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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Form 10-Q

 

 

(Mark One)

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended June 30, 2013

or

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Commission file number: 001-35064

 

 

IMPERIAL HOLDINGS, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Florida   30-0663473

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

701 Park of Commerce Boulevard—Suite 301

Boca Raton, Florida 33487

(Address of principal executive offices, including zip code)

(561) 995-4200

(Registrant’s telephone number, including area code)

 

 

Indicate by check mark whether the Registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   x     No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   x     No   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   ¨    Accelerated filer   ¨
Non-accelerated filer   x   (Do not check if a smaller reporting company)    Smaller reporting company   ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes   ¨     No   x

As of August 13, 2013, the Registrant had 21,237,166 shares of common stock outstanding.

 

 

 


Table of Contents

IMPERIAL HOLDINGS, INC.

FORM 10-Q REPORT FOR THE QUARTER ENDED JUNE 30, 2013

TABLE OF CONTENTS

 

     Page No.  
PART I — FINANCIAL INFORMATION   

Item 1. Financial Statements (Unaudited)

     5  

Consolidated Balance Sheets as of June 30, 2013 and December 31, 2012

     5  

Consolidated Statements of Operations for the three months and six months ended June  30, 2013 and 2012

     6  

Consolidated Statement of Comprehensive Income (Loss) for the three months and six months ended June 30, 2013 and 2012

     7  

Consolidated Statement of Stockholders’ Equity for the six months ended June 30, 2013

     8  

Consolidated Statements of Cash Flows for the six months ended June 30, 2013 and 2012

     9  

Notes to Consolidated Financial Statements

     10  

Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

     38  

Item 3. Quantitative and Qualitative Disclosures About Market Risk

     61  

Item 4. Controls and Procedures

     63  
PART II — OTHER INFORMATION   

Item 1. Legal Proceedings

     63  

Item 1A. Risk Factors

     65  

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

     66  

Item 3. Defaults Upon Senior Securities

     66  

Item 4. Mine Safety Disclosures

     66  

Item 5. Other Information

     66  

Item 6. Exhibits

     66  

 

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“Forward Looking” Statements

This Quarterly Report on Form 10-Q contains forward-looking statements that are subject to risks and uncertainties. All statements other than statements of historical fact included in this Quarterly Report on Form 10-Q are forward-looking statements. Forward-looking statements give our current expectations and projections relating to our financial condition, results of operations, plans, objectives, future performance and business. You can identify forward-looking statements by the fact that they do not relate strictly to historical or current facts. These statements may include words such as “anticipate,” “estimate,” “expect,” “project,” “plan,” “intend,” “believe,” “may,” “will,” “should,” “can have,” “likely” and other words and terms of similar meaning in connection with any discussion of the timing or nature of future operating or financial performance or other events. These forward-looking statements are not historical facts, and are based on current expectations, estimates and projections about the Company’s industry, management’s beliefs and certain assumptions made by management, many of which, by their nature, are inherently uncertain and beyond the Company’s control. Accordingly, readers are cautioned that any such forward-looking statements are not guarantees of future performance and are subject to certain risks, uncertainties and assumptions that are difficult to predict. Although the Company believes that the expectations reflected in such forward-looking statements are reasonable as of the date made, results may prove to be materially different. Unless otherwise required by law, the Company disclaims any obligation to update its view of any such risks or uncertainties or to announce publicly the result of any revisions to the forward-looking statements made in this report.

Factors that could cause our actual results to differ materially from those indicated in our forward-looking statements include, but are not limited to, the following:

 

   

our results of operations;

 

   

continuing costs associated with the USAO investigation, SEC investigation, derivative actions, the class action lawsuits and similar matters;

 

   

adverse developments, including financial ones, associated with the USAO and SEC investigations, derivative actions or class action lawsuits, other litigation and judicial actions or similar matters;

 

   

our ability to continue to comply with the covenants and other obligations, including the conditions precedent for additional fundings, under our revolving credit facility;

 

   

our inability to obtain financing on favorable terms or at all for life insurance policies that have not been pledged as collateral under our revolving credit facility;

 

   

our ability to continue to make premium payments on the life insurance policies that we own;

 

   

obligations, including payments that may be undertaken by the Company to settle derivative actions or class action lawsuits;

 

   

loss of business due to negative press from the USAO investigation, SEC investigation, Non-Prosecution Agreement, class action lawsuits or otherwise;

 

   

failure to obtain court approval of the settlement agreements for the class action and derivative action lawsuits or appeals of the settlements;

 

   

costs in excess of our directors’ & officers’ insurance coverage;

 

   

refusal by our directors’ and officers’ insurance carriers to reimburse us for claims submitted;

 

   

loss of revenue associated with the termination of our premium finance business;

 

   

increases to the discount rates used to value the life insurance policies that we own;

 

   

inaccurate estimates regarding the likelihood and magnitude of death benefits related to life insurance policies that we own;

 

   

changes in mortality rates and inaccurate assumptions about life expectancies;

 

   

changes in life expectancy calculation methodologies by third party medical underwriters;

 

   

changes to actuarial life expectancy tables;

 

   

lack of mortalities of insureds of the life insurance policies that we own;

 

   

increased carrier challenges to the validity of our owned life insurance policies;

 

   

delays in the receipt of death benefits from our portfolio of life insurance policies;

 

   

costs related to obtaining death benefits from our portfolio of life insurance policies;

 

   

the effect on our financial condition as a result of any lapse of life insurance policies;

 

   

deterioration of the market for life insurance policies and life settlements;

 

   

our inability to re-sell the life insurance policies we own at favorable prices, if at all;

 

   

adverse developments associated with uncooperative co-trustees;

 

   

loss of the services of any of our executive officers;

 

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adverse court decisions interpreting insurable interest and the obligation of a life insurance carrier to pay death benefits or return premiums upon a successful rescission or contest;

 

   

our inability to continue to grow our businesses;

 

   

changes in laws and regulations applicable to premium finance transactions, life settlements or structured settlements;

 

   

increased competition for the acquisition of structured settlements;

 

   

adverse developments in capital markets;

 

   

disruption of our information technology systems;

 

   

our failure to maintain the security of personally identifiable information pertaining to our customers and counterparties;

 

   

regulation of life settlement transactions as securities;

 

   

our limited operating experience;

 

   

deterioration in the credit worthiness of the life insurance companies that issue the policies included in our portfolio;

 

   

increases in premiums on life insurance policies that we own or finance;

 

   

changes in current tax law regarding the treatment of structured settlements;

 

   

our ability to grow our database of structured settlement holders;

 

   

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 or tax rates and other factors.

All written and oral forward-looking statements attributable to the Company, or persons acting on its behalf, are expressly qualified in their entirety by these cautionary statements. See “Risk Factors” below and in our Annual Report on Form 10-K for the year ended December 31, 2012 filed with the U.S. Securities and Exchange Commission on March 28, 2013. You should evaluate all forward-looking statements made in this Form 10-Q in the context of these risks and uncertainties. The Company cautions you that the important factors referenced above may not contain all of the factors that are important to you.

All statements in this Form 10-Q to “Imperial,” “Company,” “we,” “us,” or “our” refer to Imperial Holdings, Inc. and its consolidated subsidiaries unless the context suggests otherwise.

 

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Item 1 Financial Statements.

Imperial Holdings, Inc. and Subsidiaries

CONSOLIDATED BALANCE SHEETS

 

     June 30,
2013
    December 31,
2012*
 
     (Unaudited)        
     (In thousands except share data)  
ASSETS   

Assets

    

Cash and cash equivalents

   $ 21,283      $ 7,001   

Cash and cash equivalents (VIE restricted, Note 5)

     2,280        —     

Restricted cash

     —          1,162   

Investment securities available for sale, at estimated fair value

     —          12,147   

Deferred costs, net

     —          7   

Prepaid expenses and other assets

     14,690        14,165   

Deposits - other

     1,603        2,855   

Interest receivable, net

     42        822   

Loans receivable, net

     206        3,044   

Structured settlement receivables, at estimated fair value

     1,393        1,680   

Structured settlement receivables at cost, net

     1,584        1,574   

Investment in life settlements, at estimated fair value

     47,645        113,441   

Investment in life settlements, at estimated fair value (VIE restricted, Note 5)

     218,128        —     

Fixed assets, net

     140        232   

Investment in affiliates

     2,315        2,212   
  

 

 

   

 

 

 

Total assets

   $ 311,309      $ 160,342   
  

 

 

   

 

 

 
LIABILITIES AND STOCKHOLDERS’ EQUITY   

Liabilities

    

Accounts payable and accrued expenses

   $ 7,573      $ 6,606   

Accounts payable and accrued expenses (VIE restricted, Note 5)

     1,452        —     

Other liabilities

     23,123        20,796   

Note payable, at estimated fair value (VIE restricted, Note 5)

     101,775        —     

Income taxes payable

     6,295        6,295   
  

 

 

   

 

 

 

Total liabilities

     140,218        33,697   

Commitments and Contingencies (Note 17)

    

Stockholders’ Equity

    

Common stock (80,000,000 authorized; 21,237,166 and 21,206,121 issued and outstanding as of June 30, 2013 and December 31, 2012, respectively)

     212        212   

Additional paid-in-capital

     239,118        238,064   

Accumulated other comprehensive loss

     —          (3

Accumulated deficit

     (68,239     (111,628
  

 

 

   

 

 

 

Total stockholders’ equity

     171,091        126,645   
  

 

 

   

 

 

 

Total liabilities and stockholders’ equity

   $ 311,309      $ 160,342   
  

 

 

   

 

 

 

 

* Derived from audited consolidated financial statements.

The accompanying notes are an integral part of these financial statements.

 

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Imperial Holdings, Inc. and Subsidiaries

CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)

 

     For the Three Months Ended
June 30,
    For the Six Months Ended
June 30,
 
     2013     2012     2013     2012  
     (in thousands, except share and per share data)  

Income

  

Interest income

   $ 75      $ 698      $ 162      $ 1,604   

Interest and dividends on investment securities available for sale

     —          132        14        260   

Origination fee income

     —          188        —          438   

Realized gain on sale of structured settlements

     3,128        3,134        6,670        5,609   

(Loss) gain on life settlements, net

     (1,247     55        (1,247     291   

Change in fair value of life settlements (Notes 13 & 15)

     64,846        4,874        66,686        9,129   

Unrealized change in fair value of structured settlements

     236        569        781        1,178   

Servicing fee income

     76        327        310        684   

Gain on maturities of life settlements with subrogation rights, net

     —          6,090        —          6,090   

Other income

     2,000        116        2,090        866   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total income

     69,114        16,183        75,466        26,149   
  

 

 

   

 

 

   

 

 

   

 

 

 

Expenses

        

Interest expense

     10,759        304        10,861        1,078   

Change in fair value of note payable

     (5,361     —          (5,361     —     

Loss on extinguishment of debt

     3,991        —          3,991        —     

Provision for losses on loans receivable

     —          441        —          441   

(Gain) loss on loan payoffs and settlements, net

     (65     162        (65     153   

Amortization of deferred costs

     —          516        7        1,497   

Personnel costs

     3,653        5,033        6,984        8,722   

Marketing costs

     617        1,286        1,428        3,447   

Legal fees

     4,665        5,699        8,744        13,590   

Professional fees

     1,619        1,795        2,720        3,713   

Insurance

     479        617        998        1,086   

Other selling, general and administrative expenses

     1,036        955        1,730        1,959   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total expenses

     21,393        16,808        32,037        35,686   
  

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

     47,721        (625     43,429        (9,537

(Provision) benefit for income taxes

     —          —          (40     41   
  

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss)

   $ 47,721      $ (625   $ 43,389      $ (9,496
  

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) per share:

        
  

 

 

   

 

 

   

 

 

   

 

 

 

Basic

   $ 2.25      $ (0.03   $ 2.05      $ (0.45
  

 

 

   

 

 

   

 

 

   

 

 

 

Diluted

   $ 2.25      $ (0.03   $ 2.04      $ (0.45
  

 

 

   

 

 

   

 

 

   

 

 

 

Weighted average shares outstanding:

        
  

 

 

   

 

 

   

 

 

   

 

 

 

Basic

     21,219,880        21,206,121        21,213,039        21,205,370   
  

 

 

   

 

 

   

 

 

   

 

 

 

Diluted

     21,237,166        21,206,121        21,230,325        21,205,370   
  

 

 

   

 

 

   

 

 

   

 

 

 

The accompanying notes are an integral part of these financial statements.

 

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Imperial Holdings, Inc. and Subsidiaries

CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS) (UNAUDITED)

 

     For the Three Months Ended
June 30,
    For the Six Months  Ended
June 30,
 
     2013      2012     2013      2012  
     (In thousands)     (In thousands)  

Net income (loss)

   $ 47,721       $ (625   $ 43,389       $ (9,496

Other comprehensive income (loss), net of tax:

          

Unrealized (loss) gains on investment securities available for sale

     —           (2     —           64   

Reclassification adjustment for gains included in net income

     —           —          3         —     
  

 

 

    

 

 

   

 

 

    

 

 

 

Comprehensive income (loss)

   $ 47,721       $ (627   $ 43,392       $ (9,432
  

 

 

    

 

 

   

 

 

    

 

 

 

The accompanying notes are an integral part of these financial statements.

 

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Imperial Holdings, Inc.

CONSOLIDATED STATEMENT OF STOCKHOLDERS’ EQUITY (UNAUDITED)

For the Six Months Ended June 30, 2013

 

     Common Stock      Additional
Paid-in Capital
     (Accumulated Deficit)     Accumulated
Other Comprehensive
Income (Loss)
    Total  
     Shares      Amount                            
     (in thousands, except share data)  

Balance, December 31, 2012

     21,206,121         212         238,064         (111,628     (3   $ 126,645   

Comprehensive income

     —           —           —           43,389        3        43,392   

Stock-based compensation

     —           —           988         —          —          988   

Issuance of common stock

     13,759         —           57         —          —          57   

Issuance of restricted stock

     17,286         —           9         —          —          9   
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

   

 

 

 

Balance, June 30, 2013

     21,237,166         212       $ 239,118       $ (68,239   $ —        $ 171,091   
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

   

 

 

 

The accompanying notes are an integral part of these financial statements.

 

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Imperial Holdings, Inc. and Subsidiaries

CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)

 

     For the Six Months Ended
June 30,
 
     2013     2012  
     (In thousands)  

Cash flows from operating activities

       —     

Net income (loss)

   $ 43,389      $ (9,496

Adjustments to reconcile net loss to net cash used in operating activities:

    

Depreciation and amortization

     100        236   

Loan origination cost

     10,340        —     

Amortization of premiums and accretion of discounts on available for sale securities

     21        611   

Provisions for losses on loans receivable

     —          441   

Stock-based compensation

     1,054        100   

(Gain) loss on loan payoffs and settlements, net

     (65     153   

Origination fee income

     —          (438

Change in fair value of life settlements

     (66,686     (9,129

Unrealized change in fair value of structured settlements

     (781     (1,178

Change in fair value of note payable

     (5,361     —     

Loss (gain) on life settlements

     1,247        (291

Interest income on loans

     (162     (1,604

Amortization of deferred costs

     7        1,497   

Loss on extinguishment of debt

     3,991        —     

Gain on sale and prepayment of investment securities available for sale

     (22     (39

Change in assets and liabilities:

    

Certificate of deposit - restricted

     —          895   

Deposits - other

     1,252        (846

Investment in affiliates

     (105     (907

Structured settlement receivables

     1,190        11,020   

Prepaid expenses and other assets

     (531     (931

Accounts payable and accrued expenses

     2,419        (3,918

Other liabilities

     2,327        (2,375

Interest receivable

     95        166   

Interest payable

     —          (4,294

Deferred income tax

     40        (41
  

 

 

   

 

 

 

Net cash used in operating activities

     (6,241     (20,368
  

 

 

   

 

 

 

Cash flows from investing activities

    

Purchase of fixed assets, net of disposals

     2        (17

Purchase of investment securities available for sale

     —          (35,492

Purchase of investments in life settlements

     (7,000     (130

Proceeds from sale and prepayments of investment securities available for sale

     12,111        51,676   

Proceeds from maturity of investment in life settlements

     6,039        —     

Premiums paid on investments in life settlements

     (35,556     (13,118

Proceeds from surrender of investments in life settlements

     1,050        —     

Proceeds from sale of investments in life settlements

     —          5,626   

Proceeds from loan payoffs and lender protection insurance claims received in advance

     691        20,680   
  

 

 

   

 

 

 

Net cash (used in) provided by investing activities

     (22,663     29,225   
  

 

 

   

 

 

 

Cash flows from financing activities

    

Repayment of borrowings under bridge facility

     (45,000     (15,161

Restricted cash

     1,162        (332

Borrowings from bridge facility

     41,400        —     

Loan origination cost

     (6,731     —     

Borrowings from revolving credit facility

     54,635        —     
  

 

 

   

 

 

 

Net cash provided by (used in) financing activities

     45,466        (15,493
  

 

 

   

 

 

 

Net increase (decrease) in cash and cash equivalents

     16,562        (6,636

Cash and cash equivalents, at beginning of the period

     7,001        16,255   
  

 

 

   

 

 

 

Cash and cash equivalents, at end of the period

   $ 23,563      $ 9,619   
  

 

 

   

 

 

 

Supplemental disclosures of cash flow information:

    

Cash paid for interest during the period

   $ 510      $ 5,361   
  

 

 

   

 

 

 

Supplemental disclosures of non-cash investing activities:

    

Investment in life settlements acquired in foreclosure

   $ 2,924      $ 2,650   
  

 

 

   

 

 

 

Supplemental disclosures of non-cash financing activities

    
  

 

 

   

 

 

 

Credit facility origination costs paid to lender

   $ 4,000      $ —     
  

 

 

   

 

 

 

Purchase of policies through release of subrogation claim paid by lender

   $ 48,500      $ —     
  

 

 

   

 

 

 

The accompanying notes are an integral part of these financial statements.

 

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Imperial Holdings, Inc. and Subsidiaries

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)

June 30, 2013

(1) Description of Business

Imperial Holdings, Inc. (“Imperial,” the “Company,” “we” or “us”) was formed initially as a Florida limited liability Company pursuant to an operating agreement dated December 15, 2006 between IFS Holdings, Inc., IMEX Settlement Corporation, Premium Funding, Inc. and Red Oak Finance, LLC. In connection with the Company’s initial public offering on February 3, 2011, the Company succeeded to the business, assets and liabilities of the limited liability Company.

The Company, operating through its subsidiaries, is a specialty finance company with its corporate office in Boca Raton, Florida. The Company operates in two reportable business segments: life finance (formerly referred to as premium finance) and structured settlements. In the life finance business, the Company earns revenue/income from interest accruing on outstanding loans and loan origination fees over the life of the outstanding loans, servicing income, changes in the fair value of life settlements the Company acquires and receipt of death benefits with respect to matured life insurance policies it owns. In the structured settlement business, the Company purchases structured settlements at a discounted rate and sells such assets to third parties.

In February 2011, the Company completed the sale of 17,602,614 shares of common stock in its initial public offering at a price of $10.75 per share. The Company received net proceeds of approximately $174.2 million after deducting the underwriting discounts and commissions and its offering expenses.

On September 27, 2011, the Company was informed that it was being investigated by the U.S. Attorney’s Office for the District of New Hampshire (the “USAO Investigation”). At that time, the Company was informed that, among other individuals, its former president and chief operating officer, former general counsel, three former life finance sales executives, two vice presidents and a funding manager were considered “targets” of the USAO Investigation. The USAO Investigation focused on the Company’s premium finance loan business.

On February 17, 2012, the Company received a subpoena issued by the staff of the U.S. Securities and Exchange Commission (the “SEC”) seeking documents from 2007 through the present, generally related to the Company’s premium finance business and corresponding financial reporting. The SEC is investigating whether any violations of federal securities laws have occurred and the Company has been cooperating with the SEC regarding this matter. The Company is unable to predict what action, if any, might be taken in the future by the SEC or its staff as a result of the matters that are the subject of the subpoena or what impact, if any, the cost of responding to the subpoena might have on the Company’s financial position, results of operations, or cash flows. The Company has not established any provision for losses in respect of this matter.

On April 30, 2012, the Company entered into a Non-Prosecution Agreement (the “Non-Prosecution Agreement”) with the USAO, which agreed not to prosecute the Company for its involvement in the making of misrepresentations on life insurance applications in connection with its premium finance business or any potential securities fraud claims related to its premium finance business. In the Non-Prosecution Agreement, the USAO and the Company agreed among other things, that the following facts are true and correct: (i) at all relevant times (x) certain insurance companies required that the prospective insured applying for a life insurance policy, and sometimes the agent, disclose information relating to premium financing on applications for life insurance policies, and (y) the questions typically required the prospective insured to disclose if he or she intended to seek premium financing in connection with the policy and sometimes required the agent to disclose if he or she was aware of any such intent on the part of the applicant; (ii) in connection with a portion of the Company’s retail operation known as “retail non-seminar” that began in December 2006 and was discontinued in January 2009, Imperial had a practice of disclosing on applications that the prospective insured was seeking premium financing when the life insurance company allowed premium financing from Imperial; however, in certain circumstances, Imperial internal life agents facilitated and/or made misrepresentations on applications that the prospective insured was not seeking premium financing when the insurance carrier was likely to deny the policy on the basis of premium financing; and (iii) to the extent that external agents, brokers and insureds caused other misrepresentations to be made in life insurance applications in connection with the retail non-seminar business, Imperial failed to appropriately tailor controls to prevent potential fraudulent practices in that business. As of June 30, 2013, the Company had 41 policies in its portfolio that once served as collateral for premium finance loans derived through the retail non-seminar business.

In connection with the Non-Prosecution Agreement, Imperial voluntarily agreed to terminate its premium finance business, which historically accounted for the majority of the Company’s revenues and terminated certain senior sales staff associated with the premium finance business. Additionally, the Company paid the United States Government $8.0 million, and agreed to cooperate fully with the USAO’s ongoing investigation and to refrain from and self-report any criminal conduct. The Non-Prosecution Agreement has a term of three years until April 30, 2015, but after April 30, 2014 the Company may petition the USAO to forego the final year of the Non-Prosecution Agreement, if the Company otherwise complies with all of its obligations under the Non-Prosecution Agreement. Should the USAO conclude that Imperial has not abided by its obligations under the Non-Prosecution Agreement, the USAO could choose to terminate the Non-Prosecution Agreement, resume its investigation of the Company, or bring charges against Imperial. While the Non-Prosecution Agreement effectively resolved the USAO Investigation as it pertains to the Company (subject to the Company’s continuing compliance with its terms), the USAO is continuing to investigate certain individuals formerly employed by the Company; the Company is continuing to incur expenses regarding its indemnification obligations with respect to such individuals.

 

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As previously reported in earlier periodic reports filed with the SEC, the Company anticipated a liquidity shortfall in the second quarter of 2013. Accordingly, to avoid lapsing policies in its portfolio, the Company sought additional capital and, on March 27, 2013, Greenwood Asset Portfolio, LLC (“Greenwood”), a subsidiary of the Company, borrowed $45.0 million in aggregate principal amount under the terms of an eighteen-month bridge facility (the “Bridge Facility”), funded by entities associated with certain of the Company’s shareholders (including entities associated with two of the Company’s directors) and secured by substantially all of the Company’s portfolio of life insurance policies.

Revolving Credit Facility and Related Transactions

Effective April 29, 2013, White Eagle Asset Portfolio, LLC (“White Eagle”), an indirect subsidiary of the Company, entered into a 15-year revolving credit agreement (the “Revolving Credit Facility”) with LNV Corporation, as initial lender, Imperial Finance & Trading, LLC, as servicer and portfolio manager and CLMG Corp., as administrative agent, providing for up to $300.0 million in borrowings. Proceeds from the initial advance under the facility were used, in part, to retire the Bridge Facility and to fund the Release Payment described below. Ongoing draws under the Revolving Credit Facility may be used, among other things, to pay premiums on the life insurance policies that have been pledged as collateral under the Revolving Credit Facility. Proceeds from the policies pledged as collateral will be distributed pursuant to a waterfall. After premium payments and fees to service providers, 100% of the remaining proceeds will be directed to pay outstanding principal and interest on the loan. Generally, after payment of principal and interest, collections from policy proceeds are to be paid to White Eagle up to $76.1 million, then 50% of the remaining proceeds are to be directed to the lenders with the remainder paid to White Eagle. As of June 30, 2013, 459 life insurance policies owned by White Eagle with an aggregate death benefit of approximately $2.3 billion and an estimated fair value of approximately $218.1 million at June 30, 2013 have been pledged as collateral under the Revolving Credit Facility.

On April 30, 2013, the Company and certain of its subsidiaries (together, the “Imperial Parties”) entered into a Master Termination Agreement and Release (the “Termination Agreement”) with CTL Holdings, LLC (“CTL” and together with the Imperial Parties, the “LPIC Parties”) and Lexington Insurance Company (the “LPIC Provider”). Under the Termination Agreement, the LPIC Parties made a payment of $48.5 million to the LPIC Provider (the “Release Payment”) and the LPIC Provider and the LPIC Parties provided full releases to each other in respect of the lender protection insurance coverage issued by the LPIC Provider and the claims paid by the LPIC Provider in respect of that coverage. With the effectiveness of the Termination Agreement, the LPIC Provider released any and all subrogation claims and related salvage rights in 323 life insurance policies with an aggregate death benefit of approximately $1.6 billion that have been kept off-balance sheet as contingent assets for financial reporting purposes in prior periods and that have historically been characterized as “Life Settlements with Subrogation rights, net.” 267 of the 323 life insurance policies were pledged by White Eagle as collateral under the Revolving Credit Facility at June 30, 2013.

On April 30, 2013, OLIPP III, LLC, a subsidiary of the Company purchased all of the membership interests in CTL from Monte Carlo Securities, Ltd. in exchange for $7.0 million and for assuming the amount of the Release Payment allocated to CTL. Prior to this acquisition, the LPIC Provider maintained subrogation rights in the 93 life insurance policies owned by CTL with an aggregate death benefit of approximately $340.0 million. Those rights were terminated pursuant to the Termination Agreement. The acquisition of CTL was treated as a related party transaction as the Company’s chief executive officer was the manager of CTL at the time of the acquisition and was recused from participating in the Company’s Board of Directors’ consideration and approval of the acquisition.

At June 30, 2013, the Company or its subsidiaries owned 402 policies that were either acquired through the acquisition of CTL or that were considered contingent assets prior to the effectiveness of the Termination Agreement, with an aggregate death benefit of $1.9 billion and an estimated fair value of approximately $139.7 million. The Company believes that it was uniquely positioned to transact with both the LPIC Provider and CTL and that the transaction prices were, accordingly, not indicative of what an exit price would be for these 402 policies in a negotiated market transfer. The addition of these policies resulted in a $65.8 million unrealized gain in investments in life settlements during the quarter ended June 30, 2013 and policy acquisitions similar in scale and in transaction price to those made during the quarter should not be anticipated in future periods.

Due to these policy additions, the application of fair value accounting to amounts owing under the Revolving Credit Facility and the elimination of servicing fee income through intercompany consolidation, the results of prior periods may not be comparable to the Company’s results at June 30, 2013 or in future periods.

The Company collected death benefits of $5.0 million and $1.0 million, respectively, plus interest from two policies in the second quarter of 2013 that matured in the first quarter of 2013. In addition, the Company collected $1.0 million from the surrender of two policies that it acquired as part of the acquisition of policies during the second quarter of 2013.

At June 30, 2013, the Company’s portfolio of life insurance policies consisted of 627 life settlements with an aggregate death benefit of approximately $3.0 billion. 168 of these policies with an aggregate death benefit of approximately $730.9 million have not been pledged under the Revolving Credit Facility.

Life Finance

Our life finance segment is comprised of our premium finance loan and life settlements businesses. The Company historically provided premium finance loans for individual life insurance policies and, commencing in 2011, began using its life settlement provider licenses to purchase life insurance policies. As described above, the Company voluntarily terminated its premium finance business in connection with the Non-Prosecution Agreement with the USAO.

Structured Settlements

Washington Square Financial, LLC, a wholly-owned subsidiary of the Company, purchases structured settlements from individuals. Structured settlements refer to a contract between a plaintiff and defendant, whereby the plaintiff agrees to settle a lawsuit (usually a personal injury, product liability or medical malpractice claim) in exchange for periodic payments over time. A defendant’s payment obligation with respect to a structured settlement is usually assumed by a casualty insurance company. This payment obligation is then satisfied by the casualty insurer through the purchase of an annuity from a highly rated life insurance company, thereby providing a high credit quality stream of payments to the plaintiff.

Recipients of structured settlements are permitted to sell their deferred payment streams to a structured settlement purchaser pursuant to state statutes that require certain disclosures, notice to the obligors and state court approval. Through such sales, the Company purchases a certain number of fixed, scheduled future settlement payments on a discounted basis in exchange for a single lump sum payment.

 

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(2) Principles of Consolidation and Basis of Presentation

The accompanying unaudited consolidated financial statements include the accounts of the Company, all of its wholly-owned subsidiaries and its special purpose entities, with the exception of Imperial Settlements Financing 2010, LLC (“ISF 2010”), an unconsolidated special purpose entity (see Note 12). The special purpose entity has been created to fulfill specific objectives. All significant intercompany balances and transactions have been eliminated in consolidation, including revenue from servicing policies pledged as collateral under the Revolving Credit Facility. Notwithstanding consolidation, White Eagle is the owner of 459 policies, with an aggregate death benefit of approximately $2.3 billion and an estimated fair value of approximately $218.1 million at June 30, 2013.

The unaudited consolidated financial statements have been prepared in conformity with the rules and regulations of the SEC for Form 10-Q and therefore do not include certain information, accounting policies, and footnote disclosures information or footnotes necessary for a complete presentation of financial position, results of operations and cash flows in conformity with generally accepted accounting principles. However, all adjustments (consisting of normal recurring accruals), which, in the opinion of management, are necessary for a fair presentation of the financial statements, have been included. Operating results for the six months ended June 30, 2013 are not necessarily indicative of the results that may be expected for the year ending December 31, 2013. These interim financial statements should be read in conjunction with the Consolidated Financial Statements and Notes thereto included in Imperial’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012.

Use of Estimates

The preparation of these consolidated financial statements, in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. Actual results could differ from these estimates and such differences could be material. Significant estimates made by management include the loan impairment valuation, income taxes, valuation of securities available for sale, valuation of structured settlement receivables, the valuation of investments in life settlements and the valuation of its note payable owing under the Revolving Credit Facility.

(3) Recent Accounting Pronouncements

In February 2013, the Financial Accounting Standards Board (“FASB”) issued ASU 2013-02,  Reporting of Amounts Reclassified Out of Accumulated Other Comprehensive Income . ASU 2013-02 requires entities to report, either on the face of the income statement or in the notes, the effect of significant reclassifications out of accumulated other comprehensive income (“AOCI”) on the respective line items in net income if the amount being reclassified is required under GAAP to be reclassified in its entirety to net income. For other amounts that are not required under GAAP to be reclassified in their entirety from AOCI to net income in the same reporting period, an entity is required to cross-reference other disclosures required under GAAP that provide additional detail about those amounts. See Note 4, Changes in Accumulated Other Comprehensive Loss, Net of Tax, for the required disclosures. ASU 2013-02 is effective as of January 1, 2013 for Imperial and did not have a significant impact on our financial statements, other than presentation.

In March 2013, the FASB issued ASU No. 2013-05, Foreign Currency Matters (Topic 830): Parent’s Accounting for the Cumulative Translation Adjustment upon Derecognition of Certain Subsidiaries or Groups of Assets within a Foreign Entity or of an Investment in a Foreign Entity (“ASU 2013-05”). ASU 2013-05 clarifies the applicable guidance applied for the release of cumulative translation adjustments into net income when a reporting entity either sells a part or all of its investment in a foreign entity or ceases to have a controlling financial interest in a subsidiary or group of assets that constitute a business within a foreign entity. ASU 2013-05 is effective prospectively for reporting periods beginning after December 15, 2013, with early adoption permitted. ASU 2013-05. The Company does not anticipate the adoption of this amendment will have a material impact on its financial statements.

In July 2013, the FASB issued ASU No. 2013-11, Income Taxes (Topic 740): Presentation of an Unrecognized Tax Benefit When a Net Operating Loss Carryforward, a Similar Tax Loss, or a Tax Credit Carryforward Exists (“ASU 2013-11”). ASU 2013-11 requires, unless certain conditions exists, an unrecognized tax benefit, or a portion of an unrecognized tax benefit, to be presented in the financial statements as a reduction to a deferred tax asset for a net operating loss carryforward, similar tax loss, or a tax credit carryforward. ASU 2013-11 is effective prospectively for reporting periods beginning after December 15, 2013, with early adoption permitted. Retrospective application is permitted. The Company does not anticipate the adoption of this amendment will have a material impact on its financial statements.

 

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(4) Changes in Accumulated Other Comprehensive Loss, Net of Tax

The following table presents changes in accumulated other comprehensive loss, net of tax, by component for the six months ended June 30, 2013 (in thousands):

 

     Unrealized
Gains and
Losses on
Available-for-

Sale Securities
 

Balance as of December 31, 2012

   $ (3

Amounts reclassified from accumulated other comprehensive income

     3   
  

 

 

 

Balance as of June 30, 2013

   $ —     
  

 

 

 

Reclassifications out of accumulated other comprehensive loss, net of tax, for the six months ended June 30, 2013 are as follows (in thousands):

 

     Amount Reclassified
from Accumulated
Other Comprehensive
Loss
    Affected Line in
the  Consolidated

Statement of
Operations

Loss on available for sale securities

   $ (22   Other Expenses

Tax effect

     25      Provision for Income Tax
  

 

 

   

Total amount reclassified from accumulated other comprehensive loss for the six months ended June 30, 2013

   $ 3     
  

 

 

   

(5) Consolidation of Variable Interest Entities

The Company evaluates its interests in variable interest entities (“VIEs”) on an ongoing basis and consolidates those VIEs in which it has a controlling financial interest and is thus deemed to be the primary beneficiary. A controlling financial interest has both of the following characteristics: (i) the power to direct the activities of the VIE that most significantly impact its economic performance; and (ii) the obligation to absorb losses of the VIE that could potentially be significant to it or the right to receive benefits from the VIE that could be significant to the VIE.

The following table presents the consolidated assets and consolidated liabilities of VIEs for which the Company has concluded that it is the primary beneficiary and which are consolidated in the Company’s consolidated financial statements as of June 30, 2013, as well as non-consolidated VIEs for which the Company has determined it is not the primary beneficiary (in thousands):

 

     Primary Beneficiary      Not Primary
Beneficiary
 
     Consolidated VIEs      Non-consolodiated VIEs  
     Assets      Liabilities      Total
Assets
     Maximum Exposure
To Loss
 

June 30, 2013

   $ 220,408       $ 103,227       $ 2,315       $ 2,315   

December 31, 2012

   $ —         $ —         $ 2,212       $ 2,212   

On December 21, 2012, Greenwood opened a securities intermediary account which provides for a securities intermediary to hold Greenwood’s life insurance policies on its behalf. As of December 31, 2012, OLIPP IV, LLC, a wholly-owned subsidiary of the Company, contributed 191 life settlements with an estimated fair value of approximately $104.6 million to Greenwood. On March 27, 2013, as part of the Bridge Facility, Greenwood, as issuer, and the Company and OLIPP IV, LLC, as guarantors, entered into an indenture with Wilmington Trust Company, as indenture trustee, under which an aggregate principal amount of $45.0 million of 12% increasing rate senior secured bridge notes were issued to certain entities associated with certain of the Company’s shareholders, including to entities associated with two of the Company’s directors. Interest under the Bridge Facility accrued at 12% per annum for the first nine months from the issue date, and increases of 600 basis points thereafter to 18% per annum were scheduled. Up to 25% of the net proceeds from the Bridge Facility after transaction expenses could have been used by the Company for general corporate purposes, including for premium payments on life insurance policies not owned by Greenwood, with the balance used to pay fees and expenses associated with the Bridge Facility and for premiums on life insurance policies owned by Greenwood. The Bridge Facility was guaranteed by the Company and secured by the cash on account at Greenwood and its portfolio of life insurance policies. The Bridge Facility was also secured by pledges of the equity interests of Greenwood’s direct parent and each subsidiary of the Company, other than its licensed life settlement provider, that held life insurance policies that were not subject to the subrogation rights of the Company’s lender protection insurance carrier.

Effective April 29, 2013, White Eagle entered into the Revolving Credit Facility and a portion of the proceeds from the initial borrowings were used to repay all outstanding amounts under the Bridge Facility. Ongoing draws under the Revolving Credit Facility may be used, among

 

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other things, to pay premiums on the life insurance policies that have been pledged as collateral under the Revolving Credit Facility. As of June 30, 2013, 459 life insurance policies owned by White Eagle with an aggregate death benefit of approximately $2.3 billion and an estimated fair value of approximately $218.1 million at June 30, 2013 were pledged as collateral under the Revolving Credit Facility. A Company subsidiary acts as portfolio manager and servicer for life insurance policies owned by White Eagle and the Company was determined to be the primary beneficiary of White Eagle as it has a controlling financial interest and the power to direct the activities that most significantly impacted White Eagle’s economic performance and the obligation to absorb economic gains and losses. In accordance with Accounting Standards Codification (“ASC”) 810, Consolidation , the Company consolidated White Eagle in its financial statements beginning in the three months ended June 30, 2013.

Imperial Settlements Financing 2010, LLC (“ISF 2010”), is an unconsolidated special purpose entity formed to allow the Company to sell structured settlements and assignable annuities, and to borrow against certain of its receivables to provide ISF 2010 liquidity. In determining whether the Company is the primary beneficiary, the Company concluded that it does not control the servicing, which is the activity that most significantly impacts the VIE’s performance. An independent third party is the master servicer and they can only be replaced by the control party, which is the entity that holds the majority of the outstanding notes. A Company subsidiary is a back-up servicer and is insignificant to ISF 2010’s performance. The Company’s maximum exposure related to ISF 2010 is limited to 5% of the dollar value of the ISF 2010 transactions, which is held back by ISF 2010 at the time of sale, and is designed to absorb potential losses in collecting the receivables. The obligations of ISF 2010 are non-recourse to the Company. The total funds held back by ISF 2010 as of June 30, 2013 and December 31, 2012 were approximately $2.3 million and $2.2 million, respectively and are included in investment in affiliate in the accompanying consolidated balance sheet.

(6) Gain on Maturities of Life Settlements with Subrogation Rights, net

In the third quarter of 2011, two individuals covered under policies, which were subject to subrogation claims of the LPIC Provider unexpectedly passed away. The Company collected the death benefit on one of these policies in the amount of $3.5 million during the third quarter of 2011. The other was the result of an accidental death and the $10.0 million face value of the policy was larger than average.

The Company accounted for the maturities of each of these polices as contingent gains in accordance with ASC 450 , Contingencies and recognized $3.2 million in death benefits net of subrogation expenses of $312,000 in its consolidated statement of operations during the third quarter of 2011. In the second quarter of 2012, the Company negotiated a settlement in respect of the larger policy and collected approximately $6.1 million, net of subrogation expenses and reported a gain in accordance with ASC 450, Contingencies in its consolidated statement of operations for the second quarter of 2012 when all contingencies were resolved.

Historically, the Company believed these contingent gains to be unpredictable because the LPIC Provider could discontinue paying the premiums necessary to keep a policy subject to subrogation and salvage claims in force at any time. Further, the amount of the LPIC Provider’s subrogation and salvage claim on any individual life insurance policy could have equaled the cash flow received by the Company with respect to any such policy. Upon the execution of the Termination Agreement, the LPIC Provider released any and all subrogation claims and related salvage rights in the life insurance policies that had been characterized as “Life Settlements with Subrogation rights, net.” As a result of the Termination Agreement, the Company will no longer have any gains on maturities of life settlements with subrogation rights, net.

(7) Earnings Per Share

Basic net income per share is computed by dividing the net earnings attributable to common shareholders by the weighted average number of common shares outstanding during the period.

