FFEX Exhibit 10.1 Form of Agreement

EXHIBIT 10.1

    


     

    


     

    LIFE
      INSURANCE POLICY PURCHASE AGREEMENT

     

    This
      Life
      Insurance Policy Purchase Agreement and its related Exhibits (the “Agreement”)
      is
      made and entered into as of this _____ day of ____________________, 20__, by
      and
between
      among Frozen
      Food Express Industries, Inc.
      (“Seller”),
      located at 1145
      Empire Central Place, Dallas, TX 75247;
      __________________________and ___________________________(“Purchaser”),
      (collectively, the “Parties”)

     

    RECITALS

     

    WHEREAS,
      Purchaser is in the business of acquiring certain life insurance policies;
      and,

     

    WHEREAS,
      Seller is the owner of record of life insurance policy number _______________
      (“Policy”)
      (for
      purposes of this Agreement, any references to the term “Policy” specifically
      exclude any additional benefits to accidental death) with a face value of
$
      ____________________ issued by __________________
      (“Insurer”)
      and
      insuring the life of _________________
      (“Insured”);
      and,


     

    WHEREAS,
      except for additional benefits for accidental death, Seller desires to sell,
      and
      Purchaser desires to purchase, the Policy subject to the terms and conditions
      of
      this Agreement and related Exhibits (such transaction, the “Life
      Settlement”);
      and,

     

    WHEREAS,
      the parties will enter into an agreement with an escrow agent.

     

    AGREEMENT

     

    NOW,
      THEREFORE, in consideration of the foregoing and the representations, covenants,
      and agreements set forth herein, and for other good and valuable consideration,
      the sufficiency and receipt of which are hereby acknowledged, the Parties,
      intending to be legally bound hereby, agree as follows:

     

    1. Purchaser
      will pay Seller the sum of $_________________
      (“Purchase
      Price”)
      in
      exchange for the Policy. Upon receipt by Escrow Agent from Seller of the
      following forms (or similar forms) of Insurer (a) Transfer of Ownership and
      Control, (b) Change of Beneficiary and (c) Collateral Assignment, if any
      (collectively, the “Insurer’s
      Forms”),
      each
      properly executed, the Purchaser shall deposit the Purchase Price in immediately
      available funds into an Escrow Account within three (3) business days of such
      receipt by the Escrow Agent. 

     

    2. Seller
      has the sole responsibility to continue to make any and all premium payments
      until Escrow Agent receives written acknowledgement from the Insurer of the
      properly completed transfer of ownership of Policy and change of designated
      beneficiary thereunder (“Confirmation”).
      Following receipt by the Escrow Agent of Confirmation, the Purchaser or its
      assignee will continue to make premium payments in respect of the Policy.
      Failure by Seller to pay premiums and/or keep the Policy in force until Escrow
      Agent receives Confirmation will constitute a material breach of this Agreement,
      and Purchaser will have the right to rescind this Agreement. It is further
      understood and agreed by the Parties that Seller will properly execute or cause
      to be executed, including signatures, witness signatures, and notary seals
      and
      signatures, all attached Exhibits of this Agreement. Seller agrees that it
      will
      deliver (a) to Escrow Agent the Insurer’s Forms, each properly executed,
      and (b) to Purchaser copies of this Agreement and each of the Exhibits to
      this Agreement, together with any other documents required to be delivered
      under
      this Agreement, in each case, properly executed, witnessed or notarized, as
      the
      case may be; upon Purchaser determining that such documents are properly
      executed, witnessed or notarized, as the case may be, Purchaser shall
      immediately notify Escrow Agent and Seller in writing. In the event that the
      document execution requirements of this Agreement are not satisfied and this
      Agreement and any related documents are not returned within fourteen (14)
      calendar days from the date of delivery of this Agreement and any related
      documents by Purchaser to Seller, then Purchaser will have the right to rescind
      this Agreement, conditioned solely (if applicable) on the return of ownership
      and control of the beneficiary rights of the Policy to the Seller. 

