Florida | 6199 | 77-0666377 | ||
(State or other jurisdiction
of
Incorporation or organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification No.) |
Michael B. Kirwan
John J. Wolfel, Jr. Foley & Lardner LLP One Independent Drive, Suite 1300 Jacksonville, Florida 32202 (904) 359-2000 |
J. Brett Pritchard
Locke Lord Bissell & Liddell LLP 111 South Wacker Drive Chicago, Illinois 60606 (312) 443-0700 |
Large accelerated filer o | Accelerated filer o | Non-accelerated filer þ | Smaller reporting company o |
Proposed Maximum
|
Amount of
|
|||||||||
Title of Each Class of
|
Aggregate
|
Registration
|
||||||||
Securities to be Registered | Offering Price(1)(2) | Fee(3) | ||||||||
Common Stock, par value $0.01 per share
|
$ | 287,500,000 | $ | 20,498.75 | ||||||
(1) | Includes amount attributable to shares of common stock issuable upon the exercise of the underwriters over-allotment option. | |
(2) | Estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended. |
(3) | The registration fee was previously paid on August 11, 2010. |
The
information in this prospectus is not complete and may be
changed. These securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and is not soliciting an offer to buy these
securities in any jurisdiction where the offer or sale is not
permitted.
|
Per Share | Total | |||||||
Price to public
|
$ | $ | ||||||
Discounts and commissions to underwriters*
|
$ | $ | ||||||
Net proceeds (before expenses) to us
|
$ | $ |
* | No discounts will be paid to underwriters with respect to shares purchased by our directors, officers and employees or persons having business relationships with us in the directed share program. See Underwriting on page 126 of this prospectus for a description of the underwriters compensation. |
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ii | ||||
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88 | ||||
94 | ||||
107 | ||||
109 | ||||
115 | ||||
119 | ||||
124 | ||||
126 | ||||
130 | ||||
130 | ||||
130 | ||||
F-1 |
i
| carrying value of the loan refer to the loan principal balance, accrued interest and accreted origination fees excluding any impairment valuation adjustment. |
| Imperial, Company, we, us, or our refer to Imperial Holdings, LLC and its consolidated subsidiaries prior to the corporate conversion as described in this prospectus and to Imperial Holdings, Inc. and its consolidated subsidiaries after the corporate conversion, unless the context suggests otherwise. Unless otherwise stated, in this prospectus all references to us, our shares and our shareholders assume that the corporate conversion has already occurred. Our conversion from a limited liability company to a corporation is described under Corporate Conversion. The corporate conversion will be completed prior to the closing of this offering. | |
| financing cost refer to the aggregate cost attributable to credit facility interest, other lender charges and, where applicable, obtaining lender protection insurance on our premium finance loans. |
| net carrying value of the loan refer to the loan principal balance, accrued interest and accreted origination fees, net of any impairment valuation adjustment. |
| principal balance of the loan refer to the principal amount loaned by us in a premium finance transaction without including origination fees or interest. | |
| premium finance refer to a financial transaction in which a policyholder obtains a loan, predominately through an irrevocable life insurance trust established by the insured, to pay life insurance premiums, with the loan being collateralized by the underlying policy. | |
| structured settlement refer to a transaction in which the recipient of a deferred payment stream (usually obtained by a plaintiff in a personal injury, product liability or medical malpractice lawsuit in exchange for an agreement to settle the lawsuit) sells a certain number of fixed, scheduled future settlement payments on a discounted basis in exchange for a single lump sum payment. |
| no exercise of the underwriters over-allotment option; |
| the consummation of the corporate conversion, pursuant to which all outstanding common and preferred limited liability company units of Imperial Holdings, LLC (including all accrued but unpaid dividends thereon) will be converted into [ ] shares of our common stock; |
| the issuance of [ ] shares of common stock to two employees pursuant to the terms of each of their respective phantom stock agreements; and |
| the conversion of $25.4 million of our promissory notes and $2.5 million of related accrued interest into [ ] shares of our common stock at an assumed initial public offering price of $[ ] per share, which is the midpoint of the price range on the cover of this prospectus, upon the closing of this offering. |
ii
1
Agency Fees
We charge the referring agent an
agency fee for services related to premium finance loans. Agency
fees as a percentage of the principal balance of the loans
originated during the six months ended June 30, 2010
and year ended December 31, 2009 were 49.9% and 50.6%,
respectively. These agency fees are charged when the loan is
funded and collected on average within 45 days thereafter.
Interest Income
Substantially all of the
interest rates we charge on our premium finance loans are
floating rates that are calculated at the one-month LIBOR rate
plus an applicable margin ranging between 700 to 1200 basis
points. In addition, our premium finance loans have a floor
interest rate ranging between 9.0% and 11.5% and are capped at
16.0% per annum. For loans with floating rates, each month the
interest rate is recalculated to equal one-month LIBOR plus the
applicable margin, and then, if necessary, adjusted so as to
remain at or above the stated floor rate and not to exceed the
capped rate of 16.0% per annum. The weighted average per annum
interest rate for premium finance loans outstanding as of
June 30, 2010 and December 31, 2009 was 11.3% and
10.9%, respectively.
Origination Fees
On each premium finance loan
we charge a loan origination fee that is added to the loan and
is due upon the date of maturity or upon repayment of the loan.
Origination fees as a percentage of the principal balance of the
loans originated during the six ended June 30, 2010 and the
year ended December 31, 2009 were 41.8% and 44.7%,
respectively.
2
Six Months
Ended
Year Ended December 31,
June 30,
2007
2008
2009
2009
2010
10
276
396
173
247
$
701
$
18,295
$
28,877
$
12,366
$
20,255
11.0
%
12.0
%
16.3
%
15.4
%
18.9
%
226
439
96
219
10.8
%
11.5
%
11.1
%
8.9
%
$
205.6
$
19.2
$
11.3
$
13.8
$
9.8
3
Complementary mix of business lines.
Unlike
many of our competitors who are focused on either structured
settlements or premium financings, we operate in both lines of
business. This diversification provides us with a complementary
mix of business lines as the revenues generated by our
structured settlement business are generally short-term cash
receipts in comparison to the revenue from our premium financing
business which is collected over time.
Scalable and cost-effective infrastructure.
We
have created an efficient, cost-effective, scalable
infrastructure that complements our businesses. We have
developed proprietary systems and models that allow for
cost-effective review of both premium finance and structured
settlement transactions that utilize our underwriting standards
and guidelines. Our systems allow us to efficiently process
transactions while maintaining our underwriting standards. As a
result of our investments in our infrastructure, we have
developed a structured settlement business model that we believe
has sufficient scalability to permit our structured settlement
business to continue to grow with only minor incremental costs.
Barriers to entry.
We believe that there are
significant barriers to entry into the premium financing and
structured settlement businesses. With respect to premium
finance, obtaining the requisite state licenses and developing a
network of referring agents is time intensive and expensive.
With respect to structured settlements, the various state
regulations require special knowledge as well as a network of
attorneys experienced in obtaining court approval of these
transactions. Our management and key personnel from our
purchasing, underwriting and information technology departments
are well trained in our specialized businesses and, in many
cases, have almost a decade of experience working together at
Imperial and at prior employers. Our management team has
significant experience operating in this highly regulated
industry.
4
Strength and financial commitment of management team with
proven track record
. Our senior management team
is experienced in the premium finance and structured settlement
industries. In the mid-1990s, several members of our management
team worked together at Singer Asset Finance, where they were
early entrants in structured settlement asset classes. After
Singer was acquired in 1997 by Enhance Financial Services,
several members of our senior management team joined Peach
Holdings, Inc. At Peach Holdings, they held senior positions,
including Chief Operating Officer, Head of Life Finance and Head
of Structured Settlements. In addition, Antony Mitchell, our
chief executive officer, and Jonathan Neuman, our president and
chief operating officer, each have over $7 million of their
own capital invested in our company. This financial commitment
aligns the interests of our principal executive officers with
those of our shareholders.
Reduce or eliminate the use of debt financing in our premium
finance business
. The capital generated by this
offering will enable us to fund new premium finance loans and
provide us with the option to retain investments in life
insurance policies that we acquire upon relinquishment by our
borrowers without the need for additional debt financing. In
contrast to our existing leveraged business model that has made
us reliant on third-party financing that is often unavailable or
expensive, we intend to use equity capital from this offering to
engage in premium finance transactions at profit margins
significantly greater than what we have historically
experienced. In the future, we expect to consider debt financing
for our premium finance transactions and structured settlement
purchases only if such financing is available on attractive
terms.
Eliminate the use of lender protection
insurance.
With the proceeds of this offering, we
will no longer require debt financing and lender protection
insurance for new premium finance business. As a result, we
expect to experience considerable cost savings, and in addition
expect to be able to originate more premium finance loans
because we will not be subject to coverage limitations imposed
by our lender protection insurer that have reduced the number of
loans that we can originate.
Continue to develop structured settlement
database.
We intend to increase our marketing
budget and grow our sales staff in order to increase the number
of leads in our structured settlement database and to originate
more structured settlement transactions. As our database of
structured settlements grows, our sales staff is able to
increase our transaction volume due in part to repeat
transactions from our existing customers.
5
Imperial Premium Finance, LLC is a licensed insurance premium
financer that originates and services our premium finance
transactions.
Imperial Life and Annuity Services, LLC is a licensed insurance
agency that receives agency fees from referring life insurance
agents in connection with our premium finance transactions.
Imperial Life Settlements, LLC is a licensed life/viatical
settlement provider.
Imperial Finance & Trading, LLC employs all of our
staff and provides services to each of our other operating
subsidiaries.
Washington Square Financial, LLC originates and services our
structured settlement transactions.
6
9
10
Shares of common stock offered by us
[ ] shares.
[ ] shares.
[ ] shares.
We estimate that our net proceeds from this offering will be
approximately $[ ], after deducting
the estimated underwriting discounts and commissions and our
estimated offering expenses, and, if the underwriters exercise
their over-allotment in-full, we estimate that our net proceeds
will be approximately $[ ]. We
intend to use approximately $[ ] of
the net proceeds to support our premium finance transactions,
approximately $[ ] of the net
proceeds to support our structured settlement activities and any
remaining proceeds for general corporate purposes. See Use
of Proceeds.
We do not expect to pay any cash dividends on our common stock
for the foreseeable future. We currently intend to retain any
future earnings to finance our operations and growth. Any future
determination to pay cash dividends on our common stock will be
at the discretion of our board of directors and will be
dependent on our earnings, financial condition, operating
results, capital requirements, any contractual, regulatory and
other restrictions on the payment of dividends by us or by our
subsidiaries to us, and other factors that our board of
directors deems relevant.
We intend to apply to list our common stock on the New York
Stock Exchange under the symbol IFT.
reflects the consummation of the corporate conversion, pursuant
to which all outstanding common and preferred limited liability
company units (including all accrued but unpaid dividends
thereon) will be converted into
[ ] shares
of our common stock;
reflects the conversion of $25.4 million of our promissory
notes and $2.5 million of related accrued interest into
[ ] shares
of our common stock at an assumed initial public offering price
of $[ ] per share, which is the
midpoint of the price range on the cover of this prospectus,
upon the closing of this offering;
reflects the issuance of
[ ] shares
of common stock to two of our employees pursuant to the terms of
each of their respective phantom stock agreements;
excludes up to
[ ] shares
of common stock that may be issued pursuant to the
underwriters over-allotment option;
excludes
[ ] shares
of common stock issuable upon the exercise of warrants that will
be issued to our existing shareholders prior to the closing of
this offering as described in Description of Capital
Stock Warrants; and
excludes 1,200,000 additional shares of common stock available
for future issuance under our 2010 Omnibus Incentive Plan (the
Omnibus Plan).
7
Pro Forma Consolidated and Combined Financial and Operating
Data
8
(1)
Reflects reduction of interest expense of $5.0 million for
the year ended December 31, 2009 and $2.0 million for
the six months ended June 30, 2010, due to conversion of
promissory notes payable into shares of our common stock which
will occur upon the closing of this offering.
(2)
The results of the Company being treated for the pro forma
presentation as a C corporation resulted in no
impact to the consolidated and combined balance sheet or
statements of operations for the pro forma periods presented.
The primary reasons for this are that the losses produce no
current benefit and any net operating losses generated and other
deferred tax assets (net of deferred tax liabilities) would be
fully reserved due to historical operating losses. The Company,
therefore, has not recorded any pro forma tax provision.
As of
December 31, 2009
As of June 30, 2010
Pro Forma As
Actual
Actual
Pro Forma
Adjusted(3)
(Unaudited)
(In thousands, except share data)
$
15,891
$
10,130
$
10,830
$
582
582
670
874
874
2,165
1,131
1,131
26,323
20,110
20,110
21,034
23,885
23,885
189,111
174,267
174,267
152
993
993
4,306
2,299
2,299
542
1,270
1,270
3,526
3,707
3,707
$
263,720
$
239,247
$
239,947
$
$
3,170
$
3,690
$
3,690
$
12,627
16,048
13,515
(2)
231,064
205,231
179,846
(2)
$
246,861
$
224,969
$
197,051
$
4,035
4,035
(1)
5,000
5,000
(1)
7,000
(1)
(1)
19,924
19,924
(1)
[
](1)(2)
[64,577
](1)(2)
(12,100
)
(21,681
)
(21,681
)
16,859
14,278
42,896
$
263,720
$
239,247
$
239,947
(1)
Reflects the conversion of all
common and preferred limited liability company units of Imperial
Holdings, LLC into
[ ] shares
of common stock of Imperial Holdings, Inc. as a result of the
corporate conversion. Also reflects the cash received in July,
2010 of $700,000 related to a subscription receivable for the
June 2010 sale of 7,000 Series D preferred units, which
will also be converted into shares of our common stock as a
result of the corporate conversion.
(2)
Reflects conversion of
$25.4 million of promissory notes payable and
$2.5 million of accrued interest, which will be converted
into shares of our common stock upon the closing of this
offering.
(3)
Reflects our sale of
[ ] shares
of common stock at an initial public offering price of
$[ ] per share, which is the
midpoint of the price range on the cover of this prospectus,
after the deduction of the underwriting discounts and
commissions and the estimated offering expenses payable by us.
Three Months Ended
Six Months Ended
Year Ended December 31,
June 30,
June 30,
2007
2008
2009
2009
2010
2009
2010
196
499
194
50
19
122
71
$
44,501
$
97,559
$
51,573
$
12,227
$
4,896
$
31,645
$
15,457
$
794,517
$
2,283,223
$
942,312
$
214,175
$
102,375
$
578,310
$
354,775
$
15,082
$
21,744
$
13,742
$
4,282
$
2,096
$
8,542
$
4,739
75.5
74.9
74.9
75.0
73.6
74.9
73.8
12.9
13.2
13.2
12.8
13.7
13.4
14.1
$
14.0
$
14.9
$
16.0
$
14.5
$
15.6
$
15.9
$
14.0
$
4,053.7
$
4,575.6
$
4,857.3
$
4,283.5
$
5,388.2
$
4,740.2
$
4,996.8
$
227.0
$
195.5
$
265.8
$
244.5
$
257.7
$
259.4
$
217.7
10.5
%
10.8
%
11.4
%
11.5
%
11.6
%
11.5
%
11.6
%
$
125.1
$
96.2
$
134.6
$
121.0
$
128.4
$
136.8
$
108.7
55.1
%
49.2
%
50.6
%
49.5
%
49.8
%
52.7
%
49.9
%
$
45.8
$
77.9
$
118.9
$
85.2
$
112.0
$
110.2
$
91.1
20.2
%
39.9
%
44.7
%
34.8
%
43.4
%
42.5
%
41.8
%
$
43,650
$
148,744
$
189,111
$
186,093
$
174,267
$
186,093
$
174,267
240
702
692
742
550
742
550
$
1,065,870
$
2,895,780
$
3,091,099
$
3,228,578
$
2,782,303
$
3,228,578
$
2,782,303
76.3
75.3
75.4
75.3
75.5
75.3
75.5
$
7.7
$
9.1
$
8.5
$
8.0
$
6.7
$
8.0
$
6.7
$
181.9
$
211.9
$
273.3
$
250.8
$
316.8
$
250.8
$
316.8
10.2
%
10.4
%
10.9
%
10.7
%
11.3
%
10.7
%
11.3
%
11
Three Months Ended
Six Months Ended
Year Ended December 31,
June 30,
June 30,
2007
2008
2009
2009
2010
2009
2010
10
276
396
94
142
173
247
23
52
12
24
22
48
11.0
%
12.0
%
16.3
%
16.5
%
19.9
%
15.4
%
18.9
%
$
701
$
18,295
$
28,877
$
6,538
$
12,958
$
12,366
$
20,255
$
369
$
8,010
$
10,947
$
2,479
$
3,566
$
4,986
$
6,140
$
2,056
$
5,295
$
4,460
$
1,268
$
1,374
$
2,392
$
2,422
$
666
$
4,475
$
5,015
$
963
$
1,727
$
1,958
$
3,308
$
70.1
$
66.3
$
72.9
$
69.6
$
91.3
$
71.5
$
82.0
$
36.9
$
29.0
$
27.6
$
26.4
$
25.1
$
28.8
$
24.9
80.3
113.8
109.7
106.8
128.7
106.8
127.0
$
205.6
$
19.2
$
11.3
$
13.5
$
9.7
$
13.8
$
9.8
$
66.6
$
16.2
$
12.7
$
10.3
$
12.2
$
11.3
$
13.4
226
439
85
219
96
219
$
$
443
$
2,684
$
436
$
3,263
$
475
$
3,263
10.8
%
11.5
%
11.3
%
8.9
%
11.1
%
8.9
%
12
13
14
15
16
17
18
| the lapse of the related life insurance policy due to the failure to pay sufficient premiums during the term of the applicable premium finance loan; |
| certain losses relating to situations where the life insured has died and there has been a bankruptcy or insolvency of the life insurance company that issued the applicable policy; |
| any loss caused by our fraudulent, illegal, criminal, malicious or grossly negligent acts; |
| a surrender of the related life insurance policy to the issuing life insurance carrier or the sale of such policy or the beneficial interest therein, in each case without the prior written consent of the lender protection insurer; |
| our failure to timely obtain necessary rights, free and clear of any lien or encumbrance, with respect to the applicable life insurance policy as required under the lender protection insurance policy; |
| our failure to timely submit a properly completed proof of loss certificate to the lender protection insurance policy insurer; |
| our failure to timely notify the lender protection insurance policy insurer of: |
| the occurrence of certain prohibited acts, as described in the lender protection insurance policy, or |
| material non-compliance of the related loan with applicable laws, in each case after obtaining actual knowledge of such events; |
| our making of a claim under the lender protection insurance policy knowing the same to be fraudulent; or |
| the related life insurance policy being contested prior to the effective date of the related coverage certificate issued under the lender protection insurance policy and we have actual knowledge of such contest. |
19
20
| training and educating our employees regarding our obligations relating to confidential information; | |
| actively monitoring our record retention plans and any changes in state or federal privacy and compliance requirements; | |
| maintaining secure storage facilities for tangible records; and | |
| limiting access to electronic information. |
21
22
| require that premium finance lenders be licensed by the applicable jurisdiction; | |
| require certain disclosure agreements and strictly govern the content thereof; | |
| regulate the amount of late fees and finance charges that may be charged if a borrower is delinquent on its payments; and/or | |
| allow imposition of potentially significant penalties on lenders for violations of such jurisdictions applicable insurance premium finance laws. |
23
24
| our results of operations; | |
| changes in expectations as to our future results of operations, including financial estimates and projections by securities analysts and investors; | |
| changes in laws and regulations applicable to structured settlements or premium finance transactions; | |
| increased competition for premium finance lending or the acquisition of structured settlements; | |
| our ability to secure credit facilities on favorable terms or at all; | |
| results of operations that vary from those expected by securities analysts and investors; | |
| future sales of our common stock; | |
| fluctuations in interest rates, inflationary pressures and other changes in the investment environment that affect returns on invested assets; and | |
| volatile and unpredictable developments, including man-made, weather-related and other natural catastrophes or terrorist attacks. |
25
| pay a price per share that substantially exceeds the pro forma net tangible book value of our assets after subtracting liabilities; and | |
| contribute [ ]% of the total amount invested to date to fund us based on an assumed initial offering price to the public of $[ ] per share, which is the midpoint of the price range on the cover of this prospectus, but will own only [ ]% of the shares of common stock outstanding after completion of this offering. |
26
27
28
29
our results of operations;
our ability to continue to grow our businesses;
our ability to obtain financing on favorable terms or at all;
changes in laws and regulations applicable to premium finance
transactions or structured settlements;
changes in mortality rates and the accuracy of our assumptions
about life expectancies;
increased competition for premium finance lending or for the
acquisition of structured settlements;
adverse developments in capital markets;
loss of the services of any of our executive officers;
the effects of United States involvement in hostilities with
other countries and large-scale acts of terrorism, or the threat
of hostilities or terrorist acts; and
changes in general economic conditions, including inflation,
changes in interest rates and other factors.
30
31
32
holders of common units will receive an aggregate of
[ ] shares
of common stock based on a conversion ratio of
[ ] shares
of common stock for each common unit; and
holders of Series A, B, C, and D preferred units will
receive an aggregate of
[ ] shares
of common stock based on a conversion ratio of
[ ] shares
of common stock for each preferred unit.
33
35
on an actual basis;
on a pro forma basis to give effect to (i) the consummation
of the corporate conversion, pursuant to which all outstanding
common and preferred limited liability company units (including
all accrued but unpaid dividends thereon) will be converted into
[ ] shares
of our common stock; (ii) the issuance of
[ ] shares
of common stock to two of our employees pursuant to the terms of
each of their respective phantom stock agreements; and
(iii) the conversion of $25.4 million of our
promissory notes and $2.5 million of related accrued
interest into
[ ] shares
of our common stock at an assumed initial public offering price
of $[ ] per share, which is the
midpoint of the price range on the cover of this
prospectus; and
on a pro forma as adjusted basis to give effect to the above and
our sale of
[ ] shares
of common stock at an assumed initial public offering price of
$[ ] per share, which is the
midpoint of the price range on the cover of this prospectus,
after the deduction of the underwriting discounts and
commissions and the estimated offering expenses payable by us.
34
As of June 30, 2010
Pro Forma As
Actual
Pro Forma
Adjusted
(In thousands)
[]
[64,577]
(21,681
)
42,896
$
219,509
$
222,742
$
up to
[ ] shares
of common stock that may be issued pursuant to the
underwriters over-allotment option;
[ ] shares
of common stock issuable upon the exercise of warrants that will
be issued to our existing shareholders prior to the closing of
this offering; and
1,200,000 additional shares available for future issuance under
our Omnibus Plan.
40
the consummation of the corporate conversion, pursuant to which
all of our outstanding common and preferred limited liability
company units (including all accrued but unpaid dividends
thereon) will be converted into
[ ] shares
of our common stock;
the issuance of
[ ] shares
of common stock to two of our employees pursuant to the terms of
each of their respective phantom stock agreements; and
the conversion of $25.4 million of our promissory notes and
$2.5 million of related accrued interest into
[ ] shares
of our common stock at an assumed initial public offering price
of $[ ] per share, which is the
midpoint of the price range on the cover of this prospectus,
upon the closing of this offering.
$
[ ]
$
[ ]
[ ]
[ ]
$
[ ]
36
Shares Issued
Total Consideration
Average Price
Number
Percent
Amount
Percent
per Share
[ ]
[ ]
%
$
[ ]
[ ]
%
$
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
100.0
%
$
[ ]
100.0
%
$
[ ]
up to
[ ] shares
of common stock that may be issued pursuant to the
underwriters over-allotment option;
[ ] shares
of common stock issuable upon the exercise of warrants that will
be issued to our existing shareholders prior to the closing of
this offering; and
1,200,000 additional shares available for future issuance under
our Omnibus Plan.
37
38
(1)
Reflects reduction of interest expense of $5.0 million for
the year ended December 31, 2009 and $2.0 million for
the six months ended June 30, 2010, due to conversion of
promissory notes payable into shares of our common stock which
will occur upon the closing of this offering.
(2)
The results of the Company being treated for the pro forma
presentation as a C corporation resulted in no
impact to the consolidated and combined balance sheet or
statements of operations for the pro forma periods presented.
The primary reasons for this are that the losses produce no
current benefit and any net operating losses generated and other
deferred assets (net of liabilities) would be fully reserved due
to historical operating losses. The Company, therefore, has not
recorded any pro forma tax provision.
39
Historical
Pro Forma
December 31,
June 30,
June 30,
2006
2007
2008
2009
2009
2010
2010
(Unaudited)
(Unaudited)
(In thousands, except share data)
5,351
$
1,495
$
7,644
$
15,891
$
2,033
$
10,130
$
10,830
(1)
1,675
2,221
582
582
562
659
670
666
874
874
136
5,718
8,871
2,165
268
1,131
1,131
672
26,650
26,323
29,741
20,110
20,110
30
835
4,180
887
1,374
1,601
1,601
37
456
476
982
401
700
700
244
2,972
8,604
21,034
15,991
23,885
23,885
3,909
43,650
148,744
189,111
185,184
174,267
174,267
377
1,141
152
3,385
993
993
320
340
340
4,306
269
2,299
2,299
1,714
542
1,270
1,270
756
1,875
1,850
1,337
1,724
1,065
1,065
$
10,463
$
62,001
$
211,040
$
263,720
$
241,036
$
239,247
$
239,947
$
505
$
3,437
$
5,533
$
3,170
$
2,870
$
3,690
$
3,690
882
5,563
12,627
12,479
16,048
13,515
(2)
35,559
183,462
231,064
206,954
205,231
179,846
(2)
$
505
$
39,878
$
194,558
$
246,861
$
222,303
$
224,969
$
197,051
4,035
4,035
4,035
(1)
5,000
5,000
(1)
7,000
(1)
(1)
9,855
20,000
19,945
19,924
19,924
19,924
[ ]
(1)(2)
[64,577]
(1)(2)
103
2,123
(3,463
)
(12,100
)
(5,226
)
(21,681
)
(21,681
)
9,958
22,123
16,482
16,859
18,733
14,278
42,896
$
10,463
$
62,001
$
211,040
$
263,720
$
241,036
$
239,247
$
239,947
(1)
Reflects the conversion of all
common and preferred limited liability company units of Imperial
Holdings, LLC into
[ ] shares
of common stock of Imperial Holdings, Inc. as a result of the
corporate conversion. Also reflects the cash received in July,
2010 of $700,000 related to a subscription receivable for the
June 2010 sale of 7,000 Series D preferred units, which
will also be converted into shares of our common stock as a
result of the corporate conversion.
(2)
Reflects conversion of
$25.4 million of promissory notes payable and
$2.5 million of accrued interest, which will be converted
into shares of our common stock upon the closing of this
offering.