Diluted earnings per share is computed by dividing net income attributable to common shareholders by the weighted average number of common shares outstanding, increased to include the number of additional common shares that would have been outstanding if the dilutive potential common shares had been issued. Conversion or exercise of the potential common shares is not reflected in diluted earnings per share, unless the effect is dilutive. The dilutive effect, if any, of outstanding common share equivalents is reflected in diluted earnings per share by application of the treasury stock method, as applicable. In determining whether outstanding stock options, restricted stock, and common stock warrants should be considered for their dilutive effect, the average market price of the common stock for the period has to exceed the exercise price of the outstanding common share equivalent.

 

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The following tables reconcile actual basic and diluted earnings per share for the three months and six months ended June 30, 2013 and 2012 (in thousands except share and per share data).

 

     For the Three  Months
Ended June 30,
    For the Six Months
Ended June 30,
 
     2013      2012     2013      2012  

Basic income (loss) per share:

          

Numerator:

          

Net income (loss) available to common stockholders

   $ 47,721       $ (625   $ 43,389       $ (9,496
  

 

 

    

 

 

   

 

 

    

 

 

 

Denominator:

          

Weighted average common shares outstanding

     21,219,880         21,206,121        21,213,039         21,205,370   
  

 

 

    

 

 

   

 

 

    

 

 

 

Basic income (loss) per share

   $ 2.25       $ (0.03   $ 2.05       $ (0.45
  

 

 

    

 

 

   

 

 

    

 

 

 

Diluted income (loss) per share:

          

Numerator:

          

Net income (loss) available to common stockholders

   $ 47,721       $ (625   $ 43,389       $ (9,496
  

 

 

    

 

 

   

 

 

    

 

 

 

Denominator:

          

Weighted average common shares outstanding

     21,219,880         21,206,121        21,213,039         21,205,370   

Add: Restricted Stock

     17,286         —          17,286         —     

Diluted weighted average shares outstanding

     21,237,166         21,206,121        21,230,325         21,205,370   
  

 

 

    

 

 

   

 

 

    

 

 

 

Diluted income (loss) per share(1)(2)

   $ 2.25       $ (0.03   $ 2.04       $ (0.45
  

 

 

    

 

 

   

 

 

    

 

 

 

 

(1) The computation of diluted EPS did not include 488,632 outstanding options and 4,240,521 outstanding warrants for the three months and six months ended June 30, 2012, as the effect of their inclusion would have been anti-dilutive.
(2) The computation of diluted EPS did not include 933,969 outstanding options and 4,240,521 outstanding warrants for the three months and six months ended June 30, 2013, as the effect of their inclusion would have been anti-dilutive.

(8) Investment Securities Available for Sale

The Company had no securities available for sale at June 30, 2013. The Company liquidated its entire portfolio of investment securities available for sale during the first quarter of 2013. Proceeds from sale and prepayment of investment securities available for sale during the six months ended June 30, 2013 and 2012 amounted to approximately $12.1 million and $51.6 million, respectively, resulting in gross realized gains of approximately $22,000 and $39,000, respectively.

The amortized cost and estimated fair values of securities available for sale at December 31, 2012 are as follows (in thousands):

 

     December 31, 2012  

Description of Securities

   Amortized
Cost
     Gross  Unrealized
Gains
     Gross  Unrealized
Losses
    Estimated
Fair Value
 

Corporate bonds

   $ 8,275         25       $ (67   $ 8,233   

Government bonds

     3,524         76         —         3,600   

Other bonds

     310         4         —         314   
  

 

 

    

 

 

    

 

 

   

 

 

 

Total available for sale securities

   $ 12,109       $ 105       $ (67   $ 12,147   
  

 

 

    

 

 

    

 

 

   

 

 

 

The scheduled maturities of securities at December 31, 2012, by contractual maturity, are shown below. Expected maturities may differ from contractual maturities because borrowers may have the right to call or prepay obligations with or without call or prepayment penalties (in thousands).

 

     December 31, 2012  
     Amortized Cost      Estimated Fair Value  

Due in one year or less

   $ 6,172       $ 6,197   

Due after one year but less than five years

     2,413         2,350   

Due after five years but less than ten years

     3,524         3,600   
  

 

 

    

 

 

 

Total available for sale securities

   $ 12,109       $ 12,147   
  

 

 

    

 

 

 

Information pertaining to securities with gross unrealized losses at December 31, 2012, aggregated by investment category and length of time that the individual securities have been in a continuous unrealized loss position is as follows (in thousands):

 

     December 31, 2012  
     Less than 12 Months     12 Months or More      Total  

Description of Securities

   Estimated
Fair  Value
     Unrealized
Loss
    Estimated
Fair  Value
     Unrealized
Loss
     Estimated
Fair  Value
     Unrealized
Loss
 

Corporate bonds

     1,932         (67     —          —          1,932         (67

Government bonds

     —          —         —          —          —          —    

Other bonds

     —          —         —          —          —          —    
  

 

 

    

 

 

   

 

 

    

 

 

    

 

 

    

 

 

 

Total available for sale securities

   $ 1,932       $ (67   $ —        $ —        $ 1,932       $ (67
  

 

 

    

 

 

   

 

 

    

 

 

    

 

 

    

 

 

 

 

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The Company monitors its investment securities available for sale for other-than-temporary impairment, or OTTI, on an individual security basis considering numerous factors, including the Company’s intent to sell securities in an unrealized loss position, the likelihood that the Company will be required to sell these securities before an anticipated recovery in value, the length of time and extent to which fair value has been less than amortized cost, the historical and implied volatility of the fair value of the security, failure of the issuer of the security to make scheduled interest or principal payments, any changes to the rating of the security by a rating agency and recoveries or additional declines in fair value subsequent to the balance sheet date. The relative significance of each of these factors varies depending on the circumstances related to each security.

(9) Loans Receivable

A summary of loans receivables at June 30, 2013 and December 31, 2012 is as follows (in thousands):

 

     June 30,
2013
    December 31,
2012
 

Loan principal balance

   $ 364      $ 5,255   

Loan origination fees, net

     90        1,157   

Loan impairment valuation

     (248     (3,368
  

 

 

   

 

 

 

Loans receivable, net

   $ 206      $ 3,044   
  

 

 

   

 

 

 

The Company also had interest receivable, net which consisted of approximately $42,000 and $727,000 in accrued and unpaid interest at June 30, 2013 and December 31, 2012, respectively, and a related impairment valuation of approximately $90,000 and $947,000, respectively.

An analysis of the changes in loans receivable principal balance during the three months and six months ended June 30, 2013 and 2012 is as follows (in thousands):

 

     For the Three Months Ended
June 30,
    For the Six Months Ended
June 30,
 
     2013     2012     2013     2012  

Loan principal balance, beginning

   $ 3,356      $ 21,080      $ 5,255      $ 31,264   

Loan payoffs

     (652     (6,631     (652     (13,325

Loans transferred to investments in life settlements

     (2,340     (1,514     (4,239     (5,004
  

 

 

   

 

 

   

 

 

   

 

 

 

Loan principal balance, ending

   $ 364      $ 12,935      $ 364      $ 12,935   
  

 

 

   

 

 

   

 

 

   

 

 

 

Loan origination fees include fees that are payable to the Company on the date the loan matures. The loan origination fees are reduced by any direct costs that are directly related to the creation of the loan receivable in accordance with ASC 310-20, Receivables — Nonrefundable Fees and Other Costs , and the net balance is accreted over the life of the loan using the effective interest method. Discounts include purchase discounts, net of accretion, which are attributable to loans that were acquired from affiliated companies under common ownership and control.

In accordance with ASC 310, Receivables , the Company specifically evaluates all loans for impairment based on the fair value of the underlying policies as foreclosure is considered probable. The loans are considered to be collateral dependent as the repayment of the loans is expected to be provided by the underlying policies. See Note 15.

 

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An analysis of the loan impairment valuation for the three months ended June 30, 2013 is as follows (in thousands):

 

     Loans
Receivable
    Interest
Receivable
    Total  

Balance at beginning of period

   $ 2,401      $ 711      $ 3,112   

Charge-offs

     (2,153     (621     (2,774
  

 

 

   

 

 

   

 

 

 

Balance at end of period

   $ 248      $ 90      $ 338   
  

 

 

   

 

 

   

 

 

 

An analysis of the loan impairment valuation for the three months ended June 30, 2012 is as follows (in thousands):

 

     Loans
Receivable
    Interest
Receivable
    Total  

Balance at beginning of period

   $ 7,488      $ 1,668      $ 9,156   

Provision for losses

     360        81        441   

Charge-offs

     (2,331     (440     (2,771
  

 

 

   

 

 

   

 

 

 

Balance at end of period

   $ 5,517      $ 1,309      $ 6,826   
  

 

 

   

 

 

   

 

 

 

An analysis of the loan impairment valuation for the six months ended June 30, 2013 is as follows (in thousands):

 

     Loans
Receivable
    Interest
Receivable
    Total  

Balance at beginning of period

   $ 3,368      $ 947      $ 4,315   

Charge-offs

     (3,120     (857     (3,977
  

 

 

   

 

 

   

 

 

 

Balance at end of period

   $ 248      $ 90      $ 338   
  

 

 

   

 

 

   

 

 

 

An analysis of the loan impairment valuation for the six months ended June 30, 2012 is as follows (in thousands):

 

     Loans
Receivable
    Interest
Receivable
    Total  

Balance at beginning of period

   $ 10,195      $ 1,920      $ 12,115   

Provision for losses

     360        81        441   

Charge-offs

     (5,038     (692     (5,730
  

 

 

   

 

 

   

 

 

 

Balance at end of period

   $ 5,517      $ 1,309      $ 6,826   
  

 

 

   

 

 

   

 

 

 

An analysis of the allowance for loan losses and recorded investment by loan type for the six months ended June 30, 2013 is as follows (in thousands):

 

     Uninsured
Loans
    Insured
Loans(1)
    Total  

Loan impairment valuation

      

Balance at beginning of period

   $ 2,692      $ 676      $ 3,368   

Charge-offs

     (2,444     (676     (3,120
  

 

 

   

 

 

   

 

 

 

Ending balance

   $ 248      $ —        $ 248   
  

 

 

   

 

 

   

 

 

 

Ending balance: individually evaluated for impairment

   $ 248      $ —        $ 248   
  

 

 

   

 

 

   

 

 

 

 

(1) As a result of the entry into the Termination Agreement on April 30, 2013, the LPIC Provider is no longer obligated to pay claims on loans that were insured.

 

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An analysis of the allowance for loan losses and recorded investment in loans by loan type for the six months ended June 30, 2012 is as follows (in thousands

 

     Uninsured
Loans
    Insured
Loans
    Total  

Loan impairment valuation

      

Balance at beginning of period

   $ 7,103      $ 3,092      $ 10,195   

Provision for loan losses

     —          360        360   

Charge-offs

     (2,825     (2,213     (5,038
  

 

 

   

 

 

   

 

 

 

Ending balance

   $ 4,278      $ 1,239      $ 5,517   
  

 

 

   

 

 

   

 

 

 

Ending balance: individually evaluated for impairment

   $ 4,278      $ 1,239      $ 5,517   
  

 

 

   

 

 

   

 

 

 

All loans were individually evaluated for impairment as of June 30, 2013 and 2012. There were no loans collectively evaluated for impairment and there were no loans acquired with deteriorated credit quality. See Note 15.

An analysis of the credit quality for loans outstanding at June 30, 2013 is presented in the following table (dollars in thousands):

 

     Uninsured     Insured(1)  
S&P Designation    Unpaid
Principal
Balance
     Percent     Unpaid
Principal
Balance
     Percent  

AAA

   $ —           0.00   $ —           0.00

AA+

     —           0.00     —           0.00

AA

     —           0.00     —           0.00

AA-

     —           0.00     —           0.00

A+

     299         82.23     —           0.00

A1

     —           0.00     —           0.00

A

     —           0.00     —           0.00

A-

     65         17.77     —           0.00
  

 

 

    

 

 

   

 

 

    

 

 

 

Total

   $ 364         100   $ —           0.00
  

 

 

    

 

 

   

 

 

    

 

 

 

 

(1) As a result of the entry into the Termination Agreement on April 30, 2013, the LPIC Provider is no longer obligated to pay claims on loans that were insured.

An analysis of the credit quality indicators by loan type at December 31, 2012 is presented in the following table (dollars in thousands):

 

     Uninsured     Insured(1)  
S&P Designation    Unpaid
Principal
Balance
     Percent     Unpaid
Principal
Balance
     Percent  

AAA

   $ —          0.00   $ —          0.00

AA+

     —          0.00     —          0.00

AA

     —          0.00     —          0.00

AA-

     2,072         43.58     408         81.44

A+

     2,548         53.97     93         18.56

A1

     —          0.00     —          0.00

A

     —          0.00     —          0.00

BB-

     134         2.45     —          0.00
  

 

 

    

 

 

   

 

 

    

 

 

 

Total

   $ 4,754         100   $ 501         100
  

 

 

    

 

 

   

 

 

    

 

 

 

 

(1) All of the Company’s insured loans had lender protection coverage with Lexington Insurance Company. As of December 31, 2012, Lexington had a financial strength rating of “A” with a stable outlook by Standard & Poors (S&P). As a result of the entry into the Termination Agreement on April 30, 2013, the LPIC Provider is no longer obligated to pay claims on loans that were insured.

 

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Table of Contents

A summary of our investment in impaired loans at June 30, 2013 and December 31, 2012 is as follows (in thousands):

 

     June 30.
2013
     December 31,
2012
 

Loan receivable, net

   $ 206       $ 3,011   

Interest receivable, net

     42         724   
  

 

 

    

 

 

 

Investment in impaired loans

   $ 248       $ 3,735   
  

 

 

    

 

 

 

An analysis of impaired loans with and without a related allowance at June 30, 2013 is presented in the following table by loan type (in thousands):

 

     Recorded
Investment
     Unpaid
Principal
Balance
     Related
Allowance
     Average
Recorded
Investment
     Interest
Income
Recognized
 

With no related allowance recorded:

              

Uninsured Loans

   $ —         $ —         $ —         $ —         $ —     

Insured Loans(1)

     —           —           —           —           —     

With an allowance recorded:

              

Uninsured Loans

     248         364         338         1,934         132   

Insured Loans(1)

     —           —           —           
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total Impaired Loans

   $ 248       $ 364       $ 338       $ 1,934       $ 132   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) As a result of the entry into the Termination Agreement on April 30, 2013, the LPIC Provider is no longer obligated to pay claims on loans that were insured.

An analysis of impaired loans with and without a related allowance at December 31, 2012 is presented in the following table by loan type (in thousands):

 

     Recorded
Investment
     Unpaid
Principal
Balance
     Related
Allowance
     Average
Recorded
Investment
     Interest
Income
Recognized
 

With no related allowance recorded:

              

Uninsured Loans

   $ —        $ —        $ —        $ —        $ —    

Insured Loans

     —          —          —          —          —    

With an allowance recorded:

              

Uninsured Loans

     3,623         4,735         3,413         6,887         1,444   

Insured Loans

     112         501         902         7,091         227   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total Impaired Loans

   $ 3,735       $ 5,236       $ 4,315       $ 13,978       $ 1,671   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

The amount of the investment in impaired loans that had an allowance as of June 30, 2013 and of December 31, 2012 was $248,000, and $3.7 million, respectively. The amount of the investment in impaired loans that did not have an allowance was zero as of June 30, 2013 and December 31, 2012. The average investment in impaired loans for the six months ended June 30, 2013 and year-ended December 31, 2012 was approximately $1.9 million and $14.0 million, respectively. The interest recognized on the impaired loans was approximately $27,000 and $214,000 for the six months ended June 30, 2013 and 2012, respectively.

The Company had no past due loans at June 30, 2013. An analysis of past due loans at December 31, 2012 is presented in the following table by loan type (in thousands):

 

     30-59 Days
Past Due
     60-89 Days
Past Due
     Greater Than
90 Days
Past Due
     Total
Past Due
 

Uninsured Loans

   $ —        $ —        $ 599       $ 599   

Insured Loans

     —          —          315         315   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ —        $ —        $ 914       $ 914   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

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During the six months ended June 30, 2013 and the year ended December 31, 2012, the Company did not originate any loans. Loan interest receivable at June 30, 2013 and December 31, 2012 was approximately $42,000, and $727,000 net of impairment of approximately $90,000, and $947,000, respectively. As of June 30, 2013, there were a total of two loans outstanding with the average loan balance of approximately $182,000.

The allowance for interest receivable represents interest that is not expected to be collected. At the time the interest income was recognized and at the end of the reporting period in which the interest income was recognized, the interest income was believed to be collectible. The Company continually reassesses whether interest income is collectible in conjunction with its loan impairment analysis. The allowance for interest receivable represents interest that was determined to be uncollectible during a reporting period subsequent to the initial recognition of the interest income. As of June 30, 2013, the loan portfolio consisted of loans with original maturities of 2 years and variable interest rates at an average interest rate of 14.00%. During the six months ended June 30, 2013 and 2012, 1 and 67 loans were paid off with proceeds of lender protection insurance totaling approximately $117,000 and $21.0 million respectively, of which approximately $93,000, and $13.3 million was for principal of the loans, and approximately $40,000, and $5.2 million was for accrued interest, respectively, and accreted origination fees of approximately $39,000, and $5.6 million, respectively. The Company had an impairment associated with these loans of approximately $56,000, and $3.6 million, respectively. We recognized a gain of zero and $7,200 on these transactions, respectively. Also during the three months ended on June 30, 2013, 1 loan was repaid totaling approximately $574,000 of which $560,000 was for the principal of the loan and approximately $196,000 was for accrued interest. Prior to this repayment, impairment associated with this loan was approximately $250,000, resulting in a gain of approximately $65,000 on this transaction.

Our premium finance borrowers were generally referred to us through independent insurance agents and brokers although, prior to January 2009, we originated some premium finance loans that were sold by life insurance agents that we employed. In certain of these instances, the life insurance agents employed by the Company worked with external brokers and agents to obtain insurance for individuals with the Company extending a premium finance loan to a borrower with the policy as collateral. We refer to these instances as the “retail non-seminar business,” which began in December 2006 and was discontinued in January 2009. In total, the Company originated 114 premium finance loans as part of the retail non-seminar business. As of June 30, 2013, the Company had 41 policies as a result of its retail non-seminar business.

(10) Origination Fees

A summary of the balances of origination fees that are included in loans receivable in the consolidated balance sheet as of June 30, 2013 and December 31, 2012 is as follows (in thousands):

 

     June 30,
2013
    December 31,
2012
 

Loan origination fees gross

   $ 91      $ 1,334   

Un-accreted origination fees

     (4     (190

Amortized loan originations costs

     3        13   
  

 

 

   

 

 

 
   $ 90      $ 1,157   
  

 

 

   

 

 

 

Loan origination fees are fees payable to the Company on the date of loan maturity or repayment. Loan origination costs are deferred costs that are directly related to the creation of the loan receivable.

(11) Stock-Based Compensation

In connection with the Company’s initial public offering, the Company established the Imperial Holdings 2011 Omnibus Incentive Plan (the “Omnibus Plan”). The purpose of the Omnibus Plan is to attract, retain and motivate participating employees and to attract and retain well-qualified individuals to serve as members of the board of directors, consultants and advisors through the use of incentives based upon the value of our common stock. Awards under the Omnibus Plan may consist of incentive awards, stock options, stock appreciation rights, performance shares, performance units, and shares of common stock, restricted stock, restricted stock units or other stock-based awards as determined by the compensation committee. The Omnibus Plan provides that an aggregate of 1,200,000 shares of common stock are reserved for issuance under the Omnibus Plan, subject to adjustment as provided in the Omnibus Plan. During the quarter ended June 30, 2013 the Company issued 545,000 options to employees at a strike price of $6.94. The Company recognized approximately $798,000 and $84,000 in stock-based compensation expense relating to stock options it granted under the Omnibus Plan during the three months ended June 30, 2013 and 2012, respectively and $988,000 and $96,000 during the six months ended June 30, 2013 and 2012, respectively. The Company incurred additional stock-based compensation expense of approximately $9,000 and zero relating restricted stock granted to its board of directors during the three months ended June 30, 2013 and 2012, respectively, and $9,000 and $4,000 during the six months ended June 30, 2013 and 2012, respectively. On April 1, 2013, the Company granted 14,828 shares of unrestricted common stock to its outside directors with an aggregate grant date fair value of approximately $57,000 computed in accordance with ASC 718, Compensation-Stock Compensation .

 

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Table of Contents

Options

As of June 30, 2013 options to purchase 933,969 shares of common stock were outstanding and unexercised under the Omnibus Plan at a weighted average exercise price of $8.52 per share. The outstanding options issued in 2011 expire seven years after the date of grant and were granted with a strike price of $10.75 which was the offering price of our initial public offering or fair market value (closing price) of the stock on the date of grant and vest over three years. The outstanding options issued during the quarter ended June 30, 2013, will expire seven years after the date of grant and were granted with strike price of $6.94 which was the fair market value (closing price) of the stock on the day preceding the date of grant and one-third vested immediately and the remaining two-third vest ratably over two years.

The Company has used the Black-Scholes model to calculate fair values of options awarded. This model requires assumptions as to expected volatility, dividends, terms, and risk free rates. Assumptions used for the periods covered herein, are outlined in the table below:

 

     Six Months Ended
June 30, 2013

Expected Volatility

   65.47

Expected Dividend

   0%

Expected Term in Years

   4.25

Risk Free Rate

   0.48% - 1.01%

The Company commenced its initial public offering of common stock in February 2011. Accordingly, there was no public market for the Company’s common stock prior to this date. Therefore, the Company identified comparable public entities and blended the average volatility of those entities with the Company’s volatility from the date of its initial public offering through June 30, 2013, to reasonably estimate its expected volatility. The Company does not expect to pay dividends on its common stock for the foreseeable future. Expected term is the period of time over which the options granted are expected to remain outstanding and is based on the simplified method as outlined in the SEC Staff Accounting Bulletin 110. The Company will continue to estimate expected lives based on the simplified method until reliable historical data becomes available. The risk free rate is based on the U.S Treasury yield curve in effect at the time of grant for the appropriate life of each option.

The following table presents the activity of the Company’s outstanding stock options for the six months ended June 30, 2013:

 

Common Stock Options

   Number of
Shares
    Weighted
Average Price
per Share
     Weighted
Average
Remaining
Contractual
Term
 

Options outstanding, December 31, 2012

     487,314      $ 10.75         —     

Options granted

     545,000      $ 6.94         6.93   

Options exercised

     —        $ —           —     

Options forfeited

     (1,081   $ 10.75         —     

Options expired

     (97,264   $ 10.75         —     
  

 

 

      

Options outstanding June 30, 2013

     933,969      $ 8.52         5.97   
  

 

 

      

Exercisable at June 30, 2013

     471,907      $ 9.28         5.51   
  

 

 

      

Unvested at June 30, 2013

     462,062      $ 7.75         6.44   
  

 

 

      

As of June 30, 2013, all outstanding stock options had an exercise price above the market value of the common stock on that date.

The remaining unamortized amounts of approximately $513,000, $673,000, and $267,000 will be expensed during 2013, 2014, and 2015, respectively.

Restricted Stock

As of June 30, 2013, an aggregate of 17,286 shares of restricted stock granted to our directors under the Omnibus Plan was outstanding subject to one year vesting schedule commencing on the date of grant. The fair value of the unvested restricted stock was valued at $120,138 based on the closing price of the Company’s shares on the grant date.

 

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Table of Contents

The following table presents the activity of the Company’s unvested restricted stock common shares for the six months ended June 30, 2013:

 

Common Unvested Shares

   Number of
Shares
 

Outstanding December 31, 2012

     —     

Granted

     17,286   

Vested

     —     

Forfeited

     —     
  

 

 

 

Outstanding June 30, 2013

     17,286   
  

 

 

 

The aggregate intrinsic value of these awards is approximately $118,000 and the remaining weighted average life of these awards is .93 years as of June 30, 2013. The remaining unamortized amounts of approximately $60,000 and $52,000 will be expensed during 2013 and 2014, respectively.

(12) Structured Settlements

The balances of the Company’s structured settlements are as follows (in thousands):

 

     June 30,
2013
     December 31,
2012
 

Structured settlements - at cost

   $ 1,584       $ 1,574   

Structured settlements - at fair value

     1,393         1,680   
  

 

 

    

 

 

 

Structured settlements receivable, net

   $ 2,977       $ 3,254   
  

 

 

    

 

 

 

All structured settlements that were acquired subsequent to July 1, 2010 were marked to fair value. Structured settlements that were acquired prior to July 1, 2010 were recorded at cost. During 2011, the Company reacquired certain structured settlements that were originally acquired prior to July 1, 2010 and the Company continued to carry those structured settlements at cost upon reacquisition.

Certain financing arrangements for the Company’s structured settlements are described below:

Life-Contingent Structured Settlement Facility

On December 30, 2011, Washington Square Financial, LLC (“WSF”) entered into a forward purchase and sale agreement (“PSA”) to sell up to $40.0 million of life contingent structured settlement receivables to Compass Settlements LLC (“Compass”). On May 21, 2013 WSF and Compass executed an Amended and Restated Purchase and Sale Agreement. Subject to predetermined eligibility criteria and on-going funding conditions, Compass committed, in increments of $10.0 million, up to $45.0 million to purchase life-contingent structured settlement receivables from WSF. The PSA obligates WSF to sell the life-contingent structured settlement receivables it originates to Compass on an exclusive basis for twelve months following the amendment date, subject to Compass maintaining certain purchase commitment levels. Additionally, the Company has agreed to guarantee WSF’s obligation to repurchase any ineligible receivables sold under the PSA and certain other related obligations.

For the six months ended June 30, 2013 and 2012, respectively, the Company sold 80 and 225 structured settlements under this facility, respectively, 5 and 107 of which were originated in 2012 and 2011, respectively, generating income of approximately $72,000 and $1.1 million, respectively, which was recorded as an unrealized change in fair value of structured settlements in 2012 and 2011, respectively. The Company originated and sold 75 and 118 structured settlement transactions under this facility generating income of approximately $1.1 million and $1.0 million, respectively, recorded as gain on sale of structured settlements during the six months ended June 30, 2013 and 2012, respectively.

The Company also realized income of approximately $218,000 and $283,000 that was recorded as an unrealized change in fair value during the six months ended June 30, 2013 and 2012, respectively, on structured settlements that are intended for sale to Compass. As of June 30, 2013, the Company had available commitments under this facility of $8.2 million.

8.39% Fixed Rate Asset Backed Variable Funding Notes

Imperial Settlements Financing 2010, LLC (“ISF 2010”) was formed as an affiliate of the Company to serve as a special purpose financing entity to allow the Company to sell structured settlements and assignable annuities, which are referred to as receivables, to ISF 2010 and ISF 2010 to borrow against certain of its receivables to provide ISF 2010 liquidity. ISF 2010 is a non-consolidated special purpose financing entity. On September 24, 2010, ISF 2010 entered into an arrangement to obtain up to $50 million in financing. Under this arrangement, a subsidiary of Partner Re, Ltd. (the “noteholder”) became the initial holder of ISF 2010’s 8.39% Fixed Rate Asset Backed Variable Funding Note issued under a master trust indenture and related indenture supplement (collectively, the “Indenture”) pursuant to which the noteholder committed to advance ISF 2010 up to $50 million upon the terms and conditions set forth in the Indenture. The note is secured by the receivables that ISF 2010 acquires from the Company from time to time. The note is due and payable on or before January 1, 2057, but principal and interest must be repaid pursuant to a schedule of fixed payments from the receivables that secure the notes. The arrangement generally has a concentration limit of 15% for the providers of the receivables that secure the notes. Wilmington Trust is the collateral trustee. As of June 30, 2013 and December 31, 2012, the balance of the notes outstanding on the special purpose financing entity’s books was $45.2 million and $43.2 million, respectively.

 

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Table of Contents

Upon the occurrence of certain events of default under the Indenture, all amounts due under the note are automatically accelerated. The Company’s maximum exposure related to ISF 2010 is limited to 5% of the dollar value of the ISF 2010 transactions, which is held back by ISF 2010 at the time of sale, and is designed to absorb potential losses in collecting the receivables. The obligations of ISF 2010 are non-recourse to the Company. The total funds held back by ISF 2010 as of June 30, 2013 and December 31, 2012 were approximately $2.3 million and $2.2 million and are included in investment in affiliate in the accompanying consolidated balance sheet.

During the six months ended June 30, 2013 and 2012, the Company sold 57 and 430 term certain structured settlements, respectively. Of the 57 structured settlements sold during the six months ending June 30, 2013, 2 were originated in 2012 and 1 was originated in 2011 generating income of $11,000 and $2,500, respectively, which was recorded as an unrealized change in fair value of structured settlements in 2012 and 2011, respectively. Of the 430 structured settlements sold during the six months ended June 30, 2012, 181 were originated in 2011 generating income of approximately $3.2 million, which was recorded as an unrealized change in fair value of structured settlements in 2011. The Company originated and sold 54 and 249 non-life-contingent settlement transactions under this facility generating income of approximately $601,000 and $3.6 million, respectively, which was recorded as a realized gain on sale of structured settlements during the six months ended June 30, 2013 and 2012, respectively. The Company also realized income of approximately $135,000 and $473,000 that was recorded as an unrealized change in fair value during the six months ended June 30, 2013 and 2012, respectively, on structured settlements that are intended for sale to ISF 2010. The Company receives 95% of the purchase price in cash from ISF 2010. Of the remaining 5%, which represents the Company’s interest in ISF 2010, 1% is required to be contributed to a cash reserve account held by Wilmington Trust.

When the transfer of the receivables occurs, the Company records the transaction as a sale and derecognizes the asset from its balance sheet. In determining whether the Company is the primary beneficiary of the trust, the Company concluded that it does not control the servicing, which is the activity that most significantly impacts the trust performance. An independent third party is the master servicer and they can only be replaced by the control partner, which is the entity that holds the majority of the outstanding notes. The Company is a back-up servicer, which is insignificant to ISF 2010 performance.

3rd Party Sales

For the six months ended June 30, 2013 and 2012, respectively, in addition to its intended sales to Compass and ISF 2010, the Company also sold 176 and 73 structured settlement deals to unrelated third parties for $8.6 million and $1.0 million, respectively, generating income of $5.0 million and $939,000, respectively, recorded as a gain on sale of structured settlements and $158,000 that was previously recorded as an unrealized change in fair value in 2012.

For the six months ended June 30, 2013 and 2012, respectively, the Company recorded income of approximately $388,000 and $134,000, respectively, that was recorded as unrealized change in fair value on structured settlements that are intended for sale to other parties.

Total income recognized through accretion of interest income on structured settlement transactions for the six months ended June 30, 2013 and 2012, respectively, was approximately $171,000 and $171,000, respectively. For the six months ended June 30, 2013, $132,000 of accretion income, related to structured settlement receivables held at cost, was recognized in interest income and $39,000 related to structured settlement receivables held at fair value, was recognized as unrealized change in fair value in the accompanying consolidated statement of operations.

The receivables at June 30, 2013 and December 31, 2012 were approximately $3.0 million and $3.3 million, respectively, net of a discount of approximately $5.0 million and $4.6 million, respectively.

(13) Investment in Life Settlements (Life Insurance Policies)

The Company accounts for policies it acquires using the fair value method in accordance with ASC 325-30-50 Investments — Other — Investment in Insurance Contracts . Under the fair value method, the Company recognizes the initial investment at the purchase price. For policies that were relinquished in satisfaction of premium finance loans at maturity, the initial investment is the loan carrying value and for policies purchased in the secondary or tertiary markets, the initial investment is the amount of cash outlay at the time of purchase. At each reporting period, the Company re-measures the investment at fair value in its entirety and recognizes changes in fair value in earnings in the period in which the changes occur. See Note 15.

As of June 30, 2013 and December 31, 2012, the Company owned 627 and 214 policies, respectively, with an aggregate estimated fair value of investments in life settlements of $265.8 million and $113.4 million, respectively.

 

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The weighted average life expectancy calculated based on death benefit of insureds in the policies owned by the Company at June 30, 2013 was 11.9 years. The following table describes the Company’s investments in life settlements as of June 30, 2013 (dollars in thousands):

 

     Number of                
     Life Settlement      Fair      Face  

Remaining Life Expectancy (In Years)

   Contracts      Value      Value  

0 - 1

     1       $ 1,744       $ 2,100   

1 - 2

     —           —           —     

2 - 3

     5         6,326         13,750   

3 - 4

     4         5,229         11,200   

4 - 5

     11         14,497         46,450   

Thereafter

     606         237,977         2,941,640   
  

 

 

    

 

 

    

 

 

 

Total

     627       $ 265,773       $ 3,015,140   
  

 

 

    

 

 

    

 

 

 

The weighted average life expectancy calculated based on death benefit of insureds in the policies owned by the Company at December 31, 2012 was 10.6 years. The following table describes the Company’s investment in life settlements as of December 31, 2012 (dollars in thousands):

 

     Number of                
     Life Settlement      Fair      Face  

Remaining Life Expectancy (In Years)

   Contracts      Value      Value  

0 - 1

     —         $ —         $ —     

1 - 2

     —           —           —     

2 - 3

     1         1,222         2,500   

3 - 4

     4         3,319         11,450   

4 - 5

     7         11,375         30,950   

Thereafter

     202         97,525         1,028,256   
  

 

 

    

 

 

    

 

 

 

Total

     214       $ 113,441       $ 1,073,156   
  

 

 

    

 

 

    

 

 

 

Premiums to be paid during each of the five succeeding fiscal years and thereafter to keep the life insurance policies in force as of June 30, 2013, are as follows (in thousands):

 

Remainder of 2013

   $ 33,831   

2014

     54,796   

2015

     53,279   

2016

     56,206   

2017

     62,684   

Thereafter

     1,203,143   
  

 

 

 
   $ 1,463,939   
  

 

 

 

The $1.46 billion noted above represents the estimated total future premium payments required to keep the life insurance policies in force during the life expectancies of all the underlying insured lives and does not give effect to projected receipt of death benefits. The estimated total future premium payments could increase or decrease significantly to the extent that actual mortalities of insureds differs from the estimated life expectancies.

(14) Note Payable

Revolving Credit Facility

Effective April 29, 2013, White Eagle entered into a 15-year revolving credit agreement (the “Revolving Credit Facility”) with LNV Corporation, as initial lender, Imperial Finance & Trading, LLC, as servicer and portfolio manager and CLMG Corp., as administrative agent (the “Agent”).

General & Security . The Revolving Credit Facility provides for an asset-based revolving credit facility backed by White Eagle’s portfolio of life insurance policies with an initial aggregate lender commitment of up to $300.0 million, subject to borrowing base availability. Upon the closing of the Revolving Credit Facility, White Eagle owned a portfolio of 459 life insurance policies with an aggregate death benefit of approximately $2.3 billion and an estimated fair value of approximately $218.1 million at June 30, 2013, which has been pledged as collateral under the Revolving Credit Facility. In addition, the Company’s equity interests in White Eagle have been pledged under the Revolving Credit Facility.

 

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Borrowing Base . Borrowing availability under the Revolving Credit Facility is subject to a borrowing base, which at any time is equal to the lesser of (A) the sum of all of the following amounts that have been funded or are to be funded through the next distribution date (i) the initial advance and all additional advances to acquire additional pledged policies or that are not for ongoing maintenance advances, plus (ii) 100% of the sum of the ongoing maintenance costs, plus (iii) 100% of accrued and unpaid interest on borrowings (excluding the rate floor portion described below), plus (iv) 100% of any other fees and expenses funded and to be funded as approved by the required lenders, less (v) any required payments of principal and interest previously distributed and to be distributed through the next distribution date; (B) 75% of the valuation of the policies pledged as collateral as determined by the lenders; (C) 50% of the aggregate face amount of the policies pledged as collateral (excluding certain specified life insurance policies); and (D) the then applicable facility limit.

Amortization & Distributions. Proceeds from the policies pledged as collateral under the Revolving Credit Facility will be distributed pursuant to a waterfall. Absent an event of default, after premium payments and fees to service providers, 100% of the remaining proceeds will be directed to pay outstanding interest and principal on the loan, unless the lenders determine otherwise. Generally, after payment of interest and principal, collections from policy proceeds are to be paid to White Eagle up to $76.1 million, then 50% of the remaining proceeds are to be directed to the lenders with the remainder paid to White Eagle and for any unpaid fees to service providers. With respect to approximately 25% of the face amount of policies pledged as collateral under the Revolving Credit Facility, White Eagle has agreed that if policy proceeds that are otherwise due are not paid by an insurance carrier, the foregoing distributions will be altered such that the lenders will receive any “catch-up” payments in respect of amounts that they would have received in the waterfall prior to distributions being made to White Eagle. During the continuance of events of default or unmatured events of default, the amounts from collections of policy proceeds that might otherwise be paid to White Eagle will instead be held in a designated account controlled by the lenders and may be applied to fund operating and third party expenses, interest and principal, “catch-up” payments or percentage payments that would go to the lenders as described above.

Use of Proceeds. Generally, ongoing advances may be made for paying premiums on the life insurance policies pledged as collateral, to pay debt service (other than a “rate floor” component equal to the greater of LIBOR (or the applicable base rate) and 1.5%), and to pay the fees of service providers. Subsequent advances in respect of newly pledged policies are at the discretion of the lenders and the use of proceeds from those advances are at the discretion of the lenders.

Interest. Borrowings under the Revolving Credit Facility bear interest at a rate equal to LIBOR or, if LIBOR is unavailable, the base rate, in each case plus an applicable margin of 4.00% and subject to the rate floor described above. The base rate under the Revolving Credit Facility equals the sum of (i) the weighted average of the interest rates on overnight federal funds transactions or, if unavailable, the average of three federal funds quotations received by the Agent plus 0.75% and (ii) 0.5%. The effective rate at June 30, 2013 is 5.5%.

Maturity. The term of the Revolving Credit Facility expires April 28, 2028, which is also the scheduled commitment termination date (though the lenders’ commitments to fund borrowings may terminate earlier in an event of default). The lenders’ interests in and rights to a portion of the proceeds of the policies does not terminate with the repayment of the principal borrowed and interest accrued thereon, the termination of the Revolving Credit Facility or expiration of the lenders’ commitments.

Covenants/Events of Defaults . The Revolving Credit Facility contains covenants and events of default that are customary for asset-based credit agreements of this type, but also include cross defaults under the servicing, account control, contribution and pledge agreements entered into in connection with the Revolving Credit Facility (including in relation to breached by third parties thereunder), changes in control of or insolvency or bankruptcy of the Company and relevant subsidiaries and performance of certain obligations by certain relevant subsidiaries, White Eagle and third parties. The Revolving Credit Facility does not contain any financial covenants, but does contain certain tests relating to asset maintenance, performance and valuation the satisfaction of which will be determined by the lenders with a high degree of discretion.

Remedies . The Revolving Credit Facility and ancillary transaction documents afford the lenders a high degree of discretion in their selection of and implementation of remedies in relation to any event of default, including a high degree of discretion in determining whether to foreclose upon and liquidate all or any pledged policies, the Company’s interests in White Eagle, and the manner of any such liquidation. White Eagle has limited ability to cure events of default through the sale of policies or the procurement of replacement financing.

We have elected to account for this note payable, which includes the 50% interest in policy proceeds to the lender, using the fair value method. The fair value of the debt is the amount the Company would have to pay to transfer the debt to a market participant in an orderly transaction. We calculated the fair value of the debt using a discounted cash flow model taking into account the stated interest rate of the credit facility and probabilistic cash flows from the pledged policies. Considerable judgment is required in interpreting market data to develop the estimates of fair value. Accordingly, our estimates are not necessarily indicative of the amounts that we, or holders of the instruments, could realize in a current market exchange. The most significant assumptions are the estimates of life expectancy of the insured and the discount rate. The use of different assumptions and/or estimation methodologies could have a material effect on the estimated fair values.

At June 30, 2013 the fair value of the debt is $101.8 million. See Note 15 — Fair Value Measurements . As of June 30, 2013, the borrowing base was approximately $107.7 million including $107.1 million in outstanding principal.

There are no scheduled repayments of principal and interest. Payments are due upon receipt of death benefits and distributed pursuant to the waterfall as described above.