     

    3. Except
      for any additional benefits for accidental death, which Seller shall retain,
      and
      subject to the terms and conditions of this Agreement, Seller hereby irrevocably
      sells, transfers, conveys, delivers and assigns to Purchaser all rights, titles,
      claims, interests, options, benefits and privileges provided by the Policy
      and
      granted to the Seller and/or any beneficiaries under the Policy, free and clear
      of all liens, pledges, interests or other encumbrances (“Encumbrances”).
      Seller agrees that after the purchase of the Policy by Purchaser contemplated
      herein, the Policy can be further sold, assigned, or otherwise transferred
      to an
      entity or person unknown to the Seller, without the Seller’s consent or
      knowledge, but with notification to the Insured within twenty (20) days after
      such sale or transfer.

     

    4. Except
      for accidental death benefits, which are expressly excluded from this Agreement,
      and subject to the terms and conditions of this Agreement, Seller hereby
      irrevocably sells, transfers, conveys and assigns to Purchaser all money payable
      now or in the future under the Policy, including all dividends, options, cash
      values, benefits and/or advantages set forth under the terms and conditions
      of
      the Policy. Notwithstanding the foregoing, if the Policy contains provisions
      for
      spousal or child riders, waiver of premium riders, or other provisions
      (“Supplemental
      Coverage”)
      insuring the lives of spouses, family members, or anyone else other than the
      Seller, then the Parties acknowledge and understand that the Supplemental
      Coverage may be terminated at the discretion of the Purchaser. Thus, if the
      Policy is a joint policy, or contains riders or other provisions insuring the
      lives of a spouse, dependents or anyone else other than the Seller, there may
      be
      a loss of such coverage, and Seller should contact the Insurer or Seller’s
      insurance agent to determine if that coverage may be converted in order to
      avoid
      losing the coverage. 

     

    5. Except
      for any additional benefits for accidental death, which Seller shall retain,
      and
      subject to the terms and conditions of this Agreement, Seller hereby irrevocably
      sells, transfers, conveys, delivers and assigns to Purchaser all rights of
      control held by Seller in the Policy, including but not limited to, the right
      to
      change beneficiaries, the right to make claims and receive payments pursuant
      to
      the terms of the Policy, and the right to surrender Policy at any time and
      receive for Purchaser's sole benefit the cash surrender value of the Policy,
      if
      any.

     

    6. In
      the
      absence of fraud, all statements made by Seller shall be deemed representations
      and not warranties. Seller hereby represents that:

     

    A. Seller
      is
      the beneficial owner of the Policy; 

    B. Except
      for any additional benefits for accidental death, which Seller shall retain,
      the
      irrevocable sale, transfer, and assignment of the Policy to Purchaser and its
      successors and assigns, is valid and sufficient; 

    C. There
      are
      no proceedings in any bankruptcy, pending or, to the knowledge of Seller,
      threatened, either voluntarily or involuntarily, by the Seller;

    D. No
      tax or
      creditor lien has been filed against the Policy;

    E. The
      Policy has not been hypothecated and is not subject to any Encumbrances;


    F. Seller
      has made no prior sale, transfer or assignment of the Policy to any other person
      or entity;

    G. No
      final
      bankruptcy disclaimers involving the Seller have been issued since the issuance
      of the Policy;

    H. No
      part
      of the premiums due in at least four (4) of the first seven (7) years after
      the
      Policy was issued were paid by means of indebtedness;

    I. Seller
      has valid business reasons for selling the Policy rather than obtaining a
      secured loan with such Policy as collateral. Seller has not transferred the
      Policy to Purchaser with the actual intent to hinder, delay or defraud any
      of
      its creditors and such transfer of the Policy constitutes a practical and
      reasonable course of action designed to improve the financial condition of
      Seller without impairing the rights of its creditors;

    J. From
      and
      after the purchase date, Seller understands and accepts that the transfer to
      Purchaser of the Policy is a sale;

    K. Subject
      to the terms and conditions of this Agreement, except for any additional
      benefits for accidental death, which Seller shall retain, Seller will not take
      any action inconsistent with Purchaser’s ownership of the Policy. Subject to the
      terms and conditions of this Agreement, if a third party, including a potential
      purchaser of the Policy, should inquire, Seller will promptly indicate that
      the
      Policy has been sold to Purchaser and will claim no ownership interest in such
      assets; and

    L. Seller
      will be solvent at all relevant times prior to, and will not be rendered
      insolvent by, the sale of the Policy to Purchaser.

