policies and the policies.
NOW, THEREFORE, in consideration of the mutual covenants
contained in this Agreement, it is agreed between the parties to this Agreement
as follows:
ARTICLE 1
APPLICATION FOR INSURANCE
The Xxxxxx Family Trust has applied to the Insurance Company
for a policy on the Grantor's life which the Insurance Company will issue to the
Xxxxxx Family Trust as owner thereof on the Husband's and Wife's joint lives in
the total face amount of $5,000,000 (the "Policy"). The policy number, type of
policy, face amount and plan of payments contained in the Policy are recorded on
Schedule A attached hereto and the parties hereto agree that the Policy is held
subject to the terms of this Agreement.
2
ARTICLE 2
OWNERSHIP OF INSURANCE
The Xxxxxx Family Trust is and shall continue to be the owner
of the Policy and may exercise all rights of ownership with respect to the
Policy, except as to the limited security interest in the Policy specifically
granted to the Company herein. Subject to such security interest of the Company,
the rights reserved to the Xxxxxx Family Trust include specifically the right to
change the beneficiaries of the Policy, the right to surrender the Policy, the
right to assign the Policy or revoke such an assignment, and the right to pledge
the Policy for a loan or to obtain a loan from the Insurance Company against the
surrender value of the Policy.
ARTICLE 3
PREMIUM
When used in this Agreement the words "the Premium" shall mean
and refer to the annual premium shown on Schedule A attached hereto, or such
other annual amounts as the parties hereto may from time to time agree in
writing to pay to the Insurance Company with respect to the Policy; provided,
however, that in no event shall the Premium be less than the smallest annual
payment necessary to keep the Policy in full force and effect.
ARTICLE 4
PAYMENT OF PREMIUMS ON POLICY
A. The Company shall pay either directly to the Insurance
Company or by making the necessary funds therefor available to the Xxxxxx Family
Trust the Premium when due less the amounts due from the Xxxxxx Family Trust
pursuant to the provisions of Section B of this ARTICLE 4. The Premium may be
paid under any payment method acceptable to the Company and the Insurance
Company.
B. The Xxxxxx Family Trust shall pay that portion of each
annual premium equal to the cost (calculated by application of the lower of the
Internal Revenue Service's U.S. Life Table 38 rate or the Insurance Companies'
annual term insurance rates on the lives of the Husband and Wife while they are
both alive, and by application of the lower of the Internal Revenue Service's
U.S. Life Table 58 rate or the Insurance Companies' annual term insurance rate
on the life of the survivor of the Husband and Wife after the death of the first
of them to die) for the insurance proceeds which the beneficiary or
beneficiaries named by the Xxxxxx Family Trust would be entitled to receive if
the survivor of the Husband and Wife died
-2-
3
during such policy year (before any reduction for any repayments to be made to
the Company pursuant to this Agreement).
ARTICLE 5
XXXXXX FAMILY TRUST'S OBLIGATION TO COMPANY
The Xxxxxx Family Trust must repay to the Company the
aggregate amount paid by the Company under Section A of ARTICLE 4 of this
Agreement, as premiums on the Policy (plus any payments made by the Company with
respect to the Surrendered Policies) (such amount being hereinafter referred to
as the "Net Payment Amount"). This repayment must be made in accordance with
ARTICLES 7 and 10 of this Agreement.
ARTICLE 6
ASSIGNMENT OF POLICY
The Xxxxxx Family Trust hereby collaterally assigns, and
grants a security interest in, all of its right, title and interest in and to
the Policy to the Company as security for repayment of the Net Payment Amount.
Such collateral assignment shall not be altered or changed without the written
consent of the Company.