 

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(15) Fair Value Measurements

We carry investments in life settlements, structured settlements, and our note payable at fair value in the consolidated balance sheets. Fair value is defined as an exit price, representing the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. As such, fair value is a market based measurement that should be determined based on assumptions that market participants would use in pricing an asset or liability. Fair value measurements are classified based on the following fair value hierarchy:

Level 1 — Valuation is based on unadjusted quoted prices in active markets for identical assets and liabilities that are accessible at the reporting date. Since valuations are based on quoted prices that are readily and regularly available in an active market, valuation of these products does not entail a significant degree of judgment.

Level 2 — Valuation is determined from pricing inputs that are other than quoted prices in active markets that are either directly or indirectly observable as of the reporting date. Observable inputs include quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, and interest rates and yield curves that are observable at commonly quoted intervals.

Level 3 — Valuation is based on inputs that are both significant to the fair value measurement and unobservable. Level 3 inputs include situations where there is little, if any, market activity for the financial instrument. The inputs into the determination of fair value generally require significant management judgment or estimation.

Assets and liabilities measured at fair value on a recurring basis

The balances of the Company’s assets measured at fair value on a recurring basis as of June 30, 2013, are as follows (in thousands):

 

                          Total  
     Level 1      Level 2      Level 3      Fair Value  

Assets:

           

Investment in life settlements

   $ —         $ —         $ 265,773       $ 265,773   

Structured settlement receivables

     —           —           1,393         1,393   
  

 

 

    

 

 

    

 

 

    

 

 

 
   $ —         $ —         $ 267,166       $ 267,166   
  

 

 

    

 

 

    

 

 

    

 

 

 

The balances of the Company’s liabilities measured at fair value on a recurring basis as of June 30, 2013, are as follows (in thousands):

 

                          Total  
     Level 1      Level 2      Level 3      Fair Value  

Liabilities:

           

Note Payable

   $ —         $ —         $ 101,775       $ 101,775   
  

 

 

    

 

 

    

 

 

    

 

 

 
   $ —         $ —         $ 101,775       $ 101,775   
  

 

 

    

 

 

    

 

 

    

 

 

 

The balances of the Company’s assets measured at fair value on a recurring basis as of December 31, 2012, are as follows (in thousands):

 

     Level 1      Level 2      Level 3      Fair Value  

Assets:

           

Investment in life settlements

   $ —        $ —        $ 113,441      $ 113,441  

Structured settlement receivables

     —          —          1,680        1,680  

Investment securities available for sale

     —          12,147        —          12,147  
  

 

 

    

 

 

    

 

 

    

 

 

 
   $ —        $ 12,147      $ 115,121      $ 127,268  
  

 

 

    

 

 

    

 

 

    

 

 

 

The Company values its investment in life settlement portfolio in two classes, non-premium financed and premium financed. In considering the categories, it is generally believed that market participants would require a lower risk premium for policies that were non-premium financed, while a higher risk premium would be required for policies that were premium financed.

 

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($ in thousands)    Quantitative Information about Level 3 Fair Value Measurements
     Fair Value
at 6/30/13
     Aggregate
death benefit
6/30/2013
    

Valuation Technique(s)

  

Unobservable Input

   Range
(Weighted Average)

Non-premium financed

   $ 35,561       $ 206,450       Discounted cash flow    Discount rate    14.59% - 21.59%
            Life expectancy evaluation    (9.3 years)

Premium financed

   $ 230,212       $ 2,808,690       Discounted cash flow    Discount rate    16.59% - 29.59%
  

 

 

    

 

 

          
            Life expectancy evaluation    (12.1 years)

Investment in life settlements

   $ 265,773       $ 3,015,140       Discounted cash flow    Discount rate    (20.61%)
            Life expectancy evaluation    (11.9 years)
  

 

 

    

 

 

    

 

  

 

  

 

Structured settlements receivables

   $ 1,393         N/A       Discounted cash flow    Facility sales discount rates    6.73% - 12.80%
  

 

 

    

 

 

    

 

  

 

  

 

            Discount rate    23.50%*

Note payable

   $ 101,775         N/A       Discounted cash flow    Life expectancy evaluation    (11.4 years)
  

 

 

    

 

 

    

 

  

 

  

 

 

* Actual

Following is a description of the methodologies used to estimate the fair values of assets and liabilities measured at fair value on a recurring basis and within the fair value hierarchy.

Investment in life settlements — The Company has elected to account for the life settlement policies it acquires using the fair value method . Due to the inactive market for life settlements, the Company uses a present value technique to estimate the fair value of our investments in life settlements, which is a Level 3 fair value measurement as the significant inputs are unobservable and require significant management judgment or estimation. The Company currently uses a probabilistic method of valuing life insurance policies, which we believe to be the preferred valuation method in the industry. The most significant assumptions are the estimates of life expectancy of the insured and the discount rate.

In determining the life expectancy estimate, we analyze medical reviews from independent secondary market life expectancy providers (each a “LE provider”). An LE provider reviews the medical records and identifies all medical conditions it feels are relevant to the life expectancy of the insured. Debits and credits are then assigned by each LE provider to the individual’s health based on identified medical conditions. The debit or credit that an LE provider assigns to a medical condition is derived from the experience of mortality attributed to this condition in the portfolio of lives that the LE provider monitors. The health of the insured is summarized by the LE provider into a life assessment of the individual’s life expectancy expressed both in terms of months and in mortality factor.

The resulting mortality factor represents an indication as to the degree to which the given life can be considered more or less impaired than a standard life having similar characteristics (e.g. gender, age, smoking, etc.). For example, a standard insured (the average life for the given mortality table) would carry a mortality rating of 100%. A similar but impaired life bearing a mortality rating of 200% would be considered to have twice the chance of dying earlier than the standard life. The probability of mortality for an insured is then calculated by applying the blended life expectancy estimate to a mortality table. The mortality table is created based on the rates of death among groups categorized by gender, age, and smoking status. By measuring how many deaths occur during each year, the table allows for a calculation of the probability of death in a given year for each category of insured people. The probability of mortality for an insured is found by applying the mortality rating from the life expectancy assessment to the probability found in the actuarial table for the insured’s age, sex and smoking status. The Company has historically applied an actuarial table developed by a third party. However, beginning in the quarter ended September 30, 2012, the Company transitioned to a table developed by the U.S. Society of Actuaries known as the 2008 Valuation Basic Table, or the 2008 VBT. However, because the 2008 VBT table does not account for anticipated improvements in mortality in the insured population, the table was modified by outside consultants to reflect these expected mortality improvements. The Company believes that the change in mortality table does not materially impact the valuation of its life insurance policies and that its adoption of a modified 2008 VBT table is consistent with modified tables used by market participants and third party medical underwriters.

The mortality rating is used to create a series of best estimate probabilistic cash flows. This probability represents a mathematical curve known as a mortality curve. This curve is then used to generate a series of expected cash flows over the remaining expected lifespan of the insured and the corresponding policy. A discounted present value calculation is then used to determine the value of the policy. If the insured dies earlier than expected, the return will be higher than if the insured dies when expected or later than expected.

The calculation allows for the possibility that if the insured dies earlier than expected, the premiums needed to keep the policy in force will not have to be paid. Conversely, the calculation also considers the possibility that if the insured lives longer than expected, more premium payments will be necessary. Based on these considerations, each possible outcome is assigned a probability and the range of possible outcomes is then used to create a value for the policy.

Historically, the Company has procured the majority of its life expectancy reports from two life expectancy report providers and only used AVS Underwriting LLC (“AVS”) life expectancy reports for valuation purposes. Beginning in the quarter ended September 30, 2012, the Company began utilizing life expectancy reports from 21st Services, LLC (“21st Services”) for valuation purposes and began averaging or “blending,” the results of the two life expectancy reports to establish a composite mortality factor.

On January 22, 2013, 21st Services announced revisions to its underwriting methodology and on February 4, 2013, announced that it was correcting errors discovered in its previously announced revised methodology. According to the 21st Services, these revisions have generally

 

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been understood to lengthen the average reported life expectancy furnished by this life expectancy provider by 19%. At March 31, 2013, the Company had not received any life expectancy reports from 21st Services utilizing its revised methodology and, to account for the impact of the revisions and based off of market responses to the methodology change, the Company lengthened the life expectancies furnished by 21st Services by 13% prior to blending them with the life expectancy reports furnished by AVS.

As of June 30, 2013, the Company received 98 updated life expectancy reports from 21st Services that utilize its revised methodology. These life expectancies reported an average lengthening of life expectancies of 15.8% and, based on this sample, for the six months ended June 30, 2013, the Company increased the life expectancies furnished by 21 st Services by 15.8% on the rest of its portfolio of life settlements prior to blending them with the life expectancy reports furnished by AVS. The Company expects to continue to lengthen life expectancies furnished by 21st Services that have not been re-underwritten using their updated methodology. Since the Revolving Credit Facility necessitates that the Company procure updated life expectancies on a periodic basis, the amount of policies that are lengthened by the Company in this manner will decrease over time and the fair value calculations in future periods will, accordingly, reflect the actual impact of the revised 21st Services methodology on a policy by policy basis as updated life expectancy reports are procured. At June 30, 2013, had the Company not applied a 15.8% increase to the 21 st Services life expectancy reports, the portfolio would have increased from the reported amount of $265.8 million by $5.3 million.

Prior to the quarter ended June 30, 2013, when blending AVS and 21st Services’ life expectancy reports to derive a composite mortality factor, the Company would cap the higher mortality factor at an amount that was 150% above the lower mortality factor. This was done so as to reduce variances between life expectancies furnished by these two life expectancy providers. For the period ending June 30, 2013, the Company terminated its use of such a cap. The Company believes that the elimination of this cap is consistent with valuation methodologies employed by other market participants in connection with 21st Services’ revised methodology.

Life expectancy sensitivity analysis

As is the case with most market participants, the Company used a blend of life expectancies that are provided by two third-party LE providers. These are estimates of an insured’s remaining years. If all of the insured lives in the Company’s life settlement portfolio live six months shorter or longer than the life expectancies provided by these third parties, the change in fair market value as of June 30, 2013 would be as follows (dollars in thousands):

 

Life Expectancy Months Adjustment

   Fair Value      Change in Value  

+6

   $ 219,364       $ (46,409

-

   $ 265,773         —     

-6

   $ 316,408       $ 50,635   

Discount rate

The discount rate incorporates current information about market interest rates, the credit exposure to the insurance company that issued the life insurance policy and our estimate of the risk premium an investor in the policy would require.

The Company believes that investors in esoteric assets such as life insurance policies typically target yields averaging between 12% — 17% for investments of more than a 5 year duration, and had historically used a 15% — 17% range of discount rates to value its life insurance policies. In the third quarter of 2011 and in the immediate aftermath of becoming aware of the USAO investigation, the Company substantially increased the discount rates utilized in its fair value model as it believed that the USAO Investigation along with certain unfavorable court decisions unrelated to the Company contributed to a contraction in the marketplace that has continued to reverberate. Since that time, the Company has been re-evaluating its discount rates at the end of every reporting period in order to reflect the estimated discount rates that could reasonably be used in a market transaction involving the Company’s portfolio of life insurance policies. In doing so, the Company relies on management insight, engages third party consultants to corroborate its assessment, engages in discussions with other market participants and potential financing sources and extrapolates the discount rate underlying actual sales of policies.

Although the Company believes that its entry into the Non-Prosecution Agreement had a positive effect on the market generally and for premium financed life insurance policies specifically, the Company believes that, when given the choice to invest in a policy that was associated with the Company’s premium finance business and a similar policy without such an association, all else being equal, an investor would have generally opted to invest in the policy that was not associated with the Company’s premium finance business. However, since entering into the Non-Prosecution Agreement, investors have required less of a risk premium to transact in these policies and the Company expects that, in time, investors will continue to require less of a risk premium to transact in policies associated with its premium finance business.

Credit exposure of insurance company

The company considers the financial standing of the issuer of each life insurance policy. Typically, we seek to hold policies issued by insurance companies with investment-grade ratings of at least single-A. At June 30 2013, the Company had six life insurance policies issued by one carrier that was rated non-investment grade by S&P s of that date. In order to compensate a market participant for the perceived credit and challenge risks associated with these policies, the Company applied an additional 300 basis point risk premium.

 

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Table of Contents

Estimated risk premium

As of June 30, 2013, the Company owned 627 policies with an aggregate investment in life settlements of $265.8 million. Of these 627 policies, 584 were previously premium financed and valued using discount rates that range from 16.59% to 29.59%. The remaining 43 policies were valued using discount rates that range from 14.59% to 21.59%. The weighted average discount rate calculated based on death benefit used in valuing the policies in our life settlement portfolio was 20.61% at June 30, 2013 and 24.01% at December 31, 2012.

Market interest rate sensitivity analysis

The discount rate incorporates current information about market interest rates, the credit exposure to the insurance company that issued the life insurance policy and our estimate of the risk premium an investor in the policy would require. The extent to which the fair value could vary in the near term has been quantified by evaluating the effect of changes in the weighted average discount rate on the death benefit used to estimate the fair value. If the weighted average discount rate were increased or decreased by 1/2 of 1% and the other assumptions used to estimate fair value remained the same, the change in fair market value as of June 30, 2013 would be as follows (dollars in thousands):

 

Weighted Average Rate Calculated Based on Death Benefit

   Rate Adjustment     Value      Change in Value  

20.11%

     -0.50   $ 273,967       $ 8,194   

20.61%

     —        $ 265,773       $ —     

21.11%

     0.50   $ 257,950       $ (7,823

Future changes in the discount rates we use to value life insurance policies could have a material effect on our yield on life settlement transactions, which could have a material adverse effect on our business, financial condition and results of our operations.

At the end of each reporting period we re-value the life insurance policies using our valuation model in order to update our loan impairment valuation for loans receivable and our estimate of fair value of investments in policies held on our balance sheet. This includes reviewing our assumptions for discount rates and life expectancies, as well as incorporating current information for premium payments and the passage of time.

Structured settlement receivables — All structured settlements that were acquired subsequent to July 1, 2010 were marked to fair value. Structured settlements that were acquired prior to July 1, 2010 were recorded at cost. We make this election because it is our intention to sell these assets within the next twelve months. Structured settlements are purchased at effective yields, which are fixed. Purchase discounts are accreted into interest income using the effective-interest method for those structured settlements marked to fair value. As of June 30, 2013, the Company had 39 structured settlements with an estimated fair value of $1.4 million and an average sales discount rate of 8.96%.

Note payable — Effective April 29, 2013, White Eagle, a subsidiary of the Company, entered into a 15-year Revolving Credit Facility with LNV Corporation, as initial lender, Imperial Finance & Trading, LLC, as servicer and portfolio manager and CLMG Corp., as administrative agent. In connection with the Revolving Credit Facility, White Eagle pledged 459 policies to serve as collateral for its obligations under the facility. Absent an event of default under the Revolving Credit Facility, ongoing borrowings will be used to pay the premiums on these policies and certain approved third party expenses. Proceeds from the policies pledged as collateral will be distributed pursuant to a waterfall. After premium payments and fees to service providers, 100% of the remaining proceeds will be directed to pay outstanding principal and interest on the loan. Generally, after payment of principal and interest, collections from policy proceeds are to be paid to White Eagle up to $76.1 million, then 50% of the remaining proceeds are to be directed to the lenders with the remainder paid to White Eagle. We have elected to account for this note payable, which includes the lender’s interest in policy proceeds, using the fair value method. The fair value of the debt is the amount the Company would have to pay to transfer the debt to a market participant in an orderly transaction. We calculated the fair value of the debt using a discounted cash flow model taking into account the stated interest rate of the Revolving Credit Facility and probabilistic cash flows from the pledged policies. Accordingly, our estimates are not necessarily indicative of the amounts that we, or holders of the instruments, could realize in a current market exchange. The most significant assumptions are the estimates of life expectancy of the insured and the discount rate. The use of different assumptions and/or estimation methodologies could have a material effect on the estimated fair values.

Life expectancy sensitivity analysis of note payable

A considerable portion of the fair value of the Company’s note payable derives from the timing of receipt of future policy proceeds. Should life expectancies lengthen such that policy proceeds are collected further into the future, the fair value of this debt will decline. Conversely, should life expectancies shorten, the fair value of this debt will increase. Considerable judgment is required in interpreting market data to develop the estimates of fair value.

 

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As is the case with most market participants, the Company used a blend of life expectancies that are provided by two third-party LE providers. These are estimates of an insured’s remaining years. If all of the insured lives in the Company’s life settlement portfolio live six months shorter or longer than the life expectancies provided by these third parties, the change in fair market value would be as follows (dollars in thousands):

 

     Fair Value of         

Life Expectancy Months Adjustment

   Note Payable      Change in Value  

+6

   $ 86,552       $ (15,223

-

   $ 101,775         —     

-6

   $ 119,953       $ 18,178   

Discount rate of note payable

The discount rate incorporates current information about market interest rates, credit exposure to insurance companies and our estimate of the return a lender lending against the policies would require.

Market interest rate sensitivity analysis of note payable

 

           Fair Value of         

Discount Rate

   Rate Adjustment     Note Payable      Change in Value  

23.00%

     -0.50   $ 104,328       $ 2,553   

23.50%

     —        $ 101,775       $ —     

24.00%

     0.50   $ 99,316       $ (2,459

Future changes in the discount rates could have a material effect on the fair value our note payable, which could have a material adverse effect on our business, financial condition and results of our operations.

At June 30, 2013 the fair value of the debt is $101.8 million. The outstanding principal is approximately $107.1 million as of June 30, 2013.

Changes in Fair Value

The following tables provide a roll-forward in the changes in fair value for the six months ended June 30, 2013, for all assets for which the Company determines fair value using a material level of unobservable (Level 3) inputs (in thousands):

 

Life Settlements:

  

Balance, December 31, 2012

   $ 113,441   

Purchase of policies

   $ 55,500   

Acquired in foreclosure

     2,924   

Unrealized change in fair value

     61,808   

Matured/lapsed/sold policies

     (3,456

Premiums paid

     35,556   

Transfers into level 3

     —     

Transfer out of level 3

     —     
  

 

 

 

Balance, June 30, 2013

   $ 265,773   
  

 

 

 

Changes in fair value included in earnings for the period relating to assets held at June 30, 2013

   $ 61,438   
  

 

 

 

The Company recorded unrealized change in fair value gains of approximately $64.8 million and $4.9 million during the three months ended June 30, 2013 and 2012, respectively, and a change in fair value of life settlements of approximately $66.7 million and $9.1 million for the six months ended June 30, 2013 and 2012, respectively.

 

Structured Settlements:

  

Balance, December 31, 2012

   $ 1,680   

Purchase of contracts

     10,611   

Unrealized change in fair value

     781   

Sale of contracts

     (11,636

Collections

     (43

Transfers into level 3

     —     

Transfer out of level 3

     —     
  

 

 

 

Balance, June 30, 2013

   $ 1,393   
  

 

 

 

Changes in fair value included in earnings for the period relating to assets held at June 30, 2013

   $ 254   
  

 

 

 

 

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The following tables provide a roll-forward in the changes in fair value for the six months ended June 30, 2013, for all liabilities for which the Company determines fair value using a material level of unobservable (Level 3) inputs (in thousands):

 

Note payable:

  

Balance, December 31, 2012

   $ —     

Initial Advance under the revolving credit facility

     83,020   

Subsequent Draws under the revolving credit facility

     24,116   

Unrealized change in fair value

     (5,361

Transfers into level 3

     —     

Transfer out of level 3

     —     

Balance, June 30, 2013

     101,775   
  

 

 

 

Changes in fair value included in earnings for the period relating to assets held at June 30, 2013

   $ (5,361
  

 

 

 

The following tables provide a roll-forward in the changes in fair value for the six months ended June 30, 2012, for all assets for which the Company determines fair value using a material level of unobservable (Level 3) inputs (in thousands).

 

Life Settlements:

  

Balance, December 31, 2011

   $ 90,917   

Purchase of policies

     130   

Acquired in foreclosure

     2,650   

Unrealized change in fair value

     9,129   

Sale of policies

     (5,334

Premiums paid

     13,118   

Transfers into level 3

     —     

Transfer out of level 3

     —     
  

 

 

 

Balance, June 30, 2012

   $ 110,610   
  

 

 

 

Changes in fair value included in earnings for the period relating to assets held at June 30, 2012

   $ 8,945   
  

 

 

 

Structured Settlements:

  

Balance, December 31, 2011

   $ 12,376   

Purchase of contracts

     11,674   

Unrealized change in fair value

     1,178   

Sale of contracts

     (22,467

Collections

     (168

Transfers into level 3

     —     

Transfer out of level 3

     —     
  

 

 

 

Balance, June 30, 2012

   $ 2,593   
  

 

 

 

Changes in fair value included in earnings for the period relating to assets held at June 30, 2012

   $ 589   
  

 

 

 

There were no transfers of financial assets between levels of the fair value hierarchy during the six months ended June 30, 2013 and 2012.

Assets and liabilities measured at fair value on a non-recurring basis

Following is a description of the methodologies used to estimate the fair values of assets and liabilities measured at fair value on a non-recurring basis, and the level within the fair value hierarchy in which those measurements are typically classified.

The Company’s impaired loans are measured at fair value on a non-recurring basis, as the carrying value is based on the fair value of the underlying collateral. The method used to estimate the fair value of impaired collateral-dependent loans depends on the nature of the collateral. For collateral that has lender protection insurance coverage, the fair value measurement is considered to be Level 2 as the insured value is an observable input and there are no material unobservable inputs. For collateral that does not have lender protection insurance coverage, the fair value measurement is considered to be Level 3 as the estimated fair value is based on a model whose significant inputs are the life expectancy of the insured and the discount rate, which are not observable inputs. As of June 30, 2013 and December 31, 2012, the Company had insured impaired loans with a net carrying value, which includes principal, accrued interest, and accreted origination fees, net of impairment, of

 

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approximately zero and $112,000, respectively. As of June 30, 2013 and December 31, 2012, the Company had uninsured impaired loans (Level 3) with a net carrying value of approximately $206,000 and $3.6 million, respectively. The provision for losses on loans receivable related to impaired loans was zero for both of the six months ended June 30, 2013 and 2012. See Notes 9 and 15.

(16) Segment Information

The Company operates in two segments: life finance and structured settlements. Prior to the fourth quarter of 2011, the life finance segment provided financing in the form of loans to trusts and individuals for the payment of premiums of life insurance policies. Beginning in 2011, in this segment, the Company also acquired life insurance policies through purchases in the secondary and tertiary markets. The structured settlements segment purchases structured settlements from individuals.

Recipients of structured settlements are permitted to sell their deferred payment streams to a structured settlement purchaser pursuant to state statutes that require certain disclosures, notice to the obligors and state court approval. Through such sales, the Company purchases a certain number of fixed, scheduled future settlement payments on a discounted basis in exchange for a single lump sum payment.

The performance of the segments is evaluated by members of the Company’s senior management team. Cash and income taxes generally are managed centrally. Performance of the segments is based on revenue and cost control.

 

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Segment results and reconciliation to consolidated net income were as follows (in thousands):

 

     For the Three Months Ended     For the Six Months Ended  
     June 30,     June 30,  
     2013     2012     2013     2012  
     (Unaudited)     (Unaudited)  

Life finance

        

Income

        

Interest income

   $ 9      $ 588      $ 29      $ 1,433   

Origination income

     —          188        —          438   

Change in fair value of life settlements

     64,846        4,874        66,686        9,129   

(Loss) gain on sale of life settlements, net

     (1,247     55        (1,247     291   

Servicing fee income

     76        327        310        684   

Gain on maturities of life settlements with subrogation rights, net

     —          6,090        —          6,090   

Other

     1,952        133        1,997        159   
  

 

 

   

 

 

   

 

 

   

 

 

 
     65,636        12,255        67,775        18,224   
  

 

 

   

 

 

   

 

 

   

 

 

 

Direct segment expenses

        

Interest expense

     10,755        304        10,855        1,075   

Change in fair value of note payable

     (5,361     —          (5,361     —     

Loss on extinguishment of debt

     3,991        —          3,991     

Provision for losses on loan receivables

     —          441        —          441   

(Gain) loss on loans payoffs and settlements, net

     (65     162        (65     153   

Amortization of deferred costs

     —          516        7        1,497   

Personnel costs

     1,232        2,255        2,679        3,564   

Legal fees

     1,458        498        1,359        1,506   

Professional fees

     790        432        968        865   

Insurance

     101        282        313        493   

Other selling, general and administrative expenses

     535        328        798        762   
  

 

 

   

 

 

   

 

 

   

 

 

 
     13,436        5,218        15,544        10,356   
  

 

 

   

 

 

   

 

 

   

 

 

 

Segment operating income

   $ 52,200      $ 7,037      $ 52,231      $ 7,868   
  

 

 

   

 

 

   

 

 

   

 

 

 

Structured settlements

        

Income

        

Realized gain on sale of structured settlements

   $ 3,128      $ 3,134      $ 6,669      $ 5,609   

Interest income

     64        110        131        171   

Unrealized change in fair value of structured settlements

     236        569        781        1,178   

Other income

     48        155        87        253   
  

 

 

   

 

 

   

 

 

   

 

 

 
     3,476        3,968        7,668        7,211   
  

 

 

   

 

 

   

 

 

   

 

 

 

Direct segment expenses

        

Personnel costs

     1,893        2,436        3,660        4,590   

Marketing costs

     617        1,286        1,428        3,447   

Legal fees

     539        554        967        1,144   

Professional fees

     360        499        679        912   

Insurance

     94        274        306        486   

Other selling, general and administrative expenses

     453        475        865        1,034   
  

 

 

   

 

 

   

 

 

   

 

 

 
     3,956        5,524        7,905        11,613   
  

 

 

   

 

 

   

 

 

   

 

 

 

Segment operating loss

   $ (480   $ (1,556   $ (237   $ (4,402
  

 

 

   

 

 

   

 

 

   

 

 

 

Consolidated

        

Segment operating income

     51,720        5,481        51,994        3,466   

Unallocated income

        

Interest and dividends on investment securities available for sale

     2        132        16        260   

Other income

     —          7        8        631   
  

 

 

   

 

 

   

 

 

   

 

 

 
     2        139        24        891   
  

 

 

   

 

 

   

 

 

   

 

 

 

Unallocated expenses

        

Interest expense

     4        —          7        3   

Personnel costs

     529        342        646        568   

Legal fees

     2,668        4,647        6,415        10,940   

Professional fees

     469        864        1,073        1,936   

Insurance

     283        61        378        107   

Other selling, general and administrative expenses

     48        331        70        340   
  

 

 

   

 

 

   

 

 

   

 

 

 
     4,001        6,245        8,589        13,894   
  

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

     47,721        (625     43,429        (9,537

(Provision) benefit for income taxes

     —          —          (40     41   
  

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss)

   $ 47,721      $ (625   $ 43,389      $ (9,496
  

 

 

   

 

 

   

 

 

   

 

 

 

 

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Segment assets and reconciliation to consolidated total assets were as follows (in thousands):

 

     June 30,      December 31,  
     2013      2012  

Direct segment assets

     

Life finance

   $ 270,685       $ 123,581   

Structured settlements

     8,161         6,862   
  

 

 

    

 

 

 
     278,846         130,443   

Other unallocated assets

     32,463         29,899   
  

 

 

    

 

 

 
   $ 311,309       $ 160,342   
  

 

 

    

 

 

 

Amounts are attributed to the segment that holds the assets. There are no intercompany sales and all intercompany account balances are eliminated in segment reporting.

(17) Commitments and Contingencies

In accordance with applicable accounting guidance, the Company establishes an accrued liability for litigation and regulatory matters when those matters present loss contingencies that are both probable and estimable. In such cases, there may be an exposure to loss in excess of any amounts accrued. When a loss contingency is not both probable and estimable, the Company does not establish an accrued liability. As a litigation or regulatory matter develops, the Company, in conjunction with any outside counsel handling the matter, evaluates on an ongoing basis whether such matter presents a loss contingency that is probable and estimable. If, at the time of evaluation, the loss contingency related to a litigation or regulatory matter is not both probable and estimable, the matter will continue to be monitored for further developments that would make such loss contingency both probable and estimable. Once the loss contingency related to a litigation or regulatory matter is deemed to be both probable and estimable, the Company will establish an accrued liability with respect to such loss contingency and record a corresponding amount of litigation-related expense. The Company continues to monitor the matter for further developments that could affect the amount of the accrued liability that has been previously established. Excluding expenses of external legal service providers, USAO litigation-related fees of $3.0 million and $10.1 million were recognized for the six months ended June 30, 2013 and 2012, respectively.

Employment Agreements

In connection with our initial public offering, we entered into employment agreements with certain of our executive officers. The agreement for our chief executive officer provides for substantial payments in the event that the executive terminates his employment with us due to a material change in the geographic location where such officer performs his duties or upon a material diminution of his base salary or responsibilities, with or without cause. For our chief executive officer, payments are equal to three times the sum of base salary and the average of the three years’ annual cash bonus, unless the triggering event occurs during the first three years of his employment agreement, in which case the payments are equal to six times base salary. For our chief executive officer, the agreement provides for bonus incentives based on pre-tax income thresholds.

On April 26, 2012, the Company entered into a Separation Agreement and General Release of Claims (the “Separation Agreement”) with its former chief operating officer, Jonathan Neuman. As part of the Separation Agreement, Mr. Neuman resigned as a member of the Company’s board of directors and as an employee of Company. Pursuant to the Separation Agreement, the Company paid Mr. Neuman a separation payment of $1.4 million. The Separation Agreement does not include a covenant by Mr. Neuman to refrain from competing with Imperial, but does contain customary non-disparagement and non-solicitation provisions. The Separation Agreement provides releases by each party and also obligates the Company to continue to indemnify Mr. Neuman for his legal expenses substantially in the same manner contemplated by his employment agreement with the Company.

On February 15, 2012, the Company entered into a retention arrangement with its Chief Financial Officer and Chief Credit Officer, Richard O’Connell, Jr. The arrangement provides that, in the event Mr. O’Connell’s employment is terminated without cause or Mr. O’Connell terminates his employment with the Company for good reason, in each case, prior to December 31, 2013, Mr. O’Connell will be entitled to 24 months’ base salary in addition to any accrued benefits. Additionally, unless Mr. O’Connell’s employment is terminated for cause, Mr. O’Connell will be entitled to a minimum bonus of $250,000 for each of 2012 and 2013, subject to the Company’s Board of Directors’ right to terminate the bonus payment in respect of 2013 prior to January 1, 2013. Except for the provisions relating to severance and other termination benefits, the terms of Mr. O’Connell’s Employment and Severance Agreement entered into with the Company as of November 4, 2010 remain in effect during the term of the retention arrangement and the provisions of the employment agreement relating to severance and other termination benefits will again be in effect following any termination of the retention arrangement if Mr. O’Connell is then employed by the Company.

During the first quarter of 2012, the Company also entered into severance and retention award agreements with certain of its executive officers (other than the CEO and CFO). The agreements generally provide for a minimum guaranteed bonus in each of 2012 and 2013 as well as severance payments equal to two years base salary in the event of termination by the Company without Cause (as defined in the respective agreement) provided the executive executes a general release of claims against the Company.

 

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We do not have any general policies regarding the use of employment agreements, but may, from time to time, enter into such a written agreement to reflect the terms and conditions of employment of a particular named executive officer, whether at the time of hire or thereafter.

Repurchase Obligations

The subsidiaries of the Company that conveyed policies to White Eagle have undertaken in their contribution agreements to repurchase policies in relation to material breaches of their representations, warranties and covenants concerning such policies. Any such repurchase will be at a price that the lenders under the Revolving Credit Facility determine is the greater of the fair market value thereof or the aggregate amount of maintenance costs and other borrowed amounts allocated to such policy by the lenders with interest on such borrowed amounts at 12% per annum.

Class Action Litigation, Derivative Demands and the Insurance Coverage Declaratory Relief Complaint

The Class Action Litigation

Initially on September 29, 2011, the Company, and certain of its officers and directors were named as defendants in a putative securities class action filed in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida, entitled Martin J. Fuller v. Imperial Holdings, Inc. et al . Also named as defendants were the underwriters of the Company’s initial public offering. That complaint asserted claims under Sections 11, 12 and 15 of the Securities Act of 1933, as amended, alleging that the Company should have, but failed to disclose in the registration statement for its initial public offering purported wrongful conduct relating to its life finance business that gave rise to the USAO Investigation. On October 21, 2011, an amended complaint was filed that asserts claims under Sections 11, 12 and 15 of the Securities Act of 1933, based on similar allegations. On October 25, 2011, defendants removed the case to the United States District Court for the Southern District of Florida.

On October 31, 2011, another putative class action case was filed in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida, entitled City of Roseville Employees Retirement System v. Imperial Holdings, et al , naming the same defendants and also bringing claims under Sections 11, 12 and 15 of the Securities Act based on similar allegations. On November 28, 2011, defendants removed the case to the United States District Court for the Southern District of Florida. The plaintiffs in the Fuller and City of Roseville cases moved to remand their cases back to state court. Those motions were fully briefed and argued.

On November 18, 2011, a putative class action case was filed in the United States District Court for the Southern District of Florida, entitled Sauer v. Imperial Holdings, Inc., et al, naming the same defendants and bringing claims under Sections 11 and 15 of the Securities Act of 1933 based on similar allegations.

On December 14, 2011, another putative class action case filed in United States District Court for the Southern District of Florida, entitled Pondick v. Imperial Holdings, Inc., et al., naming the same defendants and bringing claims under Sections 11, 12, and 15 of the Securities Act of 1933 based on similar allegations.

On February 24, 2012, the four putative class actions were consolidated and designated: Fuller v. Imperial Holdings et al . in the United States District Court for the Southern District of Florida, and lead plaintiffs were appointed.

In addition, the underwriters of the Company’s initial public offering have asserted that the Company is required by its Underwriting Agreement to indemnify the underwriters’ expenses and potential liabilities in connection with the litigation.

The Insurance Coverage Declaratory Relief Complaint

On June 13, 2012, Catlin Insurance Company (UK) Ltd. (“Catlin”) filed a declaratory relief action against the Company in the United States District Court for the Southern District of Florida. The complaint seeks a determination that there is no coverage under Catlin’s primary Directors, Officers and Company Liability Policy (the “Policy”) issued to the Company for the period February 3, 2012 to February 3, 2012, based on a prior and pending litigation exclusion (the “Exclusion”). Catlin also seeks a determination that it is entitled to reimbursement of the approximately $800,000 in defense costs and fees advanced to the Company in the first quarter of 2012 under the Policy if it is determined that the Exclusion precludes coverage. As of the filing of this Quarterly Report on Form 10-Q, the Company has not yet been served with the complaint.

Derivative Demands

On November 16, 2011, the Company’s Board of Directors received a shareholder derivative demand from Harry Rothenberg (the “Rothenberg Demand”), which was referred to the special committee for a thorough investigation of the issues, occurrences and facts relating to, connected to, and arising from the USAO Investigation referenced in the Rothenberg Demand. On May 8, 2012, the Company’s Board of Directors received a derivative demand made by another shareholder, Robert Andrzejczyk (the “Andrzejczyk Demand”). The Andrzejczyk Demand, like the Rothenberg Demand was referred to the special committee, which determined that it did not contain any allegations that differed materially from those alleged in the Rothenberg Demand. On July 20, 2012, the Company (as nominal defendant) and certain of the Company’s officers, directors, and a former director were named as defendants in a shareholder derivative action filed in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida, entitled Robert Andrzejczyk v. Imperial Holdings, Inc. et al . The complaint alleges, among other things, that the Special Committee’s refusal of the Andrzejczyk Demand was improper.

 

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The Settlement

On December 18, 2012, attorneys for the Company signed a Term Sheet for Global Settlement Regarding Imperial Holdings, Inc. Matters (the “Term Sheet”) setting forth the terms upon which each of the parties to the matters described in “ Class Action Litigation, Derivative Demands and the Insurance Coverage Declaratory Relief Complaint ” would be willing to settle the class action litigation and derivative actions as well as the declaratory relief action filed by Catlin, respectively. In addition to the Company’s attorneys, the Term Sheet was signed by attorneys representing the plaintiffs in the class action lawsuits and derivative actions instituted against the Company, as well attorneys for the Company’s director and officer liability insurance carriers (“D&O Carriers”), certain individual defendants named in the class actions and the underwriters in the Company’s initial public offering.

The terms of the class action settlement include a cash payment of $12.0 million, of which $11.0 million is to be contributed by the Company’s primary and excess D&O Carriers and the issuance of two million warrants for shares of the Company’s stock with an estimated fair value of $3.1 million at the date of the signing of the Term Sheet. The value of the warrants were reassessed during the six months ended June 30, 2013 and resulted in an increase in fair value of $3.3 million. The estimated fair value at June 30, 2013 was $6.4 million. The warrants will have a five-year term with an exercise price of $10.75 and will be issued when the settlement proceeds are distributed to the claimants. In addition, the underwriters in the Company’s initial public offering are to waive their rights to indemnity and contribution by the Company. The Company recorded a reserve at June 30, 2013 related to the proposed settlement of $17.4 million, which is included in other liabilities and a receivable for insurance recoverable from the Company’s D&O Carrier of $11.0 million, which is included in prepaid and other assets. $4.1 million net effect of the proposed settlement is included in legal fees in the statement of operations for the year ended December 31, 2012 and an additional $3.3 million is included in the six month period ended June 30, 2013.

The derivative action settlement requires implementation of certain compliance reforms and contemplates payment by the Company’s primary D&O carrier of $1.5 million for legal fees in respect of the derivative actions and the contribution of $500,000 in the Company’s stock.

In addition, the settlements contemplate that the Company will contribute $500,000 to a trust to cover certain claims under its director and officer liability insurance policies.

The Company established a reserve to the proposed derivative settlement and insurance trust of $2.5 million, which is included in other liabilities and a receivable for insurance recoverable from the Company’s D&O Carrier of $1.5 million, which is included in prepaid and other assets. The net effect of the settlement of $1.0 million is included in legal fees in the settlement of operations for the year ended December 31, 2012.

The settlements also require the Company to advance legal fees to and indemnify certain individuals covered under the policies. The obligation to advance and indemnify on behalf of these individuals, while currently unquantifiable, may be substantial and could have a material adverse effect on the Company’s financial position and results of operations. See Note 20 — Subsequent Events .

SEC Investigation

On February 17, 2012, the Company received a subpoena issued by the staff of the SEC seeking documents from 2007 through the date of the subpoena, generally related to the Company’s premium finance business and corresponding financial reporting. The SEC is investigating whether any violations of federal securities laws have occurred and the Company has been cooperating with the SEC regarding this matter. The Company is unable to predict what action, if any, might be taken in the future by the SEC or its staff as a result of the matters that are the subject of the subpoena or what impact, if any, the cost of responding to the subpoena might have on the Company’s financial position, results of operations, or cash flows. The Company has not established any provision for losses in respect of this matter.

Sun Life

On April 18, 2013, Sun Life Assurance Company of Canada (“Sun Life”) filed a complaint against the Company and several of its affiliates in the United States District Court for the Southern District of Florida, entitled Sun Life Assurance Company of Canada v. Imperial Holdings, Inc., et al . The complaint seeks to contest the validity of at least twenty-nine (29) policies issued by Sun Life. The complaint also asserts the following claims: (1) violations of the federal Racketeer Influenced and Corrupt Organizations Act, (2) common law fraud, (3) civil conspiracy, (4) tortious interference with contractual obligations, and (5) an equitable accounting. In response to a motion to dismiss filed by the Company, Sun Life filed an amended complaint on June 13, 2013. The Company believes that the amended complaint is without merit and filed another motion to dismiss on July 8, 2013. The Company intends to defend itself vigorously. No reserve has been established for this litigation. See Note 20 — Subsequent Events .

Sanctions Order

On April 27, 2012, after the conclusion of a jury trial in the matter styled Steven A. Sciaretta, as Trustee of the Barton Cotton Irrevocable Trust a/k/a the Amended and Restated Barton Cotton Irrevocable Trust v. The Lincoln National Life Insurance Company (“Lincoln”) , the defendant, Lincoln, filed a motion seeking sanctions against the Company’s subsidiary, Imperial Premium Finance (“IPF”), a non-party to the litigation, relating to its corporate representative deposition and trial testimony. On May 6, 2013, the Court issued an order sanctioning IPF and ordering it to pay $850,000.00. On June 4, 2013, IPF filed a Notice of Appeal of the order to the Eleventh Circuit Court of Appeals. The Company recorded a reserve of $850,000 that is included in legal fees for the six months ended June 30, 2013.