    


    7. Seller
      and Insured, if different, hereby acknowledge and agree that performance by
      Purchaser of this Agreement is further conditioned upon (a) receipt and
      acceptance by Purchaser at its executive office, and Purchaser’s further
      execution, if applicable, of the following documents and verifications, in
      each
      case, properly executed, witnessed or notarized, as applicable, by Seller or
      Insured, as the case may be, and in form and substance satisfactory to
      Purchaser, as provided in Section 2 above, and (b) thereafter, Escrow
      Agent’s receipt of Confirmation and Purchaser’s verification of the Confirmation
      as provided in Section 11 below:

     

    A. The
      execution by all current beneficiary(ies) of the Release of Beneficiary Rights,
      attached hereto as Exhibit
      A;

    B. The
      execution by Insured of the Authorization of Continued Contact between the
      Insured and Purchaser attached hereto as Exhibit
      B.
      Insured
      acknowledges that Insured has the right to list any individual of legal age
      as
      his or her designated contact. Insured further acknowledges that if, for any
      reason, Purchaser is unable to contact Insured’s designated contact(s) for a
      period of thirty (30) days, Purchaser has the right to contact Insured directly.
      Insured may change his or her designated contacts at any time, upon written
      notice to Purchaser. Purchaser shall advise Seller and Insured, if different,
      the name, address and telephone number of Purchaser, Purchaser’s representative,
      or broker, who will contact Insured or his or her designated contact(s), and
      shall notify Seller and Insured, if different, of any change in such
      information. Insured acknowledges that Purchaser shall not contact Insured
      or
      his/her designated contact(s) for purposes of determining Insured’s health
      status more frequently than once every thirty (30) days for life settlers with
      a
      life expectancy of one year or less, and no more than once every three (3)
      months for life settlers with a life expectancy of more than one year. No person
      shall contact Insured or his/her contact(s) for the purpose of determining
      his/her health status unless Purchaser is registered as a life settlement
      provider in the State of Texas;

    C. The
      execution by Insured of an Authorization to Release Medical Information,
      attached hereto as Exhibit C
      (“Authorization
      to Release Medical Information”).
      Insured acknowledges that that the Authorization to Release Medical Information
      may be used to track Insured’s ongoing health status. Insured acknowledges that
      Insured has the right, at any time, to revoke the Authorization to Release
      Medical Information by providing written notice to Purchaser;

    D. The
      execution by the Seller of the Distribution Directions, attached hereto as
      Exhibit
      D
      (“Distribution
      Directions”);

    E. The
      execution by a licensed attending physician of a statement that the Insured
      is
      of sound mind and is under no constraint or undue influence to enter into the
      Agreement, attached hereto as Exhibit
      E;

    F. The
      execution by Seller of the Acknowledgement of Policy Values, attached hereto
      as
Exhibit
      F;

    G. The
      execution by Insured of the Limited Power of Attorney, attached hereto as
Exhibit G.
      Insured
      acknowledges that the Limited Power of Attorney may be used to track Insured’s
      ongoing health status. Insured acknowledges that Insured has the right, at
      any
      time, to revoke the Limited Power of Attorney by providing written notice to
      Purchaser;

    H. The
      execution by Seller of the Escrow Agreement, attached hereto as Exhibit
      H;

    I. The
      execution by Seller of a form of Transfer of Ownership and Control or other
      similar Insurer documents which transfer ownership of the Policy or absolutely
      assigns all present and future rights in the Policy, substantially in the form
      of Exhibit
      I,
      attached hereto; 