Six Months Ended
Year Ended December 31,
Three Months Ended June 30,
June 30,
2007
2008
2009
2009
2010
2009
2010
196
499
194
50
19
122
71
$
44,501
$
97,559
$
51,573
$
12,227
$
4,896
$
31,645
$
15,457
$
794,517
$
2,283,223
$
942,312
$
214,175
$
102,375
$
578,310
$
354,775
$
15,082
$
21,744
$
13,742
$
4,282
$
2,096
$
8,542
$
4,739
75.5
74.9
74.9
75.0
73.6
74.9
73.8
12.9
13.2
13.2
12.8
13.7
13.4
14.1
$
14.0
$
14.9
$
16.0
$
14.5
$
15.6
$
15.9
$
14.0
$
4,053.7
$
4,575.6
$
4,857.3
$
4,283.5
$
5,388.2
$
4,740.2
$
4,996.8
$
227.0
$
195.5
$
265.8
$
244.5
$
257.7
$
259.4
$
217.7
10.5
%
10.8
%
11.4
%
11.5
%
11.6
%
11.5
%
11.6
%
$
125.1
$
96.2
$
134.6
$
121.0
$
128.4
$
136.8
$
108.7
55.1
%
49.2
%
50.6
%
49.5
%
49.8
%
52.7
%
49.9
%
$
45.8
$
77.9
$
118.9
$
85.2
$
112.0
$
110.2
$
91.1
20.2
%
39.9
%
44.7
%
34.8
%
43.4
%
42.5
%
41.8
%
$
43,650
$
148,744
$
189,111
$
186,093
$
174,267
$
186,093
$
174,267
240
702
692
742
550
742
550
$
1,065,870
$
2,895,780
$
3,091,099
$
3,228,578
$
2,782,303
$
3,228,578
$
2,782,303
76.3
75.3
75.4
75.3
75.5
75.3
75.5
$
7.7
$
9.1
$
8.5
$
8.0
$
6.7
$
8.0
$
6.7
$
181.9
$
211.9
$
273.3
$
250.8
$
316.8
$
250.8
$
316.8
10.2
%
10.4
%
10.9
%
10.7
%
11.3
%
10.7
%
11.3
%
41
Three Months
Six Months
Year Ended December 31,
Ended June 30,
Ended June 30,
2007
2008
2009
2009
2010
2009
2010
10
276
396
94
142
173
247
23
52
12
24
22
48
11.0
%
12.0
%
16.3
%
16.5
%
19.9
%
15.4
%
18.9
%
$
701
$
18,295
$
28,877
$
6,538
$
12,958
$
12,366
$
20,255
$
369
$
8,010
$
10,947
$
2,479
$
3,566
$
4,986
$
6,140
$
2,056
$
5,295
$
4,460
$
1,268
$
1,374
$
2,392
$
2,422
$
666
$
4,475
$
5,015
$
963
$
1,727
$
1,958
$
3,308
$
70.1
$
66.3
$
72.9
$
69.6
$
91.3
$
71.5
$
82.0
$
36.9
$
29.0
$
27.6
$
26.4
$
25.1
$
28.8
$
24.9
80.3
113.8
109.7
106.8
128.7
106.8
127.0
$
205.6
$
19.2
$
11.3
$
13.5
$
9.7
$
13.8
$
9.8
$
66.6
$
16.2
$
12.7
$
10.3
$
12.2
$
11.3
$
13.4
226
439
85
219
96
219
$
$
443
$
2,684
$
436
$
3,263
$
475
$
3,263
10.8
%
11.5
%
11.3
%
8.9
%
11.1
%
8.9
%
42
43
44
Acorn Capital Facility | ||||||||||||||||||||||||
Six Months
|
||||||||||||||||||||||||
Year Ended December 31, | Ended June 30, | |||||||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | Total | |||||||||||||||||||
Number of loans held at end of period
|
90 | 112 | 49 | 61 | 29 | N/A | ||||||||||||||||||
Loans receivable, net, balance at end of period
|
$ | 15,468 | $ | 21,073 | $ | 9,601 | $ | 12,144 | $ | 6,377 | N/A | |||||||||||||
Number of loans impacted during period
|
| 7 | 63 | 51 | 20 | 90 |
Acorn Capital Facility | ||||||||||||||||||||||||
Six Months
|
||||||||||||||||||||||||
Year Ended December 31, | Ended June 30, | |||||||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | Total | |||||||||||||||||||
Gain on forgiveness of debt
|
$ | | $ | | $ | 16,410 | $ | 14,049 | $ | 4,533 | $ | 20,943 | ||||||||||||
Loss on loan payoffs and settlements, net
|
| (1,868 | ) | (10,182 | ) | (7,668 | ) | (3,262 | ) | (15,312 | ) | |||||||||||||
Impact on net income
|
$ | | $ | (1,868 | ) | $ | 6,228 | $ | 6,381 | $ | 1,271 | $ | 5,631 | * |
* | The $5.6 million impact on net income is due to 25 policies on which we decided to continue to fund the premiums after ABRG elected not to continue to fund the premiums. With respect to the associated loans, we received a gain on forgiveness of debt with no offsetting loss on loan payoffs and settlements, net. |
45
46
47
Year Ended December 31, | Six Months Ended June 30, | |||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | ||||||||||||||||
Agency fees as a percentage of the principal balance of the
loans originated
|
55.1 | % | 49.2 | % | 50.6 | % | 52.7 | % | 49.9 | % |
December 31, | June 30, | |||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | ||||||||||||||||
Weighted average per annum interest rate
|
10.2 | % | 10.4 | % | 10.9 | % | 10.7 | % | 11.3 | % |
Years Ended December 31, | Six Months Ended June 30, | |||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | ||||||||||||||||
Origination fees as a percentage of the principal balance of the
loans
|
20.2 | % | 39.9 | % | 44.7 | % | 42.5 | % | 41.8 | % | ||||||||||
Origination fees per annum as a percentage of the principal
balance of the loans
|
5.2 | % | 15.4 | % | 19.2 | % | 17.9 | % | 19.5 | % |
48
December 31, | June 30, | |||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | ||||||||||||||||
Weighted average interest rate under credit facilities
|
14.5 | % | 13.9 | % | 15.6 | % | 15.2 | % | 15.8 | % | ||||||||||
Weighted average interest rate under promissory notes
|
16.2 | % | 15.9 | % | 16.5 | % | 16.5 | % | 16.5 | % | ||||||||||
Total weighted average interest rate
|
15.5 | % | 14.2 | % | 15.7 | % | 15.4 | % | 15.9 | % |
49
December 31, | June 30, | |||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | ||||||||||||||||
Percentage of total number of loans outstanding with lender
protection insurance
|
| 74.0 | % | 90.3 | % | 83.5 | % | 92.5 | % | |||||||||||
Percentage of total loans receivable balance covered by lender
protection insurance
|
| 78.6 | % | 93.1 | % | 87.8 | % | 93.8 | % |
50
51
52
| Agency Fees Agency fees are paid by the referring life insurance agents based on negotiations between the parties and are recognized at the time a premium finance loan is funded. Because agency fees are not paid by the borrower, such fees do not accrue over the term of the loan. We typically charge and receive agency fees from the referring agent within approximately 45 days of our funding the loan. A separate origination fee is charged to the borrower which is amortized into income over the life of the loan. |
| Interest Income Interest income on premium finance loans is recognized when it is realizable and earned, in accordance with ASC 605, Revenue Recognition . Discounts on structured settlement receivables are accreted over the life of the settlement using the effective interest method. |
| Origination Fee Income Loans often include origination fees which are fees payable to us on the date the loan matures. The fees are negotiated at the inception of the loan on a transaction by transaction basis. The fees are accreted into income over the term of the loan using the effective interest method. |
| Gains on Sales of Structured Settlements Gains on sales of structured settlements are recorded when the structured settlements have been transferred to a third party and we no longer have continuing involvement, in accordance with ASC 860, Transfers and Servicing . |
53
54
Year Ended December 31, | Six Months Ended June 30, | |||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | ||||||||||||||||
(Unaudited) | ||||||||||||||||||||
Income
|
||||||||||||||||||||
Agency fee income
|
$ | 24,515 | $ | 48,004 | $ | 26,114 | $ | 16,687 | $ | 7,717 | ||||||||||
Interest income
|
4,888 | 11,914 | 21,483 | 10,501 | 11,541 | |||||||||||||||
Origination fee income
|
526 | 9,399 | 29,853 | 14,140 | 12,891 | |||||||||||||||
Gain on sale of structured settlements
|
| 443 | 2,684 | 475 | 3,263 | |||||||||||||||
Gain on forgiveness of debt
|
| | 16,410 | 14,049 | 4,533 | |||||||||||||||
Gain on sale of life settlements
|
| | | | 474 | |||||||||||||||
Change in fair value of investments in life settlements (life
insurance policies)
|
| | | | (201 | ) | ||||||||||||||
Other income
|
2 | 47 | 71 | 34 | 153 | |||||||||||||||
Total income
|
29,931 | 69,807 | 96,615 | 55,886 | 40,371 | |||||||||||||||
Expenses
|
||||||||||||||||||||
Interest expense
|
1,343 | 12,752 | 33,755 | 16,133 | 17,395 | |||||||||||||||
Provision for losses on loans receivable
|
2,332 | 10,768 | 9,830 | 5,936 | 3,019 | |||||||||||||||
Loss (gain) on loan payoffs and settlements, net
|
(225 | ) | 2,738 | 12,058 | 10,432 | 3,313 | ||||||||||||||
Amortization of deferred costs
|
126 | 7,569 | 18,339 | 7,962 | 11,633 | |||||||||||||||
Selling, general and administrative expenses
|
24,335 | 41,566 | 31,269 | 17,185 | 14,592 | |||||||||||||||
Total expenses
|
27,911 | 75,393 | 105,251 | 57,648 | 49,952 | |||||||||||||||
Net income (loss)
|
$ | 2,020 | $ | (5,586 | ) | $ | (8,636 | ) | $ | (1,762 | ) | $ | (9,581 | ) | ||||||
Year Ended December 31, | Six Months Ended June 30, | |||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | ||||||||||||||||
(Unaudited) | ||||||||||||||||||||
Income
|
$ | 29,921 | $ | 68,743 | $ | 92,648 | $ | 54,985 | $ | 36,848 | ||||||||||
Expenses
|
18,092 | 52,733 | 82,435 | 46,585 | 38,033 | |||||||||||||||
Segment operating income (loss)
|
$ | 11,829 | $ | 16,010 | $ | 10,213 | $ | 8,400 | $ | (1,185 | ) | |||||||||
55
Year Ended December 31, | Six Months Ended June 30, | |||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | ||||||||||||||||
(Unaudited) | ||||||||||||||||||||
Income
|
$ | 10 | $ | 1,064 | $ | 3,967 | $ | 901 | $ | 3,522 | ||||||||||
Expenses
|
2,722 | 9,770 | 9,475 | 4,349 | 5,730 | |||||||||||||||
Segment operating loss
|
$ | (2,712 | ) | $ | (8,706 | ) | $ | (5,508 | ) | $ | (3,448 | ) | $ | (2,208 | ) | |||||
Year Ended December 31, | Six Months Ended June 30, | |||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | ||||||||||||||||
(Unaudited) | ||||||||||||||||||||
Segment operating (loss) income
|
$ | 9,117 | $ | 7,304 | $ | 4,705 | $ | 4,952 | $ | (3,393 | ) | |||||||||
Unallocated expenses:
|
||||||||||||||||||||
SG&A expenses
|
6,531 | 10,052 | 8,052 | 4,294 | 4,122 | |||||||||||||||
Interest expense
|
566 | 2,838 | 5,289 | 2,420 | 2,066 | |||||||||||||||
Net income (loss)
|
$ | 2,020 | $ | (5,586 | ) | $ | (8,636 | ) | $ | (1,762 | ) | $ | (9,581 | ) | ||||||
56
57
Year Ended December 31, | Six Months Ended June 30, | |||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | ||||||||||||||||
(Unaudited) | ||||||||||||||||||||
Income
|
||||||||||||||||||||
Agency fee income
|
$ | 24,515 | $ | 48,004 | $ | 26,114 | $ | 16,687 | $ | 7,717 | ||||||||||
Interest income
|
4,880 | 11,340 | 20,271 | 10,109 | 11,329 | |||||||||||||||
Origination fee income
|
526 | 9,399 | 29,853 | 14,140 | 12,891 | |||||||||||||||
Gain on forgiveness of debt
|
| | 16,410 | 14,049 | 4,533 | |||||||||||||||
Other
|
| | | | 378 | |||||||||||||||
29,921 | 68,743 | 92,648 | 54,985 | 36,848 | ||||||||||||||||
Direct segment expenses
|
||||||||||||||||||||
Interest expense
|
777 | 9,914 | 28,466 | 13,713 | 15,329 | |||||||||||||||
Provision for losses
|
2,332 | 10,768 | 9,830 | 5,936 | 3,019 | |||||||||||||||
Loss (gain) on loan payoff and settlements, net
|
(225 | ) | 2,738 | 12,058 | 10,432 | 3,313 | ||||||||||||||
Amortization of deferred costs
|
126 | 7,569 | 18,339 | 7,962 | 11,633 | |||||||||||||||
SG&A expense
|
15,082 | 21,744 | 13,742 | 8,542 | 4,739 | |||||||||||||||
18,092 | 52,733 | 82,435 | 46,585 | 38,033 | ||||||||||||||||
Segment operating income
|
$ | 11,829 | $ | 16,010 | $ | 10,213 | $ | 8,400 | $ | (1,185 | ) | |||||||||
58
Six Months Ended June 30, | ||||||||
2009 | 2010 | |||||||
Principal balance of loans originated
|
$ | 31,645 | $ | 15,457 | ||||
Number of transactions originated
|
122 | 71 | ||||||
Agency fees
|
$ | 16,687 | $ | 7,717 | ||||
Agency fees as a percentage of the principal balance of loans
originated
|
52.7 | % | 49.9 | % |
59
Six Months Ended June 30, | ||||||||
2009 | 2010 | |||||||
30 days or less from loan funding
|
$ | | $ | 1,111 | ||||
31 60 days from loan funding
|
| | ||||||
61 90 days from loan funding
|
458 | | ||||||
91 120 days from loan funding
|
32 | 8 | ||||||
Over 120 days from loan funding
|
1,448 | 194 | ||||||
Total
|
$ | 1,938 | $ | 1,313 | ||||
Allowance for doubtful accounts
|
(1,670 | ) | (182 | ) | ||||
Agency fees receivable, net
|
$ | 268 | $ | 1,131 |
60
Year Ended December 31, | ||||||||
2008 | 2009 | |||||||
Principal balance of loans originated
|
$ | 97,559 | $ | 51,573 | ||||
Number of transactions originated
|
499 | 194 | ||||||
Agency fees
|
$ | 48,004 | $ | 26,114 | ||||
Agency fees as a percentage of the principal balance of loans
originated
|
49.2 | % | 50.6 | % |
61
Year Ended December 31, | ||||||||
2008 | 2009 | |||||||
30 days or less from loan funding
|
$ | 6,946 | $ | 2,018 | ||||
31 60 days from loan funding
|
1,338 | | ||||||
61 90 days from loan funding
|
592 | 32 | ||||||
91 120 days from loan funding
|
251 | 214 | ||||||
Over 120 days from loan funding
|
513 | 21 | ||||||
Total
|
$ | 9,640 | $ | 2,285 | ||||
Allowance for doubtful accounts
|
(769 | ) | (120 | ) | ||||
Agency fees receivable, net
|
$ | 8,871 | $ | 2,165 |
Year Ended December 31, | ||||||||
2007 | 2008 | |||||||
Principal balance of loans originated
|
$ | 44,501 | $ | 97,559 | ||||
Number of transactions originated
|
196 | 499 | ||||||
Agency fees
|
$ | 24,515 | $ | 48,004 | ||||
Agency fees as a percentage of the principal balance of loans
originated
|
55.1 | % | 49.2 | % |
62
63
Year Ended December 31, | ||||||||
2007 | 2008 | |||||||
30 days or less from loan funding
|
$ | 3,542 | $ | 6,946 | ||||
31 60 days from loan funding
|
1,910 | 1,338 | ||||||
61 90 days from loan funding
|
248 | 592 | ||||||
91 120 days from loan funding
|
12 | 251 | ||||||
Over 120 days from loan funding
|
293 | 513 | ||||||
Total
|
$ | 6,005 | $ | 9,640 | ||||
Allowance for doubtful accounts
|
(287 | ) | (769 | ) | ||||
Agency fees receivable, net
|
$ | 5,718 | $ | 8,871 |
Year Ended December 31, | Six Months Ended June 30, | |||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | ||||||||||||||||
(Unaudited) | ||||||||||||||||||||
Income
|
||||||||||||||||||||
Gain on sale of structured settlements
|
$ | | $ | 443 | $ | 2,684 | $ | 475 | $ | 3,261 | ||||||||||
Interest income
|
8 | 574 | 1,212 | 392 | 212 | |||||||||||||||
Other income
|
2 | 47 | 71 | 34 | 49 | |||||||||||||||
10 | 1,064 | 3,967 | 901 | 3,522 | ||||||||||||||||
Direct segment expenses
|
||||||||||||||||||||
SG&A expenses
|
2,722 | 9,770 | 9,475 | 4,349 | 5,730 | |||||||||||||||
Segment operating loss
|
$ | (2,712 | ) | $ | (8,706 | ) | $ | (5,508 | ) | $ | (3,448 | ) | $ | (2,208 | ) | |||||
64
65
Outstanding
|
Accrued
|
Total Principal
|
||||||||||
Principal | Interest | and Interest | ||||||||||
Credit Facilities:
|
||||||||||||
Acorn
|
$ | 6,053 | $ | 1,689 | $ | 7,742 | ||||||
CTL
*
|
36,698 | 1,938 | 38,636 | |||||||||
Ableco
|
81,845 | 1,156 | 83,001 | |||||||||
White Oak
|
26,179 | 6,873 | 33,052 | |||||||||
Cedar Lane
|
29,071 | 1,860 | 30,931 | |||||||||
179,846 | 13,516 | 193,362 | ||||||||||
Promissory Notes:
|
||||||||||||
Skarbonka
|
16,102 | 1,342 | 17,444 | |||||||||
IMPEX
|
9,283 | 1,191 | 10,474 | |||||||||
25,385 | 2,533 | 27,918 | ||||||||||
Total
|
$ | 205,231 | $ | 16,049 | $ | 221,280 | ||||||
* | Represents both the CTL credit facility and our $30 million grid promissory note in favor of CTL Holdings. See Description of Certain Indebtedness. |
66
Weighted
|
Principal
|
Principal and Interest Payable | ||||||||||||||||||||||
Average
|
and Interest
|
Six Months
|
Year
|
|||||||||||||||||||||
Credit
|
Interest
|
Outstanding
|
Ending
|
Ending
|
Year Ending
|
Year Ending
|
||||||||||||||||||
Facilities
|
Rate | at 6/30/2010 | 12/31/2010 | 12/31/2011 | 12/31/2012 | 12/31/2013 | ||||||||||||||||||
Acorn
|
14.5 | % | $ | 7,742 | $ | 7,742 | $ | | $ | | $ | | ||||||||||||
CTL*
|
10.5 | % | 38,636 | | 25,686 | 12,950 | | |||||||||||||||||
Ableco
|
16.5 | % | 83,001 | | 83,001 | | | |||||||||||||||||
White Oak
|
21.5 | % | 33,052 | 7,736 | 25,316 | | | |||||||||||||||||
Cedar Lane
|
15.6 | % | 30,931 | 2,738 | 18,825 | 9,568 | | |||||||||||||||||
| ||||||||||||||||||||||||
Totals
|
$ | 193,362 | $ | 18,216 | $ | 152,628 | $ | 22,518 | $ | | ||||||||||||||
Weighted average interest rate
|
15.8 | % | 16.7 | % | 16.3 | % | 14.1 | % | |
* | Represents both the CTL credit facility and our $30 million grid promissory note in favor of CTL Holdings. See Description of Certain Indebtedness. |
67
Principal and Origination Fee Maturity | ||||||||||||||||||||
Six Months
|
||||||||||||||||||||
Total at
|
Ending
|
Year Ending
|
Year Ending
|
Year Ending
|
||||||||||||||||
6/30/2010 | 12/31/2010 | 12/31/2011 | 12/31/2012 | 12/31/2013 | ||||||||||||||||
Carrying value (loan principal balance, accreted origination
fees, and accrued interest receivable)
|
$ | 212,687 | $ | 121,002 | $ | 70,869 | $ | 20,290 | $ | 526 | ||||||||||
Weighted average per annum interest rate
|
11.1 | % | 11.3 | % | 11.0 | % | 10.1 | % | 10.9 | % | ||||||||||
Per annum origination fee as a percentage of the principal
balance of the loan at origination
|
16.1 | % | 15.0 | % | 17.9 | % | 17.4 | % | 8.3 | % |
Year Ended December 31, | Six Months Ended June 30, | |||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | ||||||||||||||||
Statement of Cash Flows Data:
|
||||||||||||||||||||
Total cash provided by (used in):
|
||||||||||||||||||||
Operating activities
|
$ | (4,804 | ) | $ | (2,157 | ) | $ | (12,631 | ) | $ | 7,695 | $ | (17,655 | ) | ||||||
Investing activities
|
(39,410 | ) | (102,814 | ) | (29,315 | ) | (35,100 | ) | 31,505 | |||||||||||
Financing activities
|
40,358 | 111,119 | 50,193 | 21,795 | (19,611 | ) | ||||||||||||||
Increase (decrease) in cash and cash equivalents
|
$ | (3,856 | ) | $ | 6,148 | $ | 8,247 | $ | (5,610 | ) | $ | (5,761 | ) | |||||||
68
Due in Less
|
Due
|
Due
|
More than
|
|||||||||||||||||
Total | than 1 Year | 1-3 Years | 3-5 Years | 5 Years | ||||||||||||||||
Credit facilities(1)
|
$ | 193,498 | $ | 40,152 | $ | 153,346 | $ | | $ | | ||||||||||
Expected interest payments(2)
|
37,389 | 27,874 | 9,515 | | | |||||||||||||||
Operating leases
|
1,222 | 550 | 672 | | | |||||||||||||||
Total
|
$ | 232,109 | $ | 68,576 | $ | 163,533 | $ | | $ | | ||||||||||
(1) | Credit facilities include principal outstanding related to facilities that were used to fund premium finance loans. This excludes promissory notes, which had principal of $37.6 million outstanding as of |
69
December 31, 2009, and which will be converted to shares of our common stock upon the closing of this offering. | ||
(2) | Expected interest payments are calculated based on outstanding balances of our credit facilities as of December 31, 2009 and assumes repayment of principal and interest at the maturity date of the related premium finance loan, which may be prior to the final maturity of the credit facility. |
December 31, | June 30, | |||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | ||||||||||||||||
Percentage of total number of loans outstanding with lender
protection insurance
|
| 74.0 | % | 90.3 | % | 83.5 | % | 92.5 | % | |||||||||||
Percentage of total loans receivable balance covered by lender
protection insurance
|
| 78.6 | % | 93.1 | % | 87.8 | % | 93.8 | % |
70
Percentage of
|
Percentage of
|
|||||||||||||||
Total Outstanding
|
Total Death
|
Moodys
|
S&P
|
|||||||||||||
Carrier
|
Loan Balance | Benefit | Rating | Rating | ||||||||||||
Lincoln National Life Insurance Company
|
23.8 | % | 26.2 | % | A2 | AA- | ||||||||||
Transamerica Occidental Life Insurance Company
|
15.5 | % | 12.8 | % | A1 | AA- |
71
72
| Agency Fees We charge the referring agent an agency fee for services related to premium finance loans. Agency fees as a percentage of the principal balance of the loans originated during the six months ended June 30, 2010 and year ended December 31, 2009 were 49.9% and 50.6%, respectively. These agency fees are charged when the loan is funded and collected on average within 45 days thereafter. |
| Interest Income Substantially all of the interest rates we charge on our premium finance loans are floating rates that are calculated at the one-month LIBOR rate plus an applicable margin ranging between 700 to 1200 basis points. In addition, our premium finance loans have a floor interest rate ranging between 9.0% and 11.5% and are capped at 16.0% per annum. For loans with floating rates, each month the interest rate is recalculated to equal one-month LIBOR plus the applicable margin, and then, if necessary, adjusted so as to remain at or above the stated floor rate and not to exceed the capped rate of 16.0% per annum. The weighted average per annum interest rate for premium finance loans outstanding as of June 30, 2010 and December 31, 2009 was 11.3% and 10.9%, respectively. |
| Origination Fees On each premium finance loan we charge a loan origination fee that is added to the loan and is due upon the date of maturity or upon repayment of the loan. Origination fees as a percentage of the principal balance of the loans originated during the six ended June 30, 2010 and the year ended December 31, 2009 were 41.8% and 44.7%, respectively. |
| the use of third party medical underwriters to evaluate the medical condition and life expectancy of each insured; | |
| the use of actuarial tables published by the American Society of Actuaries; | |
| the subject policy be issued by an insurance company with a high financial strength rating from A.M. Best, Standard & Poors or other recognized rating agencies; |
73
| a review of each loan for compliance with our internal guidelines as well as applicable laws and regulations; and | |
| the use of a personal guaranty to further support our underwriting efforts to protect against losses resulting from the issuing insurance company voiding a policy due to fraud or misrepresentations in the application process to obtain the life insurance policy. |
| Agency fees. For each premium finance loan, Imperial Life and Annuity Services, LLC (Imperial Life and Annuity), a licensed insurance agency and our wholly-owned subsidiary, receives an agency fee from the referring insurance agent. Imperial Life and Annuity typically charges and receives agency fees from the referring agent within approximately 45 days of our funding the loan. Referring insurance agents pay the agency fees to our subsidiary, Imperial Life and Annuity Services, LLC, a licensed insurance agency, for the due diligence performed in underwriting the premium finance transaction. The amount of the agency fee paid by a referring life insurance agent is negotiated with the referring agents based on a number of factors, including the size of the policy and the amount of premiums due on the policy. Agency fees as a percentage of the principal balance of the loans originated during the six months ended June 30, 2010 and year ended December 31, 2009 were 49.9% and 50.6%, respectively. During the six months ended June 30, 2010 and the year ended December 31, 2009, 20.9% and 28.2%, respectively, of our revenue from our premium finance segment was from agency fees. |
| Interest income. We receive interest income that accrues over the life of the loan and is due upon the date of maturity or upon repayment of the loan. The interest rates are typically floating rates that are calculated at the one-month LIBOR rate plus an applicable margin ranging between 700 to 1200 basis points. In addition, our premium finance loans have a floor interest rate ranging between 9% and 11.5% and are capped at 16.0% per annum. For loans with floating rates, each month the interest rate is recalculated to equal one-month LIBOR plus the applicable margin, and then, if necessary, adjusted so as to remain at or above the stated floor rate and at or below the capped rate of 16.0% per annum. The weighted average per annum interest rate for premium finance loans outstanding as of June 30, 2010 and December 31, 2009 were 11.3% and 10.9%, respectively. During the six months ended June 30, 2010 and the year ended December 31, 2009, 30.7% and 21.9%, respectively, of our revenue from our premium finance segment was from interest income. |
| Origination fees. We charge a loan origination fee on each premium finance loan we fund. The origination fee accrues over the term of the loan and is due upon the date of maturity or upon repayment of the loan. For the six months ended June 30, 2010 and for the twelve months ended December 31, 2009, origination fees as a percentage of the principal balance of the loans originated during such periods were 41.8% and 44.7%, respectively. During the six months ended June 30, 2010 and the year ended December 31, 2009, the per annum origination fee as a percentage of the principal balance of the loans originated was 19.5% and 19.2%, respectively. During the six months ended June 30, 2010 and the year ended December 31, 2009, 35.0% and 32.2%, respectively, of our revenue from our premium finance segment was from origination fees. |
74
| the borrower or family member of the insured repays the loan upon maturity; | |
| the insured passes away prior to the loan maturity and the death benefit is used to repay the loan, with the remainder being paid to the borrower for the benefit of its beneficiaries; or |
| upon default, we typically enter into an agreement with the borrower and the life insurance policy beneficiaries whereby they relinquish ownership of the life insurance policy and all interests therein to us in exchange for a release of the obligation to pay amounts due. Following relinquishment, if the loan is insured pursuant to lender protection insurance, then, subject to terms and conditions of the lender protection insurance policy, our lender protection insurer has the right to direct control or take beneficial ownership of the life insurance policy and we are paid a claim equal to the insured value of the life insurance policy serving as collateral underlying the loan. If the loan is not insured, we seek to sell the life insurance policy in the secondary market. In the future, with the net proceeds from this offering, we expect to have the option to retain for investment a number of the policies relinquished to us upon a default. When we retain for investment policies relinquished to us upon default, we will receive the death benefit of the policy upon the death of the insured as long as we continue to pay the premiums required to keep the policy in force and the policy is not contested. |
75
Six Months
|
||||||||||||
Ended
|
||||||||||||
Year Ended December 31, |
June 30,
|
|||||||||||
2008 | 2009 | 2010 | ||||||||||
Credit Facilities:
|
||||||||||||
Acorn
|
$ | 22,440 | $ | 9,179 | $ | 6,053 | ||||||
CTL*
|
60,581 | 49,744 | 36,698 | |||||||||
White Oak
|
| 26,595 | 26,179 | |||||||||
Cedar Lane
|
| 11,806 | 29,071 | |||||||||
Ableco
|
71,594 | 96,174 | 81,845 | |||||||||
Total credit facilities
|
154,615 | 193,498 | 179,846 | |||||||||
Promissory Notes:
|
||||||||||||
Amalgamated
|
9,060 | 9,627 | | |||||||||
Skarbonka
|
| 17,615 | 16,102 | |||||||||
IMPEX
|
| 10,324 | 9,283 | |||||||||
Jasmund LTD.
|
6,600 | | | |||||||||
Cedarmount Trading
|
8,900 | | | |||||||||
Red Oak
|
2,512 | | | |||||||||
IFS Holdings
|
1,775 | | | |||||||||
Total promissory notes
|
28,847 | 37,566 | 25,385 | |||||||||
Total Debt
|
$ | 183,462 | $ | 231,064 | $ | 205,231 | ||||||
Amount of Total Debt secured by loans with lender protection
insurance that are non-recourse to Imperial
|
$ | 132,175 | $ | 184,319 | $ | 173,793 | ||||||
% of Total Debt secured by loans with lender protection
insurance that are non-recourse to Imperial
|
72.0 | % | 79.8 | % | 84.7 | % |
* | Represents both the CTL credit facility and our $30 million grid promissory note in favor of CTL Holdings. See Description of Certain Indebtedness. |
76
Step 1: Sales
|
Work with agents and brokers to obtain
necessary information regarding a life insurance policy.
|
|
Sales team manages the process and is
the point of contact for the referring agent or broker.
|
||
Step 2: Loan Underwriting
|
Provide financial analysis to assist the
sales and management teams by using our proprietary models to
determine fair value of the policy.
|
|
Review transactions for adherence to our
internal guidelines.
|
||
Step 3: Legal/Compliance
|
Conduct multiple reviews to ensure
transactions comply with all legal, lender, lender protection
insurer and carrier requirements.
|
|
Complete compliance checklist of over
200 items by multiple departments.
|
||
Maintain and distribute all documents
necessary for compliance with HIPAA, legal and internal
standards.
|
||
Step 4: Funding
|
Conduct independent review of each file
and verify that compliance, legal and pricing processes have
been completed.
|
|
Obtain authorized signatures on requests
for transaction funding.
|
||
Update files with completed
documentation.
|
||
Step 5: Servicing
|
Prepare and monitor internal and
external reporting to accounting, lenders and others.
|
|
Verify premiums are paid and correctly
applied.
|
||
Handle medical history, ongoing premiums
and policy relinquishment procedures.
|
77
78
| Store all of our data electronically, including policy information, premium schedules, past mortality experience, underwriting information, mortality probabilities and other data; | |
| Use our electronic data to generate financial models and analysis for an individual or group of life insurance policies; | |
| Create internal and external reports of our underwriting and policy valuation; | |
| Perform a comparative analysis of life insurance products based on a particular insureds age, gender, health information and life expectancy; and | |
| Identify the fair value of the life insurance policies that underlie our premium finance loans. |
79
80
Six Months Ended
|
||||||||||||||||||||
Year Ended December 31, | June 30, | |||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | ||||||||||||||||
Number of transactions originated
|
10 | 276 | 396 | 173 | 247 | |||||||||||||||
Average marketing cost per transaction
|
$ | 205.6 | $ | 19.2 | $ | 11.3 | $ | 13.8 | $ | 9.8 |
Three Months Ended | ||||||||||||||||||||||||||||||||||||||||
Mar 31,
|
June 30,
|
Sep 30,
|
Dec 31,
|
Mar 31,
|
June 30,
|
Sep 30,
|
Dec 31,
|
Mar 31,
|
June 30,
|
|||||||||||||||||||||||||||||||
2008 | 2008 | 2008 | 2008 | 2009 | 2009 | 2009 | 2009 | 2010 | 2010 | |||||||||||||||||||||||||||||||
Number of transactions with repeat customers
|
2 | 4 | 5 | 12 | 10 | 12 | 10 | 20 | 24 | 24 | ||||||||||||||||||||||||||||||
Percentage of total transactions
|
5 | % | 7 | % | 7 | % | 11 | % | 13 | % | 13 | % | 10 | % | 17 | % | 23 | % | 17 | % |
| Strategic sale. We have sold pools of structured settlements we acquired in the past. Until December 31, 2010, we have a sale arrangement with Slate relating to individual structured settlements. We also have other parties to whom we have sold structured settlement assets in the past and to whom we believe we can sell such assets in the future. |
| Balance sheet. During the remaining term of our sale arrangement with Slate, we may purchase structured settlements that fall outside of Slates criteria and we may hold them for investment, servicing the asset and collecting the periodic payments. Although we have not used debt financing to fund the cost of acquisition of structured settlements as of the date of this offering, we will continue to evaluate alternative financing arrangements such as a warehouse line of credit. |
81
Six Months
|
||||||||||||||||||||
Ended
|
||||||||||||||||||||
Year Ended December 31, | June 30, | |||||||||||||||||||
2007 | 2008 | 2009 | 2009 | 2010 | ||||||||||||||||
Number of transactions originated
|
10 | 276 | 396 | 173 | 247 | |||||||||||||||
Face value of undiscounted future payments purchased
|
$ | 701 | $ | 18,295 | $ | 28,877 | $ | 12,366 | $ | 20,255 | ||||||||||
Weighted average purchase discount rate
|
11.0 | % | 12.0 | % | 16.3 | % | 15.4 | % | 18.9 | % | ||||||||||
Number of transactions sold
|
| 226 | 439 | 96 | 219 | |||||||||||||||
Weighted average sale discount rate
|
| 10.8 | % | 11.5 | % | 11.1 | % | 8.9 | % |
82
| Complementary mix of business lines. Unlike many of our competitors who are focused on either structured settlements or premium financings, we operate in both lines of business. This diversification provides us with a complementary mix of business lines as the revenues generated by our structured settlement business are generally short-term cash receipts in comparison to the revenue from our premium financing business which is collected over time. |
83
| Scalable and cost-effective infrastructure. We have created an efficient, cost-effective, scalable infrastructure that complements our businesses. We have developed proprietary systems and models that allow for cost-effective review of both premium finance and structured settlement transactions that utilize our underwriting standards and guidelines. Our systems allow us to efficiently process transactions while maintaining our underwriting standards. As a result of our investments in our infrastructure, we have developed a structured settlement business model that we believe has significant scalability to permit our structured settlement business to continue to grow with only minor incremental costs. | |
| Barriers to entry. We believe that there are significant barriers to entry into the premium financing and structured settlement businesses. With respect to premium finance, obtaining the requisite state licenses and developing a network of referring agents is time intensive and expensive. With respect to structured settlements, the various state regulations require special knowledge as well as a network of attorneys experienced in obtaining court approval of these transactions. Our management and key personnel from our purchasing, underwriting and information technology departments are well trained in our specialized businesses and, in many cases, have almost a decade of experience working together at Imperial and at prior employers. Our management team has significant experience operating in this highly regulated industry. | |
| Strength and financial commitment of management team with proven track record. Our senior management team is experienced in the premium finance and structured settlement industries. In the mid-1990s, several members of our management team worked together at Singer Asset Finance, where they were early entrants in structured settlement asset classes. After Singer was acquired in 1997 by Enhance Financial Services, several members of our senior management team joined Peach Holdings, Inc. At Peach Holdings, they held senior positions, including Chief Operating Officer, Head of Life Finance and Head of Structured Settlements. In addition, Antony Mitchell, our chief executive officer, and Jonathan Neuman, our president and chief operating officer, each have over $7 million of their own capital invested in our company. This financial commitment aligns the interests of our principal executive officers with those of our shareholders. |
| Reduce or eliminate the use of debt financing in our premium finance business. The capital generated by this offering will enable us to fund our premium finance loans and provide us with the option to retain our investments in life insurance policies that we acquire upon relinquishment by our borrowers without the need for additional debt financing. In contrast to our existing leveraged business model that has made us reliant on third-party financing that is often unavailable or expensive, we intend to use equity capital from this offering to engage in premium finance transactions at profit margins significantly greater than what we have historically experienced. In the future, we expect to consider debt financing for our premium finance transactions and structured settlement purchases only if such financing is available on attractive terms. |
| Eliminate the use of lender protection insurance. With the proceeds of this offering, we will no longer require debt financing and lender protection insurance for new premium finance business. As a result, we expect to experience considerable cost savings, and in addition expect to be able to originate more premium finance loans because we will not be subject to coverage limitations imposed by our lender protection insurer that have reduced the number of loans that we can originate. |
| Continue to develop structured settlement database. We intend to increase our marketing budget and grow our sales staff in order to increase the number of leads in our structured settlement database and to originate more structured settlement transactions. As our database of structured settlements grows, our sales staff is able to increase our transaction volume due in part to repeat transactions from our existing customers. |
84
| require that premium finance lenders be licensed by the applicable jurisdiction; | |
| require certain disclosures to insureds; | |
| regulate the amount of late fees and finance charges that may be charged if a borrower is delinquent on its payments; or | |
| allow imposition of potentially significant penalties on lenders for violations of that jurisdictions insurance premium finance laws. |
85
86
87
F-23
F-36
II-8
II-9
45
Chief Executive Officer and Director
36
President, Chief Operating Officer and Director
53
Chief Financial Officer and Chief Credit Officer
53
Senior Vice President
49
General Counsel
48
Director Nominee
66
Director Nominee
65
Director Nominee
52
Director Nominee
88
89
90
the stated reasons why votes were withheld from the director and
whether those reasons can be cured;
the directors length of service, qualifications and
contributions as a director;
New York Stock Exchange listing requirements, and
our corporate governance guidelines.
establishing, monitoring and assessing our policies and
procedures with respect to business practices, including the
adequacy of our internal controls over accounting and financial
reporting;
retaining our independent auditors and conducting an annual
review of the independence of our independent auditors;
pre-approving any non-audit services to be performed by our
independent auditors;
reviewing the annual audited financial statements and quarterly
financial information with management and the independent
auditors;
91
reviewing with the independent auditors the scope and the
planning of the annual audit;
reviewing the findings and recommendations of the independent
auditors and managements response to the recommendations
of the independent auditors;
overseeing compliance with applicable legal and regulatory
requirements, including ethical business standards;
approving related party transactions;
discussing policies with respect to risk assessment and risk
management;
preparing the audit committee report to be included in our
annual proxy statement;
establishing procedures for the receipt, retention and treatment
of complaints received by us regarding accounting, internal
accounting controls or auditing matters;
establishing procedures for the confidential, anonymous
submission by our employees of concerns regarding questionable
accounting or auditing matters; and
reviewing the committees performance and the adequacy of
the audit committee charter on an annual basis.
evaluating the performance of and determining the compensation
for our executive officers, including our chief executive
officer;
administering and making recommendations to our board with
respect to our equity incentive plans;
overseeing regulatory compliance with respect to compensation
matters;
reviewing and approving employment or severance arrangements
with senior management;
reviewing our director compensation policies and making
recommendations to our board;
taking the required actions with respect to the compensation
discussion and analysis to be included in our annual proxy
statement;
reviewing and approving the compensation committee report to be
included in our annual proxy statement; and
reviewing the committees performance and the adequacy of
the compensation committee charter on an annual basis.
developing and recommending corporate governance principles and
procedures applicable to our board and employees;
recommending committee composition and assignments;
92
overseeing periodic self-evaluations by the board, its
committees, individual directors and management with respect to
their respective performance;
identifying individuals qualified to become directors;
recommending director nominees;
assisting in succession planning;
recommending whether incumbent directors should be nominated for
re-election to our board; and
reviewing the committees performance and the adequacy of
the corporate governance and nominating committee charter on an
annual basis.