 

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Litigation

We are party to various other legal proceedings that arise in the ordinary course of business. We believe that the resolution of these other proceedings will not, based on information currently available to us, have a material adverse effect on our financial position or results of operations.

(18) Stockholders’ Equity

On February 3, 2011, the Company converted from a Florida limited liability company to a Florida corporation (the “Conversion”) at which time the members of Imperial Holdings, LLC became shareholders of Imperial Holdings, Inc. As a limited liability company, the Company was treated as a partnership for United States federal and state income tax purposes and, as such, the Company was not subject to taxation. For all periods subsequent to such conversion, the Company will be subject to corporate-level United States federal and state income taxes.

On February 11, 2011, the Company closed its initial public offering of 16,666,667 shares of common stock at $10.75 per share. On February 15, 2011 Imperial Holdings, Inc. sold an additional 935,947 shares of common stock. The sale was in connection with the over-allotment option Imperial Holdings, Inc. granted to its underwriters in connection with Imperial’s initial public offering. As a result, the total initial public offering size was 17,602,614 shares. All shares were sold to the public at a price of $10.75. The Company received net proceeds of approximately $174.2 million after deducting the underwriting discounts and commissions and our offering expenses.

(19) Income Taxes

Our provision for income taxes is estimated to result in an annual effective tax rate of 0.0% in 2013, except as noted below. The 0.0% effective tax rate is a result of our recording of a valuation allowance for those deferred tax assets that are not expected to be recovered in the future. Due to significant cumulative losses since the Conversion, the uncertainties that resulted from the USAO Investigation, SEC investigation, Non-Prosecution Agreement and the class action lawsuits and expectation of taxable losses in the foreseeable future, we may not have sufficient taxable income of the appropriate character in the future to realize any portion of the net deferred tax asset.

Generally, the amount of tax expense or benefit allocated to continuing operations is determined without regard to the tax effects of other categories of income or loss, such as other comprehensive income. However, an exception to the general rule is provided when, in the presence of a valuation allowance against deferred tax assets, there is a pretax loss from continuing operations and pretax income from other categories. In such instances, income from other categories must offset the current loss from operations, the tax benefit of such offset being reflected in continuing operations. For the six months ended June 30, 2012 we reduced the deferred tax valuation allowance from continuing operations by $41,000 to reflect the future taxable income associated with unrealized gains in accumulated other comprehensive income. As the Company sold all of its remaining investment securities in the first quarter of 2013, this allocation between continuing operations and other comprehensive income was reversed.

On February 3, 2011, we converted from a Florida limited liability company to a Florida corporation (the “Conversion”). Prior to the Conversion we were treated as a partnership for federal and state income tax purposes. As a partnership our taxable income and losses were attributed to our members, and accordingly, no provision or liability for income taxes was reflected in the accompanying consolidated financial statements for periods prior to the Conversion.

In February of 2013 the Company was notified by the Internal Revenue Service of its intention to examine the Company’s partnership return for the year ended December 31, 2010. In April of 2013, the Internal Revenue Service notified the Company that it had decided not to proceed with the examination.

The Company and its subsidiaries are subject to U.S. federal income tax as well as to income tax in Florida and other states in which it operates.

At June 30, 2013, income taxes payable includes an estimated liability for unrecognized tax benefits of $6.3 million that relate to the Conversion and was charged to paid-in-capital in the first quarter of 2011.

(20) Subsequent Events

Revolving Credit Facility

The Revolving Credit Facility was amended on August 9, 2013 to provide until August 31, 2013 for the delivery of certain post-closing items by White Eagle and the servicer.

Sun Life

On July 29, 2013, the Company filed a complaint against Sun Life in United States District Court for the Southern District of Florida, entitled Imperial Premium Finance, LLC v. Sun Life Assurance Company of Canada . The complaint asserts claims against Sun Life for breach of contract, breach of the covenant of good faith and fair dealing, and fraud, and seeks a judgment declaring that Sun Life is obligated to comply with the promises made by it in certain insurance policies. The complaint also seeks compensatory damages of no less than $30 million in addition to an award of punitive damages.

 

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Class Action Litigation, Derivative Demands and the Insurance Coverage Declaratory Relief Complaint

On July 29, 2013, the parties to the Term Sheet executed definitive settlement agreements in respect of the class action litigation, derivative action and insurance coverage declaratory relief complaint. The class action litigation and derivative action settlements are subject to court approval and all of the settlements are contingent on effectiveness of the other settlements. On August 6, 2013, the federal court entered an order preliminarily approving the class action settlements and setting a settlement hearing for December 16, 2013. On August 13, 2013, the state court entered an order preliminarily approving the derivative action settlement and setting a final fairness hearing for December 17, 2013. Final court approval of the Securities Class Action and Derivative Action settlements could be delayed by appeals or other proceedings.

Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

The following discussion summarizes the significant factors affecting the consolidated operating results, financial condition, liquidity, and cash flows of our Company as of and for the periods presented below and should be read in conjunction with the financial statements and accompanying notes included with this Quarterly Report on Form 10-Q. This discussion contains forward-looking statements that are based on the beliefs of our management, as well as assumptions made by, and information currently available to, our management. Actual results could differ materially from those discussed in or implied by forward-looking statements as a result of various factors. See “Forward-Looking Statements.”

Overview

We were founded in December 2006 as a Florida limited liability company and in connection with our initial public offering, in February 2011, Imperial Holdings, Inc. succeeded to the business of Imperial Holdings, LLC and its assets and liabilities.

Imperial Holdings, Inc. (the “Company” or “Imperial”) operates in two reportable business segments: life finance (formerly referred to as premium finance) and structured settlements. In the life finance business, the Company earns revenue/income from changes in the fair value of life insurance policies that the Company acquires and receipt of death benefits with respect to matured life insurance policies it owns as well as from interest accruing on outstanding loans and loan origination fees recognized over the life of outstanding loans. In the structured settlement business, the Company purchases structured settlement receivables at a discounted rate and sells these receivables to third parties. Our Annual Report on Form 10-K for the fiscal year ended December 31, 2012 provides additional information about our business, operations and financial condition.

New Revolving Credit Facility, Retirement of Bridge Facility, Portfolio Growth and Change in Accounting Estimate

In anticipation of a liquidity shortfall in the second quarter of 2013, on March 27, 2013, a subsidiary of the Company borrowed $45.0 million in aggregate principal amount under an 18-month senior secured bridge facility (the “Bridge Facility”) while the Company continued in its efforts to source longer-term capital.

On April 29, 2013, White Eagle Asset Portfolio, LLC, a subsidiary of the Company entered into a 15-year revolving credit facility providing for up to $300.0 million in borrowings (the “Revolving Credit Facility”) to pay premiums on the policies pledged as collateral under the facility, debt service and for the fees and expenses of certain service providers. The initial advance under the Revolving Credit Facility was approximately $83.0 million, with a portion of such borrowings used to retire the debt outstanding under the Bridge Facility. In addition, proceeds of the initial advance were used to pay transaction fees and expenses, a distribution to the Company and to fund a $48.5 million release payment under a termination agreement (the “Termination Agreement”) to the Company’s lender protection insurance coverage provider (the “LPIC Provider”) who released all of its salvage and subrogation rights in 323 policies that the Company has historically treated as contingent assets and described as “Life Settlements with Subrogation rights, net” as well as in 93 policies that were owned by CTL Holdings, LLC (“CTL”). On April 30, 2013, the Company acquired CTL and its 93 policies. At June 30, 2013 the Company’s portfolio consists of 627 policies, with an aggregate death benefit of $3.0 billion compared to 220 policies, with an aggregate death benefit of $1.1 billion at March 31, 2013.

459 policies owned by White Eagle, with an aggregate death benefit of $2.3 billion, and an estimated fair value of approximately $218.1 million at June 30, 2013 have been pledged as collateral under the Revolving Credit Facility and the Company can use subsequent draws to pay premiums on these policies. The Company is presently evaluating the 168 policies that have not been pledged as collateral, the majority of which had historically been maintained by the LPIC Provider, and may pledge certain of these policies in the future. It may also determine to sell or lapse certain of these policies as its portfolio strategy and liquidity needs dictate. Should it choose maintain all of the policies that have not been pledged as collateral under the Revolving Credit Facility, the Company estimates that it will need to pay approximately $6.5 million to maintain these 168 policies in force through 2013 and may seek to raise additional capital to maintain some or all of these policies.

        The procurement of the $300.0 million 15-year Revolving Credit Facility and the retirement of the $45.0 million Bridge Facility served to effectively recapitalize the Company and significantly mitigate liquidity risk. While the Revolving Credit Facility provides the lender with a significant interest in the policies pledged as collateral, the initial borrowings under the facility allowed the Company to opportunistically triple the size of its portfolio through the extinguishment of subrogation rights in policies that were historically considered contingent assets and through the acquisition of the CTL policies.

At June 30, 2013, the Company or its subsidiaries owned 402 policies that were either acquired through the acquisition of CTL or that were considered contingent assets prior to the effectiveness of the Termination Agreement, with an aggregate death benefit of $1.9 billion and an estimated fair value of approximately $139.7 million. The Company believes that it was uniquely positioned to transact with both the LPIC Provider and CTL and that the transaction prices were, accordingly, not indicative of what an exit price would be for these 402 policies in a negotiated market transfer. The addition of these policies resulted in a $65.8 million unrealized gain in investments in life settlements during the quarter ended June 30, 2013 and policy acquisitions similar in scale and in transaction price to those made during the quarter should not be anticipated in future periods.

Due to these policy additions, the application of fair value accounting to amounts owing under the Revolving Credit Facility and the elimination of servicing fee income through intercompany consolidation, the results of prior periods may not be comparable to the Company’s results at June 30, 2013 or in future periods.

 

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The Company collected death benefits of $5.0 million and $1.0 million plus interest, respectively, in the second quarter of 2013 in respect of two policies that matured in the first quarter of 2013 and collected an additional $1.0 million from the surrender of two policies that were acquired during the second quarter of 2013.

Settlement of Shareholder Litigation

On December 18, 2012, attorneys for Imperial signed a Term Sheet for Global Settlement Regarding Imperial Holdings, Inc. Matters (the “Term Sheet”). Also signing the Term Sheet were attorneys representing the plaintiffs in the previously disclosed class action lawsuits and derivative actions instituted against the Company as well attorneys for Imperial’s director and officer liability insurance carriers (“D&O Carriers”), certain individual defendants named in the class actions and the underwriters in Imperial’s initial public offering. The Term Sheet provides the terms upon which each of the parties represented by the signatories would be willing to settle the class action litigation and derivative actions as well as the declaratory relief action filed by Catlin, Imperial’s primary D&O Carrier.

On July 29, 2013, the parties to the Term Sheet executed definitive settlement agreements in respect of the class action litigation, derivative action and insurance coverage declaratory relief complaint. The class action litigation and derivative action settlements are subject to court approval and all of the settlements are contingent on effectiveness of the other settlements. On August 6, 2013, the federal court entered an order preliminarily approving the class action settlements and setting a settlement hearing for December 16, 2013. On August 13, 2013, the state court entered an order preliminarily approving the derivative action settlement and setting a final fairness hearing for December 17, 2013. Final court approval of the class action and derivative action settlements could be delayed by appeals or other proceedings

The terms of the class action settlement include a cash payment of $12.0 million, of which $11.0 million is to be contributed by Imperial’s primary and excess D&O Carriers, and the issuance of two million warrants for shares of the Company’s stock with an estimated fair value of $3.1 million at the date of the signing of the Term Sheet. The value of the warrants were reassessed during the six months ended June 30, 2013 and resulted in an increase in fair value of $3.3 million. The estimated fair value at June 30, 2013 was $6.4 million. The fair value of the warrants will be re-assessed at issuance. The warrants will have a five-year term with an exercise price of $10.75 and will be issued when the settlement proceeds are distributed to the claimants. In addition, the underwriters in Imperial’s initial public offering are to waive their rights to indemnity and contribution by Imperial. The Company recorded a reserve at June 30, 2013 related to the proposed settlement of $18.4 million, which is included in other liabilities and a receivable for insurance recoverable from the Company’s D&O Carrier of $11.0 million, which is included in prepaid and other assets. $4.1 million net effect of the settlement was included in legal fees in the statement of operations for the year ended December 31, 2012.

The derivative action settlement requires implementation of certain compliance reforms and contemplates payment by Imperial’s primary D&O carrier of $1.5 million for legal fees in respect of the derivative actions and the contribution of $500,000 in Imperial stock.

In addition, the settlements contemplate that Imperial will contribute $500,000 to a trust to cover certain claims under its director and officer liability insurance policies.

The Company established a reserve related to the proposed derivative settlement and insurance trust of $2.5 million, which is included in other liabilities and a receivable for insurance recoverable from the Company’s D&O Carrier of $1.5 million, which is included in prepaid and other assets. The net effect of the settlement of $1.0 million was included in legal fees in the statement of operations for the year ended December 31, 2012.

The settlements also require Imperial to advance legal fees to and indemnify certain individuals covered under the policies. The obligation to advance and indemnify on behalf of these individuals, while currently unquantifiable, may be substantial and could have a material adverse effect on the Company’s financial position and results of operations.

Use of Updated Life Expectancies & Recent Announcements by Life Expectancy Providers

To calculate the fair value of its life insurance policies, beginning with the quarter ended September 30, 2012 and consistent with the practice of many participants in the secondary and tertiary markets, the Company utilizes a “blend” of the life expectancy reports furnished by AVS Underwriting LLC (“AVS”) and 21st Services, LLC (“21st Services”) to establish a composite mortality factor input into its fair value model.

On January 22, 2013, 21st Services announced revisions to its underwriting methodology and on February 4, 2013, announced that it was correcting errors discovered in its previously announced revised methodology. According to the 21st Services, these revisions have generally been understood to lengthen the average reported life expectancy furnished by this life expectancy provider by 19%. At March 31, 2013, the Company had not received any life expectancy reports from 21st Services utilizing its revised methodology and, to account for the impact of the revisions and based off of market responses to the methodology change, the Company lengthened the life expectancies furnished by 21st Services by 13% prior to blending them with the life expectancy reports furnished by AVS.

As of June 30, 2013, the Company received 98 updated life expectancy reports from 21st Services that utilize its revised methodology. These life expectancies reported an average lengthening of life expectancies of 15.8% and, based on this sample, for the six months ended June 30, 2013, the Company increased the life expectancies furnished by 21st Services by 15.8% on the rest of its portfolio of life settlements prior to blending them with the life expectancy reports furnished by AVS. The Company expects to continue to lengthen life expectancies furnished

 

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by 21st Services that have not been re-underwritten using their updated methodology. Since the Revolving Credit Facility necessitates that the Company procure updated life expectancies on a periodic basis, the amount of policies that are lengthened by the Company in this manner will decrease over time and the fair value calculations in future periods will, accordingly, reflect the actual impact of the revised 21st Services methodology on a policy by policy basis as updated life expectancy reports are procured. At June 30, 2013, had the Company not applied the 15.8% increase to the 21 st Services life expectancy reports, the portfolio would have increased from the reported amount of $265.8 million by $5.3 million.

Prior to the quarter ended June 30, 2013, when blending AVS and 21st Services’ life expectancy reports to derive a composite mortality factor, the Company would cap the higher mortality factor at an amount that was 150% above the lower mortality factor. This was done so as to reduce variances between life expectancies furnished by these two life expectancy providers. For the period ending June 30, 2013, the Company terminated its use of such a cap. The Company believes that the elimination of this cap is consistent with valuation methodologies employed by other market participants in connection with 21st Services’ revised methodology.

One of the Company’s life expectancy providers, AVS, filed for federal bankruptcy protection under Chapter 11 on February 12, 2013. The Company cannot, at this time, predict what impact the bankruptcy filing will have on the Company’s ability to procure life expectancy reports from AVS in the future, AVS’s ability to continue its operations or whether other market participants will continue to use AVS life expectancy reports for valuation purposes going forward. The Company will continue to monitor the market response to these developments and may elect to adjust the application of life expectancy reports in its fair value methodology or source reports from different life expectancy providers in future periods.

Critical Accounting Policies

Critical Accounting Estimates

The preparation of the financial statements requires us to make judgments, estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. We base our judgments, estimates and assumptions on historical experience and on various other factors that are believed to be reasonable under the circumstances. Actual results could differ materially from these estimates under different assumptions and conditions. We evaluate our judgments, estimates and assumptions on a regular basis and make changes accordingly. We believe that the judgments, estimates and assumptions involved in the accounting for the loan impairment valuation, allowance for doubtful accounts, income taxes, valuation of structured settlements and the valuation of investments in life settlements have the greatest potential impact on our financial statements and accordingly believe these to be our critical accounting estimates. Below we discuss the critical accounting policies associated with the estimates as well as selected other critical accounting policies.

Life Finance Loans Receivable

We report loans receivable acquired or originated by us at cost, adjusted for any deferred fees or costs in accordance with ASC 310-20, Receivables — Nonrefundable Fees and Other Costs , discounts, and loan impairment valuation. All loans are collateralized by life insurance policies. Interest income is accrued on the unpaid principal balance on a monthly basis based on the applicable rate of interest on the loans.

In accordance with ASC 310, Receivables , we specifically evaluate all loans for impairment based on the fair value of the underlying policies as collectability is primarily collateral dependent. The loans are considered to be collateral dependent as the repayment of the loans is expected to be provided by the underlying insurance policies. In the event of default, the borrower typically relinquishes ownership of the policy to us in exchange for our release of the debt (or we enforce our security interests in the beneficial interests in the trust that owns the policy). For loans that had lender protection insurance, we made a claim against the lender protection insurance policy and, subject to terms and conditions of the lender protection insurance policy, our lender protection insurer had the right to direct control or take beneficial ownership of the policy upon payment of our claim. For loans without lender protection insurance, we have the option of selling the policy or maintaining it on our balance sheet for investment.

We evaluate the loan impairment valuation on a monthly basis based on our periodic review of the estimated value of the underlying collateral. This evaluation is inherently subjective as it requires estimates that are susceptible to significant revision as more information becomes available. The loan impairment valuation is established as losses on loans are estimated and the provision is charged to earnings. Once established, the loan impairment valuation cannot be reversed to earnings.

In order to originate premium finance transactions our lenders required that we procure lender protection insurance. This lender protection insurance mitigates our exposure to losses, which may be caused by declines in the fair value of the underlying policies. At the end of each reporting period, for loans that had lender protection insurance, a loan impairment valuation was established if the carrying value of the loan receivable exceeded the amount of coverage. The lender protection insurance program was terminated as of December 31, 2010, and all loans originated after December 31, 2010, do not carry lender protection insurance coverage. Thus, for all loans originated in 2011 and beyond, a loan impairment valuation is established if the carrying value of a loan receivable exceeds the fair value of the underlying collateral. The Company ceased originating loans in the fourth quarter of 2011. The Termination Agreement entered into on April 30, 2013 between the Company and its lender protection insurer eliminated lender protection insurance coverage for all loans that previously had such coverage.

 

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Fair Value Option

As of July 1, 2010, we elected to adopt the fair value option, in accordance with ASC 825, Financial Instruments , to record newly-acquired structured settlements at fair value. We have the option to measure eligible financial assets, financial liabilities, and commitments at fair value on an instrument-by-instrument basis. This option is available when we first recognize a financial asset or financial liability or enter into a firm commitment. Subsequent changes in the fair value of assets, liabilities, and commitments where we have elected the fair value option are recorded in our consolidated statement of operations. We have made this election for our structured settlement assets because it is our intention to sell these assets within the next twelve months, and we believe it significantly reduces the disparity that exists between the GAAP carrying value of these structured settlements and our estimate of their economic value.

We have elected to account for the note payable under the Revolving Credit Facility with LNV Corporation, which includes the 50% interest in policy proceeds to the lender, using the fair value method. The fair value of the debt is the amount the Company would have to pay to transfer the debt to a market participant in an orderly transaction. We calculated the fair value of the debt using a discounted cash flow model taking into account the stated interest rate of the credit facility and probabilistic cash flows from the pledged policies. Considerable judgment is required in interpreting market data to develop the estimates of fair value. Accordingly, our estimates are not necessarily indicative of the amounts that we, or holders of the instruments, could realize in a current market exchange. The most significant assumptions are the estimates of life expectancy of the insured and the discount rate. The use of different assumptions and/or estimation methodologies could have a material effect on the estimated fair values.

Fair Value Measurement Guidance

We follow ASC 820, Fair Value Measurements and Disclosures , which defines fair value as an exit price representing the amount that would be received if an asset were sold or that would be paid to transfer a liability in an orderly transaction between market participants at the measurement date. As such, fair value is a market-based measurement that should be determined based on assumptions that market participants would use in pricing an asset or liability. As a basis for considering such assumptions the guidance establishes a three-level fair value hierarchy that prioritizes the inputs used to measure fair value. Level 1 relates to quoted prices in active markets for identical assets or liabilities. Level 2 relates to observable inputs other than quoted prices included in Level 1. Level 3 relates to unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities. Our investments in life insurance policies, structured settlements and note payable are considered Level 3 assets as there is currently no active market where we are able to observe quoted prices for identical assets and our valuation model incorporates significant inputs that are not observable. Our impaired loans are measured at fair value on a non-recurring basis, as the carrying value is based on the fair value of the underlying collateral. The method used to estimate the fair value of impaired collateral-dependent loans depends on the nature of the collateral. For collateral that has lender protection insurance coverage, the fair value measurement is considered to be Level 3 as the insured value is an observable input to the Company, but not observable to market participants. For collateral that does not have lender protection insurance coverage, the fair value measurement is considered to be Level 3 as the estimated fair value is based on a model whose significant inputs are the life expectancy of the insured and the discount rate, which are not observable.

Ownership of Life Insurance Policies

In the ordinary course of business, a large portion of our borrowers default by not paying off the loan and relinquish ownership of the life insurance policy to us in exchange for our release of the obligation to pay amounts due. We also buy life insurance policies in the secondary and tertiary markets. We account for life insurance policies that we own as investments in life settlements (life insurance policies) in accordance with ASC 325-30, Investments in Insurance Contracts , which requires us to use either the investment method or the fair value method. The election is made on an instrument-by-instrument basis and is irrevocable. We have elected to account for these life insurance policies as investments using the fair value method.

We initially record investments in life settlements at the transaction price. For policies acquired upon relinquishment by our borrowers, we determine the transaction price based on fair value of the acquired policies at the date of relinquishment. The difference between the net carrying value of the loan and the transaction price is recorded as a gain (loss) on loan payoffs and settlement. For policies acquired for cash, the transaction price is the amount paid.

Valuation of Insurance Policies

Our valuation of insurance policies is a critical component of our estimate for the loan impairment valuation and the fair value of our investments in life settlements (life insurance policies). We currently use a probabilistic method of valuing life insurance policies, which we believe to be the preferred valuation method in the industry. The most significant assumptions are the Company’s estimate of the life expectancy of the insured and the discount rate.

In determining the life expectancy estimate, we analyze medical reviews from independent secondary market life expectancy providers (each a “LE provider”). An LE provider reviews the medical records and identifies all medical conditions it feels are relevant to the life expectancy of the insured. Debits and credits are then assigned by each LE provider to the individual’s health based on these medical conditions. The debit or credit that an LE provider assigns to a medical condition is derived from the experience of mortality attributed to this condition in the portfolio of lives that it monitors. The health of the insured is summarized by the LE provider into a life assessment of the individual’s life expectancy expressed both in terms of months and in mortality factor.

The resulting mortality factor represents an indication as to the degree to which the given life can be considered more or less impaired than a standard life having similar characteristics (e.g. gender, age, smoking, etc.). For example, a standard insured (the average life for the

 

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given mortality table) would carry a mortality rating of 100%. A similar but impaired life bearing a mortality rating of 200% would be considered to have twice the chance of dying earlier than the standard life. Historically, the Company has procured the majority of its life expectancy reports from two life expectancy report providers and only used AVS life expectancy reports for valuation purposes. Beginning in the quarter ended September 30, 2012, the Company began utilizing life expectancy reports from 21st Services for valuation purposes and began averaging or “blending,” the results of the two life expectancy reports to establish a composite mortality factor.

The probability of mortality for an insured is then calculated by applying the blended life expectancy estimate to a mortality table. The mortality table is created based on the rates of death among groups categorized by gender, age, and smoking status. By measuring how many deaths occur before the start of each year, the table allows for a calculation of the probability of death in a given year for each category of insured people. The probability of mortality for an insured is found by applying the mortality rating from the life expectancy assessment to the probability found in the actuarial table for the insured’s age, sex and smoking status. The Company has historically applied an actuarial table developed by a third party. However, beginning in the quarter ended September 30, 2012, the Company transitioned to a table developed by the U.S. Society of Actuaries known as the 2008 Valuation Basic Table, or the 2008 VBT. However, because the 2008 VBT table does not account for anticipated improvements in mortality in the insured population, the table was modified in conjunction with outside consultants to reflect these expected mortality improvements. The Company believes that the change in mortality table does not materially impact the valuation of its life insurance policies and that its adoption of a modified 2008 VBT table is consistent with modified tables used by market participants and third party medical underwriters.

The mortality rating is used to create a series of best estimate probabilistic cash flows. This probability represents a mathematical curve known as a mortality curve. This curve is then used to generate a series of expected cash flows over the remaining expected lifespan of the insured and the corresponding policy. A discounted present value calculation is then used to determine the value of the policy. If the insured dies earlier than expected, the return will be higher than if the insured dies when expected or later than expected.

The calculation allows for the possibility that if the insured dies earlier than expected, the premiums needed to keep the policy in force will not have to be paid. Conversely, the calculation also considers the possibility that if the insured lives longer than expected, more premium payments will be necessary. Based on these considerations, each possible outcome is assigned a probability and the range of possible outcomes is then used to create a fair value for the policy.

As is the case with most market participants, the Company used a blend of life expectancies that are provided by two third-party LE providers. These are estimates of an insured’s remaining years. If all of the insured lives in the Company’s life settlement portfolio live six months shorter or longer than the life expectancies provided by these third parties, the change in fair market value at June 30, 2013 would be as follows (dollars in thousands):

 

Life Expectancy Months Adjustment

   Fair Value      Change in Value  

+6

   $ 219,364       $ (46,409

-

   $ 265,773         —     

-6

   $ 316,408       $ 50,635   

Prior to the second quarter of 2013, the Company would adjust its average, or blend, of the two life expectancy reports when the difference in the probability of mortality between the reports was greater than 150%. In those instances and as reflected in the fair market value at December 31, 2012 and March 31, 2013, the Company would cap the higher mortality factor at amount that was 150% above the lower mortality factor, which ultimately reduced the mortality factor inputted into the Company’s fair value model. As discussed above under Use of Updated Life Expectancies and Change in Mortality Table in this Management’s Discussion and Analysis of Financial Condition and Results of Operations , the Company ceased applying a cap as part of the valuation adjustments implemented in connection with 21st Services’ revised underwriting methodology. Additionally, the Company increased the life expectancies furnished by 21st Services by 15.8% at June 30, 2013 prior to blending them with the life expectancy reports furnished by AVS. Had the Company not implemented such an adjustment, the fair value of the Company’s portfolio would have increased from the reported amount of $265.8 million by $5.3 million.

The Company believes that investors in esoteric assets, such as life insurance policies, typically target yields averaging between 12% — 17% for investments of more than a 5 year duration, and had historically used a 15% — 17% range of discount rates to value its life insurance policies. In the third quarter of 2011 and in the immediate aftermath of becoming aware of the USAO investigation, the Company substantially increased the discount rates inputted into its fair value model as it believed that USAO Investigation along with certain unfavorable court decisions unrelated to the Company contributed to a contraction in the marketplace that has continued to reverberate. Since that time, the Company has been re-evaluating its discount rates at the end of every reporting period in order to reflect the estimated discount rates that could reasonably be used in a market transaction involving the Company’s portfolio of life insurance policies. In doing so, the Company relies on management insight, engages third party consultants to corroborate its assessment, engages in discussions with other market participants and potential financing sources and extrapolates the discount rate underlying actual sales of policies.

Although the Company believes that its entry into the Non-Prosecution Agreement had a positive effect on the market generally and for premium financed life insurance policies specifically, the Company believes that, when given the choice to invest in a policy that was

 

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associated with the Company’s premium finance business and a similar policy without such an association, all else being equal, an investor would have generally opted to invest in the policy that was not associated with the Company’s premium finance business. However, since entering into the Non-Prosecution Agreement, investors have required less of a risk premium to transact in these policies and the Company expects that, in time, investors will continue to require less of a risk premium to transact in policies associated with its premium finance business.

As of June 30, 2013, the Company owned 627 policies with an aggregate investment in life settlements of $265.8 million. Of these 627 policies, 584 were previously premium financed and are valued using discount rates that range from 16.59% to 29.59%. The remaining 43 policies are valued using discount rates that range from 14.59% to 21.59%.

The discount rate incorporates current information about market interest rates, the credit exposure to the insurance company that issued the life insurance policy and our estimate of the risk premium an investor in the policy would require. The extent to which the fair value could vary in the near term has been quantified by evaluating the effect of changes in the weighted average discount rate on the death benefit used to estimate the fair value. If the weighted average discount rate were increased or decreased by 1/2 of 1% and the other assumptions used to estimate fair value remained the same, the change in fair market value would be as follows (dollars in thousands):

 

Weighted Average Rate Calculated Based on Death Benefit

   Rate Adjustment     Value      Change in Value  

20.11%

     -0.50   $ 273,967       $ 8,194   

20.61%

     —        $ 265,773       $ —     

21.11%

     0.50   $ 257,950       $ (7,823

Future changes in the discount rates we use to value life insurance policies could have a material effect on our yield on life settlement transactions, which could have a material adverse effect on our business, financial condition and results of our operations.

At the end of each reporting period we re-value the life insurance policies using our valuation model in order to update our loan impairment valuation for loans receivable and our estimate of fair value for investments in policies held on our balance sheet. This includes reviewing our assumptions for discount rates and life expectancies as well as incorporating current information for premium payments and the passage of time.

Valuation of Note payable

We have elected to account for this note payable, which includes the lender’s interest in policy proceeds, using the fair value method. The fair value of the debt is the amount the Company would have to pay to transfer the debt to a market participant in an orderly transaction. We calculated the fair value of the debt using a discounted cash flow model taking into account the stated interest rate of the Revolving Credit Facility and probabilistic cash flows from the pledged policies. Accordingly, our estimates are not necessarily indicative of the amounts that we, or holders of the instruments, could realize in a current market exchange. The most significant assumptions are the estimates of life expectancy of the insured and the discount rate. The use of different assumptions and/or estimation methodologies could have a material effect on the estimated fair values.

Life expectancy sensitivity analysis of note payable

A considerable portion of the fair value of the Company’s note payable derives from the timing of receipt of future policy proceeds. Should life expectancies lengthen such that policy proceeds are collected further into the future, the fair value of this debt will decline. Conversely, should life expectancies shorten, the fair value of this debt will increase. Considerable judgment is required in interpreting market data to develop the estimates of fair value.

As is the case with most market participants, the Company used a blend of life expectancies that are provided by two third-party LE providers. These are estimates of an insured’s remaining years. If all of the insured lives in the Company’s life settlement portfolio live six months shorter or longer than the life expectancies provided by these third parties, the change in fair market value at June 30, 2013 would be as follows (dollars in thousands):

 

Life Expectancy Months Adjustment

   Fair Value of
Note Payable
     Change in Value  

+6

   $ 86,552       $ (15,223

-

   $ 101,775         —     

-6

   $ 119,953       $ 18,178   

Discount rate of note payable

The discount rate incorporates current information about market interest rates, credit exposure to insurance companies and our estimate of the return a lender lending against the policies would require.

 

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Market interest rate sensitivity analysis of note payable

 

Discount Rate

   Rate Adjustment     Fair Value of
Note Payable
     Change in Value  

23.00%

     -0.50   $ 104,328       $ 2,553   

23.50%

     —        $ 101,775       $ —     

24.00%

     0.50   $ 99,316       $ (2,459

Future changes in the discount rates could have a material effect on the fair value of our note payable, which could have a material adverse effect on our business, financial condition and results of our operations.

At June 30, 2013 the fair value of the debt is $101.8 million. See Note 15 — Fair Value Measurements . The outstanding principal is approximately $107.1 million as of June 30, 2013.

Revenue/Income Recognition

Our primary sources of revenue/income are in the form of unrealized change in fair value of life settlements, interest income, and origination fee income, servicing income and realized gains on sales of structured settlements. Our revenue/income recognition policies for these sources of revenue/income are as follows:

 

   

Change in Fair Value of Life Settlements — When the Company acquires certain life insurance policies we initially record these investments at the transaction price, which is the fair value of the policy for those acquired upon relinquishment or the amount paid for policies acquired for cash. The fair value of the investment in insurance policies is evaluated at the end of each reporting period. Changes in the fair value of the investment based on evaluations are recorded as changes in fair value of life settlements in our consolidated statement of operations. The fair value is determined on a discounted cash flow basis that incorporates current life expectancy assumptions. The discount rate incorporates current information about market interest rates, the credit exposure to the insurance company that issued the life insurance policy and our estimate of the risk premium an investor in the policy would require. Changes in the fair value of the investment is also recognized upon the receipt of death notice or verified obituary of insured.

 

   

Gains on Life Settlement, Net — The Company recognizes gains from life settlement contracts that the Company owns upon the signed sale agreement and/or filing of ownership forms and funds transferred to escrow.

 

   

Interest Income — Interest income on premium finance loans is recognized when it is realizable and earned, in accordance with ASC 605, Revenue Recognition . Once the premium finance loans on our balance sheet mature, we will no longer have any revenue generated from interest income from premium finance loans. 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 that 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. Once the premium finance loans on our balance sheet mature, we will no longer have any revenue generated from origination income.

 

   

Servicing Income — We historically received income from servicing life insurance policies controlled by a third party. These services included verifying premiums are paid and correctly applied and updating files for medical history and ongoing premiums. Upon the effectiveness of the Termination Agreement, the Company ceased receiving servicing income from LPIC Provider.

 

   

Realized Gains on Sales of Structured Settlements — Realized 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 .

 

   

Interest and origination income on impaired loans is recognized when it is realizable and earned in accordance with ASC 605, Revenue Recognition . Persuasive evidence of an arrangement exists through a loan agreement which is signed by a borrower prior to funding and sets forth the agreed upon terms of the interest and origination fees. Interest income and origination income are earned over the term of the loan and are accreted using the effective interest method. The interest and origination fees are fixed and determinable based on the loan agreement. For impaired loans, we do not recognize interest and origination income that we believe is uncollectible. At the end of the reporting period, we review the accrued interest and accrued origination fees in conjunction with our loan impairment analysis to determine our best estimate of uncollectible income that is then reversed. We continually reassess whether the interest and origination income are collectible as the fair value of the collateral typically increases over the term of the loan. Since our loans are due upon maturity, we cannot determine whether a loan is performing or non-performing until maturity. For impaired loans, our estimate of proceeds to be received upon maturity of the loan is generally correlated to our current fair value estimate of the collateral, but also incorporates expected increases in fair value of the collateral over the term of the loan, trends in the market, sales activity for life insurance policies and our experience with loans payoffs.

 

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Deferred Costs

Deferred costs include costs incurred in connection with acquiring and maintaining credit facilities and costs incurred in connection with securing lender protection insurance. These costs are amortized over the life of the related loan using the effective interest method and are classified as amortization of deferred costs in the accompanying consolidated statement of operations.

Loss in Loan Payoffs and Settlements, Net

When a premium finance loan matures, we record the difference between the net carrying value of the loan and the cash received, or the fair value of the life insurance policy that is obtained in the event of payment default, as a gain or loss on loan payoffs and settlements, net.

Income Taxes

Prior to our initial public offering in 2011, we converted from a Florida limited liability company to a Florida corporation (the “Conversion”). Prior to the Conversion we were treated as a partnership for federal and state income tax purposes. As a partnership our taxable income and losses were attributed to our members, and accordingly, no provision or liability for income taxes was reflected in the accompanying consolidated financial statements for periods prior to the Conversion.

We account for income taxes in accordance with ASC 740, Income Taxes. Under ASC 740, deferred income taxes are determined based on the estimated future tax effects of differences between the financial statement and tax basis of assets and liabilities given the provisions of enacted tax laws. Deferred income tax provisions and benefits are based on changes to the assets or liabilities from year to year. In providing for deferred taxes, we consider tax regulations of the jurisdictions in which we operate, estimates of future taxable income and available tax planning strategies. If tax regulations, operating results or the ability to implement tax-planning strategies varies adjustments to the carrying value of the deferred tax assets and liabilities may be required. Valuation allowances are based on the “more likely than not” criteria of ASC 740.

At June 30, 2013 and 2012, due to the significant cumulative losses since the Conversion and the uncertainties that resulted from the USAO Investigation, SEC investigation, Non-Prosecution Agreement and class action lawsuits, we recorded a full valuation allowance against our net deferred tax asset as it is more likely than not that the net deferred tax asset is not realizable. As a result of these increases in the valuation allowance, we recorded no income tax provision or benefit for the period ended June 30, 2013 and 2012.

The accounting for uncertain tax positions guidance under ASC 740 requires that we recognize the financial statement benefit of a tax position only after determining that the relevant tax authority would more likely than not sustain the position following an audit. For tax positions meeting the more-likely-than-not threshold, the amount recognized in the financial statements is the largest benefit that has a greater than 50 percent likelihood of being realized upon ultimate settlement with the relevant tax authority. We recognize interest and penalties (if any) on uncertain tax positions as a component of income tax expense.

In February of 2013 the Company was notified by the Internal Revenue Service of its intention to examine the Company’s partnership return for the year ended December 31, 2010. In April of 2013, the Internal Revenue Service notified the Company that it had decided not to proceed with the examination.

Stock-Based Compensation

We have adopted ASC 718, Compensation — Stock Compensation. ASC 718 addresses accounting for share-based awards, including stock options, with compensation expense measured using fair value and recorded over the requisite service or performance period of the award. The fair value of equity instruments awarded upon or after the closing of our initial public offering will be determined based on a valuation using an option pricing model which takes into account various assumptions that are subjective. Key assumptions used in the valuation will include the expected term of the equity award taking into account both the contractual term of the award, the effects of expected exercise and post-vesting termination behavior, expected volatility, expected dividends and the risk-free interest rate for the expected term of the award.

Investment Securities Available for Sale

Investment securities available for sale are carried at fair value, inclusive of unrealized gains and losses, and net of discount accretion and premium amortization computed using the level yield method. Net unrealized gains and losses are included in other comprehensive income (loss) net of applicable income taxes. Gains or losses on sales of investment securities available for sale are recognized on the specific identification basis.

Management evaluates securities for other than-temporary-impairment on a quarterly basis. Impairment is evaluated considering numerous factors, and their relative significance varies depending on the situation. Factors considered include the Company’s intent to hold the security until maturity or for a period of time sufficient for a recovery in value, whether it is more likely than not that the Company will be required to sell the security prior to recovery of its amortized cost basis, the length of time and extent to which fair value has been less than amortized cost, the historical and implied volatility of the fair value of the security, failure of the issuer of the security to make scheduled interest or principal payments, any changes to the rating of the security by a rating agency and recoveries or additional declines in fair value subsequent to the balance sheet date. The Company liquidated its entire portfolio of investment securities available for sale during the first quarter of 2013.

 

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Recent Accounting Pronouncements

Note 2 of the Notes to Consolidated Financial Statements discusses accounting standards adopted during the six months ended June 30, 2013. The adoption of these standards has not had an impact on the Company’s financial position or results of operations.

Results of Operations

The following is our analysis of the results of operations for the periods indicated below. This analysis should be read in conjunction with our financial statements, including the related notes to the financial statements. Our results of operations are discussed below in two parts: (i) our consolidated results of operations and (ii) our results of operations by segment.