    J. The
      execution by Seller of a Change in Beneficiary Form or other similar Insurer
      document, substantially in the form of Exhibit
      J,
      attached hereto; 

    K. The
      execution by Seller of a Collateral Assignment against the Policy, if necessary,
      attached hereto as Exhibit K;

    L. Execution
      of any other document(s) required by the Insurer to effect transfer of ownership
      or absolute assignment of the Policy to the Purchaser; 

    M. Execution
      of any other document(s) that the Purchaser deems reasonably necessary in order
      to facilitate the transfer of insurance benefits from the Seller to the
      Purchaser in an expedient manner; 

    N. Purchaser’s
      verification of all Policy and other information, including Insurer’s
      verification of coverage; and

    O. Execution
      by Seller and Insured (if different) of Acknowledgement Form for Life
      Settlements attached hereto as Exhibit L.

    


    8. This
      Agreement and its related Exhibits, together with the Life Settlement
      Application and any attachments, constitutes the entire agreement between the
      Parties, supersedes all prior agreements and understandings, and is irrevocably
      binding upon the Seller, and its successors and assigns, and any beneficiaries,
      both past and current, to the Policy, except as provided in Section 21 of this
      Agreement.

     

    9. Insured
      hereby consents and agrees to the release of any and all medical records,
      insurance information, or any additional medical or other information from
      any
      custodian thereof that may be requested from Insured or any third party by
      Purchaser, now and in the future as the release of the same pertains to this
      transaction. Insured acknowledges that Insured has the right to revoke
      his/her/its consent to the release of such records at any time by providing
      written notice of such revocation to Purchaser. Insured agrees to allow
      Purchaser’s disclosure of such information to authorized third parties, on a
      confidential basis, as required to effect the evaluation, transfer, sale, and/or
      resale of the Policy.

     

    10. Seller
      hereby consents and agrees to execute or cause to be executed any and all future
      documentation that is reasonably required concerning the Policy, or policy
      information without right or ability to claim any further consideration.


     

    11. Upon
      receipt and
      verification
      of Confirmation, the Escrow Agent shall,
      within
      three
      (3) business days,
      wire
      transfer to the Seller’s bank account or mail a certified or cashier’s check in
      the full amount stated in Section 1 of this Agreement and in accordance with
      the
      Distribution Directions.

     

    12. This
      Agreement shall constitute a contract under the laws of the State of Texas,
      and
      for all purposes shall be governed by, construed under and enforced in
      accordance with the laws of the State of Texas without regard to choice of
      law
      principles. 

     

    13. This
      Agreement shall be binding upon and inure to the benefit of each of the Parties,
      their respective successors and permitted assigns.

     

    14. Any
      term,
      covenant or restriction of any provision of this Agreement that is held invalid,
      void, unenforceable or against regulatory authority by a court of competent
      jurisdiction or other authority shall not preclude the remaining terms,
      covenants, restrictions or provisions from remaining in full force and effect,
      and this Agreement shall in no way be affected, impaired or invalidated. The
      invalid provision shall be construed as if it was not included in this
      Agreement.

     

    15. Each
      Party acknowledges that, except as expressly set forth herein, no
      representations of any kind or character have been made to it by any other
      Party, or by any Parties’ agents, representatives, or attorneys, to induce the
      execution of this Agreement. 

     

    16. Subject
      to applicable law, this Agreement may not be modified, amended or supplemented
      until approved by Seller and the officer of Purchaser and of Seller designated
      in Section 25 of this Agreement and unless such approvals are endorsed on this
      Agreement or attached to it. No person, other than the officer of Purchaser
      and
      of Seller designated in Section 25, has the authority to change this Agreement
      or waive any of its provisions on behalf of Purchaser. Any amendment to this
      Life Insurance Purchase Policy Agreement will be filed and approved prior to
      any
      use, issuance, or delivery, with the Texas Department of Insurance.