93
Antony Mitchell, our chief executive officer;
Robert Grobstein, our former chief financial and accounting
officer;
Jonathan Neuman, our president and chief operating officer;
Deborah Benaim, our senior vice president; and
Anne Dufour Zuckerman, our general counsel.
94
95
96
Change in
Pension Value
and Non-
Non-Equity
Qualified
Incentive
Deferred
Name and Principal
Stock
Option
Plan
Compensation
All Other
Year
Salary
Bonus
Awards
Awards
Compensation
Earnings
Compensation(1)
Total
Chief Executive Officer
2009
$
$
$
$
$
$
$
926,000
(1)
$
926,000
President and Chief Operating Officer
2009
$
725,341
$
$
$
$
$
$
$
725,341
Senior Vice President
2009
$
312,184
$
200,000
$
$
$
$
$
$
512,184
General Counsel
2009
$
347,757
$
$
$
$
$
$
$
347,757
Former Chief Financial Officer
2009
$
249,001
$
$
$
$
$
$
$
249,001
(1)
In 2009, Mr. Mitchell did not serve as a company employee
and did not receive a salary. Mr. Mitchell provided
services to the Company pursuant to the consulting arrangement
with Warburg. Mr. Mitchell was paid these amounts by
Warburg as described in more detail in our Compensation
Discussion and Analysis. $76,000 of the $926,000 paid to Warburg
was for expense reimbursements.
(2)
Mr. Grobstein served as chief financial officer until his
departure from Imperial on May 4, 2010.
97
98
99
receiving options
and/or
stock
appreciations rights for more than 120,000 shares of common
stock during any fiscal year;
receiving awards of restricted stock
and/or
restricted stock units relating to more than 120,000 shares
of common stock during any fiscal year;
receiving, with respect to an award of performance shares
and/or
an
award of performance units the value of which is based on the
fair market value of a share of common stock, payment of more
than 120,000 shares of common stock in respect of any
fiscal year;
receiving, with respect to an annual incentive award in respect
of any of single fiscal year, a cash payment of more than
$2,000,000;
receiving, with respect to a long-term incentive award
and/or
an
award of performance units the value of which is not based on
the fair market value of a share of common stock, a cash payment
of more than $3,000,000 in respect of any period of two
consecutive fiscal years or of more than $4,000,000 in respect
of any period of three consecutive fiscal years; or
receiving other stock-based awards relating to more than
120,000 shares of common stock during any of our fiscal
years.
100
101
any person is or becomes the beneficial owner of securities
representing 50% or more of the combined voting power of our
outstanding voting securities;
during any twelve month period, the majority of our board of
directors are replaced by persons whose appointment or election
is not endorsed by a majority of the board; or
during any twelve month period, there is a change in the
ownership of a substantial portion of our assets (other than
certain transfers to shareholders or controlling groups)
102
the board must approve any amendment to the Omnibus Plan if we
determine such approval is required by prior action of the
board, applicable corporate law or any other applicable law;
shareholders must approve any amendment to the Omnibus Plan if
we determine that such approval is required by Section 16
of the Securities Exchange Act of 1934, the Internal Revenue
Code, the listing requirements of any principal securities
exchange or market on which the shares are then traded or any
other applicable law; and
shareholders must approve any amendment to the Omnibus Plan that
materially increases the number of shares of common stock
reserved under the Omnibus Plan or the limitations stated in the
Omnibus Plan on the number of shares of common stock that
participants may receive through an award or that amends the
provisions relating to the prohibition on repricing of
outstanding options or SARs.
103
104
105
106
Shares of Common Stock
Shares of Common Stock
Shares of
Beneficially Owned
Beneficially Owned
Common Stock
Following Offering
Following Offering Assuming
Beneficially Owned
Assuming No Exercise of
Exercise of Underwriters
Prior to Offering
Underwriters Option
Option in Full
Amount
Percent
Amount
Percent
Amount
Percent
100
%
(1)
The shares are owned of record by Premium Funding, Inc., a
Florida corporation. The business address of Premium Funding,
Inc. is 9350 Conroy Windermere Road, Windermere, Florida 34786.
Premium Funding, Inc. is controlled by Christopher O. Mangum and
Jasmund Ltd., a Bahamas international business corporation. Of
the shares of Premium Funding, Inc. owned by Christopher O.
Mangum, 96.7% of such shares are subject to a presently
exercisable warrant in favor of Jasmund, Ltd. Jasmund is
controlled by Joseph Lewis. Christopher Mangum is sole director,
president and secretary of Jasmund, Ltd.
(2)
Includes shares owned of record by the following entities, both
of which are controlled by Cocoa Breeze Trading, Ltd., a Bahamas
international business corporation whose business address is
Fort Nassau Centre, Marlborough Street, Nassau, Bahamas.
Cocoa Breeze Trading, Ltd. is owned 100% by Mr. Mitchell.
107
favor of Pine Trading, Ltd., a Bahamas international business
corporation whose business address is Charlotte House, Shirley
Street 1st floor, P.O. Box N-7529, Nassau,
Bahamas. Pine Trading is controlled by David Haring.
(3)
Shares are owned of record by Red Oak Finance, LLC in which
Mr. Neuman owns a controlling interest. The principal
business address for Red Oak Finance, LLC is 701 Park of
Commerce Boulevard, Suite 301, Boca Raton, Florida 33487.
108
transactions that must be disclosed in proxy statements under
SEC rules; and
transactions that could potentially cause a non-employee
director to cease to qualify as independent under New York Stock
Exchange listing requirements.
whether the transaction is on terms no less favorable to us than
terms generally available from an unrelated third party;
the extent of the related partys interest in the
transaction;
whether the transaction would interfere with the performance of
the officers or directors duties to us;
in the case of a transaction involving a non-employee director,
whether the transaction would disqualify the director from being
deemed independent under New York Stock Exchange listing
requirements; and
such other factors that the audit committee deems appropriate
under the circumstances.
109
Controlled by Joseph Lewis, beneficial owner of more than 5% of
our common stock
Controlled by Joseph Lewis and David Haring, beneficial owner of
more than 5% of our common stock
Controlled by Joseph Lewis and David Haring Christopher Mangum,
president and sole director of Premium Funding, Inc., a member
of our board of managers, is the manager of CTL Holdings, LLC
Controlled by Antony Mitchell, our chief executive officer, a
director and beneficial owner of more than 5% of our common stock
Controlled by Jonathan Neuman, our president, a director and
beneficial owner of more than 5% of our common stock
Controlled by Antony Mitchell
Controlled by Antony Mitchell and David Haring
Controlled by Antony Mitchell and Jonathan Neuman
Controlled by David Haring
Controlled by Joseph Lewis Christopher Mangum is sole director,
president and secretary of Jasmund, Ltd.
Controlled by David Haring
Controlled by Joseph Lewis and David Haring
Controlled by Christopher Mangum and Joseph Lewis
Controlled by Jonathan Neuman
Antony Mitchell is a general partner of Stone Brook Partners
Controlled by Antony Mitchell
Controlled by Carl Neuman, the father of Jonathan L. Neuman (as
to 50%)
On January 1, 2008, we entered into a Consolidated, Amended
and Restated Revolving Balloon Promissory Note in the amount of
$25.0 million with Amalgamated International Holdings, S.A.
(Amalgamated), at an interest rate of 16.5%, which
note consolidated seven notes previously executed by us in favor
of Amalgamated in the aggregate amount of $19.5 million. This
note was later cancelled and replaced effective as of
August 31, 2009 with a new $25.0 million revolving
note in favor of Amalgamated (the Amalgamated Note).
The Amalgamated Note matures on August 1, 2011 and bears an
interest rate of 16.5% per annum. The Amalgamated Note is
cross-defaulted with our other indebtedness and indebtedness of
certain of our related parties Monte Carlo
Securities, Ltd., CTL Holdings, LLC (CTL
Holdings) and Imperial Life Financing, LLC. The largest
aggregate amount of principal outstanding on the Amalgamated
Note since its issuance was $19.5 million. As of
June 30, 2010 and December 31, 2009, the outstanding
principal balance on the Amalgamated Note was $0 million
and $9.6 million, respectively, with accrued interest of $0
and $469,000, respectively. The amount of principal paid under
the Amalgamated Note during the six months ended June 30,
2010 and year ended December 31, 2009 was
$10.3 million and $49.8 million, respectively and the
amount of interest paid during the six months ended
June 30, 2010 and year ended December 31, 2009 was
$566,000 and $0, respectively. During the year ended 2009,
$8.4 million of principal and $1.2 million of accrued
interest of the Amalgamated Note was sold by Amalgamated to one
of our related parties
110
Branch Office of Skarbonka Sp. z o.o (Skarbonka).
The entire principal and interest balances under the Amalgamated
Note have been paid in full.
On June 5, 2008 and on August 8, 2008, we executed two
balloon promissory notes in favor of Jasmund, Ltd., in the
original principal amount of $5.0 million and
$1.6 million, respectively, and each at an interest rate of
16.5% per annum. On December 3, 2008 and February 5,
2009, the notes were replaced by notes in the amount of
$5.4 million and $1.7 million, respectively, each in
favor of Jasmund, Ltd. These notes were then consolidated,
amended, restated and replaced by a May 22, 2009 note in
favor Skarbonka, in the principal amount of $7.6 million at
an interest rate of 16.5%. The May 22, 2009 note and
$8.4 million of principal and $1.2 million of accrued
interest of the Amalgamated Note sold to Skarbonka were
subsequently consolidated into an August 31, 2009 revolving
promissory note in favor of Skarbonka in the principal amount of
$17.6 million, together with interest on the principal
balance from time to time outstanding at a rate of 16.5% per
annum. The August 31, 2009 note matures on August 1,
2011. The note is cross-defaulted with our other indebtedness
and indebtedness of Monte Carlo Securities, Ltd., CTL Holdings
and Imperial Life Financing, LLC. The largest aggregate amount
of principal outstanding on the August 31, 2009 note since
its issuance was $17.6 million. As of June 30, 2010
and December 31, 2009, respectively, the outstanding
principal balance on the August 31, 2009 note was
$16.1 million and $17.6 million, respectively, with
accrued interest of $1.3 million and $980,000,
respectively. The amount of principal paid under the note during
the six months ended June 30, 2010 and year ended
December 31, 2009 was $1.5 million and $0,
respectively, and the amount of interest paid was $985,000 and
$0, respectively. Upon the closing of this offering, the note
and related accrued interest will be converted into
[ ] shares
of our common stock.
On October 3 and October 8, 2008, we executed two balloon
promissory notes in favor of Cedarmount Trading, Ltd.
(Cedarmount), each in the original principal amount
of $4,450,000 at an interest rate of 16.5% per annum. On
August 31, 2009, the notes were assigned by Cedarmount to
IMPEX Enterprises, Ltd. (IMPEX). Also effective as
of August 31, 2009, the notes were consolidated, amended,
restated and replaced by a new revolving promissory note which
we executed in favor of IMPEX for a principal amount of
$10.3 million with interest on the principal balance from
time to time outstanding at a rate of 16.5% per annum. The
August 31, 2009 note matures on August 1, 2011. The
note is cross-defaulted with our other indebtedness and
indebtedness of Monte Carlo Securities, Ltd., CTL Holdings and
Imperial Life Financing, LLC. The largest aggregate amount of
principal outstanding on the August 31, 2009 note since
issuance was $10.3 million. As of June 30, 2010 and
December 31, 2009 the outstanding principal balance was
$9.3 million and $10.3 million, respectively, with
accrued interest of $1.2 million and $569,000,
respectively. The amount of principal paid under the note during
the six months ended June 30, 2010 and year ended
December 31, 2009 was $8.8 million and $0,
respectively. As of June 30, 2010, we have not paid any
interest on the note. Upon the closing of this offering, the
note and related accrued interest will be converted into
[ ] shares
of our common stock.
On December 27, 2007, Imperial Life Financing, LLC
(Life Financing), entered into a $50.0 million
loan agreement with CTL Holdings. The proceeds of this loan were
used by Life Financing to fund our origination of premium
finance loans in exchange for participation interests in such
loans. In April 2008, CTL Holdings entered into a participation
agreement with Perella Weinberg Partners Asset Based Value
Master Fund II, L.P. (Perella), in connection with
which we executed a guaranty, whereby Perella contributed
$10.0 million for a participation interest in CTL
Holdings loans to Life Financing. In connection with
Perellas purchase of the participation interest, we agreed
to reimburse CTL Holdings sole owner, Cedarmount, for any
amounts paid or allocated to Perella under the participation
agreement which cause Cedarmounts rate of return paid by
Life Financing to be less than 10.0% per annum on the funds
Cedarmount advanced to CTL Holdings to make loans to us or cause
Cedarmount not to recover its invested capital. In April 2008,
the CTL Holdings loan agreement was amended and the authorized
borrowings were increased from $50.0 million to
$100.0 million. The first $50.0 million tranche
(Tranche A) was restricted such that no further
advances could be made with the exception of funding second year
premiums. All new advances are made under the second
$50.0 million tranche
111
(Tranche B). The loans are payable as the corresponding
premium finance loans mature and as of June 30, 2010, bear
a weighted average annual interest rate of 10.3%. The agreement
does not include any financial covenants but does contain
certain nonfinancial covenants and restrictions. All of the
assets of Life Financing serve as collateral under the credit
facility. The largest aggregate amount of principal outstanding
on the facility since issuance was $61.2 million. As of
June 30, 2010 and December 31, 2009, the outstanding
principal balance on the facility was $0 million and
$21.9 million, respectively, with accrued interest of $0
and $46,000, respectively. The amount of principal paid under
the facility during the six months ended June 30, 2010 and
year ended December 31, 2009 was $22.3 million and
$26.3 million, respectively, and the amount of interest
paid under the facility was $3.3 million and
$2.4 million, respectively.
On November 15, 2008, Life Financing executed a grid
promissory note in favor of CTL Holdings, in the original
principal amount equal to the lesser of $30.0 million or
the amount outstanding from
time-to-time
a fixed interest rate per advance. The weighted average interest
rate as of June 30, 2010 was 10.4%. The largest aggregate
amount of principal outstanding on the note since issuance was
$30.3 million. As of June 30, 2010 and
December 31, 2009, the outstanding principal balance on the
note was $36.7 million and $25.9 million,
respectively, with accrued interest of $1.9 million and
$2.8 million, respectively. $0 of principal or interest was
paid under the note during the six months ended June 30,
2010 and year ended December 31, 2009.
On March 13, 2009, Imperial Life Financing II, LLC, a
special purpose entity and wholly-owned subsidiary, entered into
a financing agreement with CTL Holdings II, LLC to borrow funds
to finance its purchase of premium finance loans originated by
us or the participation interests therein. On July 23,
2009, White Oak Global Advisors, LLC replaced CTL Holdings II,
LLC as the administrative agent and collateral agent with
respect to this facility. The original financing agreement
provided for up to $15.0 million of multi-draw term loans.
In September 2009, this financing agreement was amended to
increase the commitment by $12.0 million to a total
commitment of $27.0 million. The interest rate for each
borrowing made under the agreement varies and the weighted
average interest rate for the loans under this facility as of
June 30, 2010 was 21.5%. The loans are payable as the
corresponding premium finance loans mature. The agreement
contains certain financial and non-financial covenants. All of
the assets of Imperial Life Financing II, LLC serve as
collateral under this facility. The largest aggregate amount of
principal outstanding on the facility since issuance was
$27.0 million. As of June 30, 2010 and
December 31, 2009, the outstanding principal balance on the
note was $26.2 million and $26.6 million,
respectively, with accrued interest of $6.9 million and
$3.9 million, respectively. The amount of principal paid
under the note during the six months ended June 30, 2010
and the year ended December 31, 2009 was $416,000 and
$391,000, respectively and the amount of interest paid under the
facility was $68,000 and $61,000, respectively.
In November 2009, we obtained a loan from Stone Brook Partners,
a general partnership, in the principal amount of
$1.1 million. We repaid the loan in full in December 2009.
Antony Mitchell, our chief executive officer and a director, and
Jonathan Neuman, our chief operating officer, president and a
director, have each individually guaranteed obligations under
the Acorn Capital Group, LLC credit facility, the CTL Holdings,
LLC credit facility, the Ableco Finance LLC credit facility, the
White Oak Global Advisors, LLC credit facility, the Cedar Lane
Capital LLC credit facility and the claims settlement agreement
with our lender protection insurer. These guaranties are not
unconditional sources of credit support but are intended to
protect against acts of fraud, willful misconduct or the special
purpose entity commencing a bankruptcy filing. To the extent
recourse is sought against Messrs. Mitchell and Neuman for
such non-financial performance reasons, then our indemnification
obligations to Messrs. Mitchell and Neuman may require us
to indemnify them for losses they may incur under these
guaranties.
112
We issued a series of notes, dated December 19, 2007,
January 10, 2008, April 8, 2008, October 10, 2008
and December 24, 2008, in favor of Red Oak Finance, LLC, a
Florida limited liability company (Red Oak). The
notes were in the original principal amounts of $1,000,000,
$500,000, $500,000, $62,500 and $450,000, respectively, each at
a 10.0% per annum interest rate. The largest aggregate amount of
principal outstanding on the notes since issuance was
$2.5 million. Since issuance of the notes, the amount of
principal paid under the notes was $253,000, the amount of
interest paid under the notes was $319,000. On June 30,
2009, we converted $2,260,000 of these notes into 50,855
Series A Preferred Units. The Series A Preferred Units
are non-voting and can be redeemed at any time by us for an
amount equal to the applicable unreturned preferred capital
amount allocable to the Series A Preferred Units sought to
be redeemed, plus any accrued but unpaid preferred return. The
cumulative rate of preferred return is equal to 16.5% of the
outstanding units, per annum. The dividends payable at
June 30, 2010 and December 31, 2009 were $408,000 and
$189,000, respectively.
We issued a series of notes, dated August 1, 2008,
August 6, 2008, December 23, 2008 and
December 30, 2008, in favor of IFS Holdings, Inc., a
Florida corporation. The notes were in the original principal
amounts of $200,000, $75,000, $750,000 and $750,000,
respectively, each at a 16.0% per annum interest rate. The
largest aggregate amount of principal outstanding on the notes
since issuance was $1.8 million. Since issuance of the
notes, the amount of principal paid under the notes was $0, the
amount of interest paid under the notes was $123,000. On
June 30, 2009, we converted $1,775,000 of these notes into
39,941 Series A Preferred Units. The Series A
Preferred Units are non-voting and can be redeemed at any time
by us for an amount equal to the applicable unreturned preferred
capital amount allocable to the Series A Preferred Units
sought to be redeemed, plus any accrued but unpaid preferred
return. The cumulative rate of preferred return is equal to
16.5% of the outstanding units, per annum. The dividends payable
at June 30, 2010 and December 31, 2009 were $321,000
and $155,000, respectively.
In December 2009, Premium Funding, Inc. and Imex Settlement
Corporation each contributed $2.5 million to us in
consideration for the issuance of 25,000 Series B Preferred
Units. The Series B Preferred Units are non-voting and can
be redeemed at any time by us for an amount equal to the
applicable unreturned preferred capital amount allocable to the
Series B Preferred Units sought to be redeemed, plus any
accrued but unpaid preferred return. The cumulative rate of
preferred return is equal to 16.0% of the outstanding units, per
annum. The dividends payable at June 30, 2010 and
December 31, 2009 were $421,000 and $4,000, respectively.
In March 2010, Imex Settlement Corporation contributed
$7.0 million to us in consideration for the issuance of
70,000 Series C Preferred Units. The Series C
Preferred Units are non-voting and can be redeemed at any time
by us for an amount equal to the applicable unreturned preferred
capital amount allocable to the Series C Preferred Units
sought to be redeemed, plus any accrued but unpaid preferred
return. The cumulative rate of preferred return is equal to
16.0% of the outstanding units, per annum. The dividends payable
at June 30, 2010 were $287,000.
In June 2010, Imex Settlement Corporation purchased from us
7,000 Series D Preferred Units for an aggregate purchase
price of $700,000. The Series D Preferred Units are
non-voting and can be redeemed at any time by us for an amount
equal to the applicable unreturned preferred capital amount
allocable to the Series D Preferred Units sought to be
redeemed, plus any accrued but unpaid preferred return. The
cumulative rate of preferred return is equal to 16.0% of the
outstanding units, per annum.
We entered into a consulting agreement with Londo Ventures,
Inc., a Bahamas corporation, on March 31, 2009, under which
Londo Ventures agreed to provide management and financial
consulting services related to our premium finance and
structured settlement business. The agreement was effective
113
as of January 1, 2008. We incurred a consulting fee in 2009
of $2,000,000 pursuant to this arrangement for services provided
in 2008. This agreement has been terminated.
Antony Mitchell, our chief executive officer, is the owner of
Warburg. Pursuant to an oral arrangement between us and Warburg,
Antony L. Mitchell serves as our chief executive officer and we
provide Warburg with (i) office space; (ii) equipment;
and (iii) personnel. During the year ended December 1,
2009 and 2008, we incurred fees of $926,000 and $1,082,000,
respectively, under this arrangement. We will enter into a
written employment agreement with Mr. Mitchell that will
become effective upon the closing of this offering. At that
time, the arrangement with Warburg will terminate.
We have originated premium finance loans referred to us by the
Wertheim Group, an entity that is in the business of referring
individuals to premium finance lenders. Wertheim Group is owned
50.0% by the father of Jonathan L. Neuman, our president and
chief operating officer. We originated 14 premium finance loans
referred to us by the Wertheim Group in 2007 and 11 in 2008 on
which we sold the underlying life insurance policies and
received commissions from the issuing life insurance company of
$4.5 million and $4.5 million, respectively. There
were no originations of premium finance loans referred to us by
the Wertheim Group in 2009. In 2007 and 2008, we paid
$1.7 million and $1.5 million, respectively, of the
commissions we received to Wertheim for the premium finance loan
referrals.
We have previously engaged Greenberg Traurig, LLP to provide us
with legal services. The spouse of Anne Dufour Zuckerman, our
general counsel, is a shareholder of Greenberg Traurig, LLP,
although Mr. Zuckerman does not receive any direct benefit
from the relationship with us. We have paid Greenberg Traurig,
LLP $15,000, $1,062,000 and $1,595,000 during the years ended
December 31, 2007, 2008 and 2009, respectively, for legal
services.
In November 2008, we purchased two loans from CY Financial, Inc.
for $811,000. At the time these loans were purchased, they had
an unpaid principal balance of $725,000. The purchase price
included $691,000 for the loans and $120,000 for purchased
interest resulting in a discount of $34,000.
114
115
116
117
118
119
one-fifth or more, but less than one-third, of all voting power
of the corporation;
one-third or more, but less than a majority, of all voting power
of the corporation; or
a majority or more of all voting power of the corporation.
is approved by the corporations board of directors before
the acquisition; or
is effected pursuant to a statutory merger or share exchange to
which the corporation is a party.
120
mergers and consolidations to which the corporation and the
interested shareholder are parties;
sales or other dispositions of assets to the interested
shareholder representing 5% or more of the aggregate fair market
value of the corporations assets, outstanding shares,
earning power or net income to the interested shareholder;
issuances by the corporation of 5% or more of the aggregate fair
market value of its outstanding shares to the interested
shareholder;
the adoption of any plan for the liquidation or dissolution of
the corporation proposed by or pursuant to an arrangement with
the interested shareholder;
any reclassification of the corporations securities,
recapitalization of the corporation, merger or consolidation, or
other transaction which has the effect of increasing by more
than 5% the percentage of the outstanding voting shares of the
corporation beneficially owned by the interested
shareholder; and
the receipt by the interested shareholder of certain loans or
other financial assistance from the corporation.
the transaction has been approved by a majority of the
corporations disinterested directors;
the interested shareholder has been the beneficial owner of at
least 80% of the corporations outstanding voting shares
for at least five years preceding the transaction;
the interested shareholder is the beneficial owner of at least
90% of the outstanding voting shares; or
specified fair price and procedural requirements are satisfied.
121
122
123
offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise
dispose of or transfer (or enter into any transaction or device
which is designed to, or could be expected to, result in the
disposition by any person at any time in the future of) any
share of our common stock or any security convertible into,
exercisable for or exchangeable for any share of our common
stock (Other Securities), whether now owned or
acquired after the date of this prospectus;
enter into any swap or any other arrangement or transaction that
transfers to another person, in whole or in part, any of the
economic consequences of ownership of our common stock, whether
any such swap or transaction described above is to be settled by
delivery of shares of our common stock or other securities, in
cash or otherwise;
make any demand for or exercise any right (or, in the case of
us, file) or cause to be filed a registration statement (other
than the registration statement on
Form S-8
that is described in this prospectus) under the Securities Act
including any amendment thereto, with respect to the
registration of any shares of our common stock or Other
Securities; or
publicly disclose the intention to do any of the foregoing,
during the last 17 days of the
lock-up
period, we issue an earnings release or material news or a
material event relating to us occurs; or
prior to the expiration of the
lock-up
period, we announce that we will release earnings results during
the
16-day
period beginning on the last day of the
lock-up
period;
124
one percent of the number of shares of common stock then
outstanding (approximately
[ ] shares
immediately after the offering); and
the average weekly trading volume of the common stock on the New
York Stock Exchange during the four calendar weeks preceding the
filing with the SEC of a notice on Form 144 with respect to the
sale.
125
Number of
Shares
No
Full
Exercise
Exercise
$
$
$
$
126
Short positions involve sales by the underwriters of shares in
excess of the number of shares the underwriters are obligated to
purchase, which creates a syndicate short position. The short
position may be either a covered short position or a naked short
position. In a covered short position, the number of shares
involved in the sales made by the underwriters in excess of the
number of shares they are obligated to purchase is not greater
than the number of shares that they may purchase by exercising
their option to purchase additional shares. In a naked short
position, the number of shares involved is greater than the
number of shares in their option to purchase additional shares.
The underwriters may close out any short position by either
exercising their option to purchase additional shares or
purchasing shares in the open market.
Stabilizing transactions permit bids to purchase the underlying
security as long as the stabilizing bids do not exceed a
specific maximum price.
Syndicate covering transactions involve purchases of our common
stock in the open market after the distribution has been
completed to cover syndicate short positions. In determining the
source of shares to close out the short position, the
underwriters will consider, among other things, the price of
shares available for purchase in the open market as compared to
the price at which they may purchase shares through the
underwriters option to purchase additional shares. If the
underwriters sell more shares than could be covered by
underwriters option to purchase additional shares, thereby
creating a naked short position, the position can only be closed
out by buying shares in the open market. A naked short position
is more likely to be created if the underwriters are concerned
that there could be downward pressure on the price of the shares
in the open market after pricing that could adversely affect
investors who purchase in the offering.
Penalty bids permit the representative to reclaim a selling
concession from a syndicate member when the common stock
originally sold by the syndicate member is purchased in a
stabilizing or syndicate covering transaction to cover syndicate
short positions.
In passive market marking, market makers in the common stock who
are underwriters or prospective underwriters may, subject to
limitations, make bids for or purchase shares of our common
stock until the time, if any, at which a stabilizing bid is made.
offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise
dispose of or transfer (or enter into any transaction or device
which is designed to, or could be expected to, result in the
127
disposition by any person at any time in the future of), any
share of our common stock or Other Securities, whether now owned
or acquired after the date of this prospectus;
enter into any swap or any other arrangement or transaction that
transfers to another person, in whole or in part, any of the
economic consequences of ownership of our common stock, whether
any such swap or transaction described above is to be settled by
delivery of shares of our common stock or other securities, in
cash or otherwise;
make any demand for or exercise any right (or, in the case of
us, file) or cause to be filed a registration statement (other
than the registration statement on
Form S-8
that is described in this prospectus) under the Securities Act,
including any amendment thereto, with respect to the
registration of any shares of our common stock or Other
Securities; or
publicly disclose the intention to do any of the foregoing,
during the last 17 days of the
lock-up
period, we issue an earnings release or material news or a
material event relating to us occurs; or
prior to the expiration of the
lock-up
period, we announce that we will release earnings results during
the
16-day
period beginning on the last day of the
lock-up
period;
128
129
130
F-2
F-3
F-4
F-5
F-6
F-7
F-26
F-27
F-28
F-29
F-30
F-1
F-2
F-3
2007
2008
2009
$
24,514,935
$
48,003,586
$
26,113,814
4,887,404
11,914,251
21,482,837
525,964
9,398,679
29,852,722
442,771
2,684,328
16,409,799
2,300
47,400
71,348
29,930,603
69,806,687
96,614,848
1,343,069
12,752,314
33,754,798
2,331,637
10,767,928
9,830,318
(224,551
)
2,737,620
12,058,007
125,909
7,568,541
18,339,220
24,334,465
41,566,410
31,268,908
27,910,529
75,392,813
105,251,251
$
2,020,074
$
(5,586,126
)
$
(8,636,403
)
F-4
Retained
Member Units
Member Units
Member Units
Earnings
Common
Preferred A
Preferred B
(Accumulated)
Units
Amounts
Units
Amounts
Units
Amounts
Deficit
Total
221,729
$
9,854,640
$
$
$
103,003
$
9,957,643
228,271
10,145,360
10,145,360
2,020,074
2,020,074
450,000
20,000,000
2,123,077
22,123,077
(54,512
)
(54,512
)
(5,586,126
)
(5,586,126
)
450,000
19,945,488
(3,463,049
)
16,482,439
(21,779
)
(21,779
)
90,796
4,035,000
4,035,000
50,000
5,000,000
5,000,000
(8,636,403
)
(8,636,403
)
450,000
$
19,923,709
90,796
$
4,035,000
50,000
$
5,000,000
$
(12,099,452
)
$
16,859,257
F-5
2007
2008
2009
$
2,020,074
$
(5,586,126
)
$
(8,636,403
)
405,049
794,306
888,446
287,676
1,046,178
1,289,353
2,331,637
10,767,928
9,830,318
(224,551
)
2,737,620
12,058,007
(525,964
)
(9,398,679
)
(29,852,722
)
(442,771
)
(2,684,328
)
(16,409,799
)
(4,887,323
)
(11,914,251
)
(21,482,837
)
125,909
7,568,541
18,339,220
(561,698
)
(97,456
)
(10,681
)
(419,248
)
(19,717
)
(5,869,311
)
(4,199,501
)
5,416,509
(368,705
)
(704,720
)
4,658,300
(930,953
)
(2,201,314
)
2,003,955
2,931,710
2,360,622
(536,823
)
881,927
7,132,789
12,498,302
(4,803,771
)
(2,156,551
)
(12,631,183
)
(1,524,721
)
(769,328
)
(375,452
)
(1,714,216
)
1,714,216
(904,237
)
1,357,607
3,543,032
36,108,662
(37,528,305
)
(107,301,524
)
(64,143,742
)
(39,409,635
)
(102,813,604
)
(29,314,769
)
7,145,360
349,000
5,000,000
(54,512
)
(21,779
)
(1,674,570
)
(546,165
)
1,536,111
(672,205
)
(22,608,882
)
(17,168,828
)
(15,289,740
)
(22,665,616
)
(794,773
)
(2,826,418
)
35,559,122
131,823,862
73,402,645
18,239,793
12,937,108
40,357,707
111,118,583
50,193,223
(3,855,699
)
6,148,428
8,247,271
5,350,799
1,495,100
7,643,528
$
1,495,100
$
7,643,528
$
15,890,799
$
$
$
4,035,000
$
$
10,926,246
$
14,600,305
3,000,000
$
458,830
$
7,994,775
$
20,311,173
F-6
NOTE 1
ORGANIZATION
AND DESCRIPTION OF BUSINESS ACTIVITIES
NOTE 2
SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES
F-7
F-8
F-9
F-10
F-11
NOTE 3
LIQUIDITY
NOTE 4
DEFERRED
COSTS
F-12
NOTE 5
DEPOSITS
F-13
NOTE 6
FIXED
ASSETS
2008
2009
$
1,644,636
$
1,885,904
957,717
1,025,841
465,836
531,896
3,068,189
3,443,641
1,217,851
2,106,297
$
1,850,338
$
1,337,344
NOTE 7
LOANS
RECEIVABLE
2008
2009
$
147,937,524
$
167,691,534
11,021,018
33,044,935
(1,353,041
)
(26,403
)
(8,861,910
)
(11,598,764
)
$
148,743,591
$
189,111,302
Loans
Interest
Receivable
Receivable
Total
$
8,861,910
$
1,441,552
$
10,303,462
8,616,097
1,214,221
9,830,318
(5,879,243
)
(867,229
)
(6,746,472
)
$
11,598,764
$
1,788,544
$
13,387,308
F-14
Loans
Interest
Receivable
Receivable
Total
$
2,250,580
$
81,057
$
2,331,637
8,927,947
1,839,981
10,767,928
(2,316,617
)
(479,486
)
(2,796,103
)
$
8,861,910
$
1,441,552
$
10,303,462
F-15
NOTE 8
ORIGINATION
FEES
2008
2009
$
46,124,533
$
57,641,266
(36,257,855
)
(25,211,898
)
1,154,340
615,567
$
11,021,018
$
33,044,935
NOTE 9
AGENCY
FEES RECEIVABLE
NOTE 10
STRUCTURED
SETTLEMENTS
NOTE 11
INVESTMENT
IN LIFE SETTLEMENTS (LIFE INSURANCE POLICIES)
F-16
Remaining
Number of
Life Expectancy
Life Settlement
Fair
Face
Contracts
Value
Value
$
$
27
4,306,280
72,875,000
27
$
4,306,280
$
72,875,000
$
1,523,016
1,667,116
1,689,947
1,800,647
1,954,147
23,899,310
$
32,534,183
NOTE 12
INVESTMENT
IN LIFE SETTLEMENT FUND
F-17
NOTE 13
FAIR
VALUE MEASUREMENTS
Total
Level 1
Level 2
Level 3
Fair Value
$
$
$
4,306,280
$
4,306,280
$
4,306,280
$
4,306,280
$
NOTE 14
NOTES PAYABLE
Total Notes
Payable
$
9,178,805
49,743,657
96,173,950
26,594,974
11,806,000
9,627,123
27,939,972
$
231,064,481
F-18
F-19
F-20
F-21
Other
Related
Acorn
CTL
Ableco
White Oak
Cedar Lane
Other
Party
Total
$
9,178,805
$
24,936,541
$
$
6,036,372
$
$
$
$
40,151,718
21,481,589
96,173,950
20,558,602
9,627,123
27,939,972
175,781,236
3,325,527
11,806,000
15,131,527
$
9,178,805
$
49,743,657
$
96,173,950
$
26,594,974
$
11,806,000
$
9,627,123
$
27,939,972
$
231,064,481
NOTE 15
SEGMENT
INFORMATION
Year Ended
December 31
December 31
December 31
2007
2008
2009
$
24,514,935
$
48,003,586
$
26,113,814
525,964
9,398,679
29,852,722
4,879,416
11,339,822
20,271,581
16,409,799
398
29,920,315
68,742,087
92,648,314
776,621
9,913,856
28,466,092
2,331,637
10,767,928
9,830,318
(224,551
)
2,737,620
12,058,007
125,909
7,568,541
18,339,220
15,081,517
21,744,468
13,741,737
18,091,133
52,732,413
82,435,374
$
11,829,182
$
16,009,674
$
10,212,940
F-22
Year Ended
December 31
December 31
December 31
2007
2008
2009
$
$
442,771
$
2,684,328
7,988
574,429
1,211,256
2,300
47,400
70,950
10,288
1,064,600
3,966,534
2,722,377
9,770,400
9,474,887
$
(2,712,089
)
$
(8,705,800
)
$
(5,508,353
)
$
9,117,093
$
7,303,874
$
4,704,587
6,530,571
10,051,542
8,052,284
566,448
2,838,458
5,288,706
7,097,019
12,890,000
13,340,990
$
2,020,074
$
(5,586,126
)
$
(8,636,403
)
December 31
December 31
2008
2009
$
205,428,688
$
245,574,288
2,299,720
9,201,017
207,728,408
254,775,305
3,312,016
8,944,783
$
211,040,424
$
263,720,088
NOTE 16
RELATED
PARTY TRANSACTIONS
NOTE 17
COMMITMENTS
AND CONTINGENCIES
$
550,220
557,087
115,438
$
1,222,745
NOTE 18
PREFERRED
EQUITY
NOTE 19
EMPLOYEE
BENEFIT PLAN
F-24
NOTE 20
SUBSEQUENT
EVENTS
F-25
December 31,
June 30,
2009
2010
(unaudited)
$
15,890,799
$
10,130,310
581,679
669,835
874,446
2,165,087
1,131,075
26,323,244
20,109,980
885,985
1,601,172
982,417
700,288
21,033,687
23,885,380
189,111,302
174,266,661
151,543
993,028
320,241
340,155
4,306,280
2,298,689
542,324
1,269,657
1,337,344
1,064,500
$
263,720,088
$
239,247,020
LIABILITIES AND MEMBERS EQUITY
$
3,169,028
$
3,690,313
12,627,322
16,048,008
231,064,481
205,231,076
246,860,831
224,969,397
4,035,000
4,035,000
5,000,000
5,000,000
7,000,000
700,000
(700,000
)
19,923,709
19,923,709
(12,099,452
)
(21,681,086
)
16,859,257
14,277,623
$
263,720,088
$
239,247,020
F-26
June 30,
June 30,
2009
2010
$
16,687,370
$
7,717,447
10,500,959
11,540,540
14,140,075
12,890,847
475,105
3,262,526
474,369
14,048,776
4,533,162
(201,337
)
33,900
153,037
55,886,185
40,370,591
16,133,297
17,395,072
5,935,907
3,019,329
10,432,364
3,313,397
7,961,554
11,632,692
17,185,097
14,591,735
57,648,219
49,952,225
$
(1,762,034
)
$
(9,581,634
)
F-27
Member Units Series A
Member Units Series B
Preferred
Preferred
Units
Amount
Units
Amount
90,796
$
4,035,000
50,000
$
5,000,000
90,796
$
4,035,000
50,000
$
5,000,000
Member Units Series C
Member Units Series D
Preferred
Preferred
Units
Amount
Units
Amount
$
$
70,000
7,000,000
7,000
700,000
(700,000
)
70,000
$
7,000,000
7,000
$
Member Units Common
Accumulated Deficit
Total
Units
Amount
Amount
Amount
450,000
$
19,923,709
$
(12,099,452
)
$
16,859,257
7,700,000
(700,000
)
(9,581,634
)
(9,581,634
)
450,000
$
19,923,709
$
(21,681,086
)
$
14,277,623
F-28
June 30,
June 30,
2009
2010
$
(1,762,034
)
$
(9,581,634
)
438,316
387,640
936,999
102,555
5,935,907
3,019,329
10,432,364
3,313,397
(14,140,075
)
(12,890,847
)
(475,105
)
(3,262,526
)
(474,369
)
(14,048,776
)
(4,533,162
)
(10,500,959
)
(11,540,540
)
7,961,554
11,632,692
(200,000
)
75,151
282,129
684,624
(272,536
)
7,665,569
931,457
(1,323,231
)
2,612,430
6,153,773
(1,122,740
)
(2,662,973
)
521,285
12,324,131
3,420,686
7,695,235
(17,654,754
)
(312,374
)
(114,797
)
(727,333
)
10,432,364
45,619,886
(45,220,013
)
(15,342,484
)
2,070,494
(35,100,023
)
31,505,766
7,000,000
(22,333
)
1,536,111
(309,143
)
(10,942,408
)
(4,031,962
)
(39,006,288
)
(39,316,724
)
(13,372,718
)
(23,844,949
)
83,017,544
32,076,072
584,650
9,284,505
(469,300
)
21,794,558
(19,611,501
)
(5,610,230
)
(5,760,489
)
7,643,528
15,890,799
$
2,033,298
$
10,130,310
$
1,738,976
$
13,158,898
$
10,942,408
$
$
$
700,000
F-29
NOTE 1
ORGANIZATION
AND DESCRIPTION OF BUSINESS ACTIVITIES
NOTE 2
BASIS OF
PRESENTATION AND SIGNIFICANT ACCOUNTING POLICIES
F-30
F-31
NOTE 3
LOANS
RECEIVABLE
2009
2010
$
167,691,534
$
150,125,760
33,044,935
36,587,885
(26,403
)
(13,642
)
(11,598,764
)
(12,433,342
)
$
189,111,302
$
174,266,661
2010
$
167,691,534
15,457,130
5,176,811
(2,563,869
)
(35,635,846
)
$
150,125,760
NOTE 4
STRUCTURED
SETTLEMENTS
F-32
NOTE 5
INVESTMENT
IN LIFE SETTLEMENT FUND
NOTE 6
FAIR
VALUE MEASUREMENTS
F-33
Total
Level 1
Level 2
Level 3
Fair Value
$
$
$
2,298,689
$
2,298,689
Total
Level 1
Level 2
Level 3
Fair Value
$
$
$
4,306,280
$
4,306,280
$
4,306,280
(201,337
)
(2,070,494
)
264,240
$
2,298,689
$
(163,784
)
NOTE 7
RELATED
PARTY TRANSACTIONS
NOTE 8
PREFERRED
EQUITY
NOTE 9
SEGMENT
INFORMATION
F-34
Six Months Ended June 30,
2009
2010
$
16,687,370
$
7,717,447
14,140,075
12,890,847
10,108,514
11,329,237
14,048,776
4,533,162
376,695
54,984,735
36,847,388
13,712,828
15,329,068
5,935,907
3,019,329
10,432,364
3,313,397
7,961,554
11,632,692
8,541,507
4,739,072
46,584,160
38,033,558
$
8,400,575
$
(1,186,170
)
$
475,105
$
3,262,526
392,445
211,303
33,900
49,374
901,450
3,523,203
4,349,853
5,729,916
$
(3,448,403
)
$
(2,206,713
)
F-35
Six Months Ended June 30,
2009
2010
4,952,172
(3,392,883
)
4,293,737
4,122,747
2,420,469
2,066,004
6,714,206
6,188,751
$
(1,762,034
)
$
(9,581,634
)
December 31
June 30
2009
2010
$
245,574,288
$
226,269,712
9,201,017
3,438,935
254,775,305
229,708,647
8,944,783
9,538,373
$
263,720,088
$
239,247,020
NOTE 10
SUBSEQUENT
EVENTS
F-37
Item 13.
Other
Expenses of Issuance and Distribution.
$
20,498.75
29,250.00
*
*
*
*
*
*
*
*
$
*
*
to be provided by amendment
Item 14.
Indemnification
of Directors and Officers.
Item 15.
Recent
Sales of Unregistered Securities.
On December 15, 2006, we issued 112,500 common units to IFS
Holdings, Inc. in exchange for an initial capital contribution
of $5,000,000.
On December 15, 2006, we issued 112,500 common units to
Premium Funding, Inc. in exchange for an initial capital
contribution of $5,000,000.
II-1
On December 15, 2006, we issued 112,500 common units to
IMEX Settlement Corporation in exchange for an initial capital
contribution of $5,000,000.
On December 15, 2006, we issued 112,500 common units to Red
Oak Finance, LLC in exchange for an initial capital contribution
of $5,000,000. Three Million Dollars of the capital contribution
was satisfied by a contribution of 28 premium finance loans
originated during 2006 with principal and accrued interest as of
the contribution date of $2,788,008.18 and $211,991.82,
respectively.
On February 2, 2007, we issued 1,184.21 and 2,337.66
phantom share units to James Purdy and Jonathan Moulton in
exchange for future contributions to us in their capacity as our
employees.
On December 19, 2007, we issued a note to Red Oak Finance,
LLC, a Florida limited liability company, in the original
principal amount of $1,000,000, at a ten (10%) per annum
interest rate, with a maturity date of February 18, 2008
(subject to extensions).
On January 10, 2008, we issued a note to Red Oak Finance,
LLC, a Florida limited liability company, in the original
principal amount of $500,000, at a ten (10%) per annum interest
rate, with a maturity date of March 10, 2008 (subject to
extensions).
On April 8, 2008, we issued a note to Red Oak Finance, LLC,
a Florida limited liability company, in the original principal
amount of $500,000, at a ten (10%) per annum interest rate, with
a maturity date of June 8, 2008 (subject to extensions).
On August 1, 2008, Imperial Premium Finance, LLC issued a
note to IFS Holdings, Inc., a Florida corporation, in the
original principal amount of $200,000, at a sixteen (16%) per
annum interest rate, with a maturity date of August 2, 2010
(subject to extensions).
On August 6, 2008, Imperial Finance & Trading,
LLC issued a note to IFS Holdings, Inc., a Florida corporation,
in the original principal amount of $75,000, at a sixteen (16%)
per annum interest rate, with a maturity date of August 7,
2010 (subject to extensions).
On October 10, 2008, we issued a note to Red Oak Finance,
LLC, a Florida limited liability company, in the original
principal amount of $62,500, at a ten (10%) per annum interest
rate, with a maturity date of December 10, 2008 (subject to
extensions).
On December 23, 2008, we issued a note to IFS Holdings,
Inc., a Florida corporation, in the original principal amount of
$750,000, at a sixteen (16%) per annum interest rate, with a
maturity date of December 24, 2010 (subject to extensions).
On December 24, 2008, we issued a note to Red Oak Finance,
LLC, a Florida limited liability company, in the original
principal amount of $450,000, at a ten (10%) per annum interest
rate, with a maturity date of February 24, 2009 (subject to
extensions).
On December 30, 2008, we issued a note to IFS Holdings,
Inc., a Florida corporation, in the original principal amount of
$750,000, at a sixteen (16%) per annum interest rate, with a
maturity date of December 30, 2010 (subject to extensions).
Effective June 30, 2009, we converted $2,260,000 in notes
from Red Oak Finance, LLC issued on December 19, 2007,
January 10, 2008, April 8, 2008, October 10, 2008
and December 24, 2008 into 50,855 Series A Preferred
Units held by Red Oak Finance, LLC.
Effective June 30, 2009, we converted $1,775,000 in notes
from IFS Holdings, Inc. issued on August 1, 2008,
August 6, 2008, December 23, 2008 and
December 30, 2008 into 39,941 Series A Preferred Units
held by IFS Holdings, Inc.
Effective December 29, 2009, we sold 25,000 16%
Series B Preferred Units to Imex Settlement Corporation for
a price of $2,500,000.
Effective December 29, 2009, we sold 25,000 16%
Series B Preferred Units to Premium Funding, Inc. for a
price of $2,500,000.
II-2
Effective March 31, 2010, we sold 70,000 16% Series C
Preferred Units to Imex Settlement Corporation for a price of
$7,000,000.
Effective June 30, 2010, we sold 7,000 Series D
Preferred Units to Imex Settlement Corporation for a price of
$700,000.
Item 16.
Exhibits
and Financial Statement Schedules.
Item 17.
Undertakings.
II-3
By
Title:
Chief Executive Officer
Chief Executive Officer
(Principal Executive Officer)
September 30, 2010
Chief Financial Officer and
Chief Credit Officer
(Principal Financial Officer)
September 30, 2010
Director of Finance and Accounting (Principal Accounting Officer)
September 30, 2010
President and Chief Operating Officer
September 30, 2010
II-4
By:
Sole Director
By:
By:
II-5
By:
II-6
should not in all instances be treated as categorical
statements of fact, but rather as a way of allocating the risk
to one of the parties if those statements prove to be
inaccurate;
have been qualified by disclosures that were made to the
other party in connection with the negotiation of the applicable
agreement, which disclosures are not necessarily reflected in
the agreement;
may apply standards of materiality in a way that is different
from what may be viewed as material to you or other investors;
and
were made only as of the date of the applicable agreement or
such other date or dates as may be specified in the agreement
and are subject to more recent developments.
Exhibit
*1
.1
Underwriting Agreement
*2
.1
Plan of Conversion
3
.1
Form of Articles of Incorporation of Registrant
3
.2
Form of Bylaws of Registrant
*4
.1
Form of Common Stock Certificate
*4
.2
Form of Warrant to purchase common stock
*5
.1
Opinion of Foley & Lardner LLP
~
10
.1
Employment Agreement between the Registrant and Antony Mitchell
~
10
.2
Employment Agreement between the Registrant and Jonathan Neuman
*
~
10
.3
Employment Agreement between the Registrant and Rory
OConnell
*
~
10
.4
Employment Agreement between the Registrant and Deborah Benaim
*
~
10
.5
Employment Agreement between the Registrant and Anne Dufour
Zuckerman
~
10
.6
Imperial Holdings 2010 Omnibus Incentive Plan
~
10
.7
2010 Omnibus Incentive Plan Form of Stock Option Award Agreement
10
.8
Reserved
10
.9
Reserved
10
.10
Reserved
10
.11
Reserved
**10
.12
Settlement Agreement dated as of May 19, 2009 among Sovereign
Life Financing, LLC, Imperial Premium Finance, LLC and Acorn
Capital Group, LLC
10
.12.1
Assignment Agreement dated June 10, 2009 between Acorn Capital
Group, LLC and Asset Based Resource Group, LLC assigning rights
to the Settlement Agreement dated as of May 19, 2009 among
Sovereign Life Financing, LLC, Imperial Premium Finance, LLC and
Acorn Capital Group, LLC
II-7
Exhibit
+10
.13
Second Amended and Restated Financing Agreement dated as of
March 12, 2010 by and among Imperial PFC Financing II, LLC as
Borrower, Cedar Lane Capital LLC as Lender and EBC Asset
Management, Inc. as Administrative Agent and Collateral Agent
+10
.14
Letter Agreement dated September 14, 2009 among Imperial
Holdings, LLC, Lexington Insurance Company and National Fire
& Marine Insurance Company
10
.15
Master Trust Indenture dated as of September 24, 2010 by and
among Imperial Settlements Financing 2010, LLC as the Issuer,
Portfolio Financial Servicing Company as the Initial Master
Servicer, and Wilmington Trust Company as the Trustee and
Collateral Trustee
10
.16
Series 2010-1 Supplement dated as of September 24, 2010 to the
Master Trust Indenture dated as of September 24, 2010 by and
among Imperial Settlements Financing 2010, LLC as the Issuer,
Portfolio Financial Servicing Company as the Initial Servicer,
and Wilmington Trust Company as the Trustee and Collateral
Trustee
10
.17
Reserved
+10
.18
Financing Agreement dated as of March 13, 2009 by and among
Imperial Life Financing II, LLC as Borrower, the Lenders from
time to time party thereto, and CTL Holdings II LLC as
Collateral Agent and Administrative Agent
+10
.19
Letter Agreement dated March 13, 2009 among Imperial Holdings,
LLC, Lexington Insurance Company and National Fire & Marine
Insurance Company
10
.20
First Amendment to Financing Agreement dated as of April 30,
2009 by and among Imperial Life Financing II, LLC as Borrower,
the Lenders from time to time party thereto, and CTL
Holdings II LLC as Collateral Agent and Administrative Agent
10
.21
Notice of Resignation and Appointment dated as of April 30, 2009
among CTL Holdings II LLC, White Oak Global Advisors, LLC
and the Lenders party to the Financing Agreement dated March 13,
2009
10
.22
Second Amendment to Financing Agreement dated as of July 23,
2009 among Imperial Life Financing II, LLC as Borrower, the
Lenders from time to time party thereto, and White Oak Global
Advisors, LLC as Collateral Agent and Administrative Agent
10
.23
Third Amendment and Consent to Financing Agreement dated as of
September 11, 2009 among Imperial Life Financing II, LLC as
Borrower, the Lenders from time to time party thereto, and White
Oak Global Advisors, LLC as Collateral Agent and Administrative
Agent
10
.24
Fourth Amendment to Financing Agreement dated as of December 1,
2009 among Imperial Life Financing II, LLC as Borrower, the
Lenders from time to time party thereto, and White Oak Global
Advisors, LLC as Collateral Agent and Administrative Agent
10
.25
Consent Letter dated September 30, 2010 by and among
Imperial Holdings, LLC and Lexington Insurance Company
10
.26
Consent Letter dated September 30, 2010 by and among
Imperial Holdings, LLC and Slate Capital LLC
10
.27
Reserved
**10
.28
Promissory Note effective as of August 31, 2009 in the principal
amount of $17,616,271 held by the Branch Office of Skarbonka Sp.
z o.o.
**10
.29
Promissory Note effective as of August 31, 2009 in the principal
amount of $25,000,000 held by Amalgamated International
Holdings, S.A.
**10
.30
Promissory Note effective as of August 31, 2009 in the principal
amount of $10,323,756 held by IMPEX Enterprises, Ltd.
+10
.31
Purchase Agreement dated as of February 1, 2010 by and between
Haverhill Receivables, LLC as Seller and Slate Capital LLC as
Purchaser
+10
.32
Servicing Agreement dated as of February 1, 2010 by and among
Slate Capital LLC as Purchaser, Haverhill Receivables, LLC as
Seller and Washington Square Financial, LLC d/b/a Imperial
Structured Settlements as Servicer
Exhibit
10
.33
Wind Down Agreement dated as of September 30, 2010 by and
between Slate Capital LLC and Haverhill Receivables, LLC
**10
.34
Marketing Agreement between Imperial Litigation Funding, LLC as
Originator and Plaintiff Funding Holding Inc d/b/a LawCash as
Funder
**10
.35
Agreement dated November 13, 2009 among GWG Life Settlements,
LLC and Imperial Premium Finance, LLC as Selling Advisor
21
.1
Subsidiaries of the Registrant
*23
.1
Consent of Foley & Lardner LLP (included as part of its
opinion to be filed as Exhibit 5.1 hereto)
23
.2
Consent of Grant Thornton LLP
**24
.1
Power of Attorney
99
.1
Consent of Director Nominees
*
To be filed by amendment.
**
Filed as exhibit to registration statement on
Form S-1
on August 12, 2010.
~
Compensatory plan or arrangement.
+
Certain portions of the exhibit have been omitted pursuant to a
request for confidential treatment. An unredacted copy of the
exhibit has been filed separately with the United States
Securities and Exchange Commission pursuant to a request for
confidential treatment.
Name | Address | |
Robert S. Bernstein |
One Independent Drive, Suite 1300
Jacksonville, Florida 32202 |
Robert S. Bernstein, Incorporator | ||||
F & L CORP., Registered Agent
|
||||
Charles V. Hedrick, Authorized Signatory | ||||
Date: | ||||
Page | ||||||
|
||||||
ARTICLE 1 DEFINITIONS | ||||||
|
||||||
Section 1.1
|
Definitions | 1 | ||||
|
||||||
ARTICLE 2 OFFICES | ||||||
|
||||||
Section 2.1
|
Principal and Business Offices | 1 | ||||
Section 2.2
|
Registered Office | 1 | ||||
|
||||||
ARTICLE 3 SHAREHOLDERS | ||||||
|
||||||
Section 3.1
|
Annual Meeting | 2 | ||||
Section 3.2
|
Special Meetings | 2 | ||||
Section 3.3
|
Place of Meeting | 3 | ||||
Section 3.4
|
Notice of Meeting | 3 | ||||
Section 3.5
|
Waiver of Notice | 4 | ||||
Section 3.6
|
Fixing of Record Date | 4 | ||||
Section 3.7
|
Shareholders List for Meetings | 5 | ||||
Section 3.8
|
Conduct of Meetings by Remote Communication | 5 | ||||
Section 3.9
|
Quorum | 5 | ||||
Section 3.10
|
Voting of Shares | 6 | ||||
Section 3.11
|
Vote Required | 6 | ||||
Section 3.12
|
Conduct of Meeting | 6 | ||||
Section 3.13
|
Inspectors of Election | 6 | ||||
Section 3.14
|
Proxies | 7 | ||||
Section 3.15
|
Shareholder Nominations and Proposals | 7 | ||||
Section 3.16
|
Acceptance of Instruments Showing Shareholder Action | 7 | ||||
|
||||||
ARTICLE 4 BOARD OF DIRECTORS | ||||||
|
||||||
Section 4.1
|
General Powers and Number | 8 | ||||
Section 4.2
|
Qualifications | 8 | ||||
Section 4.3
|
Term of Office | 8 | ||||
Section 4.4
|
Removal | 8 | ||||
Section 4.5
|
Resignation | 9 | ||||
Section 4.6
|
Vacancies | 9 | ||||
Section 4.7
|
Compensation | 9 | ||||
Section 4.8
|
Regular Meetings | 9 | ||||
Section 4.9
|
Special Meetings | 9 | ||||
Section 4.10
|
Notice | 10 | ||||
Section 4.11
|
Waiver of Notice | 10 | ||||
Section 4.12
|
Quorum and Voting | 10 | ||||
Section 4.13
|
Conduct of Meetings | 10 | ||||
Section 4.14
|
Committees | 10 | ||||
Section 4.15
|
Lead Director | 11 | ||||
Section 4.16
|
Action Without Meeting | 11 | ||||
|
||||||
ARTICLE 5 OFFICERS | ||||||
|
||||||
Section 5.1
|
Number | 11 | ||||
Section 5.2
|
Election and Term of Office | 12 | ||||
Section 5.3
|
Removal | 12 | ||||
Section 5.4
|
Resignation | 12 | ||||
Section 5.5
|
Vacancies | 12 | ||||
Section 5.6
|
Chair | 12 |
i
Page | ||||||
Section 5.7
|
President | 12 | ||||
Section 5.8
|
Vice Presidents | 13 | ||||
Section 5.9
|
Secretary | 13 | ||||
Section 5.10
|
Treasurer | 13 | ||||
Section 5.11
|
Assistant Secretaries and Assistant Treasurers | 13 | ||||
Section 5.12
|
Other Assistants and Acting Officers | 14 | ||||
Section 5.13
|
Salaries | 14 | ||||
|
||||||
ARTICLE 6 CONTRACTS, CHECKS AND DEPOSITS; SPECIAL CORPORATE ACTS | ||||||
|
||||||
Section 6.1
|
Contracts | 14 | ||||
Section 6.2
|
Checks, Drafts, etc. | 14 | ||||
Section 6.3
|
Deposits | 14 | ||||
Section 6.4
|
Voting of Securities Owned by Corporation | 14 | ||||
|
||||||
ARTICLE 7 CERTIFICATES FOR SHARES; TRANSFER OF SHARES | ||||||
|
||||||
Section 7.1
|
Consideration for Shares | 15 | ||||
Section 7.2
|
Certificates for Shares | 15 | ||||
Section 7.3
|
Transfer of Shares | 15 | ||||
Section 7.4
|
Restrictions on Transfer | 16 | ||||
Section 7.5
|
Lost, Destroyed, or Stolen Certificates | 16 | ||||
Section 7.6
|
Stock Regulations | 16 | ||||
|
||||||
ARTICLE 8 SEAL | ||||||
|
||||||
Section 8.1
|
Seal | 16 | ||||
|
||||||
ARTICLE 9 BOOKS AND RECORDS | ||||||
|
||||||
Section 9.1
|
Books and Records | 16 | ||||
Section 9.2
|
Inspection Rights | 16 | ||||
Section 9.3
|
Distribution of Financial Information | 17 | ||||
Section 9.4
|
Other Reports | 17 | ||||
|
||||||
ARTICLE 10 INDEMNIFICATION | ||||||
|
||||||
Section 10.1
|
Action by Third Party | 17 | ||||
Section 10.2
|
Action by Corporation | 17 | ||||
Section 10.3
|
Successful Defense of an Action | 17 | ||||
Section 10.4
|
Procedure | 17 | ||||
Section 10.5
|
Reasonableness of Expenses | 18 | ||||
Section 10.6
|
Expenses Paid in Advance | 18 | ||||
Section 10.7
|
Willful Misconduct, Etc. | 18 | ||||
Section 10.8
|
Persons No Longer in the Corporations Services | 19 | ||||
Section 10.9
|
Court Ordered Indemnification | 19 | ||||
Section 10.10
|
Constituent Corporations | 19 | ||||
Section 10.11
|
Definitions | 19 | ||||
Section 10.12
|
Insurance | 20 | ||||
Section 10.13
|
Effect of Amendment | 20 | ||||
|
||||||
ARTICLE 11 AMENDMENTS | ||||||
|
||||||
Section 11.1
|
Power to Amend | 20 |
-ii-
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EXECUTIVE
|
||||
/s/ Antony Mitchell | ||||
Antony Mitchell | ||||
IMPERIAL HOLDINGS, LLC
|
||||
By: | /s/ Jonathan L. Neuman | |||
Name: | Jonathan L. Neuman | |||
Title: | President |
19
1. | For the Companys fiscal year ending December 31, 2011, the threshold is $60,000,000 pre-tax income ( i.e. , the Companys net revenues determined on a consolidated basis, also known as earnings before taxes). |
2. | For the Companys fiscal year ending December 31, 2012, the threshold is $67,500,000 pre-tax income ( i.e. , the Companys net revenues determined on a consolidated basis, also known as earnings before taxes). |
3. | For the Companys fiscal year ending December 31, 2013, the threshold is $75,000,000 pre-tax income ( i.e. , the Companys net revenues determined on a consolidated basis, also known as earnings before taxes). |
20
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EXECUTIVE
|
||||
/s/ Jonathan Neuman | ||||
Jonathan Neuman | ||||
IMPERIAL HOLDINGS, LLC
|
||||
By: | /s/ Antony Mitchell | |||
Name: | Antony Mitchell | |||
Title: | CEO |
19
1. | For the Companys fiscal year ending December 31, 2011, the threshold is $60,000,000 pre-tax income ( i.e. , the Companys net revenues determined on a consolidated basis, also known as earnings before taxes). |
2. | For the Companys fiscal year ending December 31, 2012, the threshold is $67,500,000 pre-tax income ( i.e. , the Companys net revenues determined on a consolidated basis, also known as earnings before taxes). |
3. | For the Companys fiscal year ending December 31, 2013, the threshold is $75,000,000 pre-tax income ( i.e. , the Companys net revenues determined on a consolidated basis, also known as earnings before taxes). |
20
(i) | any one person, or more than one person acting as a group, acquires ownership of common stock of the Company that, together with common stock held by such person or group, possesses more than 50% of the total fair market value or total voting power of the common stock of the Company; provided, however, that if any one person, or more than one person acting as a group, is considered to own more than 50% of the total fair market value or total voting power of the common stock of the Company, the acquisition of additional common stock by the same person or persons will not be considered a Change in Control. Notwithstanding the foregoing, an increase in the percentage of common stock of the Company owned by any one person, or persons acting as a group, as a result of a transaction in which the Company acquires its common stock in exchange for property will be treated as an acquisition of common stock of the Company for purposes of this clause (i); |
1
(ii) | during any period of 12 consecutive months, individuals who at the beginning of such period constituted the Board (together with any new or replacement directors whose election by the Board, or whose nomination for election by the Companys shareholders, was approved by a vote of at least a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the directors then in office; or | ||
(iii) | any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by the person or persons) assets from the Company, outside of the ordinary course of business, that have a gross fair market value equal to or more than 40% of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions. For purposes of this Section 2(d), gross fair market value means the value of the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets. Notwithstanding anything to the contrary in this Agreement, the following shall not be treated as a Change in Control under this Section 2(d): |
(A) | a transfer of assets from the Company to a shareholder of the Company (determined immediately before the asset transfer); | ||
(B) | a transfer of assets from the Company to an entity, 50% or more of the total value or voting power of which is owned, directly or indirectly, by the Company; | ||
(C) | a transfer of assets from the Company to a person, or more than one person acting as a group, that owns, directly or indirectly, 50% or more of the total value or voting power of all the outstanding capital stock of the Company; or | ||
(D) | a transfer of assets from the Company to an entity, at least 50% of the total value or voting power of which is owned, directly or indirectly, by a person described in clause (iii) above. |
2
3
4
5
6
(i) | receiving Options for, and/or Stock Appreciation Rights with respect to, more than 120,000 Shares during any fiscal year of the Company; | ||
(ii) | receiving Awards of Restricted Stock and/or Restricted Stock Units relating to more than 120,000 Shares during any fiscal year of the Company; | ||
(iii) | receiving, with respect to an Award of Performance Shares and/or an Award of Performance Units the value of which is based on the Fair Market Value of a Share, payment of more than 120,000 Shares in any fiscal year; | ||
(iv) | receiving, with respect to an Annual Incentive Award in respect of any single fiscal year of the Company, a cash payment of more than $2,000,000; | ||
(v) | receiving, with respect to a Long-Term Incentive Award and/or an Award of Performance Units the value of which is not based on the Fair Market Value of a Share, a cash payment of more than $3,000,000 in respect of any period of two consecutive fiscal years of the Company, or of more than $4,000,000 in respect of any period of three consecutive fiscal years of the Company; or | ||
(vi) | receiving other Stock-based Awards pursuant to Section 12 relating to more than 120,000 Shares during any fiscal year of the Company. |
7
8
9
(i) | the Board must approve any amendment of this Plan to the extent the Company determines such approval is required by: (A) prior action of the Board, (B) applicable corporate law or (C) any other applicable law; | ||
(ii) | shareholders must approve any amendment of this Plan to the extent the Company determines such approval is required by: (A) Section 16 of the Exchange Act, (B) the Code, (C) the listing requirements of any principal securities exchange or market on which the Shares are then traded or (D) any other applicable law; and | ||
(iii) | shareholders must approve any of the following Plan amendments: (A) an amendment to materially increase any number of Shares specified in Section 6(a) or 6(c) (except as permitted by Section 17); or (B) an amendment to the provisions of Section 15(e). |
10
11
12
(i) | If the successor or surviving corporation (or parent thereof) so agrees, some or all outstanding Awards shall be assumed, or replaced with the same type of award with similar terms and conditions, by the successor or surviving corporation (or parent thereof) in the Change in Control transaction. If applicable, each Award which is assumed by the successor or surviving corporation (or parent thereof) shall be appropriately adjusted, immediately after such Change in Control, to apply to the number and class of securities which would have been issuable to the Participant upon the consummation of such Change in Control had the Award been exercised or vested immediately prior to such Change in Control, and such other appropriate adjustments in the terms and conditions of the Award shall be made. | ||
(ii) | If the provisions of paragraph (i) do not apply with respect to any particular outstanding Award, then the Committee may provide that all such outstanding Awards shall be cancelled as of the date of the Change in Control in exchange for a payment in cash and/or Shares (which may include shares or other securities of any surviving or successor entity or the purchasing entity or any parent thereof) equal to: (x) in the case of an Option or SAR, the excess of the Fair Market Value of the Shares on the date of the Change in Control covered by the vested portion of the Option or SAR that has not been exercised over the exercise or grant price of such Shares under the Award, provided that if such excess is zero, then the Option or SAR shall be cancelled without payment therefor; (y) in the case of Restricted Stock Units, the Fair Market Value of a Share on the date of the Change in Control multiplied by the number of vested units; and (z) in the case of a Performance Share Award, the Fair Market Value of a Share on the date of the Change in Control multiplied by the number of earned Shares. |
(i) | Except as may be set forth in a written agreement by and between the Company and the Participant, in the event that the Companys auditors determine that any payment or transfer by the Company under the Plan to or for the benefit of a Participant (a Payment) would be nondeductible by the Company for federal income tax purposes because of the provisions concerning excess parachute payments in Code Section 280G, then the aggregate present value of all Payments shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section 18(b), the Reduced Amount shall be the amount, expressed as a present value, which maximizes the aggregate present value of the Payments without causing any Payment to be nondeductible by the Company because of Code Section 280G. | ||
(ii) | If the Companys auditors determine that any Payment would be nondeductible by the Company because of Code Section 280G, then the Company shall promptly give the Participant notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Participant may then |
13
elect, in his or her sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of his or her election within ten (10) days of receipt of notice. If no such election is made by the Participant within such ten (10) day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Participant promptly of such election. For purposes of this Section 18(b), present value shall be determined in accordance with Code Section 280G(d)(4). All determinations made by the Companys auditors under this Section 18(b) shall be binding upon the Company and the Participant and shall be made within sixty (60) days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Participant such amounts as are then due to him or her under the Plan and shall promptly pay or transfer to or for the benefit of the Participant in the future such amounts as become due to him or her under the Plan. | |||
(iii) | As a result of uncertainty in the application of Code Section 280G at the time of an initial determination by the Companys auditors hereunder, it is possible that Payments will have been made by the Company that should not have been made (an Overpayment) or that additional Payments that will not have been made by the Company could have been made (an Underpayment), consistent in each case with the calculation of the Reduced Amount hereunder. In the event that the Companys auditors, based upon the assertion of a deficiency by the Internal Revenue Service against the Company or the Participant that the auditors believe has a high probability of success, determine that an Overpayment has been made, such Overpayment shall be treated for all purposes as a loan to the Participant which he or she shall repay to the Company, together with interest at the applicable federal rate provided in Code Section 7872(f)(2); provided, however, that no amount shall be payable by the Participant to the Company if and to the extent that such payment would not reduce the amount subject to taxation under Code Section 4999. In the event that the auditors determine that an Underpayment has occurred, such Underpayment shall promptly be paid or transferred by the Company to or for the benefit of the Participant, together with interest at the applicable federal rate provided in Code Section 7872(f)(2). | ||
(iv) | For purposes of this Section 18(b), the term Company shall include affiliated corporations to the extent determined by the Auditors in accordance with Code Section 280G(d)(5). |
14
(i) | one or more means to enable Participants to defer the delivery of Shares or recognition of taxable income relating to Awards or cash payments derived from the Awards on such terms and conditions as the Committee determines, including, by way of example, the form and manner of the deferral election, the treatment of dividends paid on the Shares during the deferral period or a means for providing a return to a Participant on amounts deferred, and the permitted distribution dates or events (provided that no such deferral means may result in an increase in the number of Shares issuable under this Plan); | ||
(ii) | the payment of the purchase price of Options (A) by delivery of cash or other Shares or other securities of the Company (including by attestation) having a then Fair Market Value equal to the purchase price of such Shares, (B) by delivery (including by fax) to the Company or its designated agent of an executed irrevocable option exercise form together with irrevocable instructions to a broker-dealer to sell or margin a sufficient portion of the Shares and deliver the sale or margin loan proceeds directly to the Company to pay for the exercise price, (C) by surrendering the right to receive Shares otherwise deliverable to the Participant upon exercise of the Award having a Fair Market Value at the time of exercise equal to the total exercise price, or (D) by any combination of (A), (B) and/or (C); | ||
(iii) | giving the Participant the right to receive dividend payments with respect to Restricted Stock, which payments may be either made currently or credited to a nonqualified deferred compensation account for the Participant that complies with the applicable requirements of Code Section 409A, provides for the deferral of payment of such amounts to a specified employee or until a specified event described in Code Section 409A(a)(2), and may be settled in cash or Shares, as the Committee determines, it being understood that neither dividend payments nor dividend equivalent payments shall be made with respect to the Shares subject to an Award of Options, SARs, Performance Shares, Performance Units or Restricted Stock Units; | ||
(iv) | restrictions on resale or other disposition of Shares; and | ||
(v) | compliance with federal or state securities laws and stock exchange requirements. |
(i) | a Participant who transfers employment between the Company and its Affiliates, or between Affiliates, will not be considered to have terminated employment; | ||
(ii) | a Participant who ceases to be a Non-Employee Director because he or she becomes an employee of the Company or an Affiliate shall not be considered to |
15
have ceased service as a Director with respect to any Award earlier than such Participants termination of employment with the Company and its Affiliates; | |||
(iii) | a Participant who ceases to be employed by the Company or an Affiliate and immediately thereafter becomes a Non-Employee Director, a non-employee director of an Affiliate, or a consultant to the Company or any Affiliate shall not be considered to have terminated employment until such Participants service as a director of, or consultant to, the Company and its Affiliates has ceased; and | ||
(iv) | a Participant employed by an Affiliate will be considered to have terminated employment when such entity ceases to be an Affiliate. |
16
17
Grant Date:
|
[__________ __, 200_] | |
|
||
Type of Option:
|
o Incentive Stock Option | |
|
o Nonqualified Stock Option | |
|
||
Number of Option Shares:
|
[___________] | |
|
||
Exercise Price per Share:
|
U.S. $[_____] | |
|
||
Term:
|
This Option shall expire on the tenth anniversary of the Grant Date (the Expiration Date ), unless terminated earlier pursuant to the terms of this Option Agreement or the Plan. Upon termination or expiration of this Option, all your rights hereunder shall cease. | |
|
||
Vesting:
|
[One fourth (1/4) of the total shares subject to this Option will vest on each of the first four anniversaries of the Grant Date, provided that you are still employed with the Company as of the applicable anniversary date.] | |
|
||
|
Upon your termination of your employment from the Company, the unvested portion of this Option shall be forfeited. | |
|
||
Termination of
Employment:
|
The following conditions apply in the event that your employment with the Company is terminated prior to the Expiration Date of this Option. In no event, however, will the time periods described herein extend the term of this Option beyond its Expiration Date or beyond the date this Option is otherwise cancelled pursuant to the provisions of the Plan. | |
|
||
|
a.