 

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Imperial Holdings, Inc. and Subsidiaries

CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)

 

     For the Three Months Ended
June 30,
    For the Six Months Ended
June 30,
 
     2013     2012     2013     2012  
     (in thousands, except share and per share data)  

Income

  

Interest income

   $ 75      $ 698      $ 162      $ 1,604   

Interest and dividends on investment securities available for sale

     —          132        14        260   

Origination fee income

     —          188        —          438   

Realized gain on sale of structured settlements

     3,128        3,134        6,670        5,609   

(Loss) gain on life settlements, net

     (1,247     55        (1,247     291   

Change in fair value of life settlements (Notes 13 & 15)

     64,846        4,874        66,686        9,129   

Unrealized change in fair value of structured settlements

     236        569        781        1,178   

Servicing fee income

     76        327        310        684   

Gain on maturities of life settlements with subrogation rights, net

     —          6,090        —          6,090   

Other income

     2,000        116        2,090        866   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total income

     69,114        16,183        75,466        26,149   
  

 

 

   

 

 

   

 

 

   

 

 

 

Expenses

        

Interest expense

     10,759        304        10,861        1,078   

Change in fair value of note payable

     (5,361     —          (5,361     —     

Loss on extinguishment of Bridge Facility

     3,991        —          3,991        —     

Provision for losses on loans receivable

     —          441        —          441   

(Gain) loss on loan payoffs and settlements, net

     (65     162        (65     153   

Amortization of deferred costs

     —          516        7        1,497   

Personnel costs

     3,653        5,033        6,984        8,722   

Marketing costs

     617        1,286        1,428        3,447   

Legal fees

     4,665        5,699        8,744        13,590   

Professional fees

     1,619        1,795        2,720        3,713   

Insurance

     479        617        998        1,086   

Other selling, general and administrative expenses

     1,036        955        1,730        1,959   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total expenses

     21,393        16,808        32,037        35,686   
  

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

     47,721        (625     43,429        (9,537

(Provision) benefit for income taxes

     —          —          (40     41   
  

 

 

   

 

 

   

 

 

   

 

 

 

Net Income (loss)

   $ 47,721      $ (625   $ 43,389      $ (9,496
  

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) per share:

        
  

 

 

   

 

 

   

 

 

   

 

 

 

Basic

   $ 2.25      $ (0.03   $ 2.05      $ (0.45
  

 

 

   

 

 

   

 

 

   

 

 

 

Diluted

   $ 2.25      $ (0.03   $ 2.04      $ (0.45
  

 

 

   

 

 

   

 

 

   

 

 

 

Weighted average shares outstanding:

        
  

 

 

   

 

 

   

 

 

   

 

 

 

Basic

     21,219,880        21,206,121        21,213,039        21,205,370   
  

 

 

   

 

 

   

 

 

   

 

 

 

Diluted

     21,237,166        21,206,121        21,230,325        21,205,370   
  

 

 

   

 

 

   

 

 

   

 

 

 

 

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Life Finance Segment Results (in thousands)

 

     For the Three Months Ended
June 30,
     For the Six Months Ended
June 30,
 
     2013      2012      2013      2012  
     (Unaudited)      (Unaudited)  

Income

   $ 65,636      $ 12,255       $ 67,775       $ 18,224   

Expenses

     13,436         5,218         15,544         10,356   
  

 

 

    

 

 

    

 

 

    

 

 

 

Segment operating income

   $ 52,200       $ 7,037       $ 52,231       $ 7,868   
  

 

 

    

 

 

    

 

 

    

 

 

 

Structured Settlements Segment Results (in thousands)

 

     For the Three Months Ended
June 30,
    For the Six Months Ended
June 30,
 
     2013     2012     2013     2012  

Income

   $ 3,476     $ 3,968      $ 7,668     $ 7,211   

Expenses

     3,956        5,524        7,905        11,613   
  

 

 

   

 

 

   

 

 

   

 

 

 

Segment operating loss

   $ (480 )   $ (1,556   $ (237 )   $ (4,402
  

 

 

   

 

 

   

 

 

   

 

 

 

Reconciliation of Segment Results to Consolidated Results (in thousands)

 

     For the Three Months Ended
June 30,
    For the Six Months Ended
June 30,
 
     2013      2012     2013     2012  
     (Unaudited)     (Unaudited)  

Consolidated

         

Segment operating income

     51,720         5,481        51,994        3,466   

Unallocated income

         

Interest and dividends on investment securities available for sale

     2         132        16        260   

Other income

     —           7        8        631   
  

 

 

    

 

 

   

 

 

   

 

 

 
     2         139        24        891   
  

 

 

    

 

 

   

 

 

   

 

 

 

Unallocated expenses

         

Interest expense

     4         —          7        3   

Personnel costs

     529         342        646        568   

Legal fees

     2,668         4,647        6,415        10,940   

Professional fees

     469         864        1,073        1,936   

Insurance

     283         61        378        107   

Other selling, general and administrative expenses

     48         331        70        340   
  

 

 

    

 

 

   

 

 

   

 

 

 
     4,001         6,245        8,589        13,894   
  

 

 

    

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

     47,721         (625     43,429        (9,537

(Provision) benefit for income taxes

     —           —          (40     41   
  

 

 

    

 

 

   

 

 

   

 

 

 

Net income (loss)

   $ 47,721       $ (625   $ 43,389      $ (9,496
  

 

 

    

 

 

   

 

 

   

 

 

 

Three Months Ended June 30, 2013 Compared to Three Months Ended June 30, 2012

Net income for the three months ended June 30, 2013 was $47.7 million as compared to a net loss of $625,000 for the three months ended June 30, 2012, an increase of $48.3 million or 7,728%. Total income was $69.1 million for the three months ended June 30, 2013, a 329% increase over total income of $16.1 million during the same period in 2012. Total expenses were $21.4 million for the three months ended June 30, 2013 compared to total expenses of $16.8 million incurred during the same period in 2012, an increase of $4.6 million, or 27%.

 

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In our life finance segment, total income increased by $53.3 million to $65.6 million for the three months ended June 30, 2013. We recorded a change in fair value of life settlements of $64.8 million, which resulted in an increase of $59.9 million versus the second quarter of 2012. As a result of the voluntary termination of our premium finance business, we had decreases in interest income of $579,000 and origination income of $188,000 versus the second quarter of 2012.

Life finance segment expenses were $13.4 million during the three months ended June 30, 2013 compared to $5.2 million during the same period in 2012, an increase of $8.2 million, or 158%. These increases were driven primarily by a $10.5 million increase in interest expense, a $4.0 million in loss on extinguishment of bridge facility and a $960,000 increase in legal fees these were offset by a change in fair value of note payable of $5.4 million, a decrease in personnel costs of $1.0 million and amortization of deferred costs of $516,000.

As of June 30, 2013, we had loans receivable totaling $206,000 compared to $10.6 million as of June 30, 2012, a decrease of $10.4 million, or 98%. Loans outstanding declined from 53 to 2. As a result, origination income and interest income, which accrue over the life of the loan and are therefore a function of the amount of loans outstanding, declined from $188,000 and $588,000, respectively, during the three months ended June 30, 2012, to zero and $9,000, respectively, during the same period in 2013, a reduction of $188,000 and $579,000 or 100% and 98%, respectively.

Interest expense increased to $10.8 million during the three months ended June 30, 2013, compared to $304,000 during the same period in 2012, an increase of $10.5 million or 3,454%, as note payable increased from $4.1 million as of June 30, 2012 to $101.8 million as of June 30, 2013. During the year ended December 31, 2012, we repaid all outstanding notes associated with our Cedar Lane financing facility, resulting in a zero balance for the three months ended June 30, 2013. The estimated fair value of the $101.8 million note outstanding at June 30, 2013 relates to the Revolving Credit Facility issued during the three months ended June 30, 2013 that is collateralized by the life insurance policies owned by White Eagle. Of the interest expense of $10.8 million, approximately $10.3 million represents loan origination cost incurred under the Revolving Credit Facility which was not capitalized as a result of electing the fair value option for valuing this debt. Interest expense also includes $510,000 associated with interest paid on the Bridge Facility issued during the quarter ended March 31, 2013.

Change in fair value of note payable was approximately $5.4 million for the three months ended June 30, 2013 compared to zero for the three months ended June 30, 2012, a decrease of $5.4 million or 100%. This unrealized gain is associated with the adoption of the fair value option in accounting for the note payable and the lengthening of life expectancy estimates for policies in the facility. The facility is valued using a discount rate of 23.5%. See Note 15 to the accompanying consolidated financial statements.

Loss on extinguishment of bridge facility was approximately $4.0 million for the three months ended June 30, 2013, compared to zero during the same period in 2012, an increase of $4.0 million or 100%. This amount is related to the Bridge Facility issued during the quarter ended March 31, 2013 and was fully repaid during the quarter ended June 30, 2013. The Bridge Facility had a face of $45.0 million, with a funding discount of $3.6 million and deferred financing cost of approximately $400,000; all amounts were expensed during the three months ended June 30, 2013 as a result of repayment of the facility. See Note 14 to the accompanying consolidated financial statements.

Amortization of deferred costs, which are comprised primarily of upfront premiums previously paid to the LPIC insurer, was zero during the three months ended June 30, 2013 as compared to $516,000 during the same period in 2012, a decrease of $516,000. As described previously, the lender protection insurance program was terminated as of December 31, 2010 and coverage on all prior loans was terminated on April 30, 2013. As of June 30, 2013, there are no lender protection insurance related costs remaining to be amortized.

As of June 30, 2013, the Company owned 627 policies compared to 204 policies at June 30, 2012 with a fair market value of $265.8 million compared to $110.6 million at June 30, 2012, an increase of $155.2 million or 140%. During the three months ended June 30, 2013, the Company acquired 422 life insurance policies compared to 11 policies during the same period in 2012. Of the 422 policies acquired during the three months ended June 30, 2013, 6 were as a result of certain of the Company’s borrowers defaulting on premium finance loans and relinquishing the underlying policy to the Company, compared to 11 policies acquired in the same manner for 2012. Of the remaining 416 policies, 323 policies were acquired upon the effectiveness of the Termination Agreement with the LPIC Provider and were previously off balance sheet, contingent assets for financial reporting purposes in the prior period with the remaining 93 acquired through the Company’s acquisition of CTL policies, for a total purchase price of $55.5 million. As of June 30, 2013, the aggregate death benefit of the Company’s investment in life settlements was $3.0 billion.

During the three months ended June 30, 2013, the Company surrendered 2 policies resulting in a loss of approximately $92,000 and received proceeds of $1.0 million and lapsed 13 policies resulting in a loss of $1.1 million. The net effect of the surrenders and lapses was $1.2 million and is included in the consolidated statement as loss on life settlement for the three months ended June 30, 2013. There were no surrender or lapses for the three months ended June 30, 2012.

Of these 627 policies owned as of June 30, 2013, 584 were previously premium financed and are valued using discount rates that range from 16.59% — 29.59%. The remaining 43 policies are valued using discount rates that range from 14.59% — 21.59%.

Change in fair value of life settlements was approximately $64.8 million for the three months ended June 30, 2013 compared to $4.9 million for the three months ended June 30, 2012, an increase of $59.9 million or 1,222%. This unrealized gain was primarily driven by the acquisition of policies as stated above.

In our structured settlements segment, total income was $3.5 million for the three months ended June 30, 2013 compared to $4.0 million in June 30, 2012, a decrease of $500,000 or 13%. This was due to a decrease in the number of transactions being sold. During the three months ended June 30, 2013, 150 structured settlements were sold that resulted in a gain of $3.1 million compared to 265 structured settlements that were sold that resulted in a gain of $3.1 million during the same period in 2012. Unrealized change in fair value of structured settlements receivable was $236,000 for the three months ended June 30, 2013 compared to $569,000 in for the three months ended June 30, 2012, a decrease of $333,000 or 59%.

Selling, general and administrative expenses decreased by $1.5 million to $4.0 million. Significant expense reductions were made in marketing costs of $669,000 associated with a reduction in advertising and other promotional activities, reduction in personnel costs of $543,000 and a reduction in insurance fees of $180,000.

 

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Structured settlement segment continues to be characterized by high growth in lead generation and sales as well as high operating costs. Segment operating loss was $480,000 for the three months ended June 30, 2013 an improvement of $1.1 million over the segment operating loss of $1.6 million recorded during the same period in 2012.

Non-direct segment expense was $4.0 million for the three months ended June 30, 2013 compared to $6.2 million for the three months ended June 30, 2012, a decrease of $2.2 million or 35%. This is primarily driven by a decrease in legal fees of $2.0 million or 41%, professional fees of $395,000 or 46% and other selling, general and administrative expenses of $283,000. These reductions were offset by an increase in personnel costs of $187,000 and an increase in insurance of $222,000 that is associated with an adjustment to our cost allocation method between segments. Legal expenses for the three months ended June 30, 2013 were $2.7 million that is mainly associated with the USAO Investigation, compared to $4.6 million for the three months ended June 30, 2012.

The Company determined that the net deferred tax asset at June 30, 2013 and 2012 was not realizable and accordingly, established a 100 percent valuation allowance against it net deferred tax asset at June 30, 2013 and 2012.

Six Months Ended June 30, 2013 Compared to Six Months Ended June 30, 2012

Net income for the six months ended June 30, 2013 was $43.4 million as compared to a net loss of $9.5 million for the six months ended June 30, 2012, an increase of $52.9 million or 557%. Total income was $75.5 million for the six months ended June 30, 2013, a 189% increase over total income of $26.1 million during the same period in 2012. Total expenses were $32.0 million for the six months ended June 30, 2013 compared to total expenses of $35.7 million incurred during the same period in 2012, a decrease of $3.7 million, or 10%.

In our life finance segment, operating profit increased by $44.4 million to $52.2 million for the six months ended June 30, 2013. We recorded a change in fair value of life settlements of $66.7 million, which resulted in an increase of $57.6 million versus the six months ended June 30, 2012. As a result of the voluntary termination of our premium finance business, we had decreases in interest income of $1.4 million and origination income of $438,000 versus the first half of 2012.

Life finance segment expenses were $15.5 million during the six months ended June 30, 2013 compared to $10.4 million during the same period in 2012, an increase of $5.1 million, or 49%. These increases were driven primarily by an increase in interest expense of $9.8 million, loss on extinguishment of bridge facility of $4.0 million, offset by change in fair value of note payable of $5.4 million. $1.5 million reduction in amortization of deferred costs, and a $885,000 reduction in personnel costs.

As of June 30, 2013, we had loans receivable totaling $206,000 compared to $10.6 million as of June 30, 2012, a decrease of $10.4 million, or 98%. Loans outstanding declined from 53 to 2. As a result, origination income and interest income, which accrue over the life of the loan and are therefore a function of the amount of loans outstanding, declined from $438,000 and $1.4 million, respectively, during the six months ended June 30, 2012, to zero and $29,000, respectively, during the same period in 2013, a reduction of $438,000 and $1.4 million or 100% and 98%, respectively.

Interest expense increased to $10.9 million during the six months ended June 30, 2013, compared to $1.1 million during the same period in 2012, an increase of $9.8 million or 891%, as note payable increased from $4.1 million as of June 30, 2012 to $101.8 million as of June 30, 2013. During the year ended December 31, 2012, we repaid all outstanding notes associated with our Cedar Lane financing facility, resulting in a zero balance for the six months ended June 30, 2013. The estimated fair value of the $101.8 million note outstanding at June 30, 2013 relates to the Revolving Credit Facility issued during the six months ended June 30, 2013 that is collateralized by the life insurance policies owned by White Eagle. Of the interest expense of $10.9 million, approximately $10.3 million represents loan origination cost incurred under the Revolving Credit Facility which was not capitalized as a result of electing the fair value option for valuing this debt. Interest expense also includes $40,000 and $510,000, representing loan closing cost and interest paid, respectively on the Bridge Facility issued during the quarter ended March 31, 2013.

Change in fair value of note payable was approximately $5.4 million for the six months ended June 30, 2013 compared to zero for the six months ended June 30, 2012, a decrease of $5.4 million or 100%. This unrealized gain is associated with the adoption of the fair value option in accounting for the note payable and the lengthening of life expectancy estimates for the policies in the facility. The facility is valued using a discount rate of 23.5%. See Note 15 to the accompanying consolidated financial statements.

Loss on extinguishment of bridge facility was approximately $4.0 million for the six months ended June 30, 2013, compared to zero during the same period in 2012, an increase of $4.0 million or 100%. This amount is related to the Bridge Facility issued during the quarter ended March 31, 2013 and was fully repaid during the quarter ended June 30, 2013. The Bridge Facility had a face of $45.0 million, with a funding discount of $3.6 million and deferred financing cost of approximately $400,000; all amounts were expensed during the six months ended June 30, 2013 as a result of repayment of the facility. See Note 14 to the accompanying consolidated financial statements.

        Amortization of deferred costs, which are comprised primarily of upfront premiums previously paid to the LPIC insurer, was $7,000 during the six months ended June 30, 2013 as compared to $1.5 million during the same period in 2012, a decrease of $1.5 million. As described previously, the lender protection insurance program was terminated as of December 31, 2010 and coverage on all prior loans terminated on April 30, 2013. As of June 30, 2013, there are no lender protection insurance related costs remaining to be amortized.

        As of June 30, 2013, the Company owned 627 policies with a fair market value of $265.8 million compared to $110.6 million at June 30, 2012, an increase of $155.2 million or 140%. During the six months ended June 30, 2013, the Company acquired 430 life insurance policies compared to 20 policies during the same period in 2012. Of the 430 policies acquired during 2013, 14 were as a result of certain of the Company’s borrowers defaulting on premium finance loans and relinquishing the underlying policy to the Company, compared to 20 policies acquired in the same manner for 2012. Of the remaining 416 policies, 323 policies were acquired upon the effectiveness of the Termination Agreement with the LPIC Provider and were previously off balance sheet, contingent assets for financial reporting purposes in the prior period with the remaining 93 acquired through the Company’s acquisition of CTL policies, for a total purchase price of $55.5 million. As of June 30, 2013, the aggregate death benefit of the Company’s investment in life settlements is $3.0 billion.

During the six months ended June 30, 2013, the Company surrendered 2 policies resulting in a loss of approximately $92,000 and received proceeds of $1.0 million and lapsed 13 policies resulting in a loss of $1.1 million. The net effect of the surrenders and lapses was $1.2 million and is included in the consolidated statement of operations as loss on life settlement for the six months ended June 30, 2013. There were no surrender or lapses for the six months ended June 30, 2012.

 

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Of these 627 policies owned as of June 30, 2013, 584 were previously premium financed and are valued using discount rates that range from 16.59% — 29.59%. The remaining 43 policies are valued using discount rates that range from 14.59% — 21.59%.

Change in fair value of life settlements was approximately $66.7 million for the six months ended June 30, 2013 compared to $9.1 million for the six months ended June 30, 2012, an increase of $57.6 million. This gain was primarily driven by the acquisition of life insurance policies as stated above. During the first quarter of 2013, two life insurance policies owned by the Company with face amounts of $5.0 million and $1.0 million, respectively, matured. Change in fair value of life settlements of $4.9 million from these settlements was recorded in the consolidated statement of operations for the six months ended June 30, 2013. Amounts totaling $6.0 million were received during the six months ended June 30, 2013.

In our structured settlements segment, total income was $7.7 million for the six months ended June 30, 2013 compared to $7.2 million in June 30, 2012, an increase of $500,000 or 7%. This was due to an increase in transaction size of the deals being sold. During the six months ended June 30, 2013, 313 structured settlements were sold that resulted in a gain of $6.7 million compared to 728 structured settlements sold resulting in a gain of $5.6 million during the same period in 2012. Unrealized change in fair value of structured settlements receivable was $781,000 for the six months ended June 30, 2013 compared to $1.2 million in for the six months ended June 30, 2012, a decrease of $419,000 or 35%.

Selling, general and administrative expenses decreased by $3.7 million to $7.9 million. Significant expense reductions were made in marketing costs of $2.0 million associated with a reduction in advertising and other promotional activities, reduction in personnel costs of $930,000, and a reduction in professional and legal fees of $233,000 and $177,000, respectively.

The structured settlement segment continues to be characterized by high growth in lead generation and sales as well as high operating costs. Segment operating loss was $237,000 for the six months ended June 30, 2013 an improvement of $4.2 million over the segment operating loss of $4.4 million recorded during the same period in 2012.

Non-direct segment expense was $8.6 million for the six months ended June 30, 2013 compared to $13.9 million for the six months ended June 30, 2012, a decrease of $5.3 million or 38%. This is primarily driven by a decrease in legal fees of $4.5 million or 41% and professional fees of $863,000 or 45%. Legal expenses for 2013 were $6.4 million this was mainly associated with the USAO Investigation, compared to $10.9 million for the six months ended June 30, 2012.

The Company determined that the net deferred tax asset at June 30, 2013 and 2012 was not realizable and accordingly, established a 100 percent valuation allowance against its net deferred tax asset at June 30, 2013 and 2012. For the period ended June 30, 2012, we reduced the deferred tax valuation allowance from continued operations by $41,000 to reflect the future taxable income associated with unrealized gains in accumulated other comprehensive income. As the Company sold all of its remaining investment securities in the first quarter of 2013, this allocation between continued operations and other comprehensive income was reversed.

 

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Life Finance Business

Our results of operations for our life finance segment for the periods indicated are as follows (in thousands):

 

     For the Three Months Ended
June 30,
     For the Six Months Ended
June 30,
 
     2013     2012      2013     2012  
     (Unaudited)      (Unaudited)  

Life finance

         

Income

         

Interest income

   $ 9      $ 588       $ 29      $ 1,433   

Origination income

     —          188         —          438   

Change in fair value of life settlements

     64,846        4,874         66,686        9,129   

(Loss) gain on sale of life settlements, net

     (1,247     55         (1,247     291   

Servicing fee income

     76        327         310        684   

Gain on maturities of life settlements with subrogation rights, net

     —          6,090         —          6,090   

Other

     1,952        133         1,997        159   
  

 

 

   

 

 

    

 

 

   

 

 

 
     65,636        12,255         67,775        18,224   
  

 

 

   

 

 

    

 

 

   

 

 

 

Direct segment expenses

         

Interest expense

     10,755        304         10,855        1,075   

Change in fair value of note payable

     (5,361     —           (5,361     —     

Loss on extinguishment of Bridge Facility

     3,991        —           3,991        —     

Provision for losses on loan receivables

     —          441         —          441   

(Gain) loss on loans payoffs and settlements, net

     (65     162         (65     153   

Amortization of deferred costs

     —          516         7        1,497   

Personnel costs

     1,232        2,255         2,679        3,564   

Legal fees

     1,458        498         1,359        1,506   

Professional fees

     790        432         968        865   

Insurance

     101        282         313        493   

Other selling, general and administrative expenses

     535        328         798        762   
  

 

 

   

 

 

    

 

 

   

 

 

 
     13,436        5,218         15,544        10,356   
  

 

 

   

 

 

    

 

 

   

 

 

 

Segment operating income

   $ 52,200      $ 7,037       $ 52,231      $ 7,868   
  

 

 

   

 

 

    

 

 

   

 

 

 

 

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The following table highlights certain selected operating data in our life finance segment for the periods indicated (in thousands except number of loans percentage, age and life expectancy):

 

     For the Three Months Ended
June 30,
    For the Six Months Ended
June 30,
 
     2013     2012     2013     2012  

Period Acquisitions - Policies Owned

        

Number of policies acquired

     422        11        430        20   

Average age of insured at acquisition

     77.7        74.1        77.7        74.7   

Average life expectancy - Calculated LE (Years)

     12.7        15.5        12.7        13.7   

Average death benefit

   $ 4,756      $ 4,192      $ 4,744      $ 5,381   

Aggregate purchase price

   $ 56,875      $ 617      $ 58,400      $ 2,780   

End of Period - Policies Owned

        

Number of policies owned

     627        204        627        204   

Average Life Expectancy - Calculated LE (Years)

     11.9        10.5        11.9        10.5   

Aggregate Death Benefit

   $ 3,015,140      $ 1,017,806      $ 3,015,140      $ 1,017,806   

Aggregate fair value

   $ 265,773      $ 110,610      $ 265,773      $ 110,610   

Monthly premium - average per policy

   $ 7.8      $ 11.2      $ 7.8      $ 11.2   

End of Period Loan Portfolio

        

Loans receivable, net

   $ 206      $ 10,616      $ 206      $ 10,616   

Number of policies underlying loans receivable

     2        53        2        53   

Aggregate death benefit of policies underlying loans receivable

   $ 12,000      $ 244,575      $ 12,000      $ 244,575   

Number of loans with insurance protection

     —          24        —          24   

Loans receivable, net (insured loans only)

   $ —        $ 4,588      $ —        $ 4,588   

Average Per Loan:

        

Age of insured in loans receivable

     72.1        76.2        72.1        76.2   

Life expectancy of insured (years)

     19.4        15.2        19.4        15.2   

Monthly premium

   $ 1      $ 5      $ 1      $ 5   

Loan receivable, net

   $ 103      $ 200      $ 103      $ 200   

Interest rate

     14.0     12.7     14.0     12.7

Life Finance Business

Three Months Ended June 30, 2013 Compared to Three Months Ended June 30, 2012

Income

Interest Income. Interest income was $9,000 for the three months ended June 30, 2013 compared to $588,000 for the comparable period in 2012, a decrease of $579,000, or 98%. During the three months ended June 30, 2013 and June 30, 2012, the Company originated no loans. Interest income declined as the balance of loans receivable, net decreased from $10.6 million as of June 30, 2012 to $206,000 as of June 30, 2013 due to significant loan maturities. There were no significant changes in interest rates. The weighted average per annum interest rate for life finance loans outstanding as of June 30, 2013 and 2012 was 14.0% and 13.0%, respectively. As a result of the voluntary termination of our premium finance business, we will cease earning interest income once our outstanding premium finance loans mature.

Origination Fee Income. Origination fee income was zero for the three months ended June 30, 2013, compared to $188,000 for the comparable period in 2012. Origination fee income decreased due to a decline in the average balance of loans receivable, net, as noted above. Also, the Company reduced origination fees charged after ceasing the LPIC program, under which the majority of origination fees were passed along to the LPIC provider. As a result of the voluntary termination of our premium finance business, we did not originate any loans or origination fees during 2012 or 2013. We will cease accruing origination fee income once our outstanding premium finance loans mature.

Change in Fair Value of Life Settlements. Change in fair value of life settlements was approximately $64.8 million for the three months ended June 30, 2013 compared to $4.9 million for the three months ended June 30, 2012, an increase of $59.9 million or 1,222%. This gain was primarily driven by the acquisition of policies as stated above. The discount rates used in the fair value calculation for the three months ended June 30, 2013 ranged from 14.59% to 29.59% with a range of 17.25% to 30.85% utilized for the three months ended June 30, 2012. See Note 15 to the accompanying consolidated financial statements.

Servicing Fee Income. Servicing income was $76,000 for the three months ended June 30, 2013 compared to $327,000 for the comparable period in 2012, a decrease of $251,000 or 77%. Servicing fee income was earned in providing asset servicing for third parties, which we began providing during the fourth quarter of 2010. This decrease was primarily due to a reduction in the number of policies serviced and at April 30, 2013 the Company stopped servicing assets for third parties as a result of the Termination Agreement.

 

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Loss / Gain on of life settlements, net. Loss on life settlements, net was $1.2 million for the three months ended June 30, 2013 compared to $55,000 gain for the comparable period in 2012. During the three months ended June 30, 2013, the Company surrendered 2 policies resulting in a loss of approximately $92,000 and received proceeds of $1.0 million and lapsed 13 policies resulting in a loss of $1.1 million. The net effect of the surrenders and lapses was $1.2 million and is included in the consolidated statement as loss on life settlement for the three months ended June 30, 2013. There were no surrender or lapses for the three months ended June 30, 2012. The amount of $55,000 for the three months ended June 30, 2012 is associated with the sale of 4 policies during that period. There was no sale for the three months ended June 30, 2013.

Other Income . Other income was $2.0 million for the three months ended June 30, 2013 compared to $133,000 for the comparable period in 2012, an increase of $1.9 million. The amount for 2013 is attributable to write off of other liabilities which was payable to a third party and is now forgiven.

Gain on maturities of life settlements with subrogation rights, net. In the third quarter of 2011, two individuals covered under policies which were subject to subrogation claims unexpectedly passed away. The Company collected the death benefit on one of these policies in the amount of $3.5 million during the third quarter of 2011. In the three months ended June 30, 2012, the Company negotiated a settlement in respect of the larger policy and collected approximately $6.1 million, net of subrogation expenses, and reported a gain in accordance with ASC 450, Contingencies in its consolidated statement of operations for the three months ended June 30, 2012 as all contingencies were resolved. There were no such gains for the three months ended June 30. 2013. As a result of the Termination Agreement, the Company no longer holds life settlements with subrogation rights.

Expenses

Interest expense . Interest expense increased to $10.8 million during the three months ended June 30, 2013, compared to $304,000 during the same period in 2012, an increase of $10.5 million or 3,454%, as note payable increased from $4.1 million as of June 30, 2012 to $101.8 million as of June 30, 2013. During the year ended December 31, 2012, we repaid all outstanding notes associated with our Cedar Lane financing facility, resulting in a zero balance for the three months ended June 30, 2013. The estimated fair value of the $101.8 million note outstanding at June 30, 2013 relates to the Revolving Credit Facility issued during the three months ended June 30, 2013 that is collateralized by the life insurance policies owned by White Eagle. Of the interest expense of $10.8 million, approximately $10.3 million represents loan origination cost incurred under the Revolving Credit Facility which was not capitalized as a result of electing the fair value option for valuing this debt. Interest expense also includes $510,000 associated with interest paid on the Bridge Facility issued during the quarter ended March 31, 2013.

Unrealized change in fair value of note payable . Unrealized change in fair value of note payable was approximately $5.4 million for the three months ended June 30, 2013 compared to zero for the same period in 2013, a decrease of $5.4 million or 100%. This unrealized gain is associated with the adoption of the fair value option in accounting for the note payable and the lengthening of life expectancy estimates for the policies in the facility. The facility is valued using a discount rate of 23.5%. See Note 15 to the accompanying consolidated financial statements.

Loss on extinguishment of bridge facility . Loss on extinguishment of bridge facility was approximately $4.0 million for the three months ended June 30, 2013, compared to zero during the three months ended June 30, 2012, an increase of $4.0 million or 100%. This amount is related to the Bridge Facility issued during the quarter ended March 31, 2013 and was fully repaid during the quarter ended June 30, 2013. The Bridge Facility had a face of $45.0 million, with a funding discount of $3.6 million and deferred financing cost of approximately $400,000; all amounts were expensed during the three months ended June 30, 2013 as a result of repayment of the facility. See Note 14 to the accompanying consolidated financial statements.

Gains / Losses on Loan Payoffs and Settlements, Net. Gain on loan payoffs and settlements, net, was $65,000 for the three months ended June 30, 2013 compared to a loss of $162,000 for the comparable period in 2012, a decrease of $227,000 or 140%.

Provision for Losses on Loans Receivable.  Provision for losses on loans receivable was zero for the three months ended June 30, 2013 compared to $441,000 for the same period in 2012, a decrease of $441,000. This provision records loan impairments on existing loans in order to adjust the carrying value of the loan receivable to the fair value of the underlying policy. The provision for losses on loans receivable was $441,000 because three loans were delayed in being paid off for the three months ended June 30, 2012. See Notes 9 and 15 t o the accompanying consolidated financial statements.

Amortization of Deferred Costs. Amortization of deferred costs was zero during the three months ended June 30, 2013 as compared to $516,000 for the comparable period in 2012, a decrease of $516,000, or 100%. Lender protection insurance related costs accounted for zero and $474,000 of total amortization of deferred costs during the three months ended June 30, 2013 and 2012, respectively. As described previously, the lender protection insurance program was terminated as of December 31, 2010 and zero loans with lender protection insurance remained outstanding as of June 30, 2013. No lender protection insurance related costs remain to be amortized.

Selling, General and Administrative Expenses . SG&A expenses were $4.1 million for the three months ended June 30, 2013 compared to $3.8 million for the comparable period in 2012, an increase of $300,000 or 8%. This was due primarily to an increase in legal fees of $1.0 million and professional services of $358,000. These were offset by a $1.0 million decrease in personnel costs and $181,000 in insurance.

Six Months Ended June 30, 2013 Compared to Six Months Ended June 30, 2012

Income

Interest Income. Interest income was $29,000 for the six months ended June 30, 2013 compared to $1.4 million for the comparable period in 2012, a decrease of $1.4 million or 100%. During the six months ended June 30, 2013 and June 30, 2012, the Company originated no loans. Interest income declined as the balance of loans receivable, net decreased from $10.6 million as of June 30, 2012 to $206,000 as of June 30, 2013 due to significant loan maturities. There were no significant changes in interest rates. The weighted average per annum interest rate for life finance loans outstanding as of June 30, 2013 and 2012 was 14.0% and 13.0%, respectively. As a result of the voluntary termination of our premium finance business, we will cease earning interest income once our outstanding premium finance loans mature.

Origination Fee Income. Origination fee income was zero for the six months ended June 30, 2013, compared to $438,000 for the comparable period in 2012. Origination fee income decreased due to a decline in the average balance of loans receivable, net, as noted above. Also, the Company reduced origination fees charged after ceasing the LPIC program, under which the majority of origination fees were passed along to the LPIC provider. As a result of the voluntary termination of our premium finance business, we did not originate any loans or origination fees during 2012 or 2013. We will cease accruing origination fee income once our outstanding premium finance loans mature.

Change in Fair Value of Life Settlements. Change in fair value of life settlements was approximately $66.7 million for the six months ended June 30, 2013 compared to $9.1 million for the six months ended June 30, 2012, an increase of $57.6 million. This gain was primarily

 

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driven by the acquisition of life insurance policies as stated above. During the first quarter of 2013, two life insurance policies owned by the Company with face amounts of $5.0 million and $1.0 million, respectively, matured. Change in fair value of life settlements of $4.9 million from these settlements was recorded in the consolidated statement of operations for the six months ended June 30, 2013. Amounts totaling $6.0 million were received during the six months ended June 30, 2013

The discount rates used in the fair value calculation for the six months ended June 30, 2013 ranged from 14.59% to 29.59% with a range of 17.25% to 30.85% utilized for the six months ended June 30, 2012. See Note 15 to the accompanying consolidated financial statements.

Gain / Loss on life settlements, net. Loss on sale of life settlements, net was $1.2 million for the six months ended June 30, 2013 compared to income of $291,000 for the comparable period in 2012. During the six months ended June 30, 2013, the Company surrendered 2 policies resulting in a loss of approximately $92,000 and received proceeds of $1.0 million and lapsed 13 policies resulting in a loss of $1.1 million. The net effect of the surrenders and lapses was $1.2 million and is included in the consolidated statement as loss on life settlement for the six months ended June 30, 2013. There were no surrender or lapses for the six months ended June 30, 2012. The amount of $291,000 for the six months ended June 30, 2012 is associated with the sale of 6 policies during that period. There was no sale for the six months ended June 30, 2013.

Servicing Fee Income. Servicing income was $310,000 for the six months ended June 30, 2013 compared to $684,000 for the comparable period in 2012, a decrease of $374,000 or 55%. Servicing fee income is earned in providing asset servicing for third parties, which we began providing during the fourth quarter of 2010. This decrease was primarily due to a reduction in the number of policies serviced and at April 30, 2013 the Company stopped servicing assets for third parties as a result of the Termination Agreement.

Other Income . Other income was $2.0 million for the six months ended June 30, 2013 compared to $159,000 for the comparable period in 2012, an increase of $1.8 million or 1,732%. The amount for 2013 is attributable to write off of other liabilities which was payable to a third party and is now forgiven.

Gain on maturities of life settlements with subrogation rights, net. In the third quarter of 2011, two individuals covered under policies which were subject to subrogation claims unexpectedly passed away. The Company collected the death benefit on one of these policies in the amount of $3.5 million during the third quarter of 2011. In the six months ended June 30, 2012, the Company negotiated a settlement in respect of the larger policy and collected approximately $6.1 million, net of subrogation expenses, and reported a gain in accordance with ASC 450, Contingencies in its consolidated statement of operations for the six months ended June 30, 2012 as all contingencies were resolved. There were no such gains for the six months ended June 30. 2013 . As a result of the Termination Agreement, the Company no longer holds life settlements with subrogation rights.

Expenses

Interest expense . Interest expense increased to $10.9 million during the six months ended June 30, 2013, compared to $1.1 million during the same period in 2012, an increase of $9.8 million or 891%, as note payable increased from $4.1 million as of June 30, 2012 to $101.8 million as of June 30, 2013. During the year ended December 31, 2012, we repaid all outstanding notes associated with our Cedar Lane financing facility, resulting in a zero balance for the six months ended June 30, 2013. The estimated fair value of the $101.8 million note outstanding at June 30, 2013 relates to the Revolving Credit Facility issued during the six months ended June 30, 2013 that is collateralized by the life insurance policies owned by White Eagle. Of the interest expense of $10.9 million, approximately $10.3 million represents loan origination cost incurred under the Revolving Credit Facility which was not capitalized as a result of electing the fair value option for valuing this debt. Interest expense also includes $40,000 and $510,000, representing loan closing cost and interest paid, respectively on the Bridge Facility issued during the quarter ended March 31, 2013.

Unrealized change in fair value of note payable . Unrealized change in fair value of note payable was approximately $5.4 million for the six months ended June 30, 2013 compared to zero for the six months ended June 30, 2013, a decrease of $5.4 million or 100%. This unrealized gain is associated with the adoption of the fair value option in accounting for the note payable and the lengthening of life expectancy estimates for the policies in the facility. The facility is valued using a discount rate of 23.5%. See Note 15 to the accompanying consolidated financial statements.

Loss on extinguishment of bridge facility . Loss on extinguishment of bridge facility was approximately $4.0 million for the six months ended June 30, 2013, compared to zero during the same period in 2012, an increase of $4.0 million or 100%. This amount is related to the Bridge Facility issued during the quarter ended March 31, 2013 and was fully repaid during the quarter ended June 30, 2013. The Bridge Facility had a face of $45.0 million, with a funding discount of $3.6 million and deferred financing cost of approximately $400,000; all amounts were expensed during the six months ended June 30, 2013 as a result of repayment of the facility. See Note 14 to the accompanying consolidated financial statements.

Gains / Loss on Loan Payoffs and Settlements, Net. Gain on loan payoffs and settlements, net, was $65,000 for the six months ended June 30, 2013 compared to a loss $153,000 for the comparable period in 2012, an increase of $218,000 or 142%.

Provision for Losses on Loans Receivable.  Provision for losses on loans receivable was zero for the six months ended June 30, 2013 compared to $441,000 for the same period in 2012, a decrease of $441,000. This provision records loan impairments on existing loans in order to adjust the carrying value of the loan receivable to the fair value of the underlying policy. The provision for losses on loans receivable was $441,000 because three loans were delayed in being paid off for the six months ended June 30, 2012. See Notes 9 and 15 t o the accompanying consolidated financial statements.

Amortization of Deferred Costs. Amortization of deferred costs was $7,000 during the six months ended June 30, 2013 as compared to $1.5 million for the comparable period in 2012, a decrease of $1.5 million, or 100%. Lender protection insurance related costs accounted for zero and $1.2 million of total amortization of deferred costs during the six months ended June 30, 2013 and 2012, respectively. As described previously, the lender protection insurance program was terminated as of December 31, 2010 and zero loans with lender protection insurance remained outstanding as of June 30, 2013. No lender protection insurance related costs remain to be amortized.

Selling, General and Administrative Expenses . SG&A expenses were $6.1 million for the six months ended June 30, 2013 compared to $7.2 million for the comparable period in 2012, a decrease of $1.1 million or 15%. This was due primarily to a decrease in personnel costs of $885,000, insurance of $180,000 and legal fees of $147,000. These were offset by a $103,000 increase in professional fees.