     

    17. The
      Parties hereby acknowledge and agree that each Party shall keep confidential
      and
      not disclose the existence or terms of this Agreement or negotiations, excluding
      any such disclosures necessary to discharge legal duties, without the prior
      written notice to the other parties. All medical or personal information about
      the Insured and all financial information of the Seller (“Information”)
      solicited or obtained by the Purchaser is confidential and disclosure of such
      Information is subject to the restrictions listed herein.

     

    18. The
      failure of any Party at any time to insist on any one or more instances of
      specific performance by another Party shall not be construed or affect the
      right
      of such Party, at a later time, to enforce any continuing performance,
      subsequent failure to perform, or a delay in performing any terms
      hereof.

     

    19. Neither
      this Agreement nor any of the rights, interests, or obligations hereunder shall
      be assigned by the Seller, whether by operation of law or otherwise, without
      the
      prior written consent of the Purchaser. Purchaser agrees that it shall not
      assign this Agreement, or any of its rights, interests, or obligations, prior
      to
      the effective date of Confirmation contemplated by this Agreement, and Seller
      hereby acknowledges that thereafter Purchaser shall have all rights to assign
      this Agreement without consent of Seller.

     

    20. This
      Agreement may be executed in multiple counterparts, including, without
      limitation, facsimile counterparts, each of which shall be deemed an original,
      and all of which shall together be considered one and the same Agreement,
      effective on the date set forth above. 

     

    21. Seller
      hereby acknowledges the following:

     

    A. Seller
      has received and read this entire Agreement including all Exhibits;

    B. Seller
      is
      entering into this Agreement knowingly and voluntarily, and has a full and
      complete understanding of this Agreement;

    C. Seller
      has entered into this Agreement of its own free will and deed, without duress
      or
      coercion;

    D. Seller
      has been given the opportunity and has been encouraged to seek the opinion
      of an
      attorney, financial advisor and/or tax consultant prior to entering into this
      Agreement regarding, but not limited to, the scope of this Agreement, and
      potential tax consequences;

    E. Seller
      is
      aware that the payments received under Section 1 of this Agreement may be
      subject to the claims of Seller’s creditors;

    F. Seller
      is
      aware that as a result of the sale of Policy, there may be a potential loss
      of
      public assistance benefits;

    G. Seller
      is
      aware that as a result of the sale of Policy, there may be a potential loss
      of
      coverage on other lives previously covered under a joint policy or family riders
      contained within the Policy, if any, and that Seller has been advised to consult
      with Insurer regarding the impacts of a life settlement on such
      benefits;

    H. Seller
      is
      aware that, except for any accidental death and/or dismemberment benefits,
      which
      are not subject to this Agreement, the amount of the current death benefit
      as
      of
      ________________ payable under the Policy to Purchaser upon completion of this
      life settlement is ___________________and
      there
      are no additional guaranteed insurance benefits available under the
      policy;

    I. Seller
      has the right to request, inspect and/or receive copies of relevant trust and
      escrow agreements;

    J. Seller
      has the right to rescind this Agreement at any time, but not later than the
      fifteenth (15th) calendar day after Seller’s receipt of the proceeds payable
      hereunder by receipt of written notification prior to or on such 15th calendar
      day by Purchaser at Purchaser’s address listed in this Agreement. Should the
      Insured die at any time prior to the end of the rescission period, this
      Agreement shall be deemed to have been rescinded and Purchaser shall refund
      the
      death benefit to the owner or beneficiaries designated in this Agreement for
      this purpose. Any rescission is subject to repayment by the Seller to Purchaser
      of all proceeds and monies previously paid to or on behalf of Seller, including
      any premiums, loans and loan interest paid by the Purchaser; and

    K. Any
      person who knowingly presents false information in an application for insurance,
      an application for a life settlement or in connection with a life settlement
      purchase agreement may be guilty of a crime and may be subject to fines and
      confinement in prison under the applicable federal and state laws.