Termination As a Result of Death.
If your employment
terminates by reason of your death at a time when your
employment could not otherwise have been terminated for
Cause (defined below), then your estate or your beneficiary,
or such other person or persons as may acquire your rights
under this Option by will or by the laws of
|
|
descent and
distribution, may exercise the vested portion of this Option
until the first anniversary of such termination of
employment.
|
|
|
||
|
b.
Termination As a Result of Disability.
If your
employment terminates by reason of your disability (within
the meaning of Code Section 22(e)(3)) as determined by the
Committee, at a time when your employment could not
otherwise have been terminated for Cause, then you may
exercise the vested portion of this Option until the date
that is twelve (12) months after the date of such
termination of your employment.
|
|
|
||
|
c.
Termination for Cause.
If your employment is terminated
for Cause, this Option (whether vested or unvested) shall be
forfeited immediately upon such termination, and you shall
be prohibited from exercising your Option as of the date of
such termination. In addition, if your termination is
without Cause but the Company later learns facts that could
have permitted it to terminate your employment for Cause if
such facts had been known at the time of your termination,
then your Option (whether vested or unvested) shall be
forfeited immediately on the date of such determination.
For purposes of this Agreement, Cause shall have the same
meaning as set forth in your employment agreement with the
Company, or, if you do not have an employment agreement with
the Company, Cause shall mean a good faith finding by the
Company that you have (i) failed, neglected, or refused to
perform your lawful employment duties as from time to time
assigned to you (other than due to disability); (ii)
committed any willful, intentional, or grossly negligent act
having the effect of materially injuring the interest,
business, or reputation of the Company or any Affiliate;
(iii) violated or failed to comply in any material respect
with the Companys published rules, regulations, or
policies, as in effect or amended from time to time; (iv)
committed an act constituting a felony or misdemeanor
involving moral turpitude, fraud, theft, or dishonesty; (v)
misappropriated or embezzled any property of the Company or
an Affiliate (whether or not an act constituting a felony or
misdemeanor); or (vi) breached any material provision of any
applicable confidentiality, non-compete, non-solicit,
general release, covenant not-to-sue, or other agreement
with the Company or an Affiliate.
|
|
|
||
|
The Committee may suspend your right to exercise this Option
pending its determination of whether your employment will be
terminated (or could have been terminated) for Cause.
|
|
|
||
|
d.
Termination Other than for Cause or As a Result of Death
or Disability.
If your employment is terminated other than
for Cause or other than as a result of your death or
Disability, then you may exercise the vested portion of this
Option until the date that is ninety (90) days after the
date of such termination.
|
2
Manner of Exercise:
|
You may exercise this Option only it has not been forfeited or has not otherwise expired, and only to the extent this Option has vested. To exercise this Option, you must complete the Notice of Stock Option Exercise in the form attached hereto as Exhibit A (the Notice of Stock Option Exercise ) and return it to the address indicated on that form. The Notice of Stock Option Exercise will become effective upon its receipt by the Company. If your beneficiary or heir, or such other person or persons as may acquire your rights under this Option by will or by the laws of descent and distribution, wishes to exercise this Option after your death, such person must contact the Company and prove to the Companys satisfaction that such person has the right and is entitled to exercise this Option. Your ability to exercise this Option may be restricted by the Company if required by applicable law. | |
|
||
|
To exercise this Option, your Notice of Stock Option Exercise must be accompanied by payment of the exercise price through any of the following modes of payment: (i) in cash; (ii) pursuant to a Regulation T program if the shares of Common Stock are publicly traded; (iii) by tendering previously acquired shares of Common Stock which have been held for at least six (6) months and which have a Fair Market Value at the time of exercise that is equal to the total exercise price of this Option, if approved by the Board; (iv) through a cashless exercise procedure established by the Committee, if any; or (v) any combination of the modes of payment described in clauses (i)-(iv). | |
|
||
Transferability:
|
You may not transfer or assign this Option for any reason, other than as set forth in the Plan. Any attempted transfer or assignment of this Option, other than as set forth in the Plan, will be null and void. | |
|
||
Market Stand-Off:
|
In connection with any underwritten public offering by the Company of its equity securities pursuant to an effective registration statement filed under the Securities Act of 1933, as amended (the Securities Act), including the Companys initial public offering, you agree that you shall not directly or indirectly sell, make any short sale of, loan, hypothecate, pledge, offer, grant or sell any option or other contract for the purchase of, purchase any option or other contract for the sale of, or otherwise dispose of or transfer or agree to engage in any of the foregoing transactions with respect to, any Shares acquired under this Option without the prior written consent of the Company and the Companys underwriters. Such restriction shall be in effect for such period of time following the date of the final prospectus for the offering as may be requested by the Company or such underwriters. In no event, however, shall such period exceed one hundred eighty (180) days. | |
|
||
Restrictions on
Exercise, Issuance and
Transfer of Shares:
|
a.
General.
No individual may exercise the Option, and no
shares of Common Stock subject to this Option will be
issued, unless and until the Company has determined to its
satisfaction that such exercise and issuance will comply
with all applicable federal and state securities laws, rules
and regulations of the Securities and Exchange Commission,
rules of any stock exchange on which shares of Common Stock
of the Company may then be traded, or any other applicable
laws. In addition, if required by underwriters for the
Company, you agree to enter into a lock-up agreement with
respect
|
3
|
to any shares of Common Stock acquired or to be
acquired under this Option.
|
|
|
||
|
b.
Securities Laws
. You acknowledge that you are acquiring
this Option, and the right to purchase the shares of Common
Stock subject to this Option, for investment purposes only
and not with a view toward resale or other distribution
thereof to the public which would be in violation of the
Securities Act. You agree and acknowledge with respect to
any shares of Common Stock that have not been registered
under the Securities Act, that: (i) you will not sell or
otherwise dispose of such shares of Common Stock, except as
permitted pursuant to a registration statement declared
effective under the Securities Act and qualified under any
applicable state securities laws, or in a transaction which
in the opinion of counsel for the Company is exempt from
such required registration, and (ii) that a legend
containing a statement to such effect will be placed on the
certificates evidencing such shares of Common Stock.
Further, as additional conditions to the issuance of the
shares of Common Stock subject to this Option, you agree
(with such agreement being binding upon any of your
beneficiaries, heirs, legatees and/or legal representatives)
to do the following prior to any issuance of such shares of
Common Stock: (i) to execute and deliver to the Company such
investment representations and warranties as are required by
the Company; (ii) to enter into a restrictive stock transfer
agreement if required by the Board; and (iii) to take or
refrain from taking such other actions as counsel for the
Company may deem necessary or appropriate for compliance
with the Securities Act, and any other applicable federal or
state securities laws, regardless of whether the shares of
Common Stock have at that time been registered under the
Securities Act, or otherwise qualified under any applicable
state securities laws.
|
|
|
||
Miscellaneous:
|
This Option Agreement may be amended only by written
consent signed by both you and the Company, unless the
amendment is not to your detriment. Notwithstanding the
foregoing, this Option Agreement may be amended or
terminated by the Board or the Committee without your
consent in accordance with the provisions of the Plan.
|
|
|
||
|
The failure of the Company to enforce any provision
of this Option Agreement at any time shall in no way
constitute a waiver of such provision or of any other
provision hereof.
|
|
|
||
|
In the event any provision of this Option Agreement
is held illegal or invalid for any reason, such illegality
or invalidity shall not affect the legality or validity of
the remaining provisions of this Option Agreement, and this
Option Agreement shall be construed and enforced as if the
illegal or invalid provision had not been included in the
Option Agreement.
|
4
|
As a condition to the grant of this Option, you
agree (with such agreement being binding upon your legal
representatives, guardians, legatees or beneficiaries) that
this Option Agreement shall be interpreted by the Committee
and that any interpretation by the Committee of the terms of
this Option Agreement or the Plan, and any determination
made by the Committee pursuant to this Option Agreement or
the Plan, shall be final, binding and conclusive.
|
|
|
||
|
This Option Agreement may be executed in
counterparts.
|
|
||||
Authorized Officer
|
Optionee |
5
Name: |
|
Street Address: |
|
City:
|
State: | Zip Code: | ||||||||||
|
Total Exercise Price | ||||||||||||||||
Type of | Number of | (multiply Exercise Price | ||||||||||||||
Option | Option Shares | Per Share by Number of | ||||||||||||||
(specify ISO | Exercise Price | Being | Option Shares Being | |||||||||||||
Grant Date | or NQSO) | Per Share | Purchased* | Purchased) | ||||||||||||
|
$ | $ | ||||||||||||||
|
$ | $ | ||||||||||||||
|
$ | $ | ||||||||||||||
|
$ | $ | ||||||||||||||
|
$ | $ | ||||||||||||||
Aggregate Exercise Price
|
$ |
A-1
* | Must be a whole number only. Exercise of fractional Option Shares is not permitted. |
o | Cash Exercise . I am enclosing a check or money order payable to Imperial Holdings, Inc. for the Aggregate Exercise Price. | |
o | Cashless Exercise . I am exercising the Option pursuant to the cashless exercise provisions provided for by the Company. The Company will withhold from the Shares otherwise issuable upon exercise a whole number of shares with a Fair Market Value equal to (or less than) the Aggregate Exercise Price, and will then issue the net number of remaining Shares to me. If the whole number of Shares to be withheld does not exactly equal my Aggregate Exercise Price, then I will provide the Company with a check or money order payable to Imperial Holdings, Inc. for the shortfall. I understand that the Company will not process my option exercise until it receives the check or money order covering the shortfall in the exercise price. |
o | In my name only | |
o | In the names of my spouse and myself as community property | |
o | In the names of my spouse and myself as joint tenants with the rights of survivorship |
Spouses name (if applicable): |
|
Street Address: |
|
City:
|
State: | Zip Code: | ||||||||||
|
o | Cash . I am enclosing a check or money order payable to Imperial Holdings, Inc. for the withholding tax amount. | |
o | Tax Amount Request . Please notify me of the amount of withholding taxes that will be due as a result of this option exercise. I understand that, after receiving notification of the withholding tax amount, I must immediately remit to the Company a check or money order payable to Imperial Holdings, Inc. for that amount. I understand that the Company will not process my option exercise until it receives the check or money order covering the withholding tax amount due. |
A-2
Very truly yours,
ACORN CAPITAL GROUP, LLC |
||||
By: | /s/ Marlon Quan | |||
Name: | Marlon Quan | |||
Title: | Managing Member | |||
ASSET BASED RESOURCE GROUP, LLC
|
||||
By: | /s/ Mark Sullivan | |||
Name: | Mark Sullivan | |||
Title: | Member | |||
2
ACORN CAPITAL GROUP, LLC
|
||||
By: | /s/ Marlon Quan | |||
Name: | Marlon Quan | |||
Title: | Managing Member | |||
ASSET BASED RESOURCE GROUP, LLC
|
||||
By: | /s/ Mark Sullivan | |||
Name: | Mark Sullivan | |||
Title: | Member | |||
STEWARDSHIP CREDIT ARBITRAGE FUND LTD.,
as Noteholder |
||||
By: | /s/ Peter Mitchell | |||
Name: | Peter Mitchell | |||
Title: | Court Appointed Liquidator | |||
LIVINGSTON ACRES, LLC, as Noteholder
|
||||
By: | /s/ Orlando Figueroa | |||
Name: | Orlando Figueroa | |||
Title: | Independent Manager | |||
Page | ||||
ARTICLE I DEFINITIONS; CERTAIN TERMS
|
1 | |||
|
||||
Section 1.01 Definitions
|
1 | |||
Section 1.02 Terms Generally
|
26 | |||
Section 1.03 Accounting and Other Terms
|
26 | |||
Section 1.04 Time References
|
27 | |||
|
||||
ARTICLE II THE LOANS
|
27 | |||
|
||||
Section 2.01 Commitments
|
27 | |||
Section 2.02 Making the Loans
|
27 | |||
Section 2.03 Repayment of Loans; Evidence of Debt
|
28 | |||
Section 2.04 Interest
|
29 | |||
Section 2.05 Reduction of Commitment; Prepayment of Loans
|
30 | |||
Section 2.06 Applicable Prepayment Premium
|
32 | |||
Section 2.07 Securitization
|
32 | |||
Section 2.08 Taxes
|
33 | |||
Section 2.09 Increase in Term Loan Commitment; Extension of Term Loan Commitment
Termination Date
|
35 | |||
Section 2.10 Indemnity Escrow
|
36 | |||
|
||||
ARTICLE III INTENTIONALLY OMITTED
|
36 | |||
|
||||
ARTICLE IV FEES, PAYMENTS AND OTHER COMPENSATION
|
37 | |||
|
||||
Section 4.01 Audit and Collateral Monitoring Fees
|
37 | |||
Section 4.02 Payments; Computations and Statements
|
37 | |||
Section 4.03 Sharing of Payments, Etc
|
38 | |||
Section 4.04 Apportionment of Payments
|
38 | |||
Section 4.05 Increased Costs and Reduced Return
|
40 | |||
|
||||
ARTICLE V CONDITIONS TO LOANS
|
41 | |||
|
||||
Section 5.01 Conditions Precedent to Effectiveness
|
41 | |||
Section 5.02 Conditions Precedent to All Loans
|
44 | |||
|
||||
ARTICLE VI REPRESENTATIONS AND WARRANTIES
|
47 | |||
|
||||
Section 6.01 Representations and Warranties
|
47 | |||
|
||||
ARTICLE VII COVENANTS OF THE BORROWER
|
53 | |||
|
||||
Section 7.01 Affirmative Covenants
|
53 | |||
Section 7.02 Negative Covenants
|
63 |
i
Page | ||||
ARTICLE VIII MANAGEMENT, COLLECTION AND STATUS OF COLLATERAL
|
69 | |||
|
||||
Section 8.01 Collections; Management of Collateral
|
69 | |||
Section 8.02 Collateral Custodian
|
72 | |||
|
||||
ARTICLE IX EVENTS OF DEFAULT
|
72 | |||
Section 9.01 Events of Default
|
72 | |||
|
||||
ARTICLE X AGENTS
|
77 | |||
Section 10.01 Appointment
|
77 | |||
Section 10.02 Nature of Duties
|
78 | |||
Section 10.03 Rights, Exculpation, Etc
|
78 | |||
Section 10.04 Reliance
|
79 | |||
Section 10.05 Indemnification
|
79 | |||
Section 10.06 Agents Individually
|
79 | |||
Section 10.07 Successor Agent
|
80 | |||
Section 10.08 Collateral Matters
|
80 | |||
Section 10.09 Agency for Perfection
|
81 | |||
Section 10.10 No Reliance on any Agents Customer Identification Program
|
82 | |||
|
||||
ARTICLE XI SERVICER TERMINATION EVENTS
|
82 | |||
|
||||
Section 11.01 Servicer Termination Event
|
82 | |||
|
||||
ARTICLE XII MISCELLANEOUS
|
82 | |||
|
||||
Section 12.01 Notices, Etc
|
82 | |||
Section 12.02 Amendments, Etc
|
84 | |||
Section 12.03 No Waiver; Remedies, Etc
|
85 | |||
Section 12.04 Expenses; Taxes; Attorneys Fees
|
86 | |||
Section 12.05 Right of Set-off
|
86 | |||
Section 12.06 Severability
|
87 | |||
Section 12.07 Assignments and Participations
|
87 | |||
Section 12.08 Counterparts
|
90 | |||
Section 12.09 GOVERNING LAW
|
90 | |||
Section 12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE
|
90 | |||
Section 12.11 WAIVER OF JURY TRIAL, ETC
|
91 | |||
Section 12.12 Consent by the Agents and Lender
|
91 | |||
Section 12.13 No Party Deemed Drafter
|
91 | |||
Section 12.14 Reinstatement; Certain Payments
|
91 | |||
Section 12.15 Indemnification
|
92 | |||
Section 12.16 Records
|
92 | |||
Section 12.17 Binding Effect
|
92 | |||
Section 12.18 Interest
|
93 | |||
Section 12.19 Confidentiality
|
94 |
ii
Page | ||||
Section 12.20 Public Disclosure
|
94 | |||
Section 12.21 Integration
|
95 | |||
Section 12.22 USA PATRIOT Act
|
95 |
iii
Schedule 1.01(A)
|
Lenders and Lenders Commitments | |
Schedule 1.01(B)
|
Applicable Non-Licensed States | |
Schedule 1.01(C)
|
Applicable Licensed States | |
Schedule 1.01(D)
|
Loan Schedule | |
Schedule 1.01(E)
|
Non-Corporate Trustee Insurance Premium Loans | |
Schedule 5.02(e)
|
Delivery of Documents | |
Schedule 6.01(e)
|
Capitalization | |
Schedule 6.01(q)
|
Insurance | |
Schedule 6.01(t)
|
Bank Accounts | |
Schedule 6.01(u)
|
Intellectual Property | |
Schedule 6.01(v)
|
Material Contracts | |
Schedule 6.01(aa)
|
Name; Jurisdiction of Organization; Organizational ID Number; Chief Place of Business; Chief Executive Office; FEIN | |
Schedule 6.01(bb)
|
Collateral Locations | |
Schedule 8.01
|
Cash Management Bank and Collection Account |
Exhibit A
|
Form of Security Agreement | |
Exhibit B
|
Form of Notice of Borrowing | |
Exhibit C
|
Form of Assignment and Acceptance | |
Exhibit D
|
Form of Individual Guaranty | |
Exhibit E
|
Form of Guarantor Security Agreement | |
Exhibit F
|
Loan Document Package | |
Exhibit G
|
Form of Borrowing Base Certificate | |
Exhibit H
|
Form of Opinions of Foley & Lardner, LLP and Locke, Lord Bissell & Liddell | |
Exhibit I
|
Form of Insurance Premium Loan Sale and Assignment Agreement | |
Exhibit J
|
Form of Master Participation Agreement | |
Exhibit K
|
Local Counsel Opinion Questions | |
Exhibit L
|
Form of Imperial Limited Guaranty |
iv
2
3
4
5
6
7
8
9
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95
BORROWER
:
IMPERIAL PFC FINANCING II, LLC |
||||
By: | /s/ Carlos Cadena | |||
Name: | Carlos Cadena | |||
Title: | Vice President | |||
LENDER
:
Cedar Lane Capital LLC |
||||
By: | EBC Asset Management, Inc., its Sole Member | |||
By: | /s/ Eileen Moore | |||
Name: | Eileen Moore | |||
Title: | Chief Financial Officer | |||
COLLATERAL AGENT
:
EBC Asset Management, Inc. |
||||
By: | /s/ Eileen Moore | |||
Name: | Eileen Moore | |||
Title: | Chief Financial Officer | |||
ADMINISTRATIVE AGENT
:
EBC Asset Management, Inc. |
||||
By: | /s/ Eileen Moore | |||
Name: | Eileen Moore | |||
Title: | Chief Financial Officer | |||
Lender
Commitment
$
15,000,000
$
15,000,000
1. | Loan Schedule | |
2. | Life Insurance Policy and evidence of receipt by insurance carrier of the related premium | |
3. | Eligibility Certification | |
4. | Trust Agreement | |
5. | Completed compliance checklist for Insurance Premium Loan | |
6. | Loan Documentation Package for Insurance Premium Loan | |
7. | Coverage Certificate | |
8. | Revised Non-Corporate Trustee Insurance Premium Loan Schedule, if necessary | |
9. | Insurance Premium Loan Assignment Agreement or Participation Certificate from Master Participation Agreement | |
10. | All other deliveries required by the Agents, including all documents and certificates required for an Insurance Premium Loan to be an Eligible Insurance Premium Loan |
Insurance Company
Type
Policy Period
Limit of Liability
Policy #
Professional
Liability E&O
12/19/08 12/19/09
10,000,000.00
013777922
Directors &
Officers Liability
8/20/09 8/20/10
$
5,000,000.00
NY09D0L6014101V
General Liability
11/10/09 1/10/10
$
2,000,000.00
BR00357869
Wachovia Bank
Imperial PFC Financing II, LLC
Collection
Wachovia Bank
Imperial PFC Financing II, LLC
Operating
Wachovia Bank
Imperial PFC Financing II, LLC
Reserve
1. | Transaction Documents. | |
2. | Loan Documents to which Borrower is a party. |
Chief Place of Business; Chief Executive Office; FEIN
Name
Imperial PFC Financing II, LLC
Georgia
09008735
191 Peachtree Street NE, Suite 3300
Atlanta, Georgia 30303;
701 Park of Commerce Blvd., Suite 301
Boca Raton, FL 33487
191 Peachtree Street NE, Suite 3300
Atlanta, Georgia 30303
26-4476722
1. | 701 Park of Commerce Blvd., Suite 301, Boca Raton FL 33487 | |
2. | 191 Peachtree Street, NE, Suite 3300, Atlanta, GA 30303 |
Wachovia Bank
Imperial PFC Financing II, LLC
Collection
Wachovia Bank
Imperial PFC Financing II, LLC
Operating
Wachovia Bank
Imperial PFC Financing II, LLC
Reserve
Exh. A-1
Exh. A-2
Exh. A-3
Exh. A-4
Exh. A-5
Exh. A-6
Exh. A-7
Exh. A-8
Exh. A-9
Exh. A-10
Exh. A-11
Exh. A-12
Exh. A-13
Exh. A-14
Exh. A-15
Exh. A-16
Exh. A-17
Exh. A-18
Exh. A-19
Exh. A-20
Exh. A-21
Exh. A-22
Exh. A-23
Exh. A-24
Exh. A-25
GRANTOR
:
IMPERIAL PFC FINANCING II, LLC |
||||
By: | ||||
Name: | David Manchester | |||
Title: | Senior Vice President | |||
Legal Name
|
Imperial PFC Financing II, LLC | |
State or Jurisdiction of Organization
|
Georgia | |
Type of Organization
|
Limited Liability Company | |
Organizational Indemnification Number
|
09008735 |
Sched. I-1
A. | COPYRIGHTS | |||||||
|
||||||||
1.
|
Registered Copyrights | | none | |||||
|
||||||||
2.
|
Copyright Applications | | none | |||||
|
||||||||
B. | PATENTS | |||||||
|
||||||||
1.
|
Patents | | none | |||||
|
||||||||
2.
|
Patent Applications | | none | |||||
|
||||||||
C. | TRADEMARKS | |||||||
|
||||||||
1.
|
Registered Trademarks | | none | |||||
|
||||||||
2.
|
Trademark Applications | | none | |||||
|
||||||||
D. | OTHER PROPRIETARY RIGHTS | |||||||
|
||||||||
E. | TRADE NAMES | | none | |||||
|
||||||||
F. | NAME OF, AND EACH TRADE NAME USED BY, EACH PERSON FROM WHICH THE GRANTOR HAS ACQUIRED ANY SUBSTANTIAL PART OF THE COLLATERAL WITHIN THE PRECEDING FIVE YEARS | | none |
Sched. II-1
Location
|
Description of Location (state if Location | |
|
(i) contains Collateral | |
|
(ii) is chief place of business and chief executive office, or | |
|
(iii) contains Records concerning Accounts, Insurance Premium Loans and originals of Chattel Paper) | |
|
||
Chief Place of Business
|
701 Park of Commerce Blvd., Suite 301, Boca Raton, FL 33487 | |
|
||
Chief Executive Office
|
191 Peachtree Street NE, Suite 3300, Atlanta, GA 30303 | |
|
||
Location of Records
concerning Accounts,
Insurance Premium Loans
and originals of Chattel
Paper
|
701 Park of Commerce Blvd., Suite 301, Boca Raton, FL 33487 | |
|
||
Location of Collateral
|
701 Park of Commerce Blvd., Suite 301, Boca Raton, FL 33487 |
Sched. III-1
Name and Address of
Institution Maintaining Account |
Wachovia Bank | |
|
||
Account Name
|
Imperial PFC Financing II, LLC | |
|
||
Type of Account
|
Collection | |
|
Name and Address of
Institution Maintaining Account |
Wachovia Bank | |
|
||
Account Name
|
Imperial PFC Financing II, LLC | |
|
||
Type of Account
|
Operating | |
|
Name and Address of
Institution Maintaining Account |
Wachovia Bank | |
|
||
Account Name
|
Imperial PFC Financing II, LLC | |
|
||
Type of Account
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Reserve |
Sched. IV-1
Name of Grantor | Jurisdiction - Filing Office | |
Imperial PFC Financing II, LLC
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Florida Secured Transaction Registry | |
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Imperial PFC Financing II. LLC
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Georgia Superior County Clerk, Fulton County |
Exh. B-1
Sched.VI-1
Sched. VII-1
Principal Amount
Grantor
Name of Maker
Description
Outstanding as of
Name of Pledged | Percentage of | |||||||||
Grantor | Issuer | Number of Shares | Outstanding Shares | Class | Certificate Number | |||||
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Sched. VIII-1
Principal Amount | ||||||
Grantor | Name of Maker | Description | Outstanding as of | |||
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Percentage of | ||||||||||
Name of | Number of | Outstanding | Certificate | |||||||
Grantor | Pledged Issuer | Shares | Shares | Class | Number | |||||
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[GRANTOR]
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||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: |
Exh. A-1
1 | This rate should be 20% unless the borrower has entered into another transaction to finance premium insurance loans at a higher interest rate in which case such higher interest rate should be filled in here. |
Exh. B-1
Very truly yours,
IMPERIAL PFC FINANCING II, LLC |
||||
By: | Imperial Premium Finance, LLC, its sole member | |||
By: | Imperial Holdings, LLC, its managing member | |||
By: | ||||
Name: | Jonathan Neuman | |||
Title: | President | |||
2 | This date must be a Business Day and not occur more than once each week. |
Exh. B-2
Exh. C-1
3 | Not applicable in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender. |
Exh. C-2
Exh. C-3
[ASSIGNOR]
|
||||
By: | ||||
Name: | ||||
Title: | ||||
Date: | ||||
NOTICE ADDRESS FOR ASSIGNOR
[INSERT ADDRESS] Telephone No.: Telecopy No.: [ASSIGNEE] |
||||
By: | ||||
Name: | ||||
Title: | ||||
Date: | ||||
NOTICE ADDRESS FOR ASSIGNEE
[INSERT ADDRESS] Telephone No.: Telecopy No.: |
||||
Exh. C-4
By: | EBC Asset Management, Inc., its Sole Member | |||
By: | ||||
Name: | ||||
Title: | ||||
Exh. C-5
1. | Borrower: Imperial PFC Financing II, LLC | |
2. | Name and Date of Financing Agreement: |
3.
|
Date of Assignment Agreement: | |||||
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4.
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Amount of Commitments: | |||||
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5.
|
Amount of Loans: | |||||
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6.
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Purchase Price: | |||||
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7.