 

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Structured Settlements

Our results of operations for our structured settlement business segment for the periods indicated are as follows (in thousands):

 

     For the Three Months Ended
June 30,
    For the Six Months Ended
June 30,
 
     2013     2012     2013     2012  
     (Unaudited)     (Unaudited)  

Structured settlements

        

Income

        

Realized gain on sale of structured settlements

   $ 3,128      $ 3,134      $ 6,669      $ 5,609   

Interest income

     64        110        131        171   

Unrealized change in fair value of structured settlements

     236        569        781        1,178   

Other income

     48        155        87        253   
  

 

 

   

 

 

   

 

 

   

 

 

 
     3,476        3,968        7,668        7,211   
  

 

 

   

 

 

   

 

 

   

 

 

 

Direct segment expenses

        

Personnel costs

     1,893        2,436        3,660        4,590   

Marketing costs

     617        1,286        1,428        3,447   

Legal fees

     539        554        967        1,144   

Professional fees

     360        499        679        912   

Insurance

     94        274        306        486   

Other selling, general and administrative expenses

     453        475        865        1,034   
  

 

 

   

 

 

   

 

 

   

 

 

 
     3,956        5,524        7,905        11,613   
  

 

 

   

 

 

   

 

 

   

 

 

 

Segment operating loss

   $ (480   $ (1,556   $ (237   $ (4,402
  

 

 

   

 

 

   

 

 

   

 

 

 

The following table highlights certain selected operating data in our structured settlements segment for the periods indicated (dollars in thousands):

 

     For the Three Months Ended
June 30,
    For the Six Months Ended
June 30,
 
     2013     2012     2013     2012  

Period Originations:

        

Number of transactions

     144        262        315        503   

Number of transactions from repeat customers

     80        99        165        169   

Average purchase discount rate

     17.5     18.8     17.4     18.8

Face value of undiscounted future payments purchased

   $ 29,849      $ 34,951      $ 60,570      $ 65,380   

Amount paid for settlements purchased

   $ 6,136      $ 6,263      $ 11,675      $ 11,915   

Marketing costs

   $ 617      $ 1,286      $ 1,060      $ 3,447   

Selling, general and administrative (excluding marketing costs)

   $ 3,339      $ 4,238      $ 6,845      $ 8,166   

Average Per Origination During Period:

        

Face value of undiscounted future payments purchased

   $ 207      $ 133      $ 192      $ 130   

Amount paid for settlement purchased

   $ 43      $ 24      $ 37      $ 24   

Time from funding to maturity (months)

     141        146        149        151   

Marketing cost per transaction

   $ 4      $ 5      $ 3      $ 7   

Segment selling, general and administrative (excluding marketing costs) per transaction

   $ 23      $ 16      $ 22      $ 16   

Period Sales :

        

Number of transactions originated and sold

     151        265        314        440   

Realized gain on sale of structured settlements

   $ 3,128      $ 3,134      $ 6,670      $ 5,609   

Average sale discount rate

     9.4     10.8     9.6     10.7

End of Period Portfolio :

        

Number of transactions on balance sheet

     91        129        91        129   

 

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Structured Settlements

Three Months Ended June 30, 2013 Compared to Three Months Ended June 30, 2012

Income

Interest Income. Interest income was $64,000 for three months ended June 30, 2013 compared to $110,000 for the same period in 2012, a decrease of $46,000 or 42% primarily as a result of the timing of payments for assets held during the three months ended June 30, 2013. Interest income is accretion during the period on the structured settlement assets held on our balance sheet.

Realized Gain on Sale of Structured Settlements. During the three months ended June 30, 2013, 150 structured settlements were sold which resulted in a gain of $3.1 million compared to 265 structured settlements sold with a gain of $3.1 million during the same period in 2012. Of the 150 and 265 structured settlements sold, 127 and 203 were originated and sold during the second quarter of 2013 and 2012, respectively. In addition, segment financing costs remained high during the second quarter of 2012 as a result of the USAO Investigation, which impacted the realized gain on sale of structured settlements.

Unrealized Change in Fair Value of Structured Settlement Receivables. Unrealized change in fair value of investments and structured receivables was $236,000 for the three months ended June 30, 2013 compared to $569,000 for the same period in 2012. At June 30, 2013 we had 91 structured receivables on our balance sheet compared with 129 structured settlement receivables on our balance sheet as of June 30, 2012. The decrease was due to the Company’s ability to sell structured receivables to third parties on an individual basis instead of bi-weekly batching.

Expenses

Selling, General and Administrative Expenses . Selling, general and administrative expenses decreased by $1.5 million to $4.0 million for the three months ended June 30, 2013. Significant expense reductions were made in marketing costs of $669,000 associated with a reduction in advertising and other promotional activities, personnel costs of $543,000, professional fees of $139,000 and insurance of $180,000.

This segment continues to be characterized by high growth in lead generation and sales, as well as high operating costs. Segment operating loss was $480,000 during the three months ended June 30, 2013; an improvement of $1.1 million over the segment operating loss of $1.5 million recorded during same period in 2012.

Six Months Ended June 30, 2013 Compared to Six Months Ended June 30, 2012

Income

Interest Income. Interest income was $131,000 for six months ended June 30, 2013 compared to $171,000 for the six months ended June 30, 2012, a decrease of $40,000 or 23% primarily as a result of the timing of payments for assets held during the same period in 2013. Interest income is accretion during the period on the structured settlement assets held on our balance sheet.

Realized Gain on Sale of Structured Settlements. During the six months ended June 30, 2013, 310 structured settlements were sold which resulted in a gain of $6.7 million compared to 728 structured settlements sold with a gain of $5.6 million during the same period in 2012. Of the 313 and 728 structured settlements sold, 298 and 440 were originated and sold during the six months ended June 30, 2013 and 2012, respectively. In addition, segment financing costs remained high during the first quarter of 2012 as a result of the USAO Investigation, which impacted the realized gain on sale of structured settlements.

Unrealized Change in Fair Value of Structured Settlement Receivables. Unrealized change in fair value of investments and structured receivables was $781,000 for the six months ended June 30, 2013 compared to $1.2 million for the same period in 2012. At June 30, 2013 we had 91 structured receivables on our balance sheet compared with 129 structured settlement receivables on our balance sheet as of June 30, 2012. The decrease was due to the Company’s ability to sell structured receivables to third parties on an individual basis instead of bi-weekly batching.

Expenses

Selling, General and Administrative Expenses . Selling, general and administrative expenses decreased by $3.7 million to $7.9 million for the six months ended June 30, 2013. Significant expense reductions were made in marketing costs of $2.0 million associated with a reduction in advertising and other promotional activities, personnel costs of $930,000, professional fees of $233,000, insurance of $180,000 and other expenses of $169,000 and legal fees of $177,000.

This segment continues to be characterized by high growth in lead generation and sales, as well as high operating costs. Segment operating loss was $237,000 during the six months ended June 30, 2013; an improvement of $4.2 million over the segment operating loss of $4.4 million recorded during same period in 2012.

Liquidity and Capital Resources

The Company has expended considerable resources responding to and resolving the USAO Investigation with regard to the Company, as well as responding to the SEC investigation and related litigation, advancing indemnification costs on behalf of certain employees and in conducting an independent investigation of the facts and circumstances surrounding the USAO Investigation. As of June 30, 2013, the Company’s cumulative legal and related fees in respect of these matters were $32.1 million, including $3.0 million paid during the six months ended June 30, 2013 and we believe we will continue to spend significant amounts on legal matters related to the USAO and SEC investigations, shareholder litigation and other litigation and judicial proceedings, as well as for potential claims over the next year, and possibly beyond.

 

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We expect to meet our liquidity needs for the next year primarily through our cash resources and, to a lesser extent, through cash flows from sales and financings of structured settlements. The Company’s total portfolio consists of 627 life insurance policies. As discussed below, effective April 29, 2013, a subsidiary of the Company, White Eagle, entered into a revolving credit facility, which we expect will be used to pay premiums on the 459 life insurance policies pledged as collateral under the facility. The Company is currently evaluating the 168 policies that have not been pledged as collateral under the revolving credit facility and may seek to sell, borrow against or lapse some of these policies as its liquidity and portfolio management needs dictate. Should it choose to do so, the Company estimates that it will need to pay approximately $6.5 million to maintain these 168 policies in force through 2013 and may seek to raise additional capital to maintain some or all of these policies. We may also seek to reduce our operating expenses in order to preserve the value of our existing portfolio of policies. The lapsing of policies, if any, would create losses as such assets would be written down to zero.

As of June 30, 2013, we had approximately $23.6 million of cash and cash equivalents.

The Company also expects during the next 12 months that, as part of the framework for the settlement embodied by the Term Sheet, it will, among other things, agree to pay $1.0 million of a $12.0 million payment to settle the class action litigation and will agree to contribute $500,000 to a trust to cover certain claims under its director and officer liability insurance policies, which will further stress the Company’s liquidity position. In addition, under the Term Sheet, the Company will undertake to advance legal fees and indemnify certain individuals covered under the director and officer liability insurance policies. The obligation to advance and indemnify on behalf of these individuals, while currently unquantifiable, may be substantial and could have an adverse effect on the Company’s financial position and results of operations.

Financing Arrangements Summary

Bridge Facility

On March 27, 2013, Greenwood Asset Portfolio, LLC (“Greenwood”), as issuer, and the Company and OLIPP IV, LLC, as guarantors, entered into an indenture with Wilmington Trust Company, as indenture trustee, under which an aggregate principal amount of $45.0 million in 12% increasing rate senior secured bridge notes were issued (the “Bridge Facility”).

Interest under the Bridge Facility accrued at 12% per annum for the first nine months from the issue date, and would increase by 600 basis points thereafter to 18% per annum. Up to 25% of the net proceeds from the Bridge Facility after transaction expenses were to be used by the Company for general corporate purposes, including for premium payments on life insurance policies not owned by Greenwood, with the balance used to pay fees and expenses associated with the Bridge Facility and for premiums on life insurance policies owned by Greenwood. The Bridge Facility was guaranteed by the Company and secured by the cash on account at Greenwood and its portfolio of life insurance policies. The Bridge Facility was also secured by pledges of the equity interests of Greenwood’s direct parent and each subsidiary of the Company, other than its licensed life settlement provider, that holds life insurance policies that were not subject to the subrogation rights of the Company’s lender protection insurance carrier.

Notes under the Bridge Facility were issued at 92% of their face amount and were pre-payable at par at any time. The Bridge Facility was subject to mandatory prepayment provisions upon the issuance of additional debt, equity raises and asset sales. Mandatory prepayments are generally at par although certain asset sales and a change of control would each trigger a mandatory prepayment obligation at 109%. The Bridge Facility required the maintenance of a 2 times asset coverage ratio and six months of cash on hand to pay interest on the Bridge Facility and premiums on life insurance policies owned by Greenwood. Upon a failure to maintain requisite cash on hand, the Company may have been obligated to sell policies to repay the lenders under the Bridge Facility.

On April 30, 2013, borrowings under the Revolving Credit Facility described below were used to repay all outstanding amounts due under and retire the Bridge Facility and the vast majority of the assets owned by Greenwood were ultimately contributed to White Eagle.

Revolving Credit Facility

Effective April 29, 2013, White Eagle entered into a 15-year revolving credit agreement (the “Revolving Credit Facility”) with LNV Corporation, as initial lender, Imperial Finance & Trading, LLC, as servicer and portfolio manager and CLMG Corp., as administrative agent (the “Agent”). The Revolving Credit Facility was amended on August 9, 2013 to provide until August 31, 2013 for the delivery of certain post-closing items by White Eagle and the servicer.

General & Security . The Revolving Credit Facility provides for an asset-based revolving credit facility backed by White Eagle’s portfolio of life insurance policies with an initial aggregate lender commitment of up to $300.0 million, subject to borrowing base availability. Upon the closing of the Revolving Credit Facility, White Eagle owns a portfolio of 459 life insurance policies with an aggregate death benefit of approximately $2.3 billion and an estimated fair value of approximately $218.1 million at June 30, 2013, which has been pledged as collateral under the Revolving Credit Facility. In addition, the Company’s equity interests in White Eagle have been pledged under the Revolving Credit Facility.

 

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Borrowing Base . Borrowing availability under the Revolving Credit Facility is subject to a borrowing base, which at any time is equal to the lesser of (A) the sum of all of the following amounts that have been funded or are to be funded through the next distribution date (i) the initial advance and all additional advances to acquire additional pledged policies or that are not for ongoing maintenance advances, plus (ii) 100% of the sum of the ongoing maintenance costs, plus (iii) 100% of accrued and unpaid interest on borrowings (excluding the rate floor portion described below), plus (iv) 100% of any other fees and expenses funded and to be funded as approved by the required lenders, less (v) any required payments of principal and interest previously distributed and to be distributed through the next distribution date; (B) 75% of the valuation of the policies pledged as collateral as determined by the lenders; (C) 50% of the aggregate face amount of the policies pledged as collateral (excluding certain specified life insurance policies); and (D) the then applicable facility limit. As of June 30, 2013, the borrowing base was approximately $107.7 million and borrowings under the facility were $107.1 million.

Amortization & Distributions. Proceeds from the policies pledged as collateral under the Revolving Credit Facility will be distributed pursuant to a waterfall. Absent an event of default, after premium payments and fees to service providers, 100% of the remaining proceeds will be directed to pay outstanding interest and principal on the loan, unless the lenders determine otherwise. Generally, after payment of interest and principal, collections from policy proceeds are to be paid to White Eagle up to $76.1 million, then 50% of the remaining proceeds are to be directed to the lenders with the remainder paid to White Eagle and for any unpaid fees to service providers. With respect to approximately 25% of the face amount of policies pledged as collateral under the Revolving Credit Facility, White Eagle has agreed that if policy proceeds that are otherwise due are not paid by an insurance carrier, the foregoing distributions will be altered such that the lenders will receive any “catch-up” payments in respect of amounts that they would have received in the waterfall prior to distributions being made to White Eagle. During the continuance of events of default or unmatured events of default, the amounts from collections of policy proceeds that might otherwise be paid to White Eagle will instead be held in a designated account controlled by the lenders and may be applied to fund operating and third party expenses, interest and principal, “catch-up” payments or percentage payments that would go to the lenders as described above.

Use of Proceeds. Generally, ongoing advances may be made for paying premiums on the life insurance policies pledged as collateral, to pay debt service (other than a “rate floor” component equal to the greater of LIBOR (or the applicable base rate) and 1.5%), and to pay the fees of service providers. Subsequent advances in respect of newly pledged policies are at the discretion of the lenders and the use of proceeds from those advances are at the discretion of the lenders.

Interest. Borrowings under the Revolving Credit Facility bear interest at a rate equal to LIBOR or, if LIBOR is unavailable, the base rate, in each case plus an applicable margin of 4.00% and subject to the rate floor described above. The base rate under the Revolving Credit Facility equals the sum of (i) the weighted average of the interest rates on overnight federal funds transactions or, if unavailable, the average of three federal funds quotations received by the Agent plus 0.75% and (ii) 0.5%.

Maturity. The term of the Revolving Credit Facility expires April 28, 2028, which is also the scheduled commitment termination date (though the lenders’ commitments to fund borrowings may terminate earlier in relation to an event of default). The lenders’ interests in and rights to a portion of the proceeds of the policies does not terminate with the repayment of the principal borrowed and interest accrued thereon, the termination of the Revolving Credit Facility or expiration of the lenders’ commitments.

Covenants/Events of Defaults . The Revolving Credit Facility contains covenants and events of default that are customary for asset-based credit agreements of this type, but also include cross defaults under the servicing, account control, contribution and pledge agreements entered into in connection with the Revolving Credit Facility (including in relation to breached by third parties thereunder), changes in control of or insolvency or bankruptcy of the Company and relevant subsidiaries and performance of certain obligations by certain relevant subsidiaries, White Eagle and third parties. The Revolving Credit Facility does not contain any financial covenants, but does contain certain tests relating to asset maintenance, performance and valuation the satisfaction of which will be determined by the lenders with a high degree of discretion.

Remedies . The Revolving Credit Facility and ancillary transaction documents afford the lenders a high degree of discretion in their selection of and implementation of remedies in relation to any event of default, including a high degree of discretion in determining whether to foreclose upon and liquidate all or any pledged policies, the Company’s interests in White Eagle, and the manner of any such liquidation. White Eagle has limited ability to cure events of default through the sale of policies or the procurement of replacement financing.

At June 30, 2013 the fair value of the debt is $108.9 million. See Note 15 — Fair Value Measurements . The outstanding principal is approximately $107.1 million as of June 30, 2013.

Structured Settlement Financing Arrangements

8.39% Fixed Rate Asset Backed Variable Funding Notes . We formed Imperial Settlements Funding (“ISF”) as a subsidiary of Washington Square Financial, LLC (“WSF”) to serve as a special purpose financing entity to allow us to borrow against certain of our structured settlements and assignable annuities, which we refer to as receivables, to provide us liquidity. On September 24, 2011, we entered into an arrangement to provide financing up to $50.0 million in financing. Under this arrangement, a subsidiary of Partner Re, Ltd., or the noteholder, became the initial holder of ISF 2011’s 8.39% Fixed Rate Asset Backed Variable Funding Notes issued under a master trust indenture and related indenture supplement, or the indenture, pursuant to which the noteholder has committed to advance up to $50.0 million upon the terms and conditions set forth in the indenture. The note is secured by the receivables that ISF 2011 acquires from Washington Square from time to time. The note is due and payable on or before January 1, 2057, but principal and interest must be repaid pursuant to a schedule of fixed payments from the receivables that secure the notes. The arrangement generally has a concentration limit of 15% for the providers of the receivables that secure the notes. Wilmington Trust is the collateral trustee.

 

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Upon the occurrence of certain events of default under the indenture, all amounts due under the note are automatically accelerated. ISF 2011 is subject to several restrictive covenants under the terms of the indenture. The restrictive covenants include that ISF 2011 cannot: (i) create, incur, assume or permit to exist any lien on or with respect to any assets other than certain permitted liens, (ii) create, incur, assume, guarantee or permit to exist any additional indebtedness, (iii) declare or pay any dividend or other distribution on account of any equity interests of ISF 2011 other than certain permitted distributions from available cash, (iv) make any repurchase or redemption of any equity interests of ISF 2011 other than certain permitted repurchases or redemptions from available cash, (v) enter into any transactions with affiliates other than the transactions contemplated by the indenture, or (vi) liquidate or dissolve.

As of June 30, 2013, the Company had available commitments under this facility of $6.8 million. We also have other parties to whom we have sold term-certain structured settlement assets and to whom we believe we can sell such assets in the future.

The Life-contingent Structured Settlement Facility . On May 21, 2013, WSF amended and restated its forward purchase and sale agreement (“PSA”) to sell of life-contingent structured settlement receivables to Compass Settlements, LLC (“Compass”). Subject to predetermined eligibility criteria and on-going funding conditions, Compass committed, in increments of $10.0 million, up to $45.0 million to purchase life-contingent structured settlement receivables from WSF. The PSA obligates WSF to sell the eligible life-contingent structured settlement receivables it originates to Compass on an exclusive basis for twelve months from the date of the amended and restated PSA, subject to Compass maintaining certain purchase commitment levels. Additionally, the Company agreed to guarantee WSF’s obligation to repurchase any ineligible receivables sold under the PSA and certain other related obligations. As of June 30, 2013, the Company had available commitments under this facility of $8.2 million.

Premium Finance Loan Maturities

The following table summarizes the maturities of our premium finance loans outstanding as of June 30, 2013 (dollars in thousands):

 

     Principal and Origination Fee Maturity  
     Total at
6/30/2013
    Year Ending
12/31/2013
 

Carrying value (loan principal balance, accreted origination fees, and accrued interest receivable)

   $ 583      $ —     

Weighted average per annum interest rate

     14.0     —     

Per annum origination fee as a percentage of the principal balance of the loan at origination

     11.8     —     

Cash Flows

The following table summarizes our cash flows from operating, investing and financing activities for the six months ended June 30, 2013 and 2012 (in thousands):

 

     For the Six Months Ended
June 30,
 
     2013     2012  

Statement of Cash Flows Data:

    

Total cash provided by (used in):

    

Operating activities

   $ (6,241 )   $ (20,368

Investing activities

     (22,663     29,225   

Financing activities

     45,466       (15,493
  

 

 

   

 

 

 

Increase (decrease) in cash and cash equivalents

   $ 16,562      $ (6,636
  

 

 

   

 

 

 

Operating Activities

During the six months ended June 30, 2013, operating activities used cash of $6.2 million. Our net income of $43.4 million was adjusted for depreciation and amortization of $100,000, amortization of discounts and premiums of $21,000, loan origination cost of $10.3 million, extinguishment of bridge facility of $4.0 million, stock-based compensation expense of $1.1 million, change in fair value of life settlements of $66.7 million, loss on life settlements of $1.2 million, change in unrealized fair value of structured settlements of $781,000, interest income of $162,000, change in fair value of credit facility of $5.4 million, gain on sale of investment securities available for sale of $22,000, and a net positive change in the components of operating assets and liabilities of $6.7 million. This positive change in operating assets and liabilities resulted in part from a $1.2 million decrease in structured settlements receivables, $1.3 million decrease in deposits, $105,000 increase in investment in affiliates, $531,000 increase in prepaid expenses and other assets, $2.3 million increase in accounts payable, $2.4 million increase in other liabilities, $95,000 decrease in interest receivable and $40,000 decrease in deferred income tax.

 

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During the six months ended June 30, 2012, operating activities used cash of $20.4 million. Our net loss of $9.5 million was adjusted for depreciation and amortization of $236,000, amortization of discounts and premiums of $611,000, provision for losses on loan receivable of $441,000, stock-based compensation expense of $100,000, origination fee income of $438,000, change in fair value of life settlements of $9.1 million, change in unrealized fair value of structured settlements of $1.2 million, interest income of $1.6 million, amortization of deferred costs of $1.5 million, realized gain on life settlements, net of $291,000, gain on sale of investment securities available for sale of $39,000, and a net negative change in the components of operating assets and liabilities of $1.2 million. This negative change in operating assets and liabilities resulted in part from a $895,000 decrease in certificate of deposits, $846,000 increase in deposits, a $11.0 million decrease in structured settlements receivables, $907,000 increase in investment in affiliates, $931,000 increase in prepaid expenses and other assets, $3.9 million decrease in accounts payable, $2.4 million decrease in other liabilities, $41,000 increase in deferred income tax, $166,000 decrease in interest receivable, and $4.3 million decrease in interest payable.

Investing Activities

During the six months ended June 30, 2013, cash flows used in investing activities was $22.7 million and includes $12.1 million in proceeds received from sale of investment securities available for sale, $6.0 million from maturity of life settlements, $1.0 million from surrender of investment in life settlements and $691,000 from loan payoffs. These were offset by $35.6 million for premiums paid on investments in life settlements and $7.0 million for purchase of investment in life settlement.

During the six months ended June 30, 2012, cash flows provided by in investing activities was $29.2 million and includes $51.7 million in proceeds received from sale of investment securities available for sale, $5.6 million in proceeds received from sale of investments in life settlements, and $20.7 million in proceeds from loan payoffs. These were offset by $35.5 million used for purchases of investment securities available for sale, $130,000 for purchase of investment in life settlement and $13.1 million for premiums paid on investments in life settlements.

Financing Activities

During the six months ended June 30, 2013, cash provided by financing activities was $45.5 million and includes $41.4 million in proceeds from the bridge facility, $1.2 million in restricted cash for indemnification deposits received and $54.6 million from our new credit facility. These were offset by repayment of the bridge facility of $45.0 million and loan origination cost of $6.7 million.

During the six months ended June 30, 2012, cash used in financing activities was $15.5 million and includes $15.2 million for the repayment of borrowings under credit facilities and $332,000 in restricted cash for indemnification deposits.

Contractual Obligations

The following table summarizes our contractual obligations as of June 30, 2013 (in thousands):

 

     Total      Due in Less
than 1 Year
     Due
1-3  Years
     Due
3-5  Years
     More than
5 Years
 

Operating leases

   $ 750      $ 560      $ 190        

Note payable

     101,775         —           —           —           101,775   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 
   $ 102,525      $ 560      $ 190      $ —         $ 101,775   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Our assets and liabilities are, and will be in the future, interest-rate sensitive in nature. As a result, interest rates may influence our performance far more than does inflation. Changes in interest rates do not necessarily correlate with inflation or changes in inflation rates. We do not believe that inflation had any material impact on our results of operations in the periods presented in our financial statements presented in this report.

Off-Balance Sheet Arrangements

At June 30, 2013, there are no off-balance sheet arrangements between us and any other entity that have, or are reasonably likely to have, a current or future effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that is material to stockholders.

Item 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

Market risk is the risk of potential economic loss principally arising from adverse changes in the fair value of financial instruments. The major components of market risk are credit risk, interest rate risk and foreign currency risk. We have no exposure in our operations to foreign currency risk.

Credit Risk

In our life finance business segment, with respect to life insurance policies collateralizing our loans or that we acquire upon relinquishment, credit risk consists primarily of the potential loss arising from adverse changes in the financial condition of the issuers of the

 

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life insurance policies. We manage our credit risk related to these life insurance policy issuers by generally only funding premium finance loans for policies issued by companies that have a credit rating of at least “A” by Standard & Poor’s, at least “A2” by Moody’s, at least “A” by A.M. Best Company or at least “A-” by Fitch. At June 30, 2013, all of our loan collateral was for policies issued by companies rated “investment grade” (credit ratings of “A+” to “BBB-”) by Standard & Poor’s, and we owned 7 policies issued by a carrier rated below investment grade.

The following table shows the percentage of the total number of loans outstanding with lender protection insurance and the percentage of our total loans receivable balance covered by lender protection insurance as of the dates indicated below:

 

     June 30,  
     2013     2012  

Percentage of total number of loans outstanding with lender protection insurance

     0.0     45.3

Percentage of total loans receivable, net balance covered by lender protection insurance

     0.0     45.3

For the loans that had lender protection insurance and that matured during the six months ended June 30, 2013 and 2012, the lender protection insurance claims paid to us were 68.0% and 88.0%, respectively, of the contractual amount of the insured loans.

Our premium finance loans are originated with borrowers residing throughout the United States. We do not believe there are any geographic concentrations of loans that would cause them to be similarly impacted by economic or other conditions. However, there is concentration in the life insurance carriers that issued these life insurance policies that serve as our loan collateral. The following table provides information about the life insurance issuer concentrations that exceed 10% of total death benefit of the collateral and 10% of outstanding loan balance as of June 30, 2013:

 

Carrier

   Percentage of
Total Outstanding
Loan Balance
    Percentage of
Total Death
Benefit
    Moody’s
Rating
   S&P
Rating

AXA Equitable Life Insurance Company

     82.2 %     83.3 %   Aa3    A+

ReliaStar Life Insurance Company

     17.8     16.7   A3    A-

As of June 30, 2013, our lender protection insurer, Lexington, had a financial strength rating of “A” with a stable outlook by Standard & Poor’s. Pursuant to the Termination Agreement, we have released our lender protection insurer from any further obligations under our lender protection insurance policies.

The following table provides information about the life insurance issuer concentration that exceed 10% of total death benefit and 10% of total fair value of our investment in life settlements as of June 30, 2013:

 

Carrier

   Percentage of
Total

Fair Value
    Percentage of
Total Death
Benefit
    Moody’s
Rating
   S&P
Rating

Transamerica Occidental Life Insurance Company

     27.5 %     19.7 %   A1    AA-

Lincoln National Life Insurance Company

     16.9     16.9   A1    AA-

In our structured settlements segment, credit risk consists of the potential loss arising principally from adverse changes in the financial condition of the issuers of the annuities that arise from a structured settlement. Although certain purchasers of structured settlements may require higher credit ratings, we manage our credit risk related to the obligors of our structured settlements by generally requiring that they have a credit rating of “A-” or better by Standard & Poor’s. The risk of default in our structured settlement portfolio is mitigated by the relatively short period of time that we hold structured settlements as investments. We have not experienced any credit losses in this segment and we believe such risk is minimal.

Interest Rate Risk

At June 30, 2013, fluctuations in interest rates did not impact interest expense in the life finance segment. As discussed above in Liquidity and Capital Resources in Management’s Discussion and Analysis of Financial Condition and Results of Operations, the Revolving Credit Facility entered into by a subsidiary of the Company accrues interest at LIBOR plus an applicable margin. LIBOR under the facility is subject to a floor of 1.5% and the Company does not expect a fluctuation in interest rates to have a meaningful impact on the Company’s interest

 

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expense in the short term. Increases in LIBOR above the 1.5% floor provided in the Revolving Credit Facility, however, would likely affect the calculation of the fair value of the note payable under the Revolving Credit Facility. Additional increases in interest rates may impact the rates at which we are able to obtain financing in the future.

We currently earn revenue from interest charged on loans and loan origination fees. In addition, we earn income on the unrealized changes in fair value of life insurance policies we acquire in the life settlement and secondary markets. However, if the fair value of the life insurance policies we own decreases, we record this reduction as a loss. We receive interest income that accrues over the life of the life finance loan and is due at maturity. Substantially all of the interest rates we charged on our premium finance loans were floating rates that are calculated at the one-month LIBOR rate plus an applicable margin. In addition, our life finance loans have a floor interest rate 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. While the floor and cap interest rates mitigate our exposure to changes in interest rates, our interest income may nonetheless be impacted by changes in interest rates. Origination fees are fixed and are therefore not subject to changes based on movements in interest rates, although we do charge interest on origination fees.

As of June 30, 2013, we owned investments in life settlements (life insurance policies) in the amount of $265.8 million. A rise in interest rates could potentially have an adverse impact on the sale price if we were to sell some or all of these assets. There are several factors that affect the market value of life settlements (life insurance policies), including the age and health of the insured, investors’ demand, available liquidity in the marketplace, duration and longevity of the policy, and interest rates. We currently do not view the risk of a decline in the sale price of life settlements (life insurance policies) due to normal changes in interest rates as a material risk.

In our structured settlements segment, our profitability is affected by levels of and fluctuations in interest rates. Such profitability is largely determined by the difference, or “spread,” between the discount rate at which we purchase the structured settlements and the discount rate at which we can resell these assets or the interest rate at which we can finance those assets. Structured settlements are purchased at effective yields that are fixed, while rates at which structured settlements are sold, with the exception of forward purchase arrangements, are generally a function of the prevailing market rates for short-term borrowings. As a result, increases in prevailing market interest rates after structured settlements are acquired could have an adverse effect on our yield on structured settlement transactions. Currently, we do not view this risk to be material because nearly all of our structured settlements acquired are sold into forward purchase arrangements.

 

Item 4. CONTROLS AND PROCEDURES

Evaluation of Disclosure Controls and Procedures

Our management, with the participation of our chief executive officer and chief financial officer, conducted an evaluation of our disclosure controls and procedures, as such term is defined under Rule 13a-15(e) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Based on this evaluation, our chief executive officer and chief financial officer concluded that our disclosure controls and procedures were effective as of the end of the period covered by this Quarterly Report on Form 10-Q.

Limitations on Controls

Our disclosure controls and procedures and internal control over financial reporting are designed to provide reasonable assurance of achieving their objectives as specified above. Management does not expect, however, that our disclosure controls and procedures or our internal controls over financial reporting will prevent or detect all error and fraud. Any control system, no matter how well designed and operated, is based on certain assumptions and can provide only reasonable, not absolute, assurance that its objectives will be met. Further, no evaluation of controls can provide absolute assurance that misstatements due to error or fraud will not occur or that all control issues and instances of fraud, if any, within the Company have been detected.

Changes in Internal Control Over Financial Reporting

There was no change in our internal control over financial reporting during our most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

PART II—OTHER INFORMATION

 

  Item 1. Litigation

The SEC Investigation

We are subject to an investigation by the SEC. We received a subpoena issued by the staff of the SEC on February 17, 2012, seeking documents from 2007 through the date of the subpoena that are generally related to the Company’s premium finance business and corresponding financial reporting. The SEC is investigating whether any violations of federal securities laws have occurred and the Company is cooperating with the SEC regarding this matter. The Company is unable to predict the outcome of the SEC Investigation or estimate the amount of any possible sanction, which could include a fine, penalty, or court order prohibiting specific conduct, any of which could be material. No provision for losses has been recorded for this exposure.

 

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Class Action Litigation, Derivative Demands and the Insurance Coverage Declaratory Relief Complaint

The Class Action Litigation

Initially on September 29, 2011, the Company, and certain of its officers and directors were named as defendants in a putative securities class action filed in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida, entitled Martin J. Fuller v. Imperial Holdings, Inc. et al . Also named as defendants were the underwriters of the Company’s initial public offering. That complaint asserted claims under Sections 11, 12 and 15 of the Securities Act of 1933, as amended, alleging that the Company should have but failed to disclose in the registration statement for its initial public offering purported wrongful conduct relating to its life finance business which gave rise to the USAO Investigation. On October 21, 2011, an amended complaint was filed that asserts claims under Sections 11, 12 and 15 of the Securities Act of 1933, based on similar allegations. On October 25, 2011, defendants removed the case to the United States District Court for the Southern District of Florida.

On October 31, 2011, another putative class action case was filed in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida, entitled City of Roseville Employees Retirement System v. Imperial Holdings, et al , naming the same defendants and also bringing claims under Sections 11, 12 and 15 of the Securities Act based on similar allegations. On November 28, 2011, defendants removed the case to the United States District Court for the Southern District of Florida. The plaintiffs in the Fuller and City of Roseville cases moved to remand their cases back to state court. Those motions were fully briefed and argued.

On November 18, 2011, a putative class action case was filed in the United States District Court for the Southern District of Florida, entitled Sauer v. Imperial Holdings, Inc., et al, naming the same defendants and bringing claims under Sections 11 and 15 of the Securities Act of 1933 based on similar allegations.

On December 14, 2011, another putative class action case filed in United States District Court for the Southern District of Florida, entitled Pondick v. Imperial Holdings, Inc., et al., naming the same defendants and bringing claims under Sections 11, 12, and 15 of the Securities Act of 1933 based on similar allegations.

On February 24, 2012, the four putative class actions were consolidated and designated: Fuller v. Imperial Holdings et al. in the United States District Court for the Southern District of Florida, and lead plaintiffs were appointed.

In addition, the underwriters of the Company’s initial public offering have asserted that the Company is required by its Underwriting Agreement to indemnify the underwriters’ expenses and potential liabilities in connection with the litigation.

The Insurance Coverage Declaratory Relief Complaint

On June 13, 2012, Catlin Insurance Company (UK) Ltd. (“Catlin”) filed a declaratory relief action against the Company in the United States District Court for the Southern District of Florida. The complaint seeks a determination that there is no coverage under Catlin’s primary Directors, Officers and Company Liability Policy (the “Policy”) issued to the Company for the period February 3, 2012 to February 3, 2012, based on a prior and pending litigation exclusion (the “Exclusion”). Catlin also seeks a determination that it is entitled to reimbursement of approximately $800,000 in defense costs and fees advanced to the Company in the first quarter of 2012 under the Policy if it is determined that the Exclusion precludes coverage. As of the filing of this Quarterly Report on Form 10-Q, the Company has not yet been served with the complaint.

Derivative Demands

On November 16, 2011, the Company’s Board of Directors received a shareholder derivative demand from Harry Rothenberg (the “Rothenberg Demand”), which was referred to the special committee for a thorough investigation of the issues, occurrences and facts relating to, connected to, and arising from the USAO Investigation referenced in the Rothenberg Demand. On May 8, 2012, the Company’s Board of Directors received a derivative demand made by another shareholder, Robert Andrzejczyk (the “Andrzejczyk Demand”). The Andrzejczyk Demand, like the Rothenberg Demand was referred to the special committee, which determined that it did not contain any allegations that differed materially from those alleged in the Rothenberg Demand. On July 20, 2012, the Company (as nominal defendant) and certain of the Company’s officers, directors, and a former director were named as defendants in a shareholder derivative action filed in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida, entitled Robert Andrzejczyk v. Imperial Holdings, Inc. et al . The complaint alleges, among other things, that the Special Committee’s refusal of the Andrzejczyk Demand was improper.

The Settlement

On December 18, 2012, attorneys for the Company signed a Term Sheet for Global Settlement Regarding Imperial Holdings, Inc. Matters (the “Term Sheet”) setting forth the terms upon which each of the parties to the matters described in “ Class Action Litigation, Derivative Demands and the Insurance Coverage Declaratory Relief Complaint ” would be willing to settle the class action litigation and derivative actions as well as the declaratory relief action filed by Catlin, respectively. In addition to the Company’s attorneys, the Term Sheet was signed by attorneys representing the plaintiffs in the class action lawsuits and derivative actions instituted against the Company as well attorneys for the Company’s director and officer liability insurance carriers (“D&O Carriers”), certain individual defendants named in the class actions and the underwriters in the Company’s initial public offering.

On July 29, 2013, the parties to the Term Sheet executed definitive settlement agreements in respect of the class action litigation, derivative action and insurance coverage declaratory relief complaint. The class action litigation and derivative action settlements are subject to court approval and all of the settlements are contingent on effectiveness of the other settlements. On August 6, 2013, the federal court entered an order preliminarily approving the class action settlements and setting a settlement hearing for December 16, 2013. On August 13, 2013, the state court entered an order preliminarily approving the derivative action settlement and setting a final fairness hearing for December 17, 2013. Final court approval of the class action and derivative action settlements could be delayed by appeals or other proceedings.

 

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The terms of the class action settlement include a cash payment of $12.0 million, of which $11.0 million is to be contributed by the Company’s primary and excess D&O Carriers and the issuance of two million warrants for shares of the Company’s stock. In addition, the underwriters in the Company’s initial public offering are to waive their rights to indemnity and contribution by the Company.

The derivative action settlement requires implementation of certain compliance reforms and contemplates payment by the Company’s primary D&O carrier of $1.5 million for legal fees in respect of the derivative actions and the contribution of $500,000 in the Company’s stock.

In addition, the settlements contemplate that the Company will contribute $500,000 to a trust to cover certain claims under its director and officer liability insurance policies.

The settlements also require the Company to advance legal fees to and indemnify certain individuals covered under the policies. The obligation to advance and indemnify on behalf of these individuals, while currently unquantifiable, may be substantial and could have a material adverse effect on the Company’s financial position and results of operations.

Sun Life Litigation

On April 18, 2013, Sun Life Assurance Company of Canada (“Sun Life”) filed a complaint against the Company and several of its affiliates in the United States District Court for the Southern District of Florida, entitled Sun Life Assurance Company of Canada v. Imperial Holdings, Inc., et al . The complaint seeks to contest the validity of at least twenty-nine (29) policies issued by Sun Life. The complaint also asserts the following claims: (1) violations of the federal Racketeer Influenced and Corrupt Organizations Act, (2) common law fraud, (3) civil conspiracy, (4) tortious interference with contractual obligations, and (5) an equitable accounting. In response to a motion to dismiss filed by the Company, Sun Life filed an amended complaint on June 13, 2013. The Company believes that the amended complaint is without merit and filed another motion to dismiss on July 8, 2013. The Company intends to defend itself vigorously. No reserve has been established for this litigation.

On July 29, 2013, the Company filed a complaint against Sun Life in United States District Court for the Southern District of Florida, entitled Imperial Premium Finance, LLC v. Sun Life Assurance Company of Canada . The complaint asserts claims against Sun Life for breach of contract, breach of the covenant of good faith and fair dealing, and fraud, and seeks a judgment declaring that Sun Life is obligated to comply with the promises made by it in certain insurance policies. The complaint also seeks compensatory damages of no less than $30 million in addition to an award of punitive damages.

Sanctions Order

On April 27, 2012, after the conclusion of a jury trial in the matter styled Steven A. Sciaretta, as Trustee of the Barton Cotton Irrevocable Trust a/k/a the Amended and Restated Barton Cotton Irrevocable Trust v. The Lincoln National Life Insurance Company (“Lincoln”) , the defendant, Lincoln, filed a motion seeking sanctions against the Company’s subsidiary, Imperial Premium Finance (“IPF”), a non-party to the litigation, relating to its corporate representative deposition and trial testimony. On May 6, 2013, the Court issued an order sanctioning IPF and ordering it to pay $850,000.00. On June 4, 2013, IPF filed a Notice of Appeal of the order to the Eleventh Circuit Court of Appeals.