ARTICLE 7
DEATH CLAIMS
A. When the survivor of the Husband and Wife dies, the Company
shall be entitled to receive a portion of the death benefits provided under the
Policy. The amount to which the Company shall be entitled shall be the Net
Payment Amount less any repayments made by the Xxxxxx Family Trust to the
Company prior to the death of the survivor of the Husband and Wife; provided,
however, that upon receipt of such amount by the Company, the Company shall
release the collateral assignment of the Policy made by the Xxxxxx Family Trust
to the Company pursuant to ARTICLE 6 of this Agreement. The receipt of such
amount by the Company shall constitute satisfaction of the Xxxxxx Family Trust's
obligation under ARTICLE 5 of this Agreement. To the extent, if any, the death
benefits under the Policy are insufficient to pay in full the Net Payment Amount
less any repayments made by the Xxxxxx Family Trust to the Company prior to the
death of the survivor of the Husband and Wife, the Xxxxxx Family Trust shall be
liable to the Company for the amount of such insufficiency.
B. When the survivor of the Husband and Wife dies, the
beneficiary or beneficiaries named by the Xxxxxx Family Trust (or
-3-
4
by its assignees) shall be entitled to receive the amount, if any, of the death
benefits provided under the Policy in excess of the amount, if any, payable to
the Company under Section A of this ARTICLE 7. Such amount shall be paid under
the settlement option elected by the Xxxxxx Family Trust (or by its assignees).
C. If any interest is due upon the death benefits provided
under the Policy, the Company and the beneficiary or beneficiaries named by the
Xxxxxx Family Trust (or by its assignees) shall share such interest in the same
proportions as their respective shares of such death benefits (as provided in
Sections A and B, respectively, of this ARTICLE 7) shall bear to the total death
benefits provided under the Policy excluding such interest.
D. If, upon the death of the survivor of the Husband and Wife,
there is a refund of unearned premium under the Policy, then any such refund
shall be divided between the Company and the beneficiary or beneficiaries named
by the Xxxxxx Family Trust (or by its assignees) in the same proportions as
their respective shares of the last premium payment made by the Company and the
Xxxxxx Family Trust, respectively.
ARTICLE 8
DIVISION OF THE NET CASH SURRENDER
VALUE OF THE POLICY
A. If the Policy is surrendered (which the then Trustees of
the Xxxxxx Family Trust, in their sole discretion, shall have the right to do at
any time), the Company shall thereupon be entitled to receive the Net Payment
Amount less any repayments made by the Xxxxxx Family Trust to the Company prior
to such surrender. To the extent, if any, the net cash surrender value of the
Policy is insufficient to pay in full the Net Payment Amount less any repayments
made by the Xxxxxx Family Trust to the Company prior to such surrender, the
Xxxxxx Family Trust shall be liable to the Company for the amount of such
insufficiency.
B. The Xxxxxx Family Trust (or its assignees) shall be
entitled to receive any balance of the net cash surrender value of the Policy.
ARTICLE 9
TERMINATION OF AGREEMENT
This Agreement shall terminate when any of the following
events occur:
A. Termination of the Xxxxxx Family Trust;
B. Upon the election of the aggrieved party, if either the
Company or the Xxxxxx Family Trust shall fail for any reason to make payment of
any portion of the Premium due on the Policy as
-4-
5
required by ARTICLE 4 of this Agreement on or prior to the due date thereof;
provided, however, that any election to terminate this Agreement under this
Section B must be made within ninety (90) days after the failure to make the
required payment occurs; and provided further, however, that the election to
terminate this Agreement by the Xxxxxx Family Trust shall be in addition to all
of the other rights and remedies at law or in equity of the Xxxxxx Family Trust
against the Company for its failure to pay any portion of the Premium it was
required to make; or
C. Full repayment by the Xxxxxx Family Trust of the Net
Payment Amount; provided, however, that upon receipt of such repayment the
Company shall release the collateral assignment of the Policy by the Xxxxxx
Family Trust pursuant to ARTICLE 6 hereof.