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Settlement Date: |
Exh. D-1
Exh. D-2
Exh. D-3
Exh. D-4
Exh. D-5
Exh. D-6
Exh. D-7
Exh. D-8
Exh. D-9
Exh. D-10
Exh. D-11
|
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Antony Mitchell Guarantor | |||
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Address: | |||
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STATE OF
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ss.: | |
COUNTY OF
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Jonathan Neuman Guarantor | |||
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Address: | |||
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STATE OF
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ss.: | |
COUNTY OF
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Exh. E-1
Exh. E-2
Exh. E-3
Exh. E-4
Exh. E-5
Exh. E-6
Exh. E-7
Exh. E-8
Exh. E-9
Exh. E-10
Exh. E-11
Exh. E-12
Exh. E-13
Exh. E-14
TO
GUARANTOR SECURITY AGREEMENT
Pledgor
Name of Issuer
Number of Shares
Class
Certificate Number
Finance, LLC
Imperial PFC
Financing II, LLC
100
Common
1
Exact Name | Address | City | State | Zip Code | ||||||
Imperial Premium
Finance, LLC |
701 Park of Commerce Blvd., Suite 301 | Boca Raton | Florida | 33487 |
Exact Name | Address | City | State | Zip Code | ||||
|
Name | Filing Office | |
Florida | Secretary of State |
Number of | Certificate | |||||||
Pledgor | Name of Issuer | Shares | Class | Number(s) | ||||
|
[PLEDGOR]
|
||||
By: | ||||
Name: | ||||
Title: | ||||
1. | Authorization and Direction to Provide Death Certificate | |
2. | Brokers Rights of Agent | |
3. | Assignment of Life Insurance Policy as Collateral | |
4. | Authorization for Use and/or Disclosure of Health Information | |
5. | Hold Harmless Agreement | |
6. | Guaranty | |
7. | Insured Disclosure Statement, Representations and Warranties, and Consent | |
8. | Authorization Form for Use and Disclosure of Health Information | |
9. | Limited Power of Attorney | |
10. | Loan Application and Agreement | |
11. | Limited Specific Power of Attorney | |
12. | Promissory Note | |
13. | Out-of-State Closing Affidavit | |
14. | Representations, Warranties and Covenants of Agent | |
15. | Beneficiary Pledge Agreement | |
16. | Assignment of Beneficial Interests | |
17. | Fee Agreement | |
18. | Trust Disclosure Statement, Representations and Warranties, and Consent |
(a) | Attached hereto as Exhibit A is a schedule of the Borrowing Base as of the date set forth above and the calculations made with respect thereto; and | ||
(b) | Based on such schedule: |
(i) | the Borrowing Base as of the date set forth above is $ , and | ||
(ii) | [no prepayment of the principal amount of the Loans is required pursuant to Section 2.05(c)(ii) of the Financing Agreement] [$ of the principal amount of the Loans is required to be prepaid pursuant to Section 2.05(c)(ii) of the Financing Agreement]. |
1
IMPERIAL PFC FINANCING II, LLC
|
||||
By: | Imperial Premium Finance, LLC, its sole member |
By: | Imperial Holdings, LLC, its managing member |
By: | ||||
Name: | Jonathan Neuman | |||
Title: | President | |||
2
1. 100% of the present value (utilizing __% as the discount rate) of the sum of (A) the aggregate of the Covered Loan Amount of all Eligible Insurance Premium Loans owned (actually, beneficially or through a participation) by the Borrower and (B) the Aggregate Interest Amount of all such Eligible Insurance Premium Loans at the maturity date of each such Eligible Insurance Premium Loan | $ | |||||||||||
|
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2. Covered Loan Amount Limit | ||||||||||||
|
(a) | The lesser of (x) the outstanding principal balance of all Eligible Insurance Premium Loans financed under the Financing Agreement and (y) (A) with respect to Eligible Insurance Premium Loans being initially financed under the Financing Agreement at the time of calculation, the aggregate First Year Premiums relating thereto and (B) with respect to Eligible Insurance Loans not described in the preceding clause (A), the aggregate First Year Premiums and Second Year Premiums relating thereto | $ | |||||||||
|
||||||||||||
|
(b) | Aggregate Origination Fees with respect to such Insurance Premium Loans | $ | |||||||||
|
||||||||||||
|
(c) | Aggregate of the Collateral Value Policy and the Contingent Collateral Value Policy premium reimbursement amounts payable, directly or indirectly, by the Premium Finance Borrowers to the Borrower in respect of such Insurance Premium Loans, to the extent financed under the Financing Agreement | $ | |||||||||
|
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|
(d) | The amount of interest reasonably expected to be due on the scheduled maturity dates of |
1
|
the Eligible Premium Finance Loans
financed hereunder |
$ | ||||||||||
|
||||||||||||
|
(e) | 100% of the sum of 2(a), 2(b), 2(c) and 2(d) discounted to present value utilizing ___% as the discount rate | $ | |||||||||
|
||||||||||||
3. Borrowing Base (the lesser of 1 and 2) | $ |
2
Re: | Imperial PFC Financing II, LLC |
1 | Note that in addition to these opinions, we will also need full non-consolidation, true sale and true participation opinions. |
1
2
3
2 | For each Credit Party, insert the State of incorporation or organization for such Credit Party, and each State where such Credit Partys headquarters, chief executive office and principal place of business or personal residence are located. |
4
1
1
2
3
4
5
6
7
8
9
1. | Assignee/Purchaser: Imperial PFC Financing II, LLC, a Georgia limited liability company | |||||
|
||||||
2. | Name and Date of Financing Agreement: | |||||
|
||||||
|
Financing Agreement, dated as of , 2009, by and among Imperial PFC Financing II, LLC, a Georgia limited liability company (the Borrower), the lenders from time to time party thereto (each a Lender and collectively, the Lenders), LoIC LLC, a Delaware limited liability company (LoIC), as collateral agent for the Lenders (in such capacity, the Collateral Agent), and LoIC, as administrative agent for the Lenders (in such capacity, the Administrative Agent and together with the Collateral Agent, each an Agent and collectively, the Agents). | |||||
|
||||||
3. | Date of Assignment Agreement: | |||||
|
||||||
|
||||||
4. | Premium Finance Borrower: | |||||
|
||||||
|
||||||
5. | Insurance Premium Loan Number: | |||||
|
||||||
|
||||||
6. | Loan Documentation: | |||||
|
||||||
|
||||||
7. | Insurance Premium Loan Agreement Date: | |||||
|
||||||
|
||||||
8. | Life Insurance Policy Number: | |||||
|
||||||
|
||||||
9. | Amount of Insurance Premium Loan: | |||||
|
||||||
|
||||||
10. | Purchase Price: | |||||
|
||||||
|
||||||
11. | Final Maturity Date of Insurance Premium Loan: | |||||
|
||||||
|
||||||
12. | Settlement Date: | |||||
|
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
IMPERIAL PREMIUM FINANCE, LLC,
as the Originator |
||||
By: | Imperial Holdings, LLC, its managing member | |||
By: | ||||
Name: | Jonathan Neuman | |||
Title: | President | |||
Address: |
701 Park of Commerce Blvd., Suite 30
Boca Raton, FL 33487 Telecopy No.: (561) 995-4203 |
|||
IMPERIAL PFC FINANCING II, LLC,
as Participant |
||||
By: | ||||
Name: | David Manchester | |||
Title: | Senior Vice President | |||
Address: |
191 Peachtree Street NE, Suite 3300
Atlanta, GA 30303 Telecopy No.: (404) 736-3620 |
|||
SELLER | ||||
|
||||
IMPERIAL PREMIUM FINANCE, LLC | ||||
|
||||
|
By: | Imperial Holdings, LLC, its managing member | ||
|
||||
|
By: | |||
|
||||
|
Name: Jonathan Neuman | |||
|
Title: President | |||
|
||||
PURCHASER | ||||
|
||||
IMPERIAL PFC FINANCING II, LLC | ||||
|
||||
|
By: | Imperial Premium Finance, LLC, its sole member | ||
|
||||
|
By: | Imperial Holdings, LLC, its managing member | ||
|
||||
|
By: | |||
|
||||
|
Name: Jonathan Neuman | |||
|
Title: President |
Page 1 of 10
2
3
4
5
(i) | (A) any breach or non-performance of, or any default under, any Contractual Obligation of such Guarantor which could reasonably be expected to have a material adverse effect to the Guarantors financial condition, and (B) any action, suit, litigation or proceeding which may exist at any time which could reasonably be expected to have a material adverse effect to the Guarantors financial condition; and | ||
(ii) | the occurrence of any event or development that could have a material adverse effect to the Guarantors financial condition; |
6
7
8
9
IMPERIAL HOLDINGS, LLC
|
||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
10
1. | Representations, Warranties and Covenants of the Company and each LPIC Insurer . |
(a) | The Company represents, warrants and covenants to each LPIC Insurer as follows: |
(i) | The Company has all requisite authority to execute, deliver and perform its obligations under this Letter Agreement. This Letter Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles. | ||
(ii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(iii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(iv) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(v) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(vi) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(vii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(viii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(ix) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(x) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
2
(xi) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xiii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xiv) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xv) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xvi) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xvii) | The Company is an accredited investor as that term is defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended. | ||
(xviii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xix) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xx) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xxi) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xxii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
3
(xxiii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xxiv) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xxv) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xxvi) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xxvii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xxviii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
(b) | Each LPIC Insurer represents and warrants on behalf of itself to the Company as follows: |
(i) | Such LPIC Insurer has all requisite power and authority to execute, deliver and perform its obligations under this Letter Agreement. This Letter Agreement has been duly authorized, executed and delivered by such LPIC Insurer and constitutes a valid and legally binding agreement enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles. | ||
(ii) | As a result of executing this Letter Agreement, such LPIC Insurer will not be in violation of any law, statute, rule, regulation, judgment, order or decree of any domestic or foreign court or governmental or regulatory authority, agency or other body having jurisdiction over such LPIC Insurer or any of its assets or property. | ||
(iii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
4
(iv) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
2. | Enforcement of Rights and Remedies; Monetary Recoveries . |
(a) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(b) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
3. | Indemnification . |
(a) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
(b) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
4. | Notices . All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered by certified mail, return receipt requested, mailed by a nationally recognized overnight courier or sent via facsimile to (i) the Company at 701 Park of Commerce Boulevard, Suite 301, Boca Raton, FL 33487, Attention: Jonathan Neuman, President, facsimile: 240-282-1050, with a copy to Foley & Larder LLP, One Independent Drive, Suite 1300, Jacksonville, FL 32202-5017, Attention: Robert S. Bernstein, Esq., facsimile: 904-359-8700, (ii) the Insurer at 70 Pine Street, 5 th Floor, New York, New York 10270, Attention: Surveillance Department, facsimile: 212-943-4054, with a copy to Risk Finance, Attention: Division General Counsel, Chartis, 70 Pine Street, 5 th Floor, New York, New York 10270, facsimile: 212-480-3923, (iii) National Fire & Marine Insurance Company, Attention: General Counsel, 100 First Stamford Place, Stamford, CT 06902, Facsimile: (203) 363-5221 or (iv) as to any of such persons, at such other address or facsimile number as shall be designated by such person in a written notice to the other persons. |
5. | Governing Law . This Letter Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York (including without limitation Section 5-1401 of the General Obligations Law of the State of New York), without regard to conflicts of laws principles that would require or allow for the application of any other jurisdictions law. |
5
6. | Remedies . [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
7. | Setoff . [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
Dispute Resolution . [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
8. | Construction; Entire Agreement . Each LPIC Insurer and the Company hereby acknowledge that they were represented by competent and experienced legal counsel of their choice in connection with the negotiation, execution and delivery of this Letter Agreement, and the Company acknowledges that it is entering into the transactions contemplated by this Letter Agreement with full knowledge and acceptance of its terms, conditions and significance, without any reliance on any representation, warranty, advice or other statement by any LPIC Insurer or any of its representatives or advisors regarding any legal, tax or accounting implications or other requirements. Accordingly, in any dispute concerning this Letter Agreement, such dispute shall be resolved without any presumption or rule of construction in favor of any party or any related or similar doctrine. This Letter Agreement contains the full and complete understanding and agreement between the parties hereto with respect to the subject matter hereof. The parties acknowledge that they are not entering into this Letter Agreement in reliance upon any term, condition, representation or warranty not stated or referred to herein and that this Letter Agreement replaces any and all prior agreements whether oral or written, pertaining to the subject matter hereof. |
9. | Counterparts . This Letter Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same document. |
10. | Amendments . This Letter Agreement may be amended, modified, supplemented or terminated only by a written instrument signed by the Insurer (prior to the occurrence of a Credit Event), the Contingent Insurer and the Company. |
11. | Defined Terms . For purposes of this Letter Agreement: |
6
(1) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
(a) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(b) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
(2) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(3) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
7
(4) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(5) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
(B) | (1) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
(2) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(3) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
8
9
13. | Assignment . This Letter Agreement may not be assigned by any party without the prior written consent of each other party hereto, which consent shall not be unreasonably withheld, conditioned or delayed; provided, that the Insurer may assign this Letter Agreement, without the need to obtain the prior written consent of the Company or the Contingent LPIC Insurer, to any entity to whom the Insurer assigns the Policy and the Contingent Insurer may assign this Letter Agreement, without the need to obtain the prior written consent of the Company or the Insurer, to any entity to whom the Contingent Insurer assigns the Contingent Policy. |
10
Sincerely, | ||||||
|
||||||
IMPERIAL HOLDINGS LLC | ||||||
|
||||||
|
By: |
|
||||
|
Name: |
|
||||
|
Title: |
|
AGREED TO AND ACCEPTED BY: | ||||
|
||||
LEXINGTON INSURANCE COMPANY | ||||
|
||||
By:
|
|
|||
Name:
|
||||
Title:
|
Authorized Representative | |||
|
||||
NATIONAL FIRE & MARINE INSURANCE COMPANY | ||||
|
||||
By:
|
|
|||
Name:
|
||||
Title:
|
ARTICLE I DEFINITIONS
|
2 | |||
SECTION 1.01. Definitions
|
2 | |||
SECTION 1.02. Other Definitional Provisions
|
34 | |||
SECTION 1.03. Acts of Series 2010-1 Noteholders
|
35 | |||
SECTION 1.04. Conflict with Trust Indenture Act
|
36 | |||
SECTION 1.05. Benefits of Indenture
|
36 | |||
SECTION 1.06. Incorporation of Recitals
|
36 | |||
SECTION 1.07. Conditions Precedent to the Effectiveness of this Agreement
|
36 | |||
|
||||
ARTICLE II GRANT OF SECURITY INTEREST IN RECEIVABLES; ORIGINAL ISSUANCE OF SERIES 2010-1
NOTES
|
36 | |||
SECTION 2.01. Grant of Security Interest in Assets; No Assumption of Obligations Related
to Receivables; Certain Matters Regarding the Grant
|
36 | |||
SECTION 2.02. Acceptance by Trustee
|
37 | |||
SECTION 2.03. General Representations and Warranties of the Issuer
|
38 | |||
SECTION 2.04. Affirmative Covenants of the Issuer
|
41 | |||
SECTION 2.05. Representations and Warranties of the Issuer Relating to the Series
Trust Assets, Liens and Security Interests
|
47 | |||
SECTION 2.06. Negative Covenants of the Issuer
|
50 | |||
|
||||
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES
|
55 | |||
SECTION 3.01. Acceptance of Appointment and Other Matters Relating to the
Master Servicer
|
55 | |||
SECTION 3.02. Servicing Compensation
|
56 | |||
SECTION 3.03. Representations and Warranties of the Master Servicer
|
56 | |||
SECTION 3.04. Covenants of the Master Servicer
|
58 | |||
SECTION 3.05. Reports and Records
|
61 | |||
SECTION 3.06. Servicing Report of Independent Public Accountants
|
61 | |||
SECTION 3.07. Reserved
|
62 | |||
SECTION 3.08. Adjustments
|
62 | |||
SECTION 3.09. Reserved
|
62 | |||
|
||||
ARTICLE IV RIGHTS OF SERIES 2010-1 NOTEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
|
62 | |||
SECTION 4.01. Rights of Series 2010-1 Noteholders
|
62 | |||
SECTION 4.02. Establishment of the Master Collection Account and the Applicable
Lock-Box Accounts; Establishment of the Issuer Split Payment
Account
|
63 | |||
SECTION 4.03. Series Accounts
|
65 | |||
SECTION 4.04. Establishment of the Trustees Account
|
67 | |||
SECTION 4.05. Other Payments
|
67 |
i
ARTICLE V DISTRIBUTIONS AND REPORTS TO SERIES 2010-1
NOTEHOLDERS
|
67 | |||
|
||||
ARTICLE VI THE SERIES 2010-1 NOTES
|
68 | |||
SECTION 6.01. The Series 2010-1 Notes
|
68 | |||
SECTION 6.02. Authentication of Series 2010-1 Notes
|
69 | |||
SECTION 6.03. Transfer and Exchange of Series 2010-1 Notes
|
70 | |||
SECTION 6.04. Mutilated, Destroyed, Lost or Stolen Series 2010-1 Notes
|
78 | |||
SECTION 6.05. Persons Deemed Owners; Deemed Representations by Series 2010-1
Noteholders
|
79 | |||
SECTION 6.06. Appointment of Paying Agent
|
80 | |||
SECTION 6.07. Access to List of Series 2010-1 Noteholders Names and Addresses
|
80 | |||
SECTION 6.08. Authenticating Agent
|
81 | |||
SECTION 6.09. Issuance of the Series 2010-1 Notes
|
82 | |||
SECTION 6.10. Transfer of Series 2010-1 Notes
|
83 | |||
SECTION 6.11. Provisions Relating to the Regulation S Global Notes
|
84 | |||
|
||||
ARTICLE VII OTHER MATTERS RELATING TO THE ISSUER
|
85 | |||
SECTION 7.01. Obligations Not Assignable
|
85 | |||
SECTION 7.02. Limitations on Liability
|
85 | |||
SECTION 7.03. Indemnification by the Issuer
|
86 | |||
SECTION 7.04. Net Worth of the Issuer
|
88 | |||
SECTION 7.05. Non-Payment of Settlement Receivables Due to Change in Law
|
88 | |||
|
||||
ARTICLE VIII OTHER MATTERS RELATING TO THE MASTER SERVICER
|
88 | |||
SECTION 8.01. Liability of the Master Servicer
|
88 | |||
SECTION 8.02. Merger or Consolidation of, or Assumption of the Obligations of,
the Master Servicer
|
88 | |||
SECTION 8.03. Limitations on Liability
|
89 | |||
SECTION 8.04. Indemnification by Master Servicer
|
89 | |||
SECTION 8.05. Master Servicer Not to Resign
|
90 | |||
SECTION 8.06. Examination of Records
|
90 | |||
|
||||
ARTICLE IX EVENTS OF DEFAULT
|
90 | |||
SECTION 9.01. Events of Default
|
90 | |||
SECTION 9.02. Additional Rights Upon the Occurrence of any Event of Default
|
91 | |||
SECTION 9.03. Certain Specific Rights Upon the Occurrence of an Insolvency Event
|
92 | |||
|
||||
ARTICLE X SERVICER DEFAULTS
|
93 | |||
SECTION 10.01. Servicer Defaults
|
93 | |||
SECTION 10.02. Appointment of Successor
|
94 | |||
SECTION 10.03. Notification to Series 2010-1 Noteholders
|
95 | |||
|
||||
ARTICLE XI THE TRUSTEE
|
95 | |||
SECTION 11.01. Duties of Trustee
|
95 | |||
SECTION 11.02. Certain Matters Affecting the Trustee
|
97 |
ii
SECTION 11.03. Trustee Not Liable for Recitals in Series 2010-1 Notes
|
99 | |||
SECTION 11.04. Compensation; Trustees Expenses; Indemnification
|
99 | |||
SECTION 11.05. Eligibility Requirements for Trustee
|
100 | |||
SECTION 11.06. Resignation or Removal of Trustee
|
100 | |||
SECTION 11.07. Successor Trustee
|
101 | |||
SECTION 11.08. Merger or Consolidation of Trustee
|
101 | |||
SECTION 11.09. Appointment of Co-Trustee or Separate Trustee
|
101 | |||
SECTION 11.10. Trustee May Enforce Claims Without Possession of Series 2010-1
Notes
|
102 | |||
SECTION 11.11. Suits for Enforcement
|
103 | |||
SECTION 11.12. Rights of Series 2010-1 Noteholders to Direct Trustee
|
103 | |||
SECTION 11.13. Representations and Warranties of Trustee
|
103 | |||
SECTION 11.14. Maintenance of Office or Agency
|
104 | |||
SECTION 11.15. Trustee May Own Series 2010-1 Notes
|
104 | |||
|
||||
ARTICLE XII SATISFACTION AND DISCHARGE
|
104 | |||
SECTION 12.01. Satisfaction and Discharge of the Indenture
|
104 | |||
SECTION 12.02. Final Distribution
|
105 | |||
SECTION 12.03. Release of Liens
|
105 | |||
|
||||
ARTICLE XIII MISCELLANEOUS PROVISIONS
|
106 | |||
SECTION 13.01. Amendment; Waiver of Default Events
|
106 | |||
SECTION 13.02. Protection of Right, Title and Interest to Trust Assets
|
107 | |||
SECTION 13.03. Limitation on Rights of Series 2010-1 Noteholders
|
108 | |||
SECTION 13.04. Governing Law; Jurisdiction; Consent to Service of Process
|
108 | |||
SECTION 13.05. Notices; Payments
|
109 | |||
SECTION 13.06. Assignment of the Issuer Purchase Agreement; Substitution
Under the Powers of Attorney
|
110 | |||
SECTION 13.07. Severability of Provisions
|
110 | |||
SECTION 13.08. Assignment
|
110 | |||
SECTION 13.09. Further Assurances
|
110 | |||
SECTION 13.10. Nonpetition Covenant
|
111 | |||
SECTION 13.11. No Waiver; Cumulative Remedies
|
111 | |||
SECTION 13.12. Counterparts
|
111 | |||
SECTION 13.13. Third-Party Beneficiaries
|
111 | |||
SECTION 13.14. Actions by Series 2010-1 Noteholders
|
111 | |||
SECTION 13.15. Merger and Integration
|
112 | |||
SECTION 13.16. Headings
|
112 | |||
SECTION 13.17. Tax and Usury Treatment
|
112 | |||
SECTION 13.18. Liability of the Issuer
|
112 | |||
SECTION 13.19. Offers to Purchase Series 2010-1 Notes
|
112 | |||
|
||||
ARTICLE XIV THE COLLATERAL TRUSTEE
|
112 | |||
SECTION 14.01. Duties of Collateral Trustee
|
112 | |||
SECTION 14.02. Certain Matters Affecting the Collateral Trustee
|
114 | |||
SECTION 14.03. Collateral Trustee Not Liable for Recitals in Series 2010-1 Notes
|
116 |
iii
SECTION 14.04. Compensation; Collateral Trustees Expenses; Indemnification
|
117 | |||
SECTION 14.05. Eligibility Requirements for Collateral Trustee
|
117 | |||
SECTION 14.06. Resignation or Removal of Collateral Trustee
|
117 | |||
SECTION 14.07. Successor Collateral Trustee
|
118 | |||
SECTION 14.08. Merger or Consolidation of Collateral Trustee
|
118 | |||
SECTION 14.09. Tax Returns
|
119 | |||
SECTION 14.10. Representations and Warranties of Collateral Trustee
|
119 | |||
SECTION 14.11. Maintenance of Office or Agency
|
119 | |||
SECTION 14.12. Collateral Trustee May Own Series 2010-1 Notes
|
119 |
Schedule I
|
Credit Policy Manual | |
Schedule II
|
Issuers Chief Executive Office and Location of Records | |
Schedule III
|
Settlement Lock-Box Banks, Annuity Lock-Box Banks, Settlement Lock-Boxes, Annuity Lock-Boxes, Settlement Lock-Box Accounts and Annuity Lock-Box Accounts | |
Schedule IV
|
ERISA Matters |
Exhibit A
|
Form of Settlement Purchase Agreements | |
Exhibit B
|
Lock-Box Notices | |
Exhibit C
|
Form of Letter to be Delivered by Accredited Investors on the Closing Date | |
Exhibit D
|
Form of Letter to be Delivered by Accredited Investors in Connection with Subsequent Transfers | |
Exhibit E
|
Form of Daily Report | |
Exhibit F
|
Form of Monthly Report and Compliance Certificate | |
Exhibit G
|
Model Structured Settlement Statute | |
Exhibit H
|
Form of Rule 144A Transfer Certificate | |
Exhibit I
|
Form of Regulation S Transfer Certificate |
iv
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Trustee
|
||||
By: | ||||
Authorized Officer | ||||
69
WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Trustee
|
||||
By: | ||||
as Authenticating Agent | ||||
By: | ||||
Authorized Officer | ||||
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
IMPERIAL SETTLEMENTS FINANCING 2010, LLC, as the Issuer
|
||||
By: | Washington Square Financial, LLC, as its Sole Member | |||
By: | Imperial Holdings, LLC, as its Sole Member | |||
By: | ||||
Name: | ||||
Title: | ||||
PORTFOLIO FINANCIAL SERVICING COMPANY, as the Initial Master
Servicer
|
||||
By: | ||||
Name: | ||||
Title: | ||||
WILMINGTON TRUST COMPANY, not individually but solely in its
capacity as Trustee
|
||||
By: | ||||
Name: | ||||
Title: | ||||
WILMINGTON TRUST COMPANY, not in its individual capacity but
solely in its capacity as Collateral Trustee, and, solely for
the purposes of Section 4.03(a), in its capacity as
Securities Intermediary
|
||||
By: | ||||
Name: | ||||
Title: |
120
Applicable Lock-Box Numbers
Settlement Lock-Box Accounts
Settlement Lock-Box Bank
Settlement Lock-Box Number
SunTrust Bank
1000114180937
SunTrust Bank
1000114180937
Annuity Lock-Box Accounts
Annuity Lock-Box Bank
Annuity Lock-Box Number
SunTrust Bank
1000089496680
SunTrust Bank
1000089496680
124
Date:
|
|||||||
|
|||||||
|
(Name of Purchaser) |
By: | ||||
Name: | ||||
Title: | ||||
Address: | ||||
Very truly yours,
[Name of Transferee] |
||||
By: | ||||
Authorized Signature | ||||
| the Transferee is purchasing the beneficial interest for its own account, or for one or more accounts with respect to which the Transferee exercises sole investment discretion; and | ||
| the Transferor reasonably believes that the Transferee and each such account is a qualified institutional buyer within the meaning of Rule 144A. |
Dated:
|
|||||||||
[Transferor] | |||||||||
|
|||||||||
|
By: | ||||||||
|
Name: | ||||||||
|
Title: | ||||||||
|
|
Type of Note or beneficial interest to be transferred | Principal Amount |
o | The Purchaser is a qualified institutional buyer and is aware that the acquisition of the Notes is being made in reliance on Rule 144A under the Securities Act . |
| the Series 2010-1 Notes have not been and will not be registered under the Securities Act , and, if in the future you decide to offer, resell, pledge or otherwise transfer the Series 2010-1 Notes, you may do so only in the manner described in the Agreement relating to the offering of the Series 2010-1 Notes, including the requirement for written certifications | |
| the Series 2010-1 Notes may be transferred only to a person that is an eligible holder | |
| you are not acquiring the Series 2010-1 Notes with a view to the resale, distribution or other disposition thereof in violation of the Securities Act | |
| you must hold and transfer at least the minimum denomination of the Series 2010-1 Notes set forth in the Agreement relating to the offering of the Series 2010-1 Notes and you must provide notice of the relevant transfer restrictions to subsequent transferees |
| you have the power and authority to execute this letter and any other document required to be executed and delivered by you in connection with your purchase of the Series 2010-1 Notes, and consummate the purchase of the Series 2010-1 Notes | |
| the person signing this letter and each document in connection with the purchase of the Series 2010-1 Notes on behalf of the Purchaser has been duly authorized to execute and deliver such documents | |
| this letter has been duly executed by the Purchaser and constitutes a valid and legally binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms |
(Print or type name of Purchaser) | |||||
|
|||||
By:
|
|||||
|
|||||
Name:
|
|||||
Title:
|
|||||
|
|||||
Date:
|
|||||
|
|||||
|
|||||
Principal amount of Series [_____] Notes to be purchased: | |||||
|
|||||
(i) | the Transfer is not being made to a U.S. Person and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States; and |
(ii) | no directed selling efforts have been made in contravention of the requirements of Regulation S under the Securities Act. |
Dated:
|
|||||||||
[Transferor] | |||||||||
|
|||||||||
|
By: | ||||||||
|
|||||||||
|
Name: | ||||||||
|
|||||||||
|
Title: | ||||||||
|
Type of Note or beneficial interest to be transferred | Principal Amount |
o | The Purchaser is not a U.S. Person |
o | the Series 2010-1 Notes have not been and will not be registered under the Securities Act, and, if in the future you decide to offer, resell, pledge or otherwise transfer the Series 2010-1 Notes, you may do so only in the manner described in the Agreement relating to the offering of the Series 2010-1 Notes, including the requirement for written certifications | |
o | the Series 2010-1 Notes may be transferred only to a person that is an eligible holder | |
o | you are not acquiring the Series 2010-1 Notes with a view to the resale, distribution or other disposition thereof in violation of the Securities Act | |
o | you must hold and transfer at least the minimum denomination of the Series 2010-1 Notes set forth in the Agreement relating to the offering of the Series 2010-1 Notes and you must provide notice of the relevant transfer restrictions to subsequent transferees |
o | you have the power and authority to execute this letter and any other document required to be executed and delivered by you in connection with your purchase of the Series 2010-1 Notes, and consummate the purchase of the Series 2010-1 Notes | |
o | the person signing this letter and each document in connection with the purchase of the Series 2010-1 Notes on behalf of the Purchaser has been duly authorized to execute and deliver such documents | |
o | this letter has been duly executed by the Purchaser and constitutes a valid and legally binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms |
(Print or type name of Purchaser) | ||||
|
||||
By:
|
||||
Name:
|
||||
Title:
|
||||
|
||||
Date:
|
||||
|
||||
|
||||
Principal amount of Series 2010-1 Notes to be purchased: | ||||
|
||||
Page | ||||
ARTICLE I DEFINITIONS
|
1 | |||
SECTION 1.01 Definitions
|
1 | |||
|
||||
ARTICLE II CREATION OF THE SERIES 2010-1 NOTES
|
11 | |||
SECTION 2.01 Designation
|
11 | |||
SECTION 2.02 Limitations on the Initial Issuance and Sales or Transfers of the Series 2010-1 Notes
|
12 | |||
SECTION 2.03 Purchases of Interests in the Series 2010-1 Notes
|
12 | |||
SECTION 2.04 Procedure for Initial Issuance and for Increasing the Principal
Balance of the Series 2010-1 Note
|
12 | |||
SECTION 2.05 Procedure for Decreasing the Principal Balance of the Series
2010-1 Note
|
14 | |||
SECTION 2.06 Evidence of Debt
|
14 | |||
|
||||
ARTICLE III GRANT OF SECURITY INTEREST
|
15 | |||
SECTION 3.01 Grant of Security Interest in Series Trust Assets
|
15 | |||
SECTION 3.02 Acceptance by Trustee
|
15 | |||
SECTION 3.03 Full Disclosure
|
16 | |||
|
||||
ARTICLE IV COMPENSATION OF MASTER SERVICER, BACK-UP SERVICER
AND THE TRUSTEE
|
16 | |||
SECTION 4.01 Compensation of the Master Servicer, the Back-up Servicer
and the Trustee
|
16 | |||
|
||||
ARTICLE V CONDITIONS TO ISSUANCE OF NOTES
|
16 | |||
SECTION 5.01 Conditions to Issuance
|
16 | |||
|
||||
ARTICLE VI RIGHTS AND OBLIGATIONS OF SERIES 2010-1 NOTEHOLDERS;
ALLOCATION AND APPLICATION OF COLLECTIONS;
HOLDBACK FUNDS
|
17 | |||
SECTION 6.01 Withdrawals from Series Accounts
|
17 | |||
SECTION 6.02 Determination of Payment Amounts; Deposits to and
Withdrawals from the Series Reserve Account
|
17 | |||
SECTION 6.03 Distributions
|
19 | |||
SECTION 6.04 Series Holdback Account
|
21 | |||
SECTION 6.05 Master Servicer Obligations Relating to Holdback Funds
|
21 | |||
|
||||
ARTICLE VII SERIES EVENTS OF DEFAULT
|
22 | |||
SECTION 7.01 Series Events of Default
|
22 | |||
|
||||
ARTICLE VIII MISCELLANEOUS
|
25 | |||
SECTION 8.01 Ratification of Agreement; Integration
|
25 | |||
SECTION 8.02 Counterparts
|
25 |
i
Page | ||||
SECTION 8.03 Governing Law
|
25 | |||
SECTION 8.04 Amendments and Waivers
|
26 | |||
SECTION 8.05 Limitations on Liability
|
26 | |||
SECTION 8.06 Confidentiality
|
27 | |||
SECTION 8.07 Section Headings
|
27 | |||
SECTION 8.08 Notices
|
27 | |||
SECTION 8.09 Benefits of Supplement
|
27 | |||
SECTION 8.10 Additional Covenants of the Master Servicer
|
28 | |||
SECTION 8.11 Additional Covenants of the Issuer
|
28 |
ii
Schedule I
|
- | List of Receivables | ||
|
||||
Schedule II
|
- | List of Closing Documents | ||
|
||||
Schedule III
|
- | Commitments |
Exhibit A-1
|
- | Form of Series 2010-1 U.S. Global Note | ||
|
||||
Exhibit A-2
|
- | Form of Series 2010-1 Temporary Regulation S Global Note | ||
|
||||
Exhibit A-3
|
Form of Series 2010-1 Permanent Regulation S Global Note | |||
|
||||
Exhibit A-4
|
- | Form of Series 2010-1 Certificated U.S. Note | ||
|
||||
Exhibit B
|
- | Form of Series 2010-1 Definitive Note | ||
|
||||
Exhibit C
|
- | Form of Eligibility and Substitution/Repurchase Certificate | ||
|
||||
Exhibit D
|
- | Form of Advance Request |
iii
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely in its capacity as Trustee |
||||
By: | ||||
Name: | ||||
Title: |
30
WILMINGTON TRUST COMPANY, not in its
individually capacity but solely in its capacity as Collateral Trustee |
||||
By: | ||||
Name: | ||||
Title: |
31
Series 2010-1 Noteholder
Commitment
$ 50,000,000
CUSIP No. 453088 AA4 | Authorized Note Amount: Up to $50,000,000* | |
ISIN No. US453088AA46 | Holder: Cede & Co. | |
Dated [ ] |
* | THE AGGREGATE PRINCIPAL BALANCE OF THIS SERIES 2010-1 NOTE MAY FROM TIME TO TIME BE INCREASED OR DECREASED AS DESCRIBED HEREIN. |
IMPERIAL SETTLEMENTS FINANCING 2010, LLC
|
||||
By: | Washington Square Financial, LLC, as its Sole Member | |||
By: | Imperial Holdings, LLC, as its Sole Member | |||