Other Matters

In addition to the proceedings above, we are party to various legal proceedings that arise in the ordinary course of business. From time to time, we also finance the cost of a policyholder’s defense of litigation initiated by a carrier to challenge the policyholder’s life insurance policy. While we cannot predict with certainty the outcome of these proceedings, we believe that the resolution of these other proceedings will not, based on information currently available to us, have a material adverse effect on our financial position or results of operations.

 

Item 1A. Risk Factors

Updates to our risk factors are discussed below. Other than the risk factors set forth below, our risk factors have not changed materially from those disclosed in our Annual Report on Form 10-K filed for the year ended December 31, 2012 with the SEC on March 28, 2013.

The Company may not have access to cash flows from proceeds of policies pledged as collateral under the revolving credit facility.

There are currently 459 life insurance policies pledged by White Eagle as collateral under the revolving credit facility with an aggregate death benefit of approximately $2.3 billion. Proceeds from these policies will be distributed pursuant to a waterfall. After payments to customary service providers, 100% of available proceeds will be directed to pay outstanding interest and principal on the loan unless the lenders under the revolving credit facility determine otherwise. Accordingly, there can be no assurance as to when proceeds from these policies will be distributed to the Company by White Eagle. Any prolonged delay in access to cash flows from these proceeds may adversely affect the Company’s ability to fund its operations and to pay the premiums required to maintain policies that are not pledged as collateral under the revolving credit facility.

 

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The Company will not control decisions regarding collateral pledged under the revolving credit facility.

The lenders will control substantially all matters related to collateral securing the revolving credit facility, including the 459 life insurance policies pledged by White Eagle and the membership interests in White Eagle. Upon an event of default, absent a waiver, in addition to principal and interest, the lenders’ rights to proceeds from collections under the revolving credit facility will become due. If these obligations cannot be satisfied, the lenders, or their agent, may dispose of, release, or foreclose on (including by means of strict foreclosure on all or any of the policies or on the Company’s interests in White Eagle, which might be exercised in a manner intended to impair our rights to excess proceeds of any liquidation of foreclosed assets), or take other actions with respect to, the collateral with which the Company or its shareholders may disagree or that may be contrary to the interests of its shareholders. The revolving credit facility contains covenants that may significantly limit our ability to refinance. In addition, the lenders under the revolving credit facility have a substantial interest in and priority rights to distributions of certain proceeds of the assets. Such covenants and such interest in and rights to distributions may significantly reduce our ability to attract replacement financing were we to seek to refinance the credit facility as a means of limiting adverse actions by the lenders in the exercise of their remedies in relation to any event of default.

The Company may not be able to raise additional capital in a timely manner on favorable terms or at all.

The Company estimates that it will need to pay $6.5 million and an additional $9.2 million in premiums to keep the 168 life insurance policies that have not been pledged as collateral under the revolving credit facility in force through December 31, 2013 and December 31, 2014, respectively. As of June 30, 2013, the Company had approximately $23.6 million of cash and cash equivalents. The Company may need to seek additional capital to pay premiums on these policies and there can be no assurance that the Company will be able to consummate a financing on favorable terms or at all. If the Company cannot obtain necessary financing, it may need to sell certain of these policies (or may determine to sell policies if its portfolio management needs otherwise dictate), but there can be no assurance that the Company can consummate any sales or that, if consummated, sales of policies will be at or above their carrying values. The Company may also determine to lapse certain of these policies that have a low return profile or as its portfolio management needs dictate. The lapsing of policies, if any, would create losses as the assets would be written down to zero.

The class action, derivative action and insurance coverage declaratory relief complaint settlements are contingent upon one another and subject to court approval and/or appeal.

The effectiveness of the class action, derivative action and insurance coverage declaratory relief settlements are contingent upon one another. The class action and derivative settlements are each subject to preliminary and final court approval, which may be subject to appeals or other legal proceedings. In addition, the Company has the right to terminate the class action settlement if more than a certain percentage of class members elect to opt out of the class action settlement. The failure to obtain preliminary or final court approval of the settlements, the termination of the class action settlement due to high shareholder opt-out, or an appeal of the settlements could have a material adverse effect on our business, financial condition and results of operations.

 

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

None.

 

Item 3. Default Upon Senior Securities

None.

 

Item 4. Mine Safety Disclosures

None.

 

Item 5. Other Information

None.

 

Item 6. Exhibits

See the Exhibit Index following the Signatures page of this Quarterly Report on Form 10-Q.

 

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

    IMPERIAL HOLDINGS, INC.

/s/ Richard S. O’Connell, Jr.

    Chief Financial Officer and Chief Credit Officer
Richard S. O’Connell, Jr.     (Principal Financial Officer)

Date August 13, 2013

 

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EXHIBIT INDEX

 

Exhibit No.

 

Description

Exhibit 10.1++   Loan and Security Agreement, dated as of April 29, 2013, among White Eagle Asset Portfolio, LLC, as borrower, Imperial Finance & Trading, LLC, as servicer and portfolio manager, LNV Corporation, as initial lender, and CLMG Corp, as the administrative agent.
Exhibit 10.2+   First Amendment to Loan and Security Agreement and Security Account Control and Custodian Agreement, dated August 9, 2013, among White Eagle Asset Portfolio, LLC, as borrower, Imperial Finance & Trading, LLC, as servicer and portfolio manager, LNV Corporation, as initial lender, Wilmington Trust, National Associate, as custodian, and CLMG Corp, as the administrative agent.
Exhibit 10.3++   Servicing Agreement, dated as of April 29, 2013, by and between Imperial Finance & Trading, LLC, as servicer, and White Eagle Asset Portfolio, LLC.
Exhibit 10.4+   First Amendment to Servicing Agreement, dated as of August 9, 2013, by and between Imperial Finance & Trading, LLC, as servicer, and White Eagle Asset Portfolio, LLC.
Exhibit 10.5++   Master Termination Agreement and Release, effective as of April 30, 2013, by and among Lexington Insurance Company, Imperial Holding, Inc., Imperial PFC Financing, LLC, Imperial PFC Financing II, LLC, Imperial Life Financing II, LLC, Imperial Life & Annuity Services, LLC, Imperial Premium Finance, LLC and CTL Holdings, LLC.
Exhibit 10.6++   Amended and Restated Purchase and Sale Agreement, dated as of May 21, 2013, by and among Compass Settlements LLC and Washington Square Financial, LLC.
Exhibit 10.7+   2010 Omnibus Incentive Plan Form of Stock Option Award Agreement.
Exhibit 31.1   Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Exhibit 31.2   Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Exhibit 32.1   Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
Exhibit 32.2   Certification of Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
Exhibit 101.*   Interactive Data Files
Exhibit 101.INS**  +   XBRL Instance Document
Exhibit 101.SCH**  +   XBRL Taxonomy Extension Schema Document
Exhibit 101.CAL**  +   XBRL Taxonomy Extension Calculation Linkbase Document
Exhibit 101.DEF**  +   XBRL Taxonomy Definition Linkbase Document
Exhibit 101.LAB**  +   XBRL Taxonomy Extension Label Linkbase Document 10.1 & 10.2
Exhibit 101.PRE**  +   XBRL Taxonomy Extension Presentation Linkbase Document

 

* Furnished, not filed
** Pursuant to Rule 406T of Regulation S-T, these interactive data files are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933 not filed for such purposes of Section 18 of the Securities Exchange Act of 1934 and otherwise are not subject to liability under such sections.
+ Submitted electronically with this Quarterly Report
++ 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.

 

68

Exhibit 10.1

[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

LOAN AND SECURITY AGREEMENT

Dated as of April 29, 2013

Among

WHITE EAGLE ASSET PORTFOLIO, LLC,

as Borrower,

THE FINANCIAL INSTITUTIONS PARTY HERETO,

as Lenders

IMPERIAL FINANCE & TRADING, LLC

as Servicer and as Portfolio Manager

And

CLMG CORP.,

as Administrative Agent


TABLE OF CONTENTS

 

          Page  

ARTICLE I DEFINITIONS

     1   

Section 1.1

  

Defined Terms.

     1   

Section 1.2

  

Other Definitional Provisions.

     1   

Section 1.3

  

Other Terms

     2   

Section 1.4

  

Computation of Time Periods

     2   

ARTICLE II THE LENDERS’ COMMITMENTS, BORROWING PROCEDURES, SECURITY INTEREST AND LENDER NOTES

     2   

Section 2.1

  

Lenders’ Commitments.

     2   

Section 2.2

  

Borrowing Procedures.

     3   

Section 2.3

  

Funding.

     4   

Section 2.4

  

Representation and Warranty

     5   

Section 2.5

  

Lender Notes

     6   

Section 2.6

  

Security Interest.

     6   

Section 2.7

  

Sale or Abandonment of Collateral.

     8   

Section 2.8

  

Permitted Purposes.

     12   

ARTICLE III INTEREST; INTEREST PERIODS; FEES, ETC.

     12   

Section 3.1

  

Interest Rates

     12   

Section 3.2

  

Interest Payment Dates

     13   

Section 3.3

  

Computation of Interest and Fees

     13   

Section 3.4

  

Participation Interest

     13   

Section 3.5

  

Administrative Agent Fee

     13   

ARTICLE IV PAYMENTS; PREPAYMENTS

     13   

Section 4.1

  

Repayments and Prepayments

     13   

Section 4.2

  

Making of the Expense Deposit

     14   

Section 4.3

  

Due Date Extension

     14   

ARTICLE V ACCOUNTS; DISTRIBUTION OF COLLECTIONS

     14   

Section 5.1

  

Accounts.

     14   

Section 5.2

  

Application of Available Amounts.

     15   

Section 5.3

  

Permitted Investments.

     24   

Section 5.4

  

Shortfall Exclusion Election.

     25   

ARTICLE VI INCREASED COSTS, ETC.

     25   

Section 6.1

  

Increased Costs.

     25   

 

i


Section 6.2

  

Funding Losses.

     26   

Section 6.3

  

Withholding Taxes.

     27   

Section 6.4

  

Designation of a Different Lending Office.

     30   

ARTICLE VII CONDITIONS TO BORROWING

     30   

Section 7.1

  

Conditions Precedent to the Closing and the Initial Advance.

     30   

Section 7.2

  

Conditions Precedent to each Ongoing Maintenance Advance.

     34   

Section 7.3

  

Conditions Precedent to each Additional Policy Advance.

     35   

ARTICLE VIII REPRESENTATIONS AND WARRANTIES

     38   

Section 8.1

  

Representations and Warranties of the Borrower.

     38   

Section 8.2

  

Representations and Warranties of the Portfolio Manager.

     43   

ARTICLE IX COVENANTS

     46   

Section 9.1

  

Affirmative Covenants.

     46   

Section 9.2

  

Negative Covenants.

     56   

ARTICLE X EVENTS OF DEFAULT; REMEDIES

     58   

Section 10.1

  

Events of Default.

     58   

Section 10.2

  

Remedies.

     61   

Section 10.3

  

Lender Default.

     64   

ARTICLE XI INDEMNIFICATION

     64   

Section 11.1

  

General Indemnity of the Borrower.

     64   

Section 11.2

  

General Indemnity of the Portfolio Manager.

     66   

ARTICLE XII ADMINISTRATIVE AGENT

     66   

Section 12.1

  

Appointment.

     66   

Section 12.2

  

Delegation of Duties.

     67   

Section 12.3

  

Exculpatory Provisions.

     67   

Section 12.4

  

Reliance by the Administrative Agent

     67   

Section 12.5

  

Notice of Default.

     68   

Section 12.6

  

Non-Reliance on the Administrative Agent and Other Lenders.

     68   

Section 12.7

  

Indemnification.

     68   

Section 12.8

  

The Administrative Agent in Its Individual Capacity

     69   

Section 12.9

  

Successor Administrative Agent.

     69   

ARTICLE XIII MISCELLANEOUS

     69   

Section 13.1

  

Amendments, Etc.

     69   

Section 13.2

  

Notices, Etc.

     70   

Section 13.3

  

No Waiver; Remedies.

     70   

 

ii


Section 13.4

  

Binding Effect; Assignability; Term.

     70   

Section 13.5

  

GOVERNING LAW; JURY TRIAL.

     71   

Section 13.6

  

Execution in Counterparts.

     71   

Section 13.7

  

Submission to Jurisdiction.

     72   

Section 13.8

  

Costs and Expenses.

     72   

Section 13.9

  

Severability of Provisions.

     72   

Section 13.10

  

ENTIRE AGREEMENT.

     72   

Section 13.11

  

Conflicts.

     72   

Section 13.12

  

Confidentiality.

     73   

Section 13.13

  

Limitation on Liability.

     73   

Section 13.14

  

Relationship of Parties.

     75   

 

SCHEDULES   
SCHEDULE 2.1(a)    Lenders’ Commitments
SCHEDULE 7.1(a)(i)    Collateral Assignment Exception Policy
SCHEDULE 7.1(f)    Policy Delivery Exception Policies
SCHEDULE 8.1(i)    Attempted Rescission Exercise Policies
SCHEDULE 8.1(q)    Material Adverse Changes
SCHEDULE 8.1(s)    Account Information
SCHEDULE 8.1(u)    Unmatured Events of Default and Events of Default
SCHEDULE 8.1(w)    Retained Death Benefit Policies
SCHEDULE 8.2(l)    Portfolio Manager Material Adverse Changes
SCHEDULE 13.2    Notice Addresses
ELIGIBILITY CRITERIA CLAUSE (a) SCHEDULE I    Eligibility Criteria Clause (a) Policy Exceptions
ELIGIBILITY CRITERIA CLAUSE (g) SCHEDULE    Eligibility Criteria Clause (g) Policy Exceptions
ELIGIBILITY CRITERIA CLAUSE (h) SCHEDULE    Eligibility Criteria Clause (h) Policy Exceptions
ELIGIBILITY CRITERIA CLAUSE (i) SCHEDULE    Eligibility Criteria Clause (i) Policy Exceptions
ELIGIBILITY CRITERIA CLAUSE (m) SCHEDULE    Eligibility Criteria Clause (m) HIPAA Authorization Exceptions
INITIAL ADVANCE LEXINGTON SCHEDULE    AIG Subrogated Policies
EXHIBITS   
EXHIBIT A    Form of Borrowing Request
EXHIBIT B    Form of Lender Note

 

iii


EXHIBIT C    Form of Assignment and Assumption Agreement
EXHIBIT D    Form of Calculation Date Report
EXHIBIT E    Form of Annual Budget
EXHIBIT F    Form of Borrowing Base Certificate
EXHIBIT G    Form of Section 2.7(b) Notice
ANNEXES   
ANNEX I    List of Defined Terms

 

iv


THIS LOAN AND SECURITY AGREEMENT (this “ Loan Agreement ”) is made and entered into as of April 29, 2013, among WHITE EAGLE ASSET PORTFOLIO, LLC, a Delaware limited liability company (the “ Borrower ”), IMPERIAL FINANCE & TRADING, LLC, a Florida limited liability company, as Servicer (in such capacity, the “ Servicer ”) and Portfolio Manager (in such capacity, the “ Portfolio Manager ”), LNV Corporation, a Nevada corporation, as initial lender (the “ Initial Lender ”), the financial institutions party hereto as Lenders (together with the Initial Lender, the “ Lenders ”), and CLMG Corp., a Texas corporation, as the administrative agent for the Lenders (in such capacity, the “ Administrative Agent ”).

W I T N E S S E T H:

WHEREAS, the Borrower desires that the Lenders agree to extend financing to the Borrower on the terms and conditions set forth herein.

WHEREAS, the Lenders are willing to provide such financing on the terms and conditions set forth in this Loan Agreement.

WHEREAS, in consideration for the Lenders providing such financing, the Borrower hereby agrees to pay, among other things, the Aggregate Participation Interest to the Lenders on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1 Defined Terms. Capitalized terms used and not otherwise defined in this Loan Agreement shall have the meanings given to them in the List of Defined Terms attached hereto as Annex I.

Section 1.2 Other Definitional Provisions .

(a) Unless otherwise specified therein, all terms defined in this Loan Agreement have the meanings as so defined herein when used in the Lender Notes or any other Transaction Document, certificate, report or other document made or delivered pursuant hereto.

(b) Each term defined in the singular form in Section 1.1 or elsewhere in this Loan Agreement shall mean the plural thereof when the plural form of such term is used in this Loan Agreement, the Lender Notes or any other Transaction Document, and each term defined in the plural form in Section 1.1 or elsewhere in this Loan Agreement shall mean the singular thereof when the singular form of such term is used herein or therein.

(c) The words “hereof,” “herein,” “hereunder” and similar terms when used in this Loan Agreement shall refer to this Loan Agreement as a whole and not to any particular provision of this Loan Agreement, and article, section, subsection, schedule and exhibit references herein are references to articles, sections, subsections, schedules and exhibits to this Loan Agreement unless otherwise specified.

 

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Section 1.3 Other Terms . All accounting terms not specifically defined herein shall be construed in accordance with GAAP. All terms used in Article 9 of the UCC in the State of Delaware, and not specifically defined herein, are used herein as defined in such Article 9.

Section 1.4 Computation of Time Periods . Unless otherwise stated in this Loan Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding.”

ARTICLE II

THE LENDERS’ COMMITMENTS, BORROWING PROCEDURES,

SECURITY INTEREST AND LENDER NOTES

Section 2.1 Lenders’ Commitments .

(a) On the terms and subject to the conditions set forth in this Loan Agreement, the Lenders shall make the Initial Advance and Ongoing Maintenance Advances, and may make Additional Policy Advances, to the Borrower from time to time before the Commitment Termination Date in such amounts as may be from time to time requested by the Borrower pursuant to Section 2.2 and agreed to by the Lenders, for the purposes set forth in Section 2.8(a) ; provided , however that (i) the aggregate principal amount of all Advances from time to time outstanding under this Loan Agreement (excluding any Protective Advances) shall not exceed the Borrowing Base and (ii) no Lender shall be obligated to make any Advance to the Borrower to the extent that the aggregate outstanding amount of such Advances made by such Lender hereunder exceeds such Lender’s Commitment as set forth in Schedule 2.1(a) , as the same is amended (or deemed amended) from time to time by Assignment and Assumption Agreements executed pursuant to Section 13.4 of this Loan Agreement, nor shall any Lender be obligated to make any Advance required to be made by any other Lender.

(b) On the Closing Date, so long as the Borrower has requested the same pursuant to a Borrowing Request delivered to the Administrative Agent as set forth below and subject to the conditions set forth in this Loan Agreement, the Lenders shall make the Initial Advance to the Borrower.

(c) After the making of the Initial Advance, so long as the Borrower has requested the same pursuant to a Borrowing Request delivered to the Administrative Agent as set forth below and subject to the conditions set forth in this Loan Agreement, the Lenders shall make Ongoing Maintenance Advances to the Borrower; provided , however , that the aggregate principal amount of all Advances outstanding under this Loan Agreement (excluding any Protective Advances) shall not exceed the Borrowing Base.

(d) After the making of the Initial Advance, so long as the Borrower has requested the same pursuant to a Borrowing Request delivered to the Administrative Agent as set forth below and subject to the conditions set forth in this Loan Agreement, the Lenders may make Additional Policy Advances to the Borrower in amounts determined by the Lenders in their sole discretion; provided , however , that the aggregate principal amount of all Advances outstanding under this Loan Agreement (excluding any Protective Advances) shall not exceed the Borrowing Base.

 

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(e) Without regard to the Borrowing Base and without any Borrowing Request, and whether before or after the Partial Repayment Date, the Lenders shall be entitled to make Advances on behalf of the Borrower as the Lenders determine in their reasonable discretion are necessary in order to make premium payments and to pay other costs and expenses to ensure that one or more Pledged Policies selected by the Lenders in their sole discretion, other than Policies that are abandoned or sold as contemplated by Section 2.7 of this Loan Agreement, remain in full force and effect, as determined by the Lenders in their sole discretion (such Advances, together with any Advances made from time to time by the Lenders hereunder to pay any costs and expenses in defending the Collateral against any lawsuits or in any other proceedings (including attorneys’ fees) and any Advances made from time to time by the Lenders hereunder during the occurrence and continuance of an Unmatured Event of Default or an Event of Default shall collectively be referred to herein as “ Protective Advances ”).

Section 2.2 Borrowing Procedures .

(a) The Borrower shall request Advances hereunder by giving notice to the Administrative Agent of the proposed borrowing. Such notice (herein called a “ Borrowing Request ”) shall be in the form of Exhibit A. The Borrowing Request for the Initial Advance is permitted to have been prepared and delivered by the Borrower up to five (5) Business Days before the date of execution of this Loan Agreement such that the related Proposed Initial Advance Notice and Initial Advance Acceptance may be executed concurrently with this Loan Agreement. The Borrowing Request for the Initial Advance shall (i) specify the date and aggregate amount of the proposed Initial Advance, (ii) identify the Subject Policies proposed to be pledged hereunder in connection with the Initial Advance and confirm that the related Collateral Packages (taking into account the exceptions noted on Schedules V, VI, VII, VIII, IX, X and XI to the Account Control Agreement) have been uploaded to the FTP Site and (iii) attach a Borrowing Base Certificate, signed by the chief financial officer of the Borrower.

(b) The Borrower may request an Ongoing Maintenance Advance hereunder by delivering a fully executed and completed Borrowing Request to the Administrative Agent. Each Borrowing Request for a proposed Ongoing Maintenance Advance shall (i) specify the date and aggregate amount of the proposed Ongoing Maintenance Advance and (ii) attach a Borrowing Base Certificate, signed by the chief financial officer of the Borrower. The Borrowing Request for the initial Ongoing Maintenance Advance is permitted to have been prepared and delivered by the Borrower up to five (5) Business Days before the date of execution of this Loan Agreement such that the related Subsequent Advance Acceptance may be executed concurrently with this Loan Agreement.

(c) The Borrower shall not deliver any Borrowing Request with respect to a proposed Additional Policy Advance unless and until it has received written notice from the Administrative Agent confirming that the Administrative Agent and the Lenders have completed their due diligence with respect to the Additional Policies proposed to be pledged hereunder in connection with the making of such Additional Policy Advance, and indicating which Additional Policies, if any, will be accepted as Collateral hereunder and the estimated amounts that the

 

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Lenders will be willing to fund under this Loan Agreement with respect to such Additional Policies. After the Borrower’s receipt of such written notice from the Administrative Agent, the Borrower may request an Additional Policy Advance hereunder with respect to such Additional Policies by delivering a fully executed and completed Borrowing Request to the Administrative Agent. Each Borrowing Request related to a proposed Additional Policy Advance shall (i) specify the date and aggregate amount of the proposed Additional Policy Advance, (ii) identify the Additional Policies proposed to be pledged hereunder in connection with such Additional Policy Advance, confirm that the related Collateral Packages have been uploaded to the FTP Site, and confirm that the related Expense Deposit shall be wired to the Administrative Agent’s Account promptly following confirmation of the amount thereof and (iii) attach a Borrowing Base Certificate, signed by the chief financial officer of the Borrower. The Administrative Agent agrees that the Expense Deposit shall be used solely by the Administrative Agent and the Lenders for reasonable third-party out-of-pocket expenses incurred in connection with the review and evaluation of the Additional Policies identified in such Borrowing Request, and that any unused portion of the Expense Deposit shall be returned to the Borrower.

Section 2.3 Funding .

(a) No later than five (5) Business Days following the Lenders’ receipt of a Borrowing Request for the Initial Advance, the Lenders shall, in their sole discretion and acting unanimously, determine whether to approve the Subject Policies, and the Administrative Agent shall notify the Borrower of the determination of the amount, if any, the Lenders will fund (a “ Proposed Initial Advance ”, and such notice of the Proposed Initial Advance, a “ Proposed Initial Advance Notice ”); provided that such determination shall be in the Lenders’ sole discretion. If the Lenders are willing to make such Proposed Initial Advance and the Borrower determines to accept such Proposed Initial Advance, on or before the third (3rd) Business Day after the delivery of the Proposed Initial Advance Notice by the Administrative Agent, the Borrower shall notify the Administrative Agent that the Borrower accepts the Proposed Initial Advance (an “ Initial Advance Acceptance ”); for avoidance of doubt, if the Borrower does not deliver an Initial Advance Acceptance by 5:00 pm, New York time on the third (3rd) Business Day following the delivery of the Proposed Initial Advance Notice, then the Borrower shall be deemed to have rejected such Proposed Initial Advance. No later than the third (3rd) Business Day following the Lenders’ receipt of the Initial Advance Acceptance, and subject to the complete satisfaction of the conditions precedent set forth in Article VII with respect to the Initial Advance and the limitations set forth in Section 2.1 , the Lenders shall distribute funds in the amount set forth in the Proposed Initial Advance Notice to the Payment Account to be disbursed by the Securities Intermediary in accordance with the terms of the Account Control Agreement.

(b) No later than five (5) Business Days following the Lenders’ receipt of a Borrowing Request for an Ongoing Maintenance Advance, the Administrative Agent shall notify the Borrower of the resulting total Ongoing Maintenance Advance to be funded by the Lenders on the related Subsequent Advance Date (such notice, the related “ Subsequent Advance Acceptance ”) subject to the immediately following sentence. Subject to the complete satisfaction of the conditions precedent set forth in Article VII with respect to such Ongoing Maintenance Advance and the limitations set forth in Section 2.1 , the Lenders shall distribute funds in the amount set forth in such Subsequent Advance Acceptance to the Payment Account to be disbursed by the Securities Intermediary in accordance with the terms of the Account Control Agreement.

 

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(c) No later than five (5) Business Days following the Lenders’ receipt of a Borrowing Request for an Additional Policy Advance, the Lenders shall, in their sole discretion and acting unanimously, determine whether to approve the Additional Policies, and the Administrative Agent shall notify the Borrower of the determination of the amount, if any, the Lenders will fund (a “ Proposed Additional Policy Advance ”, and such notice of the Proposed Additional Policy Advance, a “ Proposed Additional Policy Advance Notice ”); provided that such determination shall be in the Lenders’ sole discretion. If the Lenders are willing to make such Proposed Additional Policy Advance and the Borrower determines to accept such Proposed Additional Policy Advance, on or before the third (3rd) Business Day after the delivery of the Proposed Additional Policy Advance Notice by the Administrative Agent, the Borrower shall notify the Administrative Agent that the Borrower accepts the Proposed Additional Policy Advance (an “ Additional Policy Advance Acceptance ”) which notice shall specify the agreed Additional Policy Advance Amount; for avoidance of doubt, if the Borrower does not deliver an Additional Policy Advance Acceptance by 5:00 pm, New York time on the third (3rd) Business Day following the delivery of the Proposed Additional Policy Advance Notice, then the Borrower shall be deemed to have rejected such Proposed Additional Policy Advance. On the third (3rd) Business Day following the Lenders’ receipt of the Additional Policy Advance Acceptance, and subject to the complete satisfaction of the conditions precedent set forth in Article VII with respect to such Additional Policy Advance and the limitations set forth in Section 2.1 , the Lenders shall distribute funds in the amount set forth in the Proposed Additional Policy Advance Notice to the Payment Account to be disbursed by the Securities Intermediary in accordance with the terms of the Account Control Agreement.

(d) The Borrower shall not deliver more than three (3) Borrowing Requests in any calendar month. In addition, the Borrower shall not deliver any Borrowing Request so long as with respect to two (2) Borrowing Requests previously delivered to the Administrative Agent, (i) with respect to a Borrowing Request relating to an Additional Policy Advance, the Administrative Agent has not yet delivered the related Proposed Additional Policy Advance Notice, the Borrower has not yet delivered the related Additional Policy Advance Acceptance, the Borrower has not yet rejected the related Proposed Additional Policy Advance or the Borrower has delivered the related Additional Policy Advance Acceptance and the related Subsequent Advance Date has not yet occurred, in each case, in accordance with Section 2.3(c) , or (ii) with respect to a Borrowing Request relating to an Ongoing Maintenance Advance, the Borrower has delivered the related Subsequent Advance Acceptance and the related Subsequent Advance Date has not yet occurred.

Section 2.4 Representation and Warranty . Each Borrowing Request pursuant to Section 2.2 and each acceptance of an Advance by the Borrower shall automatically constitute a representation and warranty by the Borrower to the Administrative Agent and each Lender that on the requested date of the requested Advance and on the related Advance Date (a) the representations and warranties set forth in Article VIII will be true and correct in all respects as of such Borrowing Request date and as of such Advance Date as though made on such dates (which may be made by reference to updated schedules for Section 8.1(i) , Section 8.1(j) , Section 8.1(q) , Section 8.1(s) , Section 8.1(u) and Section 8.1(w) , although the updates to any such

 

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schedules shall not be deemed to cure any breach resulting from schedules delivered prior to such date nor shall the updates to any such schedules be deemed to constitute a waiver by the Administrative Agent or any Lender of the satisfaction of any of the conditions precedent set forth in Article VII for the making of an Advance (and, for the avoidance of doubt, any rejection of a proposed Advance by the Required Lenders because of such updates to any such schedules shall not constitute an abandonment by the Required Lenders of any of the Pledged Policies related to such Advance for the purposes of Section 2.7(b) ), (b) except as otherwise agreed to in this Section, all of the conditions precedent to the making of an Advance contained in Article VII have been satisfied or will have been satisfied as of such Advance Date, (c) no Event of Default or Unmatured Event of Default has occurred and is continuing or will result from the making of such Advance, and (d) the aggregate principal balance of the outstanding Advances hereunder (taking into account the amount of the Advance requested by the Borrower pursuant to such Borrowing Request but excluding any Protective Advances) will not exceed the Borrowing Base.

Section 2.5 Lender Notes . With respect to each Lender, the Advances made by such Lender to the Borrower shall be evidenced by a single promissory grid note executed by the Borrower (as the same may be amended, modified, extended or replaced from time to time, a “ Lender Note ” and collectively, the “ Lender Notes ”) substantially in the form of Exhibit B hereto, with appropriate insertions to reflect Advances actually funded by such Lender, the related applicable interest rates thereof and related repayments and appropriate revisions to reflect assignments effected in accordance with Section 13.4 of this Loan Agreement, payable to the order of such Lender. The Borrower hereby irrevocably authorizes each Lender to make (or cause to be made) appropriate notations on the grid attached to its Lender Note (or on any continuation of such grid) or at such Lender’s option, in the records of such Lender, which notations, if made, shall evidence, inter alia, the date of, the outstanding principal of, and the interest rates and Interest Periods applicable to the Advances made by such Lender and related repayments and appropriate revisions to reflect assignments effected in accordance with Section 13.4 of this Loan Agreement. Such notations shall be rebuttably presumptive evidence of the subject matter thereof absent manifest error; provided, however, that the failure to make any such notations shall not limit or otherwise affect any Obligations of the Borrower.

Section 2.6 Security Interest .

(a) To secure the timely repayment of the principal of, and interest on, the Advances, and all other Obligations of the Borrower to any Secured Party, including, without limitation, the Aggregate Participation Interest, and the prompt performance when due of all covenants of the Borrower hereunder and under any other Transaction Document, whether now or hereafter existing or arising, due or to become due, direct or indirect, the Borrower hereby pledges and grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing, first priority security interest in, and assignment of, all of the Borrower’s rights, titles and interests in, to and under all of the following, whether now or hereafter owned, existing or arising: all assets of the Borrower, including but not limited to all right, title and interest of the Borrower in the Pledged Policies (unless and until such Policies are abandoned or sold as provided by Section 2.7 of this Loan Agreement) and proceeds thereof; all accounts receivable, notes receivable, claims receivable and related proceeds including but not limited to, cash, loans, securities, accounts; contract rights; the contracts with the Custodian and/or the Securities Intermediary; the Collection Account, the Payment Account, the Escrow Account, the Policy

 

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Account and any other account of the Borrower (excluding only the Borrower Account); reserve accounts; escrow agreements and related books and records; the rights under any purchase agreements relating to such Policies; all data, documents and instruments contained in the Collateral Packages; and such other assets, tangible or intangible, real or personal, as reasonably may be required by the Administrative Agent to fully secure any Advances contemplated herein. All of the rights and assets described in the previous sentence are herein referred to collectively as “Collateral”; provided , however , that this definition of “Collateral” does not limit any other collateral that may be pledged to secure the Advances under any other Transaction Document.

(b) The Borrower shall file such financing statements, and execute and deliver such agreements, certificates and documents, and take such other actions, as the Administrative Agent requests in order to perfect, evidence or protect the security interest granted pursuant to Section 2.6(a) , including without limitation delivering a collateral assignment in respect of each Pledged Policy subject to this Loan Agreement, naming the Administrative Agent, on behalf of the Lenders, as the collateral assignee, filed with, and acknowledged to have been filed by, the applicable Issuing Insurance Company; provided, that the foregoing collateral assignment shall not apply to the portion of the face amount that is retained by a third party under any Retained Death Benefit Policy. On or prior to each Advance Date (other than the Advance Date for the Initial Advance), the Borrower shall deliver or cause to be delivered completed but unsigned Change Forms for the Subject Policies to the Securities Intermediary. Within two (2) Business Days of the making of the Initial Advance Date, the Borrower shall deliver or cause to be delivered completed but unsigned Change Forms for the Subject Policies to the Securities Intermediary. The Borrower shall cause the Securities Intermediary to execute all such Change Forms in blank to be held by the Securities Intermediary. If an Issuing Insurance Company updates its Change Forms, at the request of the Administrative Agent, the Borrower shall deliver or cause to be delivered completed but unsigned updated Change Forms for the related Pledged Policies within five (5) Business Days of such request. The Borrower shall cause the Securities Intermediary to execute such Change Forms in blank to be held by the Securities Intermediary. The Borrower grants to the Administrative Agent, as its irrevocable attorney-in-fact and otherwise, the right, in the Administrative Agent’s sole discretion following acceleration or maturity of the Obligations of the Borrower under this Loan Agreement, to complete or direct the Securities Intermediary to complete and send any and all Change Forms previously delivered to it by or on behalf of the Borrower or otherwise obtained by the Administrative Agent, to the applicable Issuing Insurance Companies. The Borrower hereby acknowledges that the foregoing grant has been coupled with an interest. The Borrower hereby authorizes the Administrative Agent to file such financing statements as the Administrative Agent determines are necessary or advisable to perfect such security interest without the signature of the Borrower, provided however , notwithstanding any other provision of any Transaction Document, the Administrative Agent shall have no duty or obligation to file such financing statements, continuation statements or amendments thereto; and provided , further , that if the Administrative Agent notifies the Borrower in writing that it intends to file any financing statements, continuation statements or amendments thereto but fails to do so, and does not in connection therewith timely instruct the Borrower to file such item or items, then the Borrower shall not be and shall not be deemed to be in breach of any representation or warranty concerning the perfection of related or affected security interests if such breach is a direct result of the Administrative Agent’s failure to file such item or items and such filing would have perfected such security interests. The Borrower hereby

 

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appoints the Administrative Agent as the Borrower’s irrevocable attorney-in-fact, with full power and authority to take any other action to sign or endorse the Borrower’s name on any Collateral, and to enforce or collect any of the Collateral following acceleration of the obligations of the Borrower under this Loan Agreement in relation to an uncured Event of Default. The Borrower hereby acknowledges that the foregoing appointments of the Administrative Agent as the Borrower’s irrevocable attorney-in-fact has been coupled with an interest. The Borrower hereby ratifies and approves all acts of such attorney undertaken or performed consistent with the foregoing and all Applicable Law, and agrees that the Administrative Agent will not be liable for any act or omission with respect thereto, except to the extent that such act or omission constitutes gross negligence, fraud or willful misconduct on the part of the Administrative Agent. Subject to the provisions of the UCC and the rights of any purchaser (including any Lender) of the Collateral in connection with the Lenders’ exercise of remedies, none of the foregoing provisions and undertakings constitute or shall be deemed to constitute waiver by the Borrower of its rights, title and interest in or to any such Collateral or the proceeds thereof that are in excess of its payment obligations hereunder and under the Lender Notes.

(c) Upon the abandonment of a Pledged Policy or upon the receipt by the Lenders of the portion of the related sale proceeds to which the Lenders are entitled in accordance with terms of this Loan Agreement after the sale of a Pledged Policy, in each case, pursuant to Section 2.7 , the security interest of the Administrative Agent in such Pledged Policy for the benefit of the Secured Parties shall be released. Upon the repayment of all of the Borrower’s Advances then outstanding and all other Obligations (including, without limitation, the Aggregate Participation Interest) and termination of all Commitments and this Loan Agreement, the security interest of the Administrative Agent in the Collateral for the benefit of the Secured Parties shall be released. The Administrative Agent agrees to file, promptly upon request, such partial releases or assignments, as applicable, request the Securities Intermediary to deliver to the Borrower all related Change Forms delivered to it in blank by the Borrower pursuant to Section 2.6(b) , and to take such other actions as the Borrower shall reasonably request in order to evidence any such release.

Section 2.7 Sale or Abandonment of Collateral .

(a) Sale of Collateral .

(i) So long as no Event of Default has occurred and is continuing, (I) if the Portfolio Manager reasonably determines in good faith that the sale of one or more Pledged Policies would (through the application of the proceeds thereof or the removal of a Pledged Policy which solely caused an Unmatured Event of Default) cure any Unmatured Event of Default, (II) if the Portfolio Manager reasonably determines in good faith that it is in the best interests of the Borrower and the Lenders to sell any of the Pledged Policies, (III) if the making of an Ongoing Maintenance Advance by the Lenders hereunder would cause the aggregate principal amount of all Advances outstanding under this Loan Agreement (excluding any Protective Advances but including such Ongoing Maintenance Advance) to exceed the Borrowing Base, and the Portfolio Manager reasonably determines in good faith that the sale of one or more Pledged Policies would (through the application of the proceeds thereof) be sufficient to pay scheduled Premiums

 

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

previously approved in writing by the Required Lenders or (IV) if a Lender Default has occurred and is continuing and the Portfolio Manager reasonably determines in good faith that the sale of one or more Pledged Policies would (through the application of the proceeds thereof) be sufficient to pay Expenses and scheduled Premiums each as previously approved in writing by the Required Lenders then, in each case, the Borrower may sell such Pledged Policies pursuant to the terms of this Section 2.7(a) . Any sale of one or more Pledged Polices pursuant to clause (I) of the immediately preceding sentence or any sale while an Unmatured Event of Default has occurred and is continuing shall be subject to the Required Lenders’ consent in their sole and absolute discretion and any other sale (other than a sale pursuant to clause (IV) of the immediately preceding sentence) shall be subject to the Required Lender’s consent, exercised in a commercially reasonable manner. The Pledged Policies sold pursuant to clause (I) of the first sentence of this Section 2.7(a)(i) shall be limited to the relevant Pledged Policies which caused the related Unmatured Event of Default or Pledged Policies the proceeds of which will be in an amount necessary to generate sufficient proceeds to cure the related Unmatured Event of Default. The number of Pledged Policies sold pursuant to clause (III) of the first sentence of this Section 2.7(a)(i) shall be limited to an amount necessary to generate sufficient proceeds to pay scheduled Premiums previously approved in writing by the Required Lenders. The number of Pledged Policies sold pursuant to clause (IV) of the first sentence of this Section 2.7(a)(i) shall be limited to an amount necessary to generate sufficient proceeds to pay scheduled Premiums previously approved in writing by the Required Lenders and Expenses.

(ii) [*]

(iii) Notwithstanding the foregoing, no sale of Pledged Policies shall be consummated pursuant to sub-clause (I), (II) or (III) of the first sentence of Section 2.7(a)(i) , if after the distribution of the related Net Proceeds and the release of the related Pledged Policies sold pursuant to such sale, the LTV immediately after such distribution and release will be higher than the LTV immediately prior to the related sale of Pledged Policies.