    


    22. Seller
      acknowledges and agrees that all representations made by Seller in this
      Agreement, including Exhibits, are true, correct, and accurate. Seller agrees
      that if it fraudulently enters this transaction, then Seller agrees to indemnify
      Purchaser for any and all costs, expenses, fees, interest and losses
      (“Expenses”),
      including, but not limited to, brokers’ and agents’ compensation, and escrow
      agent, servicer and trustee fees, incurred by Purchaser. Seller further agrees
      that in such event, Purchaser, at Purchaser’s sole discretion, may rescind this
      contract. Upon such election of rescission by the Purchaser, Seller agrees
      to
      repay Purchaser (i) the Purchase Price, (ii) any premiums paid by Purchaser
      with
      respect to the Policy, and (iii) any Expenses. Upon receipt of such payment,
      Purchaser shall promptly return the ownership of Policy and beneficiary
      designation rights to Seller by executing all necessary forms.

     

    23. At
      Purchaser’s sole discretion, Purchaser may elect to retire any policy loan at
      the time of distribution of the Purchase Price to Seller, in which case Seller
      shall provide Purchaser with payment instructions therefor.

     

    24. Should
      Confirmation not occur for any reason within ninety (90) days of the date on
      which the Purchase Price is deposited into the Escrow Account, or should a
      rescission occur in accordance with Section 21 of this Agreement, this Agreement
      will automatically terminate. Prior to that time, Seller or Purchaser may
      terminate this Agreement at any time at their respective sole discretion upon
      written notification to the other Party. Upon any termination of this Agreement,
      funds deposited in the Escrow Account will be withdrawn by the Escrow Agent,
      and
      the Insurer’s Forms and any other executed Exhibits will be returned promptly to
      Seller, provided that such documents will be returned to Seller only upon
      payment by Seller to Purchaser of all premiums, if any, that Purchaser may
      have
      paid relative to the Policy.

     

    25. Notices.
      Any
      notices or other communications required or permitted hereunder shall be
      sufficiently given if sent by mail (postage prepaid), by hand delivery or by
      telecopy (with a copy via mail or hand delivery), all as follows:

     

    if
      to
      Purchaser, to:

     

    


     

    ______________________

     

    and,
      if
      to Seller, to:

    


    Frozen
      Food Express Industries, Inc.

    1145
      Empire Central

    Dallas,
      Texas 75247 

    


    Attention:
      ________________________

     

    Facsimile:
      (____)
      ____-_____

     

    or,
      in
      any case to such other address or facsimile number as shall be furnished in
      writing by any such party to the other parties hereto. Such notices or other
      communications so given shall be deemed to have been given on the date so
      telecopied or hand delivered, as the case may be, or, in the case of a mailing,
      on the third day after mailing.

     

    26. Should
      Seller retain an interest in the Policy, or if the Policy contains a provision,
      whether in a rider or otherwise, providing for an additional death benefit
      for
      accidental death:

     

    (a) Purchaser
      will affect the transfer of the amount of the net death benefit only to the
      extent or portion of the amount sold. Benefits in excess of the amount that
      is
      sold will be paid by the insurance company directly to the beneficiaries in
      accordance with the terms of the Policy.

    (b) The
      additional death benefit for accidental death shall remain payable to the
      beneficiary last named by Seller, not including Purchaser. In the absence of
      a
      beneficiary, the additional death benefit for accidental death shall be payable
      to the estate of Seller or Insured, as applicable. 

    (c) Purchaser
      will, upon acknowledgement of the perfection of the transfer,
      either:

    
      	 	
              (i)

            	
              Advise
                Seller, in writing, that Insurer has confirmed Seller’s remaining interest
                in the Policy; or 

            


    

    
      	 	
              (ii)

            	
              Send
                Seller a copy of the document sent from Insurer that acknowledges
                Seller’s
                remaining interest in the Policy;

            


    

    (d) Seller
      shall pay all premiums for any remaining interests in the Policy, including
      premiums for accidental death benefits.