By: | ||||
Name: | ||||
Title: | ||||
WILMINGTON TRUST COMPANY, not
individually but solely as Trustee |
||||
By: | ||||
Name: | ||||
Title: | ||||
DATE OF EXCHANGE | INCREASE AMOUNT | DECREASE AMOUNT | NEW BALANCE AMOUNT | |||
CUSIP No. [__________]
ISIN No. [____________] Dated [ ], 2010 |
Authorized Note Amount: Up to $50,000,000*
Holder: Cede & Co. |
IMPERIAL SETTLEMENTS FINANCING 2010, LLC
|
||||
By: | Washington Square Financial, LLC, as its Sole Member | |||
By: | Imperial Holdings, LLC, as its Sole Member | |||
By: | ||||
Name: | ||||
Title: | ||||
WILMINGTON TRUST COMPANY, not
individually but solely as Trustee |
||||
By: | ||||
Name: | ||||
Title: |
DATE OF EXCHANGE | INCREASE AMOUNT | DECREASE AMOUNT | NEW BALANCE AMOUNT |
CUSIP No. [___________]
ISIN No. [___________] Dated _____________, 2010 |
Authorized Note Amount: Up to $50,000,000*
Holder: Cede & Co. |
* | THE AGGREGATE PRINCIPAL BALANCE OF THIS SERIES 2010-1 NOTE MAY FROM TIME TO TIME BE INCREASED OR DECREASED AS DESCRIBED HEREIN. |
IMPERIAL SETTLEMENTS FINANCING 2010, LLC
|
||||
By: | Washington Square Financial, LLC, as its Sole | |||
Member | ||||
By: | Imperial Holdings, LLC, as its Sole Member | |||
By: | ||||
Name: | ||||
Title: | ||||
WILMINGTON TRUST COMPANY, not
individually but solely as Trustee |
||||
By: | ||||
Name: | ||||
Title: |
DATE OF EXCHANGE | INCREASE AMOUNT | DECREASE AMOUNT | NEW BALANCE AMOUNT |
Dated
, 2010
|
Note Amount: Up to $50,000,000* | |
|
Holder: |
* | THE AGGREGATE PRINCIPAL BALANCE OF THIS SERIES 2010-1 NOTE MAY FROM TIME TO TIME BE INCREASED OR DECREASED AS DESCRIBED HEREIN. |
IMPERIAL SETTLEMENTS FINANCING 2010, LLC
|
||||
By: | Washington Square Financial, LLC, as its Sole Member | |||
By: | Imperial Holdings, LLC, as its Sole Member | |||
By: | ||||
Name: | ||||
Title: | ||||
WILMINGTON TRUST COMPANY, not
individually but solely as Trustee |
||||
By: | ||||
Name: | ||||
Title: | ||||
DATE OF EXCHANGE | INCREASE AMOUNT | DECREASE AMOUNT | NEW BALANCE AMOUNT |
Dated
, 2010
|
Note Amount: Up to $50,000,000* | |
|
Holder: |
* | THE AGGREGATE PRINCIPAL BALANCE OF THIS SERIES 2010-1 NOTE MAY FROM TIME TO TIME BE INCREASED OR DECREASED AS DESCRIBED HEREIN. |
IMPERIAL SETTLEMENTS FINANCING 2010, LLC
|
||||
By: | Washington Square Financial, LLC, as its Sole Member | |||
By: | Imperial Holdings, LLC, as its Sole Member | |||
By: | ||||
Name: | ||||
Title: | ||||
WILMINGTON TRUST COMPANY, not
individually but solely as Trustee |
||||
By: | ||||
Name: | ||||
Title: | ||||
DATE OF EXCHANGE | INCREASE AMOUNT | DECREASE AMOUNT | NEW BALANCE AMOUNT |
WASHINGTON SQUARE FINANCIAL, LLC | ||||
By: | Imperial Holdings, LLC, as its sole member | |||
By: | ||||
Name: | ||||
Title: | ||||
Page | |||||
ARTICLE I DEFINITIONS; CERTAIN TERMS | 1 | ||||
Section 1.01
|
Definitions | 1 | |||
Section 1.02
|
Terms Generally | 24 | |||
Section 1.03
|
Accounting and Other Terms | 25 | |||
Section 1.04
|
Time References | 25 | |||
|
|||||
ARTICLE II THE LOANS | 25 | ||||
Section 2.01
|
Commitments | 25 | |||
Section 2.02
|
Making the Loans | 26 | |||
Section 2.03
|
Repayment of Loans; Evidence of Debt | 27 | |||
Section 2.04
|
Interest | 27 | |||
Section 2.05
|
Reduction of Commitment; Prepayment of Loans | 28 | |||
Section 2.06
|
Fees | 30 | |||
Section 2.07
|
Securitization | 30 | |||
Section 2.08
|
Taxes | 31 | |||
Section 2.09
|
Increase in Term Loan Commitments | 33 | |||
|
|||||
ARTICLE III INTENTIONALLY OMITTED | 34 | ||||
|
|||||
ARTICLE IV FEES, PAYMENTS AND OTHER COMPENSATION | 34 | ||||
Section 4.01
|
Payments; Computations and Statements | 34 | |||
Section 4.02
|
Sharing of Payments, Etc. | 35 | |||
Section 4.03
|
Apportionment of Payments | 35 | |||
Section 4.04
|
Increased Costs and Reduced Return | 36 | |||
|
|||||
ARTICLE V CONDITIONS TO LOANS | 38 | ||||
Section 5.01
|
Conditions Precedent to Effectiveness | 38 | |||
Section 5.02
|
Conditions Precedent to All Loans | 41 | |||
|
|||||
ARTICLE VI REPRESENTATIONS AND WARRANTIES | 43 | ||||
Section 6.01
|
Representations and Warranties | 43 | |||
|
|||||
ARTICLE VII COVENANTS OF THE BORROWER | 50 | ||||
Section 7.01
|
Affirmative Covenants | 50 | |||
Section 7.02
|
Negative Covenants | 60 | |||
|
|||||
ARTICLE VIII MANAGEMENT, COLLECTION AND STATUS OF COLLATERAL | 66 | ||||
Section 8.01
|
Collections; Management of Collateral | 66 | |||
Section 8.02
|
Collateral Custodian | 68 | |||
|
|||||
ARTICLE IX EVENTS OF DEFAULT | 69 | ||||
Section 9.01
|
Events of Default | 69 |
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Page | |||||
ARTICLE X AGENTS | 73 | ||||
Section 10.01
|
Appointment | 73 | |||
Section 10.02
|
Nature of Duties | 74 | |||
Section 10.03
|
Rights, Exculpation, Etc. | 74 | |||
Section 10.04
|
Reliance | 75 | |||
Section 10.05
|
Indemnification | 75 | |||
Section 10.06
|
Agents Individually | 76 | |||
Section 10.07
|
Successor Agent | 76 | |||
Section 10.08
|
Collateral Matters | 76 | |||
Section 10.09
|
Agency for Perfection | 78 | |||
Section 10.10
|
No Reliance on any Agents Customer Identification Program | 78 | |||
ARTICLE XI SERVICER TERMINATION EVENTS | 78 | ||||
Section 11.01
|
Servicer Termination Event | 78 | |||
|
|||||
ARTICLE XII MISCELLANEOUS | 79 | ||||
Section 12.01
|
Notices, Etc. | 79 | |||
Section 12.02
|
Amendments, Etc. | 80 | |||
Section 12.03
|
No Waiver; Remedies, Etc. | 81 | |||
Section 12.04
|
Expenses; Taxes; Attorneys Fees | 81 | |||
Section 12.05
|
Right of Set-off | 82 | |||
Section 12.06
|
Severability | 82 | |||
Section 12.07
|
Assignments and Participations | 83 | |||
Section 12.08
|
Counterparts | 85 | |||
Section 12.09
|
GOVERNING LAW | 85 | |||
Section 12.10
|
CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE | 85 | |||
Section 12.11
|
WAIVER OF JURY TRIAL, ETC. | 86 | |||
Section 12.12
|
Consent by the Agents and Lenders | 87 | |||
Section 12.13
|
No Party Deemed Drafter | 87 | |||
Section 12.14
|
Reinstatement; Certain Payments | 87 | |||
Section 12.15
|
Indemnification | 87 | |||
Section 12.16
|
Records | 88 | |||
Section 12.17
|
Binding Effect | 88 | |||
Section 12.18
|
Interest | 88 | |||
Section 12.19
|
Confidentiality | 89 | |||
Section 12.20
|
Public Disclosure | 90 | |||
Section 12.21
|
Integration | 90 | |||
Section 12.22
|
USA PATRIOT Act | 90 |
- ii -
Schedule 1.01(A)
|
Lenders and Lenders Commitments | |
Schedule 1.01(B)
|
Applicable Non-Licensed States | |
Schedule 1.01(C)
|
Applicable Licensed States | |
Schedule 1.01(D)
|
Loan Schedule | |
Schedule 5.02(e)
|
Delivery of Documents | |
Schedule 6.01(e)
|
Capitalization | |
Schedule 6.01(q)
|
Insurance | |
Schedule 6.01(t)
|
Bank Accounts | |
Schedule 6.01(u)
|
Intellectual Property | |
Schedule 6.01(v)
|
Material Contracts | |
Schedule 6.01(aa)
|
Name; Jurisdiction of Organization; Organizational ID Number; Chief Place of Business; Chief Executive Office; FEIN | |
Schedule 6.01(bb)
|
Collateral Locations | |
Schedule 8.01
|
Cash Management Bank and Collection Account |
Exhibit A
|
Form of Security Agreement | |
Exhibit B
|
Form of Notice of Borrowing | |
Exhibit C
|
Form of Assignment and Acceptance | |
Exhibit D
|
Form of Individual Guaranty | |
Exhibit E
|
Form of Guarantor Security Agreement | |
Exhibit F
|
Loan Document Package | |
Exhibit G
|
Form of Borrowing Base Certificate | |
Exhibit H
|
Form of Local Counsel Opinion | |
Exhibit I
|
Form of Insurance Premium Loan Sale and Assignment Agreement | |
Exhibit J
|
Form of Master Participation Agreement |
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BORROWER
:
IMPERIAL LIFE FINANCING II, LLC |
||||
By: | /s/ Jonathan Neuman | |||
Name: | Jonathan Neuman | |||
Title: | President | |||
COLLATERAL AGENT, ADMINISTRATIVE AGENT AND LENDER
:
CTL HOLDINGS II LLC |
||||
By: | /s/ Antony Mitchell | |||
Name: | Antony Mitchell | |||
Title: | President | |||
Lender
Commitment
$
15,000,000
$
15,000,000
1. | Loan Schedule |
2. | Life Insurance Policy and evidence of receipt by insurance carrier of the related premium |
3. | Eligibility Certification |
4. | Trust Agreement |
5. | Escrow Agreement |
6. | Completed compliance checklist for Insurance Premium Loan |
7. | Loan Documentation Package for Insurance Premium Loan |
8. | Coverage Certificate |
9. | Insurance Premium Loan Assignment Agreement or Participation Certificate from Master Participation Agreement |
10. | All other deliveries required by the Agents, including all documents and certificates required for an Insurance Premium Loan to be an Eligible Insurance Premium Loan |
Insurance
Company
Type
Policy Period
Limit of Liability
Policy #
Professional
Liability E&O
12/19/08 12/19/09
10,000,000.00
013777922
Director and
Officer Liability
8/20/08 8/20/09
5,000,000
NY08DOL601410IV
SunTrust Bank
Imperial Life Financing II, LLC
Collection
SunTrust Bank
Imperial Life Financing II, LLC
Checking
Business; Chief Executive Office; FEIN
Imperial Life Financing II, LLC
Georgia
09008743
701 Park of Commerce Blvd., Suite 301 Boca Raton, FL 33487
191 Peachtree Street NE, Suite 3300 Atlanta, Georgia 30303
SunTrust Bank
Imperial Life Financing II, LLC
Collection
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GRANTOR
:
IMPERIAL LIFE FINANCING II, LLC |
||||
By: | Imperial Premium Finance, LLC, its sole member | |||
By: | Imperial Holdings, LLC, its managing member | |||
By: | ||||
Name: | Jonathan Neuman | |||
Title: | President |
Legal Name
|
Imperial Life Financing II, LLC | |
|
||
State or Jurisdiction of Organization
|
Georgia | |
|
||
Type of Organization
|
Limited Liability Company | |
|
||
Organizational Identification Number
|
09008743 |
Sched. I-1
A. | COPYRIGHTS |
1. | Registered Copyrights | ||
2. | Copyright Applications |
B. | PATENTS |
1. | Patents | ||
2. | Patent Applications |
C. | TRADEMARKS |
1. | Registered Trademarks | ||
2. | Trademark Applications |
D. | OTHER PROPRIETARY RIGHTS | |
E. | TRADE NAMES | |
F. | NAME OF, AND EACH TRADE NAME USED BY, EACH PERSON FROM WHICH THE GRANTOR HAS ACQUIRED ANY SUBSTANTIAL PART OF THE COLLATERAL WITHIN THE PRECEDING FIVE YEARS |
Sched. II-1
LOCATION
|
Description of Location (state if Location | |
|
(i) contains Collateral | |
|
(ii) is chief place of business and chief executive office, or | |
|
(iii) contains Records concerning Accounts, Insurance Premium Loans and originals of Chattel Paper) |
Chief Place of Business
|
701 Park of Commerce Blvd., Suite 301 Boca Raton, FL 33487 | |
|
||
Chief Executive Office
|
||
|
||
Location of Records concerning
Accounts, Insurance Premium Loans
and originals of Chattel Paper
|
701 Park of Commerce Blvd., Suite 301 Boca Raton, FL 33487 | |
|
||
Location of Collateral
|
701 Park of Commerce Blvd., Suite 301 Boca Raton, FL 33487 |
Sched. III-1
Name and Address of Institution
Maintaining Account
|
||
|
||
Account Number
|
||
|
||
Account Name
|
Imperial Life Financing II, LLC | |
|
||
Type of Account
|
Collection |
Sched. IV-1
Name of Grantor | Secretary of State |
Sched. V-1
Sched. VI-1
Sched. VII-1
Principal Amount
Grantor
Name of Maker
Description
Outstanding as of
Sched. VIII-1
Name of Pledged
Percentage of
Grantor
Issuer
Number of Shares
Outstanding Shares
Class
Certificate Number
Pledged Debt | ||||||||||||||
Grantor | Name of Maker | Description | Principal Amount Outstanding as of |
Pledged Shares | ||||||||||||||||||||||
Name of | Percentage of | |||||||||||||||||||||
Grantor | Pledged Issuer | Number of Shares | Outstanding Shares | Class | Certificate Number |
[GRANTOR]
|
||||
By: | ||||
Name: | ||||
Title: | ||||
CTL Holdings II, LLC,
as the Collateral Agent |
||||
By: | ||||
Name: | ||||
Title: | ||||
Exh. A-1
1 | This date must be a Business Day and not occur more than once each week. |
Very truly yours,
IMPERIAL LIFE FINANCING II, LLC |
||||
By: | Imperial Premium Finance, LLC, its sole member | |||
By: | Imperial Holdings, LLC, its managing member | |||
By: | ||||
Name: | Jonathan Neuman | |||
Title: | President |
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[ASSIGNOR]
|
||||
By: | ||||
Name: | ||||
Title: | ||||
Date: | ||||
NOTICE ADDRESS FOR ASSIGNOR
[INSERT ADDRESS] Telephone No.: Telecopy No.: [ASSIGNEE] |
||||
By: | ||||
Name: | ||||
Title: | ||||
Date: | ||||
NOTICE ADDRESS FOR ASSIGNEE | ||||
4
1. | Borrower: Imperial Life Financing II, LLC | |||||
|
||||||
2. | Name and Date of Financing Agreement: | |||||
|
||||||
Financing Agreement, dated as of March ________. 2009 by and among Imperial Life Financing II, LLC, a Georgia limited liability company (the Borrower ), the lenders from time to time party thereto (each a Lender and collectively, the Lenders ), CTL Holdings II, LLC, a Georgia limited liability company ( CTL ), as collateral agent for the Lenders (in such capacity, the Collateral Agent ), and CTL, as administrative agent for the Lenders (in such capacity, the Administrative Agent and together with the Collateral Agent, each an Agent and collectively, the Agents ). | ||||||
|
||||||
3. | Date of Assignment Agreement: | |||||
|
||||||
|
||||||
4. | Amount of Commitments: | |||||
|
||||||
|
||||||
5. | Amount of Loans: | |||||
|
||||||
|
||||||
6. | Purchase Price (excluding all interest, including the PIK Interest Amount): | |||||
|
||||||
|
||||||
7. | Settlement Date: | |||||
|
5
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|
||
|
||
|
[Guarantor] | |
|
||
|
Address: | |
|
||
|
||
|
||
|
||
|
||
|
STATE OF
|
||
|
ss.: | |
COUNTY OF
|
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Pledgor
Name of Issuer
Number of Shares
Class
Certificate Number
Imperial Life
Financing II, LLC
100
1
Exact Name | Address | City | State | Zip Code | ||||||
Imperial Premium
Finance, LLC
|
701 Park of Commerce Blvd., Suite 301 | Boca Raton | FL | 33487 |
Exact Name | Address | City | State | Zip Code | ||||||
Imperial Premium
Finance, LLC
|
701 Park of Commerce Blvd., Suite 301 | Boca Raton | FL | 33487 |
Name | Filing Office | |
Imperial Premium Finance, LLC
|
Pledged Shares | ||||||||||||||||||
Number | Certificate | |||||||||||||||||
Pledgor | Name of Issuer | of Shares | Class | Number(s) | ||||||||||||||
[PLEDGOR]
|
||||
By: | ||||
Name: | ||||
Title: | ||||
1. | Assignment of Beneficial Interests | |
2. | Authorization and Direction to Provide Death Certificate | |
3. | Beneficiary Pledge Agreement | |
4. | Assignment of Life Insurance Policy as Collateral | |
5. | Escrow Agreement | |
6. | Fee Agreement | |
7. | Authorization for Use and/or Disclosure of Health Information | |
8. | Hold Harmless Agreement | |
9. | Guaranty | |
10. | Insured Disclosure Statement, Representations and Warranties, and Consent | |
11. | Authorization Form for Use and Disclosure of Health Information | |
12. | Limited Power of Attorney | |
13. | Loan Application and Agreement | |
14. | Limited Specific Power of Attorney | |
15. | Promissory Note | |
16. | Out-of-State Closing Affidavit | |
17. | Representations, Warranties and Covenants of Agent | |
18. | Brokers Rights Agreement | |
19. | Mandatory Trust Agreement Provisions | |
20. | Trust Disclosure Statement, Representations and Warranties, and Consent |
(a) | Attached hereto as Exhibit A is a schedule of the Borrowing Base as of the date set forth above and the calculations made with respect thereto; and | ||
(b) | Based on such schedule: |
(i) | the Borrowing Base as of the date set forth above is $ ; and | ||
(ii) | [no prepayment of the principal amount of the Loans is required pursuant to Section 2.05(c)(ii) of the Financing Agreement] [$ of the principal amount of the Loans is required to be prepaid pursuant to Section 2.05(c)(ii) of the Financing Agreement]. |
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IMPERIAL LIFE FINANCING II, LLC
|
||||
By: | Imperial Premium Finance, LLC, its sole member | |||
By: | Imperial Holdings, LLC, its managing member | |||
By: | ||||
Name: | Jonathan Neuman | |||
Title: | President |
A. | Borrowing Base Calculation |
1. | Covered Loan Amount Limit | |||||||||||
|
||||||||||||
(a) |
Eligible Insurance Premium Loans financed
under the Financing Agreement
|
$ | ||||||||||
|
||||||||||||
(b) |
Aggregate Origination Fees with respect
to such Insurance Premium Loans (but not to
exceed that portion of the Origination Fee
payable by the Premium Finance Borrower
|
$ | ||||||||||
|
||||||||||||
(c) |
Aggregate of the Collateral Value Policy
and Contingent Collateral Value Policy
premiums reimbursement amounts payable,
directly or indirectly, by the Premium
Finance Borrowers to the Originator or the
Borrower in respect of such Insurance Premium
Loans, to the extent financed under the
Financing Agreement (but not to exceed that
portion of the premium cost passed through to
the Premium Finance Borrower)
|
$ | ||||||||||
|
||||||||||||
(d) |
Amount of interest that is reasonably
expected to be due on the scheduled maturity
dates of the Eligible Insurance Premium Loans
financed under the Financing Agreement
|
$ | ||||||||||
|
||||||||||||
(e) |
The sum of 1(a), 1(b), 1(c) and 1(d)
determined by discounting each to present
value by using an interest rate equal to
22.025% and such amounts shall be present
valued back to the effective date of this
calculation
|
$ | ||||||||||
|
||||||||||||
2. | Borrowing Base Limit | |||||||||||
|
||||||||||||
(a) |
Aggregate of the Covered Loan Amount of
all Eligible Insurance Premium Loans owned
(actually, beneficially or through a
participation) by the Borrower and pledged as
Collateral for the Loans under the Financing
Agreement and the Loan Documents and in which
the Collateral Agent has for the benefit of
the Agents and the Lenders a perfected first
priority lien
|
$ | ||||||||||
|
||||||||||||
(b) |
Aggregate Interest Amount of each
Insurance Premium Loan at the maturity date
of each such Insurance Premium Loan
|
$ | ||||||||||
|
||||||||||||
(c) |
The sum of 2(a) and 2(b) determined by
discounting each to present value by using an
interest rate equal to 22.025% and such
amounts shall be present valued back to the
effective date of this calculation
|
$ | ||||||||||
|
||||||||||||
3. | Borrowing Base (the lesser of 1 and 2) | $ |
|
ATTORNEYS AT LAW | |
|
ONE INDEPENDENT DRIVE, SUITE 1300 |
|
|
JACKSONVILLE, FL 32202-5017 | |
|
P. O. BOX 240 | |
|
JACKSONVILLE, FL 32201-0240 | |
|
904.359.2000 TEL | |
|
904.359.8700 FAX | |
|
foley.com | |
|
||
|
CLIENT/MATTER NUMBER | |
|
084091-0102 |
Re: | Imperial Life Financing II, LLC, a Georgia limited liability company (the Borrower ) |
(a) | the Financing Agreement; |
BOSTON
|
JACKSONVILLE | NEW YORK | SAN FRANCISCO | TOKYO | ||||
BRUSSELS
|
LOS ANGELES | ORLANDO | SHANGHAI | WASHINGTON, D.C. | ||||
CENTURY CITY
|
MADISON | SACRAMENTO | SILICON VALLEY | |||||
CHICAGO
|
MIAMI | SAN DIEGO | TALLAHASSEE | |||||
DETROIT
|
MILWAUKEE | SAN DIEGO/DEL MAR | TAMPA |
(b) | the Security Agreement; | ||
(c) | the Guarantor Security Agreement executed by Imperial (the Imperial Security Agreement ); | ||
(d) | the Individual Guaranty executed by Jonathan Neuman; | ||
(e) | the Individual Guaranty executed by Antony Mitchell; | ||
(f) | the Collateral Agency Agreement; | ||
(g) | the Fee Letter; | ||
(h) | the UCC Filing Authorization Letter; | ||
(i) | the SunTrust Bank Restricted (Blocked) Account Agreement in favor of Collateral Agent executed by SunTrust Bank, Borrower and Collateral Agent (the Restricted Account Agreement); | ||
(j) | a copy of a UCC-1 FINANCING STATEMENT filed with the Florida Secured Transaction Registry naming Imperial as debtor and the Collateral Agent as the secured party (the Imperial Financing Statement ) a copy of which is attached hereto as Exhibit A; | ||
(k) | the Master Participation Agreement; | ||
(l) | the form of Insurance Premium Loan Assignment Agreement; | ||
(m) | the Initial Servicing Agreement; and | ||
(n) | the Collateral Value Policy and the Contingent Lender Protection Insurance Policy. |
1
2
3
4
5
(a) No Impairment . Except in accordance with, or as contemplated by, the Loan Documents and the Transaction Documents, the Assignor shall take no action, nor omit to take any action, which would impair the rights of the Assignee in any Insurance Premium Loan in which an interest has been transferred hereunder. | ||
(b) Compliance with Law . The Assignor will comply in all material respects with all Requirements of Law with respect to it, its business and properties and the Insurance Premium Loans and related Life Insurance Policies. The Assignor will maintain all applicable permits, certifications and licenses (including all licenses to originate Insurance Premium Loans) necessary with respect to its business and properties and all Insurance Premium Loans and the Life Insurance Policy related thereto. | ||
(c) Preservation of Existence . The Assignor will preserve and maintain its existence, rights, franchises and privileges as a limited liability company or corporation, as applicable, and become and remain licensed in each jurisdiction where the failure to maintain such license would materially and adversely affect (A) the interests of the Assignee hereunder or (B) the collectibility of any Insurance Premium Loans in which an interest has been transferred hereunder or the related Life Insurance Policies; and the Assignor shall not consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person without the prior written consent of the Assignee. | ||
(d) Performance and Compliance with Insurance Premium Loans . The Assignor will, at its expense, timely and fully perform and comply with all provisions, covenants and other promises required to be observed by it hereunder. The Assignor shall comply with and perform its obligations with respect to any Insurance Premium Loan. | ||
(e) Collections and Payments . Except as otherwise provided in this Assignment Agreement, the Assignor will cause any Collections received by it to be deposited in the Collection Account no later than the Business Day following the receipt and identification of proceeds. | ||
(f) Arms-Length Relationship; Separate Existence . The Assignor will maintain an arms-length relationship with the Assignee. Any transaction between the Assignee on the one hand and the Assignor or any respective Affiliates thereof, on the other hand, will, in the |
6
7
8
9
ASSIGNOR:
IMPERIAL PREMIUM FINANCE, LLC By: Imperial Holdings, LLC, its managing member |
||||
By: | ||||
Name: | ||||
Title: | ||||
Date: | ||||
NOTICE ADDRESS FOR ASSIGNEE
191 Peachtree Street, Suite 3300 Atlanta, Georgia 30303 Telephone No.: Telecopy No.: |
||||
10
1. | Assignee/Purchaser: Imperial Life Financing II, LLC, a Georgia limited liability company | |
2. | Name and Date of Financing Agreement: |
3. |
Date of Assignment Agreement:
|
||||||
|
|
||||||
4. |
Premium Finance Borrower:
|
||||||
|
|
||||||
5. |
Insurance Premium Loan Number:
|
||||||
|
|
||||||
6. |
Loan Documentation:
|
||||||
|
|
||||||
7. |
Insurance Premium Loan Agreement Date:
|
||||||
|
|
||||||
8. |
Life Insurance Policy Number:
|
||||||
|
|
||||||
9. |
Amount of Insurance Premium Loan:
|
||||||
|
|
||||||
10. |
Purchase Price:
|
||||||
|
|
||||||
11. |
Final Maturity Date of Insurance Premium Loan:
|
||||||
|
|
||||||
12. |
Settlement Date:
|
||||||
|
|
11
(a) | The Company represents, warrants and covenants to each LPIC Insurer as follows: |
(i) | The Company has all requisite authority to execute, deliver and perform its obligations under this Letter Agreement. This Letter Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles. | ||
(ii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(iii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(iv) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(v) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
2
3
(A) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(B) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(C) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
(xxv) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(xxvi) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
(b) | Each LPIC Insurer represents and warrants on behalf of itself to the Company as follows: |
(i) | Such LPIC Insurer has all requisite power and authority to execute, deliver and perform its obligations under this Letter Agreement. This Letter Agreement has been duly authorized, executed and delivered by such LPIC Insurer and constitutes a valid and legally binding agreement enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles. | ||
(ii) | As a result of executing this Letter Agreement, such LPIC Insurer will not be in violation of any law, statute, rule, regulation, judgment, order or decree of any domestic or foreign court or governmental or regulatory authority, agency or other body having jurisdiction over such LPIC Insurer or any of its assets or property. | ||
(iii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
4
(iv) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
(a) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(b) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
(a) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(b) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
4. | Notices. All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered by certified mail, return receipt requested, mailed by a nationally recognized overnight courier or sent via facsimile to (i) the Company at 701 Park of Commerce Boulevard, Suite 301, Boca Raton, FL 33487, Attention: Jonathan Neuman, President, facsimile: 240-282-1050, with a copy to Foley & Larder LLP, One Independent Drive, Suite 1300, Jacksonville, FL 32202-5017, Attention: Robert S. Bernstein, Esq., facsimile: 904-359-8700, (ii) the Insurer at 70 Pine Street, 5th Floor, New York, New York 10270, Attention: Surveillance Department, facsimile: 212- 480-3923, with a copy to Senior Division Counsel, AIG Risk Finance, 70 Pine Street, 5th Floor, New York, New York 10270, 212-480-3923, (iii) National Fire & Marine Insurance Company, Attention: General Counsel, 100 First Stamford Place, Stamford, CT 06902, Facsimile: (203) 363-5221 or (iv) as to any of such persons, at such other address or facsimile number as shall be designated by such person in a written notice to the other persons. | |
5. | Governing Law. This Letter Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York (including without limitation Section 5- 1401 of the General Obligations Law of the State of New York), without regard to conflicts of laws principles that would require or allow for the application of any other jurisdictions law. |
5
6. | Remedies. [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
7. | Setoff. [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
8. | Dispute Resolution. [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
9. | Construction; Entire Agreement. Each LPIC Insurer and the Company hereby acknowledge that they were represented by competent and experienced legal counsel of their choice in connection with the negotiation, execution and delivery of this Letter Agreement, and the Company acknowledges that it is entering into the transactions contemplated by this Letter Agreement with full knowledge and acceptance of its terms, conditions and significance, without any reliance on any representation, warranty, advice or other statement by any LPIC Insurer or any of its representatives or advisors regarding any legal, tax or accounting implications or other requirements. Accordingly, in any dispute concerning this Letter Agreement, such dispute shall be resolved without any presumption or rule of construction in favor of any party or any related or similar doctrine. This Letter Agreement contains the full and complete understanding and agreement between the parties hereto with respect to the subject matter hereof. The parties acknowledge that they are not entering into this Letter Agreement in reliance upon any term, condition, representation or warranty not stated or referred to herein and that this Letter Agreement replaces any and all prior agreements whether oral or written, pertaining to the subject matter hereof. | |
10. | Counterparts. This Letter Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same document. | |
11. | Amendments. This Letter Agreement may be amended, modified, supplemented or terminated only by a written instrument signed by the Insurer (prior to the occurrence of a Credit Event), the Contingent Insurer and the Company. | |
12. | Defined Terms. For purposes of this Letter Agreement: |
6
(1) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
(2) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
(3) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
(4) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
(5) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
7
(2) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(3) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT].. |
8
13. | Assignment. This Letter Agreement may not be assigned by any party without the prior written consent of each other party hereto, which consent shall not be |
9
unreasonably withheld, conditioned or delayed; provided, that the Insurer may assign this Letter Agreement, without the need to obtain the prior written consent of the Company or the Contingent LPIC Insurer, to any entity to whom the Insurer assigns the Policy and the Contingent Insurer may assign this Letter Agreement, without the need to obtain the prior written consent of the Company or the Insurer, to any entity to whom the Contingent Insurer assigns the Contingent Policy. |
10
Sincerely, | ||||||
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IMPERIAL HOLDINGS LLC | ||||||
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By: | |||||
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Name: |
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Title: |
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AGREED TO AND ACCEPTED BY: | ||||
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LEXINGTON INSURANCE COMPANY | ||||
|
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By:
|
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Name:
|
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Title:
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NATIONAL FIRE & MARINE
INSURANCE COMPANY |
||||
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By:
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Name:
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Title:
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2
3
4
5
BORROWER
:
IMPERIAL LIFE FINANCING II, LLC |
||||
By: | /s/ Beverly F. Gross | |||
Name: | Beverly F. Gross | |||
Title: | President | |||
ADMINISTRATIVE AGENT, COLLATERAL AGENT AND
LENDER
:
CTL HOLDINGS II LLC |
||||
By: | /s/ Antony Mitchell | |||
Name: | Antony Mitchell | |||
Title: | President |
REQUIRED LENDER
:
WHITE OAK STRATEGIC MASTER FUND, LP |
||||
By: | WHITE OAK GLOBAL ADVISORS, LLC, its Investment Advisor | |||
By: | /s/ Ken Masters | |||
Name: | Ken Masters | |||
Title: | Managing Member | |||
CTL HOLDINGS II LLC
, as resigning Collateral Agent
and Administrative Agent |
||||
By: | /s/ Antony Mitchell | |||
Name: | Antony Mitchell | |||
Title: | President | |||
By: | /s/ Ken Masters | |||
Name: | Ken Masters | |||
Title: | Managing Member | |||
CTL HOLDINGS II LLC
, as a Lender
|
||||
By: | /s/ Antony Mitchell | |||
Name: | Antony Mitchell | |||
Title: | President | |||
By: | /s/ Beverly F. Gross | |||
Name: | Beverly F. Gross | |||
Title: | President | |||
2
3
4
5
BORROWER
:
IMPERIAL LIFE FINANCING II, LLC |
||||
By: | /s/ Beverly Gross | |||
Name: | Beverly Gross | |||
Title: | President | |||
ADMINISTRATIVE AGENT, COLLATERAL
AGENT AND REQUIRED LENDER : WHITE OAK STRATEGIC MASTER FUND, LP |
||||
By: | WHITE OAK GLOBAL ADVISORS, LLC, its | |||
Investment Advisor | ||||
By: | /s/ Barbara J. S. McKee | |||
Name: | Barbara J. S. McKee | |||
Title: | Managing Member | |||
Tranche/Insurance | ||||
Premium Loan | ||||
Number | Applicable Rate | |||
2008-1123
|
18.05900 | |||
2008-1161
|
18.83000 | |||
2009-147
|
17.91900 | |||
2009-159
|
19.26600 | |||
2009-167
|
18.41300 | |||
2009-190
|
18.56300 | |||
2009-192
|
19.24800 | |||
2009-111
|
18.67500 | |||
2009-139
|
18.42200 | |||
2009-141
|
18.42200 | |||
2009-143
|
17.55900 | |||
2009-150
|
18.83000 | |||
2009-162
|
18.78400 | |||
2009-173
|
18.56300 | |||
2009-176
|
18.59900 | |||
2009-177
|
18.83000 | |||
2009-181
|
18.87800 | |||
2009-183
|
18.54000 | |||
2009-184
|
18.71400 | |||
2009-201
|
18.57400 | |||
2009-127
|
18.15000 | |||
2009-148
|
18.46900 | |||
2009-161
|
17.79900 | |||
2009-164
|
17.97100 | |||
2009-174
|
13.30000 | |||
2009-186
|
18.85400 | |||
2009-214
|
18.57600 | |||
2009-218
|
19.10700 | |||
2009-229
|
18.73700 | |||
2009-231
|
18.87700 | |||
2009-124
|
17.90900 | |||
2009-153
|
18.13400 | |||
2009-187
|
18.97300 | |||
2009-205
|
19.00700 | |||
2009-206
|
18.99900 | |||
2009-216
|
19.02900 | |||
2009-219
|
18.95400 | |||
2009-225
|
19.06500 | |||
2009-233
|
19.00700 | |||
2009-240
|
19.07700 |
IMPERIAL LIFE FINANCING II, LLC | ||||
Applicable Interest Rate Listing by | ||||
Tranche/Insurance
Premium Loan Number
|
||||
Tranche/Insurance | ||||
Premium Loan | ||||
Number | Applicable Rate | |||
2009-242
|
17.75400 | |||
2008-1158
|
18.40800 | |||
2009-144
|
18.54200 | |||
2009-198
|
18.79500 | |||
2009-209
|
18.36500 | |||
2009-210
|
18.36500 | |||
2009-211
|
18.36500 | |||
2009-217
|
18.82600 | |||
2009-222
|
17.56800 | |||
2009-246
|
18.81800 | |||
2009-247
|
18.87800 | |||
2009-248
|
18.77300 | |||
2009-250
|
18.55100 | |||
2009-261
|
18.92000 | |||
2009-262
|
18.50700 | |||
2009-268
|
18.43600 | |||
2009-282
|
48.39200 |
2
3
4
5
6
7
8
9
10
BORROWER
:
IMPERIAL LIFE FINANCING II, LLC |
||||
By: | /s/ David Manchester | |||
Name: | David Manchester | |||
Title: |
Senior Vice President
|
|||
ADMINISTRATIVE AGENT, COLLATERAL
AGENT AND LENDER : WHITE OAK STRATEGIC MASTER FUND, LP |
||||
By: | WHITE OAK GLOBAL ADVISORS, LLC, its | |||
Investment Advisor | ||||
By: | /s/ Barbara J. S. Mckee | |||
Name: | Barbara J. S. Mckee | |||
Title: |
Managing Member
|
|||
REQUIRED LENDER
:
WHITE OAK STRATEGIC MASTER FUND, LP |
||||
By: | WHITE OAK GLOBAL ADVISORS, LLC, its | |||
Investment Advisor
|
||||
By: | /s/ Barbara J. S. Mckee | |||
Name: | Barbara J. S. Mckee | |||
Title: | Managing Member | |||
BORROWER:
IMPERIAL LIFE FINANCING II, LLC |
||||
By: | /s/ David Manchester | |||
Name: | David Manchester | |||
Title: | Senior Vice President |
ADMINISTRATIVE AGENT AND COLLATERAL AGENT
WHITE OAK GLOBAL ADVISORS, LLC |
||||
By: | /s/ Barbara J. S. McKee | |||
Name: | Barbara J. S. McKee | |||
Title: | Managing Member |
LENDERS:
WHITE OAK STRATEGIC MASTER FUND, LP By: WHITE OAK GLOBAL ADVISORS, LLC, its Investment Advisor |
||||
By: | /s/ Barbara J. S. McKee | |||
Name: | Barbara J. S. McKee | |||
Title: | Managing Member | |||
WHITE OAK PATRIOT FUND, L.P.