ARTICLE 10
DISPOSITION OF POLICY ON
TERMINATION OF AGREEMENT
If the Policy is surrendered by the then Trustees of the
Xxxxxx Family Trust or this Agreement is terminated under Section A or Section B
of ARTICLE 9 hereof, the Xxxxxx Family Trust shall have one hundred twenty (120)
days in which to repay to the Company the Net Payment Amount less any repayments
made by the Xxxxxx Family Trust to the Company prior to the termination of this
Agreement. Upon receipt of such amount, the Company shall release the collateral
assignment of the Policy made by the Xxxxxx Family Trust to the Company pursuant
to ARTICLE 6 of this Agreement. If the Xxxxxx Family Trust does not repay such
amount within such one hundred twenty (120) day period, the Company may enforce
its rights against the Xxxxxx Family Trust under this Agreement in any way it
sees fit, subject, however, to the Xxxxxx Family Trust's right to set off
against any claim made by the Company any damages suffered by or claims of the
Xxxxxx Family Trust to the extent this Agreement was terminated by the Xxxxxx
Family Trust pursuant to Section B of ARTICLE 9 hereof.
ARTICLE 11
INSURANCE COMPANY A PARTY
The Insurance Company is a party to this Agreement and hereby
acknowledges and agrees to be bound by the terms and provisions hereof,
including without limitation the provisions of ARTICLE 5 and ARTICLE 6 hereof,
and shall be fully discharged from any and all liability under the terms of any
policy issued by it, which is subject to the terms of this Agreement, upon
payment or other performance of its obligations in accordance with the terms and
provisions of such policy and this Agreement.
-5-
6
ARTICLE 12
ASSIGNMENT BY COMPANY
The Company is prohibited from assigning its right, title or
interest in and to the Policy (or any portion thereof) to anyone other than the
Xxxxxx Family Trust (or its assignees).
ARTICLE 13
AMENDMENT OF AGREEMENT
This Agreement shall not be modified or amended except by a
written agreement signed by the Company and the Xxxxxx Family Trust. This
Agreement shall be binding upon the successors and assigns of each party hereto.
ARTICLE 14
GOVERNING LAW
This Agreement shall be deemed a contract made under the laws
of, and executed and delivered in, the State of Florida, and for all purposes
shall be construed and interpreted in accordance with the laws of such State
without reference to conflicts of laws principles.
ARTICLE 15
ATTORNEYS' FEES
In the event that either party to this Agreement institutes
suit against the other party to this Agreement to enforce or declare any of
their respective rights or obligations hereunder, the prevailing party in such
action shall be entitled to recover from the other party all reasonable costs
thereof, including reasonable attorneys' and paralegals' fees and costs incurred
before and at trial and at all tribunal levels, and whether or not suit or any
other proceeding is instituted.
ARTICLE 16
ENTIRE AGREEMENT
This Agreement constitutes the entire final agreement among
the parties with respect to, and supersedes any and all prior and
contemporaneous agreements between or among the parties hereto both oral and
written concerning, the subject matter hereof and may
-6-
7
not be amended, modified or terminated except by a writing signed by the parties
hereto.
ARTICLE 17
COUNTERPARTS
This Agreement may be executed in counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date first above written.
/s/ XXXXX X. XXXXXXX
------------------------------------
XXXXX X. XXXXXXX, as Co-Trustee of
the Xxxxxx Family Trust
/s/ XXXXXXX X. XXXXXX
------------------------------------
XXXXXXX X. XXXXXX, as Co-Trustee of
the Xxxxxx Family Trust
PRECISION RESPONSE CORPORATION, a
Florida corporation
By: /s/ XXXXX X. XXXXXXX
--------------------------------
Xxxxx X. Xxxxxxx,
Chief Executive Officer
This Split Dollar Agreement and Collateral Assignment relating to the Policy was
recorded by Sun Life Assurance Company of Canada on February 11, 2000.
SUN LIFE ASSURANCE COMPANY OF CANADA
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. XxxXxx
Title: Customer Service Administrator
RECORDED
FEB 11 2000
SUN LIFE OF CANADA
-7-
8
SCHEDULE A
INSURANCE POLICY ON THE JOINT
LIVES OF XXXX AND XXXX XXXXXX
Sun Life
Assurance
Company of Annual
Canada Planned
Policy Number Type of Policy Face Amount Premium
------------- -------------- ----------- -------
#020044604 Second-to-die $5,000,000 $25,832