By: WHITE OAK GLOBAL ADVISORS, LLC, its Investment Advisor |
||||
By: | /s/ Barbara J. S. McKee | |||
Name: | Barbara J. S. McKee | |||
Title: | Managing Member |
Lender
Total Commitment
$
14,933,732.88
$
12,051,748.59
$
26,985,481.47
Applicable Interest Rate Listing by
Tranche/Insurance Premium Loan Number
Tranche/Insurance
Premium Loan
Number
Applicable Rate
18.05900
18.83000
17.91900
19.26600
18.41300
18.56300
19.24800
18.67500
18.42200
18.42200
17.55900
18.83000
18.78400
18.56300
18.59900
18.83000
18.87800
18.54000
18.71400
18.57400
18.15000
18.46900
17.79900
17.97100
13.30000
18.85400
18.57600
19.10700
18.73700
18.87700
17.90900
18.13400
18.97300
19.00700
18.99900
19.02900
Applicable Interest Rate Listing by
Tranche/Insurance Premium Loan Number
Tranche/Insurance
Premium Loan
Number
Applicable Rate
18.95400
19.06500
19.00700
19.07700
17.75400
18.40800
18.54200
18.79500
18.36500
18.36500
18.36500
18.82600
17.56800
18.81800
18.87800
18.77300
18.55100
18.92000
18.50700
18.43600
48.39200
20.62900
20.61200
20.63000
20.58500
20.61700
20.46700
20.51700
20.54200
20.36600
20.41500
20.19800
20.27400
20.44900
20.39800
20.51900
20.54600
20.51200
20.46300
20.45000
20.45100
20.39600
Applicable Interest Rate Listing by
Tranche/Insurance Premium Loan Number
Tranche/Insurance
Premium Loan
Number
Applicable Rate
20.50200
20.06200
19.99800
20.02800
20.12900
20.00600
19.98000
20.05800
20.11300
20.01100
19.98900
19.70400
20.01900
1. | We hereby consent to the descriptions of us, and the descriptions of lender protection insurance coverage, each as set forth in the Form S-1 Registration Statement provided to us by way of that certain September 30, 2010, 11:41 a.m. e-mail from John Wolfel (the Proposed Registration Statement ), and | ||
2. | We hereby consent to the redacted versions of the following exhibits to the Proposed Registration Statement as provided to us by way of that certain September 30, 2010, 11:41 a.m. e-mail from John Wolfel solely to the extent that the confidential treatment and related redaction of such exhibits as submitted to us by way of such e-mail has been granted by the Securities and Exchange Commission: |
a. | the September 14, 2009 letter between you, us, and National Fire & Marine Insurance Company that relates to the Lender Protection Insurance Policy (Policy No. 7113491), issued by us to Imperial PFC Financing II, LLC, and | ||
b. | the March 13, 2009 letter between you, us, and National Fire & Marine Insurance Company that relates to the Lender Protection Insurance Policy (Policy No. 7113486) issued by us to Imperial Life Financing II, LLC (collectively, the Proposed Redacted Exhibits ). |
1. | you represent, warrant and covenant that you (a) have consulted with appropriate professional advisors, such as your independent accountants, tax advisors and/or attorneys, regarding the appropriate accounting, tax and legal requirements (including disclosure requirements) regarding the Registration Statement and any exhibits thereto and (b) have made all relevant documents and information available to such advisors. | ||
2. | you acknowledge that, and represent and warrant that you understand that, (a) neither we nor any of our affiliates, nor any of our or their respective officers, directors, employees, agents or representatives (collectively, Representatives), have provided you or your advisors with any accounting, tax, legal or other professional advice (including disclosure advice) and (b) you have not, and you have not authorized or directed your advisors or representatives to, rely upon any such advice from any such party, and | ||
3. | you agree to, on an after-tax basis and as such amounts are incurred, defend, indemnify and hold harmless us and our affiliates, and our and their respective Representatives, successors and assigns (each, an Indemnified Party), against any and all liability, loss, damage or expense, including without limitation attorneys fees and expenses (collectively, Losses), incurred by any such Indemnified Party in connection with any investigation, inquiry, action, suit, demand or claim for sums of money brought or made against any such Indemnified Party relating to the Proposed Registration Statement or any supplement or amendment thereto for any actual or alleged violations of state or federal securities laws with respect to any untrue statement or alleged untrue statement of a material fact contained in the Proposed Registration Statement or any supplement or amendment thereto or any omission or alleged omission to state therein a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and | ||
4. | you agree that if for any reason the indemnification provided for above is unavailable or is insufficient to hold an Indemnified Party harmless, then you shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party, on the one hand, and the indemnifying party, on the other hand, but also the relative fault of such indemnified party, on the one hand, and the Indemnifying Party, on the other hand, as well as any other relevant equitable considerations. |
LEXINGTON INSURANCE COMPANY
|
||||
By: | ||||
Name: | ||||
Title: | ||||
ACKNOWLEDGE AND AGREED: | ||||
IMPERIAL HOLDINGS, LLC | ||||
|
||||
By:
|
||||
|
||||
|
Name: | |||
|
Title: |
1. | We hereby consent to the descriptions of us, and the descriptions of our structured settlement transaction, each as set forth in the Form S-1 Registration Statement provided to us by way of that certain September 30, 2010, 11:41 a.m. e-mail from John Wolfel (the Proposed Registration Statement ), | ||
2. | We hereby consent to the redacted versions of the following exhibits to the Proposed Registration Statement as provided to us by way of that certain September 30, 2010, 11:41 a.m. e-mail from John Wolfel solely to the extent that the confidential treatment and related redaction of such exhibits as submitted to us by way of such e-mail has been granted by the Securities and Exchange Commission: |
a. | the February 1, 2010 Purchase Agreement between Haverhill Receivables, LLC and us, and | ||
b. | the February 1, 2010 Servicing Agreement between Haverhill Receivables, LLC, Washington Square Financial, LLC d/b/a Imperial Structured Settlements and us (collectively, the Proposed Redacted Exhibits ); and |
3. | We hereby consent to filing the Wind Down Agreement dated September 30, 2010 by and between Slate Capital LLC and Haverhill Receivables, LLC as an exhibit to the Proposed Registration Statement. |
1. | You represent, warrant and covenant that you (a) have consulted with appropriate professional advisors, such as your independent accountants, tax advisors and/or attorneys, regarding the appropriate accounting, tax and legal requirements (including disclosure requirements) regarding the Registration Statement and any exhibits thereto and (b) have made all relevant documents and information available to such advisors. | ||
2. | you acknowledge that, and represent and warrant that you understand that, (a) neither we nor any of our affiliates, nor any of our or their respective officers, directors, employees, agents or representatives (collectively, Representatives), have provided you or your advisors with any accounting, tax, legal or other professional advice (including disclosure advice) and (b) you have not, and you have not authorized or directed your advisors or representatives to, rely upon any such advice from any such party, and | ||
3. | you agree to, on an after-tax basis and as such amounts are incurred, defend, indemnify and hold harmless us and our affiliates, and our and their respective Representatives, successors and assigns (each, an Indemnified Party), against any and all liability, loss, damage or expense, including without limitation attorneys fees and expenses (collectively, Losses), incurred by any such Indemnified Party in connection with any investigation, inquiry, action, suit, demand or claim for sums of money brought or made against any such Indemnified Party relating to the Proposed Registration Statement or any supplement or amendment thereto, for any actual or alleged violations of state or federal securities laws with respect to any untrue statement or alleged untrue statement of a material fact contained in the Proposed Registration Statement or any supplement or amendment thereto or any omission or alleged omission to state therein a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and | ||
4. | you agree that if for any reason the indemnification provided for above is unavailable or is insufficient to hold an Indemnified Party harmless, then you shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party, on the one hand, and the indemnifying party, on the other hand, but also the relative fault of such |
indemnified party, on the one hand, and the Indemnifying Party, on the other hand, as well as any other relevant equitable considerations. |
SLATE CAPITAL LLC | ||||||||||
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By: | |||||||||
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Name: | |||||||||
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Title: | |||||||||
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||||||||||
ACKNOWLEDGE AND AGREED: | ||||||||||
IMPERIAL HOLDINGS, LLC | ||||||||||
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By:
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Name: | |||||||||
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Title: |
Page | ||||
ARTICLE I
|
2 | |||
DEFINITIONS
|
2 | |||
SECTION 1.01. Certain Definitions
|
2 | |||
SECTION 1.02. Accounting Terms
|
2 | |||
SECTION 1.03. Other Terms
|
2 | |||
SECTION 1.04. Computation of Time Periods
|
2 | |||
|
||||
ARTICLE II
|
2 | |||
AMOUNTS AND TERMS OF THE PURCHASES
|
2 | |||
SECTION 2.01. Purchases of Receivables; Agreement to Purchase
|
2 | |||
SECTION 2.02. Payment for the Purchases
|
5 | |||
SECTION 2.03. Payments and Computations, Etc.
|
6 | |||
SECTION 2.04. Transfer of Records to the Purchaser
|
7 | |||
SECTION 2.05. Exclusivity
|
7 | |||
SECTION 2.06. Use of Claimant Information
|
8 | |||
|
||||
ARTICLE III
|
9 | |||
CONDITIONS PRECEDENT
|
9 | |||
SECTION 3.01. Conditions Precedent to Agreement
|
9 | |||
SECTION 3.02. Conditions Precedent to Ongoing Purchases
|
9 | |||
SECTION 3.03. Effect of Payment of Purchase Amount
|
9 | |||
|
||||
ARTICLE IV
|
9 | |||
REPRESENTATIONS AND WARRANTIES
|
9 | |||
SECTION 4.01. Representations and Warranties of the Seller
|
9 | |||
SECTION 4.02. Representations and Warranties of the Seller Relating to
the Receivables
|
13 | |||
SECTION 4.03. Representations and Warranties of the Purchaser
|
14 | |||
SECTION 4.04. Survival of Representations and Warranties
|
15 | |||
|
||||
ARTICLE V
|
15 | |||
GENERAL COVENANTS
|
15 | |||
SECTION 5.01. Affirmative Covenants of the Seller
|
15 | |||
SECTION 5.02. Negative Covenants of the Seller
|
24 | |||
SECTION 5.03. Negative Covenant of the Purchaser
|
26 | |||
|
||||
ARTICLE VI
|
26 | |||
ADMINISTRATION AND COLLECTION
|
26 | |||
SECTION 6.01. Collection of Receivables
|
26 | |||
SECTION 6.02. Servicing of Approved Receivables
|
27 | |||
SECTION 6.03. Responsibilities of the Seller
|
27 | |||
SECTION 6.04. Further Action Evidencing Purchases
|
28 |
i
Page | ||||
ARTICLE VII
|
28 | |||
INDEMNIFICATION
|
28 | |||
SECTION 7.01. Indemnities by the Seller
|
28 | |||
SECTION 7.02. Additional Obligations of the Seller
|
30 | |||
|
||||
ARTICLE VIII
|
31 | |||
CONFIDENTIALITY
|
31 | |||
SECTION 8.01. General Duty of Confidentiality
|
31 | |||
SECTION 8.02. Reasonable Precautions
|
31 | |||
SECTION 8.03. Dissemination of Certain Information
|
32 | |||
|
||||
ARTICLE IX
|
32 | |||
TERMINATION
|
32 | |||
SECTION 9.01. Termination of Purchase Commitment
|
32 | |||
SECTION 9.02. Termination by the Seller
|
34 | |||
SECTION 9.03. Termination Fee
|
35 | |||
|
||||
ARTICLE X
|
35 | |||
MISCELLANEOUS
|
35 | |||
SECTION 10.01. Waivers; Amendments
|
35 | |||
SECTION 10.02. Notices
|
35 | |||
SECTION 10.03. Effectiveness; Binding Effect; Assignability
|
37 | |||
SECTION 10.04. GOVERNING LAW; ARBITRATION
|
38 | |||
SECTION 10.05. Execution in Counterparts; Severability
|
40 | |||
SECTION 10.06. Entire Agreement
|
40 | |||
SECTION 10.07. Limitations on Liability
|
40 | |||
SECTION 10.08. Further Assurances
|
41 | |||
SECTION 10.09. No Petition
|
41 | |||
SECTION 10.10. Headings
|
41 | |||
SECTION 10.11. Electronic Communications
|
41 | |||
SECTION 10.12. No Partnership or Joint Venture
|
41 |
ii
Exhibit A
|
- Form of Demand Note | |
Exhibit B
|
- Form of Purchase Notice | |
Exhibit C
|
- List of Closing Documents | |
Exhibit D
|
- Eligible Receivable Purchase Procedures | |
Exhibit E
|
- Form of Claimant Purchase Agreement | |
Exhibit F
|
- Model Structured Settlement Transfer Statute | |
Exhibit G
|
- Form of Medical Questionnaire | |
Exhibit H
|
- Settlement Package | |
Schedule I
|
- [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT].
|
|
Schedule II
|
- Approved Annuity Providers | |
Schedule III
|
- Addresses and Locations of Books and Records of the Seller | |
Schedule IV
|
- ERISA Matters | |
Schedule V
|
- Certain Definitions | |
Schedule VI
|
- Eligibility Criteria | |
Schedule VII
|
- Additional Criteria | |
Schedule VIII
|
- Standard Operational Notices | |
Schedule IX
|
- Proceedings | |
Schedule X
|
- Structured Settlement Purchase Capacity | |
Schedule XI
|
- Post-Closing Obligations | |
Schedule XII
|
- Mergers; Tradenames |
i
(i) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(ii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT].. | ||
(iii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
Schedule I
Schedule II
Schedule III
Schedule IV
Schedule V-1
Schedule V-2
Schedule V-3
Schedule V-4
Schedule V-5
Schedule V-6
Schedule V-7
Schedule V-8
Schedule V-9
Schedule V-10
Schedule V-11
Schedule V-12
Schedule V-13
Schedule V-14
Schedule V-15
Schedule VI-1
Schedule VII
Schedule VII-2
Schedule VIII
Schedule IX
Schedule X
a) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
b) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
c) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
d) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
e) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
f) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
g) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
h) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
Schedule XI
i) [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
Schedule XI-2
Schedule XII
(i) | The Purchase Date of the Proposed Purchase is: [ ]. | ||
(ii) | The aggregate Purchase Amount in respect of the Proposed Purchase is $[ ]. | ||
(iii) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(iv) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
(1) | the representations and warranties contained in Article IV of the Purchase Agreement are correct in all material respects on and as of such day as though made on and as of such date (except for those representations and warranties which are made as of a certain date, which representations and warranties shall be true and correct on and as of such date made); | ||
(2) | no Termination Event has occurred and is continuing, and the Purchase Termination Date has not yet occurred; and | ||
(3) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
Very truly yours,
HAVERHILL RECEIVABLES, LLC, as the Seller |
||||
By: | ||||
Name: | ||||
Title: | ||||
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | |
| [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
MODEL STRUCTURED SETTLEMENT PROTECTION ACT | Page 1 of 6 |
MODEL STRUCTURED SETTLEMENT PROTECTION ACT | Page 2 of 6 |
MODEL STRUCTURED SETTLEMENT PROTECTION ACT | Page 3 of 6 |
MODEL STRUCTURED SETTLEMENT PROTECTION ACT | Page 4 of 6 |
MODEL STRUCTURED SETTLEMENT PROTECTION ACT | Page 5 of 6 |
MODEL STRUCTURED SETTLEMENT PROTECTION ACT | Page 6 of 6 |
1. |
What is your occupation and
duties?
|
|
2. | Other than for vacation, do you intend to travel or reside outside of the USA or Canada? Yes No | |
If Yes indicate details
|
||
3. | Have you smoked cigarettes in the last 12 months? Yes No | |
4. |
In the last 5 years have you used illegal drugs such as marijuana, cocaine,
methamphetamines, narcotics, opiates or other?
Yes No
If Yes please specify all drugs used, quantity, frequency and dates last used |
7. | Drivers License Information: State ___Number |
Been charged with driving while impaired?
|
Yes o | No o | ||
Been charged with reckless driving or had more than 3 moving violations?
|
Yes o | No o | ||
Had your Drivers license suspended or revoked?
|
Yes o | No o |
8. | Within the past two years have you participated in any hazardous sport or avocation such as motor vehicle racing, SCUBA diving, skydiving, mountain, rock or ice climbing, piloting aircraft or any other? | |
Yes No | ||
If Yes, please specify which activity and how often |
9. |
Have you ever been convicted of a felony, imprisoned or on probation? Yes No
If Yes, please advise date(s) and details |
Yes
|
No | Any form of Cancer (other than minor non-melanoma skin cancer) | ||
|
||||
Yes
|
No | Heart Disease, Artery or Blood Vessel Disorder or Disorder of the Blood | ||
|
||||
Yes
|
No | Stroke or TIA (Mini-Stroke, Transient Ischemic Attack) | ||
|
||||
Yes
|
No | Kidney or Urinary Tract Disorder | ||
|
||||
Yes
|
No | Liver or Gastrointestinal disease | ||
|
||||
Yes
|
No | Diabetes | ||
|
||||
Yes
|
No | Immunological disorder including HIV | ||
|
||||
Yes
|
No |
Emphysema, COPD or other Lung or Respiratory disorder, (Not including allergies or mild
asthma) |
||
|
||||
Yes
|
No | Mental or Nervous Disorder or Suicide Attempt | ||
|
||||
Yes
|
No | Dementia, Alzheimers, memory problems or memory loss, cognitive impairment or reduced mental capacity | ||
|
||||
Yes
|
No | Deformity, Amputation, Paralysis or Neuropathy | ||
|
||||
Yes
|
No | Neuro-degenerative disorder such as Parkinson, Multiple Sclerosis, ALS (Lou Gehrigs Disease), Muscular Dystrophy or Other | ||
|
||||
Yes
|
No | Any other chronic conditions, permanent injury or terminal medical condition | ||
|
||||
Yes
|
No | Have you been advised to have, or have pending, any diagnostic testing, hospitalization or surgery which was not yet done? | ||
|
||||
Yes
|
No | Other significant disease, disorder or impairment not listed above | ||
|
||||
Please advise full details to Yes answers to Question 11, including date of diagnosis, treatments and results, and please list all medications being taken, both prescribed and over-the-counter. | ||||
|
||||
|
||||
|
||||
Customer Signature
|
||||
|
||||
Printed Name
|
||||
|
||||
|
Witness:
|
Notary: | |||||||||||
|
|
|||||||||||
|
||||||||||||
Witness:
|
State of
|
) | ||||||||||
|
|
|
) SS: | |||||||||
|
||||||||||||
|
County of
|
) | ||||||||||
|
||||||||||||
|
||||||||||||
Subscribed and affirmed to before me this day of , | ||||||||||||
|
||||||||||||
|
(seal) | |||||||||||
|
|
|||||||||||
|
Signature of Notary Public | |||||||||||
|
||||||||||||
My commission expires:
|
ARTICLE I DEFINITIONS
|
1 | |||
|
||||
Section 1.1 Defined Terms
|
1 | |||
Section 1.2 Accounting Terms
|
3 | |||
Section 1.3 Other Terms
|
4 | |||
Section 1.4 Computation of Time Periods
|
4 | |||
|
||||
ARTICLE II
ENGAGEMENT AND AUTHORITY OF SERVICER; SERVICING
|
4 | |||
|
||||
Section 2.1 Engagement; Servicing Standard
|
4 | |||
Section 2.2 Authority of the Servicer
|
4 | |||
Section 2.3 No Modification
|
5 | |||
Section 2.4 Accounts; Collections
|
5 | |||
Section 2.5 Monitoring and Tracking
|
8 | |||
Section 2.6 Servicing Compensation
|
11 | |||
|
||||
ARTICLE III
REPRESENTATIONS AND WARRANTIES
|
11 | |||
|
||||
Section 3.1 Organization and Good Standing
|
11 | |||
Section 3.2 Due Qualification
|
11 | |||
Section 3.3 Due Authorization; Conflicts
|
12 | |||
Section 3.4 Consents
|
12 | |||
Section 3.5 Enforceability
|
12 | |||
Section 3.6 Proceedings
|
12 | |||
Section 3.7 Compliance with Laws, Etc
|
12 | |||
Section 3.8 Locations
|
12 | |||
Section 3.9 Financial Statements
|
13 | |||
Section 3.10 Accuracy of Information
|
13 | |||
Section 3.11 USA Patriot Act
|
13 | |||
Section 3.12 Lock-Box Banks
|
13 | |||
|
||||
ARTICLE IV COVENANTS OF THE SERVICER
|
13 | |||
|
||||
Section 4.1 Change in Accounts
|
13 | |||
Section 4.2 Collections
|
14 | |||
Section 4.3 Preservation of Existence; Compliance with Applicable Law
|
14 | |||
Section 4.4 Extension or Amendment of Receivables
|
14 | |||
Section 4.5 Protection of Purchasers Rights
|
14 | |||
Section 4.6 Deposits to Lock-Box Accounts or Master Collection Account
|
15 | |||
Section 4.7 Receivables Not To Be Evidenced by Promissory Notes
|
15 | |||
Section 4.8 Reporting and Notice Requirements
|
15 | |||
Section 4.9 Inspection of Books and Records
|
16 | |||
Section 4.10 Keeping of Records and Books of Account
|
17 | |||
Section 4.11 Location of Records
|
17 |
Section 4.12 Insurance Coverage
|
17 | |||
Section 4.13 Compliance Certifications
|
18 | |||
Section 4.14 Legislation
|
18 | |||
Section 4.15 No Creation of Adverse Interests
|
18 | |||
Section 4.16 Exercise of Remedies Against Claimant
|
19 | |||
Section 4.17 Advertising
|
19 | |||
Section 4.18 Required Minimum Net Worth
|
19 | |||
Section 4.19 Transfer of Purchaser Rights
|
19 | |||
Section 4.20 Cooperation with Sales, Transfers, Assignments and Securitizations
|
19 | |||
Section 4.21 Data Security
|
20 | |||
Section 4.22 Post-Closing Obligations
|
21 | |||
Section 4.23 Survival
|
21 | |||
|
||||
ARTICLE V
STATEMENTS, REPORTS and RESULTING DUTIES
|
21 | |||
|
||||
Section 5.1 Daily Report
|
21 | |||
Section 5.2 Monthly Report
|
21 | |||
Section 5.3 [Reserved.]
|
22 | |||
Section 5.4 Servicing Report of Independent Public Accountants
|
22 | |||
Section 5.5 Adjustments
|
22 | |||
|
||||
ARTICLE VI CONFIDENTIALITY
|
22 | |||
|
||||
Section 6.1 General Duty of Confidentiality
|
22 | |||
Section 6.2 Reasonable Precautions
|
23 | |||
|
||||
ARTICLE VII
SERVICER DEFAULTS
|
23 | |||
|
||||
Section 7.1 Servicer Defaults
|
23 | |||
|
||||
ARTICLE VIII
TERMINATION; SUCCESSOR SERVICER
|
25 | |||
|
||||
Section 8.1 Termination
|
25 | |||
Section 8.2 Service Transfer
|
25 | |||
Section 8.3 Continuing Cash Reporting Obligation
|
26 | |||
Section 8.4 Liability of the Servicer
|
26 | |||
|
||||
ARTICLE IX
OTHER MATTERS RELATING TO THE SERVICER
|
27 | |||
|
||||
Section 9.1 Merger or Consolidation of, or Assumption of the Obligations of, the Servicer
|
27 | |||
Section 9.2 Indemnification by Servicer
|
27 | |||
Section 9.3 Servicer Not to Resign
|
28 | |||
Section 9.4 Indication in Records
|
28 | |||
|
||||
ARTICLE X MISCELLANEOUS
|
28 | |||
Section 10.1 Waivers; Amendments
|
28 |
Section 10.2 Notices
|
29 | |||
Section 10.3 Effectiveness; Binding Effect; Assignability
|
29 | |||
Section 10.4 GOVERNING LAW; ARBITRATION
|
30 | |||
Section 10.5 Execution in Counterparts; Severability
|
32 | |||
Section 10.6 Entire Agreement
|
32 | |||
Section 10.7 Limitations on Liability
|
32 | |||
Section 10.8 Further Assurances
|
32 | |||
Section 10.9 No Petition
|
33 | |||
Section 10.10 Headings
|
33 | |||
Section 10.11 Electronic Communications
|
33 | |||
Section 10.12 No Partnership or Joint Venture
|
33 | |||
|
||||
SCHEDULES
|
||||
|
||||
Schedule I Post-Closing Obligations
|
S 1-1 | |||
Schedule II Servicers Location of Records
|
S2-1 | |||
Schedule III Proceedings
|
S3-1 | |||
|
||||
EXHIBITS
|
||||
|
||||
Exhibit A Form of Daily Report
|
A-1 | |||
Exhibit B Form of Monthly Report
|
B-1 |
2
3
4
5
6
(A) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(B) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. | ||
(C) | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]. |
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
WASHINGTON SQUARE FINANCIAL, LLC
d/b/a IMPERIAL STRUCTURED SETTLEMENTS, as Servicer |
||||
By: | ||||
Name: | ||||
Title: | ||||
HAVERHILL RECEIVABLES, LLC, as Seller
|
||||
By: | ||||
Name: | ||||
Title: | ||||
SLATE CAPITAL LLC, as Purchaser
|
||||
By: | ||||
Name: | ||||
Title: | ||||
S1-1
S2-1
S3-1
Customer | Payment | Payment | Date | |||||||||||||
Record ID | Deal ID | Due Date | Amount | Received | ||||||||||||
|
$ | |||||||||||||||
Total Non-Split Received | $ | |||||||||||||||
A-1
B-1
Page 1 of 5
Page 2 of 5
Page 3 of 5
Page 4 of 5
HAVERHILL RECEIVABLES, LLC
|
||||
By: | ||||
Name: | ||||
Title: | ||||
SLATE CAPITAL LLC
|
||||
By: | ||||
Name: | ||||
Title: | ||||
ACKNOWLEDGED AND AGREED:
WASHINGTON SQUARE FINANCIAL, LLC |
||||
By: | ||||
Name: | ||||
Title: | ||||
Page 5 of 5
Jurisdiction | ||||||||
of | % of | |||||||
Subsidiary Name | Formation | Owner | Ownership | Nature of Business | ||||
Imperial Premium Finance, LLC
1
|
FL | Imperial Holdings, LLC | 100% | Licensed insurance premium financer. | ||||
Imperial PFC Financing, LLC
|
IL | Imperial Premium Finance, LLC | 100% | Special purpose entity formed for the premium finance business. | ||||
Imperial PFC Financing II, LLC
|
GA | Imperial Premium Finance, LLC | 100% | Special purpose entity formed for the premium finance business. | ||||
Portfolio Servicing, LLC
|
FL | Imperial Premium Finance, LLC | 100% | Special purpose entity formed for the premium finance business. | ||||
Sovereign Life Financing, LLC
|
DE | Imperial Premium Finance, LLC | 100% | Special purpose entity formed for the premium finance business. | ||||
Imperial Life Financing II, LLC
|
GA | Imperial Premium Finance, LLC | 100% | Special purpose entity formed for the premium finance business. | ||||
MXT Investments, LLC
|
FL | Imperial Premium Finance, LLC | 100% | Special purpose entity formed for the premium finance business. | ||||
PSC Financial, LLC
|
FL | Imperial Premium Finance, LLC | 100% | Special purpose entity formed for the premium finance business. | ||||
Imperial Life and Annuity Services, LLC
|
FL | Imperial Holdings, LLC | 100% | Licensed insurance agency. | ||||
Imperial Life Settlements, LLC
|
DE | Imperial Holdings, LLC | 100% | Licensed life/viatical settlement provider. | ||||
Imperial Finance & Trading, LLC
|
FL | Imperial Holdings, LLC | 100% | Employs staff and provides administrative services to Imperial Holdings, LLC and its subsidiaries. | ||||
Washington Square Financial, LLC
2
|
GA | Imperial Holdings, LLC | 100% | Originates and services structured settlement transactions. | ||||
Haverhill Receivables, LLC
|
GA | Washington Square Financial, LLC | 100% | Special purpose entity formed for the structured settlements business. | ||||
Imperial SRC I, LLC
|
FL | Washington Square Financial, LLC | 100% | Special purpose entity formed for the structured settlements business. | ||||
Imperial SRC IV, LLC
|
FL | Washington Square Financial, LLC | 100% | Special purpose entity formed for the structured settlements business. | ||||
Imperial SRC V, LLC
|
FL | Washington Square Financial, LLC | 100% | Special purpose entity formed for the structured settlements business. | ||||
Imperial Annuities, LLC
|
FL | Washington Square Financial, LLC | 100% | Special purpose entity formed for the structured settlements business. | ||||
Imperial Funding V, LLC
|
FL | Washington Square Financial, LLC | 100% | Special purpose entity formed for the structured settlements business. | ||||
Imperial Settlements Financing 2010, LLC
|
GA | Washington Square Financial, LLC | 100% | Special purpose entity formed for the structured settlements business. | ||||
Imperial Litigation Funding, LLC
|
FL | Imperial Holdings, LLC | 100% | Specialty finance company that purchases a portion of a potential settlement in a variety of lawsuits. |
1 | Does business as Imperial Premium Finance of Florida | |
2 | Does business as Imperial Structured Settlements |
/s/ Grant Thornton LLP | ||||
Fort Lauderdale, Florida | ||||
September 27, 2010 | ||||
/s/ Michael A. Crow | ||||||
|
Name: | Michael A. Crow | ||||
|
Date: | 17 September 2010 |
/s/ Walter M. Higgins III | ||||||
|
Name: | Walter M. Higgins III | ||||
|
Date: | September 16, 2010 |
/s/ Robert Rosenberg | ||||||
|
Name: | Robert Rosenberg | ||||
|
Date: | September 16, 2010 |
/s/ A. Penn Hill Wybrough | ||||
Name: | A. Penn Hill Wybrough | |||
Date: | September 22, 2010 |