(iv) In each instance, the Net Proceeds of a sale of a Pledged Policy pursuant to this Section 2.7(a) shall be (x) prior to the Permitted Sale Cashflow Date, (A) if such sale is pursuant to sub-clause (I) of the first sentence of Section 2.7(a)(i) or if such sale was consummated during the continuance of an Unmatured Event of Default, deposited into the Administrative Agent’s Account to repay Advances and other outstanding Obligations and (B) if such sale is pursuant to sub-clause (II), (III) or (IV) of the first sentence of Section 2.7(a)(i) and so long as such sale was not consummated during the continuance of an Unmatured Event of Default, deposited into the Collection Account and distributed in accordance with the Priority of Payments or as otherwise permitted in writing by the Administrative Agent for the purposes set forth in sub-clause (III) or (IV) of the first sentence of Section 2.7(a)(i) , as applicable, (y) on and after the Permitted Sale Cashflow Date but prior to the Partial Repayment Date, deposited into the Administrative Agent’s Account to repay Advances and other outstanding Obligations and otherwise, deposited into the Collection Account and distributed in accordance with the Priority of Payments or as otherwise permitted in writing by the Administrative Agent

 

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

for the purposes set forth in sub-clause (III) or (IV) of the first sentence of Section 2.7(a)(i) , as applicable, and (z) on and after the Partial Repayment Date, deposited into the Collection Account and distributed in accordance with Section 5.2(e) .

(v) For the avoidance of doubt, any such sale of one or more Pledged Policies that results in the elimination of the relevant condition or circumstance that comprised the Unmatured Event of Default (by removal of relevant Pledged Policies or use of proceeds of such sale to eliminate any default in the performance of any economic, financial or payment covenant hereunder), as determined by the Required Lenders in their discretion (exercised in a commercially reasonable manner), will comprise the cure of such Unmatured Event of Default. Notwithstanding the foregoing, the Borrower shall be permitted to transfer a Pledged Policy to the Parent Pledgor pursuant to Section 6.3 of the Parent Pledgor Contribution Agreement.

(b) Should the Required Lenders determine that Advances should no longer be made in order to pay Premiums on a Pledged Policy or group of Pledged Policies or the Portfolio Manager on behalf of the Borrower determines that Premiums on a Pledged Policy or group of Pledged Policies should no longer be paid (such determining party, the “ Determining Party ”), whether before or after the Partial Repayment Date, the Determining Party shall deliver written notice of such determination to the other party (the “ Non-Determining Party ”) in the form attached hereto as Exhibit G (an “ Abandonment Notice ”) and if the Determining Party is the Required Lenders or if the Determining Party is the Portfolio Manager and the related Abandonment Notice does not indicate that the Borrower or the Portfolio Manager wishes to permit the Required Lenders or their designee the right to assume ownership of the Pledged Policies set forth in such Abandonment Notice pursuant to this Section 2.7(b) without engaging in the Abandonment Sale Process (such Pledged Policies, the “ Direct Assumption Policies ”), Non-Determining Party in its reasonable discretion shall designate an unrelated third-party experienced in marketing the sale of life insurance policies on the secondary and tertiary market (the “ Broker ”) to market and sell such Pledged Policies (such marketing and sale process, the “ Abandonment Sale Process ”). The Non-Determining Party shall request the Broker, based on the Broker’s experience, to propose a minimum sale price in respect of each such Pledged Policy (the “ Abandonment Price ”). The Determining Party shall then have two (2) Business Days after the Broker proposes such Abandonment Price to rescind the Abandonment Notice in respect of the related Pledged Policy by delivering written notice of such rescission to the Non-Determining Party. Upon the delivery of such written notice to the Non-Determining Party, such Pledged Policy shall no longer be subject to this Section 2.7(b) . [*] Proceeds of any sale pursuant to this Section 2.7(b) shall be deposited (i) if the Determining Party was the Borrower or the Portfolio Manager, pursuant to Section 2.7(a)(iv) and (ii) otherwise, into the Collection Account. For the avoidance of doubt, after a Pledged Policy has been set forth in an Abandonment Notice but prior to the consummation of the sale of such Pledged Policy in accordance with this Section 2.7(b) , the Lenders in their sole and absolute discretion may make one or more Protective Advances in respect of such Policy and the Borrower may make premium payments in respect of such Pledged Policy so long as such payments by the Borrower are not made using proceeds of any Advances. Each Pledged Policy set forth in an Abandonment Notice shall cease to be a Pledged Policy on the date that is the earlier of (A) the date on which the Non-Determining Party has assumed ownership of such Pledged Policy in accordance with this

 

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Section 2.7(b) , (B) the date on which such Pledged Policy lapses or (C) the date on which such Pledged Policy is sold in accordance with this Section 2.7(b) . If any Pledged Policy set forth in an Abandonment Notice is not sold within ninety (90) days after such Abandonment Notice was delivered to the Non-Determining Party or if the Determining Party was the Borrower or the Portfolio Manager and the related Abandonment Notice indicated that the Borrower or the Portfolio Manager wished to permit the Required Lenders or their designee the right to assume ownership of the Pledged Policies set forth in such Abandonment Notice pursuant to this Section 2.7(b) without engaging in the Abandonment Sale Process, (i) if the Non-Determining Party is the Required Lenders, then the Administrative Agent on behalf of the Required Lenders or, at the option of the Required Lenders, another Person designated by the Required Lenders, shall have the right to assume ownership of such Policies, or any subset thereof, prior to their lapse, from the Borrower through the Securities Intermediary at no cost to the Non-Determining Party and (ii) if the Non-Determining Party is the Borrower, then the Borrower shall have the right to designate an Affiliate to assume ownership of such Policies, or any subset thereof, prior to their lapse, from the Borrower through the Securities Intermediary at no cost to the Non-Determining Party. Such assumption of ownership by the Non-Determining Party (or its Affiliate or designee, as applicable) shall be free and clear of (i) any ownership claim to any right, title or interest by or through the Determining Party (arising hereunder or otherwise) or (ii) any Adverse Claims arising under or in relation to the Transaction Documents and transactions contemplated thereby, and all without payment to the Determining Party or any other Person. In connection therewith, the Determining Party agrees to provide reasonable cooperation and assistance to effectuate such transfer, including by providing appropriate instructions to the Administrative Agent, Securities Intermediary, Custodian and Servicer concerning the release of Liens created hereby, appropriate Entitlement Orders (as defined in the Account Control Agreement) removing related Securities Entitlements (as defined in the Account Control Agreement) out of the Policy Account and delivery of related documents and information to or as instructed by the Non-Determining Party (or its Affiliate or designee, as applicable). For the avoidance of doubt, (I) the occurrence of a Lender Default shall not constitute a determination on the part of the Required Lenders that Advances should no longer be made in order to pay Premiums on a Pledged Policy or group of Pledged Policies and that the Required Lenders or the Portfolio Manager on behalf of the Borrower shall only become the Determining Party for the purposes of this Section 2.7(b) upon delivering written notice in the form attached hereto as Exhibit G to the other party, (II) failure by any Lender to make an Advance relating to a Pledged Policy in respect of which any Determining Party has delivered or thereafter delivers an Abandonment Notice shall not constitute a Lender Default, regardless of whether any Lender or the Administrative Agent has received any notice of a Lender Default, and (III) no party shall be obligated to pay Premiums on a Pledged Policy in respect of which any Determining Party has delivered an Abandonment Notice.

(c) At any time during the term of this Loan Agreement, the Administrative Agent acting at the direction of the Required Lenders, may direct the Borrower in writing to sell any or all of the Pledged Policies that are Retained Death Benefit Policies. Upon receipt of such written direction, such Pledged Policies shall be made available by the Borrower and the Portfolio Manager for sale through normal market channels for cash and the Administrative Agent, the Portfolio Manager, any Lender or any of their respective Affiliates may participate as a bidder in any such sale; provided that prior to consummating any sale pursuant to this Section 2.7(c) ,

 

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

the related sale price shall be subject to the approval of the Required Lenders in their sole and absolute discretion. The Borrower shall consummate any such sale within twelve (12) months after the related written direction was delivered by the Administrative Agent to the Borrower pursuant to the first sentence of this Section 2.7(c) .

Section 2.8 Permitted Purposes .

(a) The Borrower hereby agrees that it shall not use the proceeds of any Advance made hereunder except for the following purposes:

(i) with respect to the Initial Advance or an Additional Policy Advance, to acquire Policies to become Pledged Policies on the Closing Date or related Subsequent Advance Date and for any legally permissible payments approved by the Required Lenders in their sole discretion and specified in the Proposed Initial Advance Notice or Proposed Additional Policy Advance Notice and related instructions delivered to the Securities Intermediary under the Account Control Agreement, including distributions to Imperial, payment of the Up-Front Fee, reimbursement to the Parent Pledgor, Imperial or Affiliates thereof of any funds remitted in respect of the Initial Expense Deposit, the reasonable attorneys’ fees of the Borrower and the Lenders incurred in connection with the negotiation and preparation of the Transaction Documents, the payment of certain obligations owed by an Affiliate of the Borrower to Lexington Insurance Company and approved by the Administrative Agent and the related Expense Deposit; and

(ii) with respect to an Ongoing Maintenance Advance, (A) to pay Ongoing Maintenance Costs; (B) to pay Debt Service; (C) to pay the Administrative Agent Fee and/or (D) to make any other payments or distributions, as approved in writing by the Required Lenders in their sole discretion.

(b) For the avoidance of doubt, all proceeds of Advances shall be deposited by the Lenders into the Payment Account. The Borrower shall cause any amounts on deposit in the Payment Account to be distributed by the Securities Intermediary in accordance with the terms of the Account Control Agreement, which amounts shall be used for the purposes set forth in Section 2.8(a) and as specified in the related Borrowing Request.

(c) For the avoidance of doubt, no proceeds of any Advance shall be used for, and no Lender shall be obligated to make any Advance for, the purposes of paying (i) any accrued interest due on any prior Advances that directly reflect the Rate Floor or [*].

ARTICLE III

INTEREST; INTEREST PERIODS; FEES, ETC.

Section 3.1 Interest Rates . The Borrower hereby promises to pay interest on the unpaid principal amount of each Advance for the period commencing on the date such Advance is made until such Advance is paid in full. Interest will accrue on each outstanding Advance during each Interest Period at a rate per annum equal to the sum of (i) the greater of (A) (1) LIBOR or, if LIBOR is unavailable, (2) the Base Rate and (B) one and a half percent (1.5%) (the

 

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portion of interest related to clause (i), the “ Rate Floor ”) plus (ii) the Applicable Margin; provided however that in the event that an Event of Default has occurred and is continuing and unwaived in writing by the Required Lenders, then for each day during any Interest Period on which such Event of Default remains uncured and unwaived in writing by the Required Lenders, each Advance shall bear interest at the Default Rate.

After the second (2nd) Business Day following the date on which any other monetary Obligation of the Borrower arising under this Loan Agreement shall become due and payable, the Borrower shall pay (to the extent permitted by law, if in respect of any unpaid amounts representing interest) interest (after as well as before judgment) on such amounts at a rate per annum equal to the Default Rate. No provision of this Loan Agreement shall require the payment or permit the collection of interest in excess of the maximum permitted by Applicable Law.

Section 3.2 Interest Payment Dates . Interest accrued on all outstanding Advances shall be due and payable, without duplication:

(a) on each Interest Payment Date;

(b) on the date of any prepayment, in whole or in part, of principal of outstanding Advances, either from funds available for distribution to the Borrower pursuant to clause “ Thirteenth ” of Section 5.2(b) and/or from funds available to the Borrower from any capital contribution or other source of funding obtained by the Borrower that is not expressly prohibited by this Loan Agreement;

(c) on Advances accelerated pursuant to Section 10.2 , immediately upon such acceleration; and

(d) on the Maturity Date.

Section 3.3 Computation of Interest and Fees . All interest and fees shall be computed on the basis of the actual number of days (including the first day but excluding the last day) occurring during the period for which such interest or fee is payable over a year comprised of 360 days.

Section 3.4 Participation Interest . With respect to each Pledged Policy, the Borrower shall pay the related Participation Interest to the Lenders pursuant to the terms of this Loan Agreement.

Section 3.5 Administrative Agent Fee . On each Distribution Date, the Borrower shall pay the related Administrative Agent Fee to the Administrative Agent, regardless of whether the then Available Amount is sufficient to pay such amount.

ARTICLE IV

PAYMENTS; PREPAYMENTS

Section 4.1 Repayments and Prepayments . The Borrower shall repay in full the unpaid principal amount of all Advances on the Maturity Date. Prior thereto, the Borrower:

(a) may voluntarily prepay all or any portion of the aggregate outstanding Advances, either in whole or in part, from funds available for distribution to the Borrower pursuant to clause “ Thirteenth ” of Section 5.2(b) and/or from funds available to the Borrower from any capital contribution or other source of funding obtained by the Borrower that is not expressly prohibited by this Loan Agreement;

 

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(b) shall repay principal of outstanding Advances, in the amounts set forth in, and pursuant to, the Priority of Payments on each Distribution Date;

(c) shall, upon any acceleration of the Maturity Date pursuant to Section 10.2 , repay all such Advances within one (1) Business Day of the Administrative Agent’s delivery of notice of such acceleration to the Borrower.

Section 4.2 Making of the Expense Deposit . Each Expense Deposit shall be deposited by the Borrower no later than 3:00 p.m. (New York City time), on the day when due in lawful money of the United States of America in same day funds to the account designated in writing by the Administrative Agent to the Borrower (the “ Administrative Agent’s Account ”). Funds received by any Person after 3:00 p.m. (New York City time), on the date when due will be deemed to have been received by such Person on the next following Business Day.

Section 4.3 Due Date Extension . If any payment of principal or interest with respect to any Advance falls due on a day which is not a Business Day, then such due date shall be extended to the next following Business Day, and additional interest shall accrue at the applicable interest rate and be payable for the period of such extension.

ARTICLE V

ACCOUNTS; DISTRIBUTION OF COLLECTIONS

Section 5.1 Accounts .

(a) Collection Account . The Borrower has established and shall maintain, in the name of the Borrower, an Eligible Account bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Administrative Agent, on behalf of the Secured Parties (the “ Collection Account ”), that at all times shall be subject to the Account Control Agreement.

(b) Payment Account . The Borrower has established and shall maintain, in the name of the Borrower, an Eligible Account bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Administrative Agent, on behalf of the Secured Parties (the “ Payment Account ”), that at all times shall be subject to the Account Control Agreement. All proceeds of Advances shall be deposited by the Lenders into the Payment Account. The Borrower shall cause any amounts on deposit in the Payment Account to be distributed by the Securities Intermediary in accordance with the terms of the Account Control Agreement, which amounts shall be used for the purposes set forth in Section 2.8(a) and as specified in the related Borrowing Request.

 

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(c) Borrower Account . On or prior to the date hereof, the Borrower shall establish and maintain a segregated Eligible Account with an Eligible Institution in the name of the Borrower (the “ Borrower Account ”). The Borrower shall be entitled to withdraw amounts on deposit in its Borrower Account for any purpose, including, without limitation, the payment of Premiums or Expenses.

(d) Escrow Account . The Borrower has established and shall maintain, in the name of the Borrower, an Eligible Account bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Administrative Agent, on behalf of the Secured Parties (the “ Escrow Account ”), that at all times shall be subject to the Account Control Agreement.

(e) Administrative Agent Action . The Administrative Agent may, at any time after an Event of Default has occurred and is continuing, give written notice to the Securities Intermediary and to the Borrower of the occurrence of such event and specifying whether the Administrative Agent is exercising its rights and remedies in relation thereto in accordance with this Loan Agreement and the Account Control Agreement, and will do any or all of the following: (i) exercise exclusive dominion and control over the funds deposited in the Accounts, (ii) have amounts that are sent to the Accounts redirected pursuant to its instructions, and (iii) take any or all other actions the Administrative Agent is permitted to take under this Loan Agreement and the Account Control Agreement for the benefit of the Secured Parties. If at any time, any Account shall cease to be an Eligible Account, the Borrower shall as promptly as reasonably practicable (but in no event more than twenty (20) Business Days) establish a replacement Eligible Account.

(f) Collections Held In Trust . If at any time the Borrower, the Servicer, the Securities Intermediary or any of their Affiliates or any Affiliate of Imperial, as the case may be, shall receive any Collections or other proceeds of any Collateral other than through payment into the Collection Account, the Borrower or the Servicer, as applicable, shall promptly (but in any event within two (2) Business Days of receipt thereof) remit or cause to be remitted all such Collections or other proceeds to the Collection Account. All Collections received by the Borrower or the Servicer shall be held by such Person in trust for the exclusive benefit of the Administrative Agent (on behalf of the Secured Parties). The outstanding principal amount of the Advances shall not be deemed repaid by any amount of the Collections held in trust by any Person, unless such amount is finally paid to the Administrative Agent in accordance with Section 5.2 .

Section 5.2 Application of Available Amounts .

(a) If no Unmatured Event of Default or Event of Default has occurred and is continuing or is waived in writing by the Required Lenders, the Administrative Agent and the Borrower, and otherwise, the Administrative Agent acting alone, shall instruct the Securities Intermediary to distribute Collections deposited in the Collection Account, and all other amounts deposited in the Collection Account, in accordance with this Section 5.2 . In delivering the instructions required under Section 5.2(b) , Section 5.2(c) and Section 5.2(e) , the Administrative Agent shall have the right to rely absolutely upon the information in the Calculation Date Reports, unless the Administrative Agent or the Required Lenders provide alternative

 

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information to the Borrower by notice in writing (such notice an “ Alternative Information Notice ”) not more than five (5) Business Days after receipt of the related Calculation Date Report by the Administrative Agent, in which case, provided that the Borrower shall not have objected to such Alternative Information Notice in writing within one (1) Business Day of its receipt thereof, the Administrative Agent shall have the absolute right to act in accordance with such Alternative Information Notice. In the event that the Borrower shall have objected to such Alternative Information Notice, then the Borrower and the Administrative Agent shall negotiate in good faith to resolve such objection within five (5) days, the amount subject to such objection shall be retained in the Collection Account during the pendency of such negotiations and the amount not subject to such objection shall be distributed pursuant to such Alternative Information Notice. The amount subject to such objection shall be distributed in accordance with Section 5.2(b) , Section 5.2(c) or Section 5.2(e) , as applicable, (i) if such objection is resolved, on the Business Day following the date on which such objection is resolved, in which case such amounts shall be distributed in accordance with such resolution or (ii) if such objection is not resolved, on the first Business Day following the day that is five (5) days following the date on which the Borrower objects to such Alternative Information Notice, in which case such amounts shall be distributed in accordance with the relevant Alternative Information Notice. Notwithstanding the foregoing, if the Borrower fails to deliver the related Calculation Date Report or the related Payment Instructions on or prior to the related Calculation Date, then the Administrative Agent acting alone, based on information in the Administrative Agent’s possession, shall be entitled to prepare such Calculation Date Report and Payment Instructions and thereby instruct the Securities Intermediary to distribute Collections deposited in the Collection Account, and all other amounts deposited in the Collection, to be distributed in accordance with this Section 5.2 , and the Administrative Agent shall have no liability whatsoever in respect of such instructions (the procedures set forth in this sentence if the Borrower fails to deliver the related Calculation Date Report or the related Payment Instructions on or prior to the related Calculation Date, the “ Borrower Failure Procedures ”).

(b) On or prior to each Calculation Date, the Borrower shall prepare and deliver or cause to be prepared and delivered to the Administrative Agent a quarterly calculation report substantially in the form attached hereto as Exhibit D (the “ Calculation Date Report ”) with respect to the related Distribution Date, and the Borrower shall simultaneously deliver or cause to be delivered to the Securities Intermediary the payment instructions necessary to make the payments indicated in such Calculation Date Report (the “ Payment Instructions ”). If no Unmatured Event of Default or Event of Default has occurred and is continuing or is waived in writing by the Required Lenders, on each Distribution Date, the Administrative Agent and the Borrower shall jointly instruct the Securities Intermediary to distribute from the Available Amount then on deposit in the Collection Account, in accordance with the Payment Instructions related to the Calculation Date Report for such Distribution Date, subject to the delivery of an Alternative Information Notice, and the procedures set forth in Section 5.2(a) for the resolution of any objections of the Borrower in respect of such Alternative Information Notice, or if the Borrower has failed to deliver the related Calculation Date Report or the related Payment Instructions on or prior to the related Calculation Date, the Administrative Agent acting alone shall instruct the Securities Intermediary to distribute from the Available Amount then on deposit in the Collection Account, in accordance with the Borrower Failure Procedures, and in either case, the following amounts in the following order of priority unless otherwise agreed in writing by the parties hereto (and, with respect to any payment to the Securities Intermediary or the Custodian, as consented to by such Person in writing):

 

First ,    to the extent not paid from the proceeds of one or more Advances, to the Custodian and the Securities Intermediary, as applicable, the fees, and expenses due and payable thereto in accordance with the Account Control Agreement including, but not limited to, any Claims of any Indemnified Bank Person due and payable in accordance with the Account Control Agreement; provided that (i) the aggregate amount of Claims payable under this clause “ First ” shall not exceed $10,000 on any Distribution Date and (ii) the aggregate amount of Claims payable under this clause “ First ” and under clause “ First ” of Section 5.2(c) shall not, in aggregate, exceed $250,000 during the term of this Loan Agreement;

 

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Second ,    to the extent not paid from the proceeds of one or more Advances, to the Borrower, an amount equal to the Ongoing Maintenance Costs Reimbursable Amount payable to the Borrower and not previously paid to the Borrower, if any;
Third ,    to the Administrative Agent for the account of the Lenders, the then outstanding principal balance of all Protective Advances;
Fourth    to the Administrative Agent, the Administrative Agent Fee;
Fifth ,    to the Administrative Agent for the account of the Lenders, an amount equal to any accrued and unpaid interest on all Advances through such date;
Sixth ,    (a) if no Lender Default is continuing, to the Administrative Agent for the account of the Lenders, the Required Amortization or (b) if a Lender Default has occurred and is continuing, in the following order of priority:

(i) to the applicable Issuing Insurance Company, the payment of scheduled Premiums which are due and payable prior to the following Distribution Date as set forth in the related Servicer Report;

(ii) (a) to the Servicer, the Servicing Fee and costs and other amounts reimbursable to the Servicer pursuant to the Servicing Agreement and (b) to the Portfolio Manager, the Portfolio Manager Fee;

(iii) to the Borrower by deposit to the Borrower Account, the amounts described in clauses (iii) and (v) of the definition of Expenses which are then due and payable; and

(iv) to the Administrative Agent for the account of the Lenders, the Required Amortization;

 

Seventh ,    to the Administrative Agent for the account of the Lenders, an amount equal to the aggregate unpaid Amortization Shortfall Amounts for all of the Shortfall Pledged Policies, if any, and any Amortization Shortfall Amounts due on any prior Distribution Date that remain unpaid; provided, that the aggregate amount

 

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   payable under this clause “ Seventh ”, under clause “ Tenth ” of this Section 5.2(b) and under clauses “ Ninth ” and “ Fourteenth ” set forth under Section 5.2(c) , shall be in an amount up to the Aggregate Shortfall Amount Limit;
Eighth ,    to the Administrative Agent for the account of the Lenders by deposit to the Participation Interest Account, an amount equal to the Participation Interest Percentage of any amounts paid to the Administrative Agent for the account of the Lenders pursuant to clause “ Seventh ” of this Section 5.2(b) on such Distribution Date; provided, that any such amount received by the Lenders under this clause “ Eighth ” shall not reduce the outstanding principal balance of the Advances or any accrued interest thereon;
Ninth ,    to the Borrower, the remaining Available Amount; provided, that the aggregate amount distributed under this clause “ Ninth ”, clause “ Seventh ” of this Section 5.2(b) and clauses “ Ninth ” and “ Thirteenth ” set forth under Section 5.2(c) for all Distribution Dates during the term of this Loan Agreement shall not exceed the lesser of (i) the Initial Advance plus all Additional Policy Advances and (ii) the Borrower’s Total Investment in the Pledged Policies;
Tenth ,    to the Administrative Agent for the account of the Lenders by deposit to the Participation Interest Account, an amount equal to the aggregate unpaid Participation Interest Shortfall Amounts for all of the Shortfall Pledged Policies, if any, and any Participation Interest Shortfall Amounts due on any prior Distribution Date that remain unpaid; provided, that any such amount received by the Lenders under this clause “ Tenth ” shall not reduce the outstanding principal balance of the Advances or any accrued interest thereon; provided further, the aggregate amount payable under this clause “ Tenth ”, under clause “ Seventh ” of this Section 5.2(b) and under clauses “ Ninth ” and “ Fourteenth ” set forth under Section 5.2(c) , shall be in an amount up to the Aggregate Shortfall Amount Limit;
Eleventh ,    to the Administrative Agent for the account of the Lenders by deposit to the Participation Interest Account, the aggregate of (i) the Participation Interest Percentage of the remaining Available Amount and (ii) the Participation Interest Percentage of any amount actually paid to the Participation Interest Account pursuant to clause “ Tenth ” of this Section 5.2(b) on such Distribution Date; provided, that any such amount received by the Lenders under this clause “ Eleventh ” shall not reduce the outstanding principal balance of the Advances or any accrued interest thereon;
Twelfth ,    to the Custodian and the Securities Intermediary, as applicable, any fees and expenses due and payable thereto that remain unpaid (including such fees and expenses not paid pursuant to clause “ First ” of this Section 5.2(b)) ; and
Thirteenth ,    to the Borrower, any remaining Available Amount by deposit to the Borrower Account.

 

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(c) Prior to the Partial Repayment Date, if an Unmatured Event of Default or Event of Default has occurred and is continuing and is not waived in writing by the Required Lenders, on each Distribution Date, the Administrative Agent shall instruct the Securities Intermediary to distribute from the Available Amount then on deposit in the Collection Account and amounts on deposit in the Escrow Account (which may be distributed directly from the Escrow Account or by first transferring such amounts to the Collection Account, as determined by the Administrative Agent), in accordance with the Payment Instructions related to the Calculation Date Report for such Distribution Date, subject to the delivery of an Alternative Information Notice, and the procedures set forth in Section 5.2(a) for the resolution of any objections of the Borrower in respect of such Alternative Information Notice, or if the Borrower has failed to deliver the related Calculation Date Report or the related Payment Instructions on or prior to the related Calculation Date, the Administrative Agent acting alone shall instruct the Securities Intermediary to distribute from the Available Amount then on deposit in the Collection Account and amounts on deposit in the Escrow Account (which may be distributed directly from the Escrow Account or by first transferring such amounts to the Collection Account, as determined by the Administrative Agent), in accordance with the Borrower Failure Procedures, and in either case, the following amounts in the following order of priority unless otherwise agreed in writing by the parties hereto (and, with respect to any payments to the Securities Intermediary or the Custodian, as consented to by such Person in writing):

 

First ,    to the extent not paid from the proceeds of one or more Advances, to the Custodian and the Securities Intermediary, as applicable, the fees, and expenses due and payable thereto in accordance with the Account Control Agreement, including, but not limited to, any Claims of any Indemnified Bank Person due and payable in accordance with the Account Control Agreement; provided that (i) the aggregate amount of Claims payable under this clause “ First ” shall not exceed $10,000 on any Distribution Date and (ii) the aggregate amount of Claims payable under this clause “ First ” and under clause “ First ” of Section 5.2(b) shall not, in aggregate, exceed $250,000 during the term of this Loan Agreement;
Second ,    to the extent not paid from the proceeds of one or more Advances, to the Escrow Account, an amount equal to the Ongoing Maintenance Costs Reimbursable Amount payable to the Borrower and not previously paid to the Borrower, if any;
Third ,    to the Administrative Agent for the account of the Lenders, the then outstanding principal balance of all Protective Advances;
Fourth ,    to the applicable Issuing Insurance Company, the payment of scheduled Premiums which are due and payable prior to the following Distribution Date as set forth in the related Servicer Report;
Fifth ,    so long as the Servicer is not Imperial or an Affiliate of Imperial or the Borrower, to the Servicer, the Servicing Fee and costs and other amounts reimbursable to the Servicer pursuant to the Servicing Agreement and approved in writing by the Administrative Agent;
Sixth ,    to the Administrative Agent, the Administrative Agent Fee;

 

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Seventh ,    to the Administrative Agent for the account of the Lenders, an amount equal to any accrued and unpaid interest on all Advances through such date;
Eighth    (a) to the Portfolio Manager, the Portfolio Manager Fee and (b) if the Servicer is Imperial or an Affiliate of Imperial or the Borrower, the Servicing Fee and costs and other amounts reimbursable to the Servicer pursuant to the Servicing Agreement;
Ninth ,    to the Administrative Agent for the account of the Lenders, an amount equal to the aggregate unpaid Amortization Shortfall Amounts for all of the Shortfall Pledged Policies, if any, and any Amortization Shortfall Amounts due on any prior Distribution Date that remain unpaid; provided, that the aggregate amount payable under this clause “ Ninth ”, under clause “ Fourteenth ” of this Section 5.2(c) and under clauses “ Seventh ” and “ Tenth ” set forth under Section 5.2(b) , shall be in an amount up to the Aggregate Shortfall Amount Limit;
Tenth ,    to the Administrative Agent for the account of the Lenders, an amount equal to all outstanding Advances and any other amounts with respect to the Advances or Lender Notes;
Eleventh ,    to the Administrative Agent for the account of the Lenders by deposit in the Participation Interest Account, an amount equal to the Participation Interest Percentage of any amount paid to the Administrative Agent for the account of the Lenders pursuant to clause “ Ninth ” of this Section 5.2(c) on such Distribution Date; provided, that any such amount received by the Lenders under this clause “ Eleventh ” shall not reduce the outstanding principal balance of the Advances or any accrued interest thereon;
Twelfth ,    to the Escrow Account, the amounts described in clauses (iii) and (v) of the definition of Expenses which are then due and payable;
Thirteenth ,    to the Escrow Account, the remaining Available Amount; provided, that the aggregate amount distributed under this clause “ Thirteenth ”, Clause “ Ninth ” of this Section 5.2(c) and clauses “ Seventh ” and “ Ninth ” set forth under Section 5.2(b) for all Distribution Dates during the term of this Loan Agreement shall not exceed the lesser of (i) the Initial Advance plus all Additional Policy Advances and (ii) the Borrower’s Total Investment in the Pledged Policies;
Fourteenth ,    to the Administrative Agent for the account of the Lenders by deposit to the Participation Interest Account, an amount equal to the aggregate unpaid Participation Interest Shortfall Amounts for all of the Shortfall Pledged Policies, if any, and any Participation Interest Shortfall Amounts due on any prior Distribution Date that remain unpaid; provided, that any such amount received by the Lenders under this clause “ Fourteenth ” shall not reduce the outstanding principal balance of the Advances or any accrued interest thereon; provided further, the aggregate amount payable under this clause “ Fourteenth ”, under clause “ Ninth ” of this Section 5.2(c) and under clauses “ Seventh ” and “ Tenth ” set forth under Section 5.2(b), shall be in an amount up to the Aggregate Shortfall Amount Limit;

 

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Fifteenth ,    to the Administrative Agent for the account of the Lenders by deposit to the Participation Interest Account, the aggregate of (i) the Participation Interest Percentage of the remaining Available Amount, and (ii) the Participation Interest Percentage of any amount actually paid to the Participation Interest Account pursuant to clause “ Fourteenth ” of this Section 5.2(c) on such Distribution Date; provided, that any such amount received by the Lenders under this clause “ Fifteenth ” shall not reduce the outstanding principal balance of the Advances or any interest thereon;
Sixteenth ,    to the Custodian and the Securities Intermediary, as applicable, any fees and expenses due and payable thereto that remain unpaid (including such fees and expenses not paid pursuant to clause “ First ” of this Section 5.2(c)) ; and
Seventeenth ,    to the Escrow Account, any remaining Available Amount.

(d) Except as set forth in this Section 5.2(d) , all amounts on deposit in the Escrow Account shall remain in the Escrow Account until the second Business Day after the earlier of (i) the date as of which all existing Events of Default are cured by the Borrower or waived in writing by the Required Lenders in their sole and absolute discretion and so long as no Unmatured Event of Default has occurred and is continuing and no Protective Advances remain outstanding or (ii) the date that is the later of (x) six (6) months after the Partial Repayment Date and (y) six (6) months after all outstanding Protective Advances have been repaid, on which date the Administrative Agent shall instruct the Securities Intermediary to distribute all amounts on deposit in the Escrow Account to the Borrower Account. Amounts on deposit in the Escrow Account may be used by the Administrative Agent, acting at the written direction of the Required Lenders, to cure Event(s) of Default or Unmatured Event(s) of Default and to repay outstanding Protective Advances. If the related Event of Default has occurred and continues for a year or if the Administrative Agent has foreclosed on or exercised any of its other rights and remedies in respect of the Pledged Policies, amounts on deposit in the Escrow Account may be used by the Administrative Agent to pay the outstanding principal balances of the Advances, any other Obligations owing to the Lenders and Ongoing Maintenance Costs.

(e) On and after the Partial Repayment Date, on each Distribution Date, the Administrative Agent and the Borrower jointly shall (if no Unmatured Event of Default or Event of Default has occurred and is continuing) or the Administrative Agent alone shall (if an Unmatured Event of Default or Event of Default has occurred and is continuing) instruct the Securities Intermediary to distribute from the Available Amount then on deposit in the Collection Account and amounts on deposit in the Escrow Account (which may be distributed directly from the Escrow Account or by first transferring such amounts to the Collection Account, as determined by the Administrative Agent), in accordance with the Payment Instructions related to the Calculation Date Report for such Distribution Date, subject to the delivery of an Alternative Information Notice, and the procedures set forth in Section 5.2(a) for the resolution of any objections of the Borrower in respect of such Alternative Information Notice, or if the Borrower has failed to deliver the related Calculation Date Report or the related

 

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Payment Instructions on or prior to the related Calculation Date, the Administrative Agent acting alone shall instruct the Securities Intermediary to distribute from the Available Amount then on deposit in the Collection Account and amounts on deposit in the Escrow Account (which may be distributed directly from the Escrow Account or by first transferring such amounts to the Collection Account, as determined by the Administrative Agent), in accordance with the Borrower Failure Procedures, and in either case, the following amounts in the following order of priority unless otherwise agreed in writing by the parties hereto (and, with respect to any payments to the Securities Intermediary or the Custodian, as consented to by such Person in writing):

 

First ,    to the extent not paid from the proceeds of one or more Protective Advances, to the Custodian and the Securities Intermediary, as applicable, the fees, and expenses due and payable thereto in accordance with the Account Control Agreement, including, but not limited to, any Claims of any Indemnified Bank Person due and payable in accordance with the Account Control Agreement; provided that (i) the aggregate amount of Claims payable under this clause (i) shall not exceed $10,000 on any Distribution Date and (ii) the aggregate amount of Claims payable under this clause (i), under clause “ First ” of Section 5.2(b) and under clause “ First ” of Section 5.2(c) shall not, in aggregate, exceed $250,000 during the term of this Loan Agreement;
Second ,    to the applicable Issuing Insurance Company, the payment of scheduled Premiums which are due and payable prior to the following Distribution Date as set forth in the related Servicer Report;
Third ,    to the Administrative Agent for the account of the Lenders, the then outstanding principal balance of all Protective Advances plus accrued and unpaid interest thereon;
Fourth ,    to the Administrative Agent, the Administrative Agent Fee;
Fifth ,    (a) to the Portfolio Manager, the Portfolio Manager Fee and (b) to the Servicer, the Servicing Fee and costs and other amounts reimbursable to the Servicer pursuant to the Servicing Agreement;
Sixth ,    to the Borrower, any amounts actually paid by the Borrower to pay scheduled Premiums and Expenses, and in each case, as previously approved by the Required Lenders in writing and not previously reimbursed;
Seventh ,    to the Collection Account, to be held in reserve to fund (i) Premiums on Pledged Policies in accordance with the schedule of Premiums approved by the Required Lenders in accordance with Section 9.1(d)(vii) , an amount equal to up to the difference of (A) the aggregate amount of Premiums projected by the Servicer to be payable on all Pledged Policies during the succeeding twenty four calendar months (determined using methodology consistent with the methodology used for projecting Premium payments prior to the Partial Repayment Date and approved in writing by the Required Lenders) minus (B) the amounts then held in the

 

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   Collection Account in reserve to fund such Premiums as previously reserved pursuant to the immediately preceding sub-clause (A), (ii) the fees and expenses of the Custodian and the Securities Intermediary which will be due and payable thereto in accordance with the Account Control Agreement during the succeeding twenty four calendar months and (iii) the Servicing Fee and costs and other amounts reimbursable to the Servicer which will be due and payable thereto in accordance with the Servicing Agreement during the succeeding twenty four calendar months;
Eighth ,    to the Borrower Account or Escrow Account, as applicable, up to the amount of the Borrower’s Total Investment that has not yet been paid to the Borrower or deposited into the Escrow Account pursuant to Section 5.2(b) or Section 5.2(c) (reduced by amounts distributed to the Administrative Agent for the account of the Lenders pursuant to clause “ Seventh ” of Section 5.2(b) and clause “ Ninth ” of Section 5.2(c) );
Ninth ,    to the Administrative Agent for the account of the Lenders by deposit to the Participation Interest Account, an amount equal to the aggregate unpaid Participation Interest Shortfall Amounts for all of the Shortfall Pledged Policies, if any, and any Participation Interest Shortfall Amounts due on any prior date that remain unpaid; provided, that the aggregate amount payable under this clause (viii), under clauses “ Seventh ” and “ Tenth ” set forth under Section 5.2(b) and under clauses “ Ninth ” and “ Fourteenth ” set forth under Section 5.2(c) , shall be in an amount up to the Aggregate Shortfall Amount Limit;
Tenth ,    to the Administrative Agent for the account of the Lenders by deposit to the Participation Interest Account, the aggregate of (i) the Participation Interest Percentage of the remainder of such Collections and (ii) the Participation Interest Percentage of any amount paid to the Participation Interest Account pursuant to Clause “Eighth” of this Section 5.2(e) on such date,
Eleventh ,    to the Custodian and the Securities Intermediary, as applicable, any fees and expenses due and payable thereto that remain unpaid (including such fees and expenses not paid pursuant to Clause “First” of this Section 5.2(d) ); and
Twelfth ,    to the Borrower Account or the Escrow Account, as applicable, any remaining Available Amount.

(f) After a Pledged Policy becomes a Shortfall Pledged Policy, if the Borrower subsequently obtains a favorable judgment, ruling or verdict in an appeal or otherwise such that the related Issuing Insurance Company actually pays all or a portion of the face amount of such Shortfall Pledged Policy plus any applicable statutory interest (such Shortfall Pledged Policy, a “ Recovered Pledged Policy ”), and (i) if there are any unpaid Participation Interest Shortfall Amounts or Amortization Shortfall Amounts for any other Shortfall Pledged Policy or if an Event of Default has occurred and is continuing, then Collections in respect of such Recovered Pledged Policy shall be distributed pursuant to Section 5.2(b) , Section 5.2(c) , or Section 5.2(e) , as applicable and (ii) if there are no unpaid Participation Interest Shortfall

 

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Amounts or Amortization Shortfall Amounts for any other Shortfall Pledged Policy and so long as no Event of Default has occurred and is continuing, then first, if amounts were distributed from the Collection Account to fund Amortization Shortfall Amounts or Participation Interest Shortfall Amounts, in each case, with respect to such Recovered Pledged Policy, on any prior date pursuant to Section 5.2(b) Clauses “ Seventh ”, “ Eighth ” or “ Tenth ”, Section 5.2(c) Clauses “ Ninth ”, “ Eleventh ” or “ Fourteenth ” or Section 5.2(e) Clause “ Ninth ”, or were withdrawn from the Escrow Account on any prior date to fund Amortization Shortfall Amounts or Participation Interest Shortfall Amounts, in each case, with respect to such Recovered Pledged Policy, then Collections in respect of such Recovered Pledged Policy shall be distributed to the Borrower Account up to the aggregate of such amounts so funded, and, second the Borrower and the Lenders shall cooperate in good faith in order to equitably distribute any remaining Collections in respect of such Recovered Pledged Policy and if the Lender and the Borrower cannot reach an agreement on the distribution of such remaining Collections within thirty (30) days of the date such Shortfall Pledged Policy became a Recovered Pledged Policy, then such remaining Collections shall be distributed pursuant to the instructions of the Administrative Agent prepared in good faith and acting at the direction of the Required Lenders.

(g) With respect to any Distribution Date occurring on or after the Partial Repayment Date, if amounts on deposit in the Collection Account less any amounts held in reserve pursuant to Clause “Seventh” of Section 5.2(e) will be insufficient to pay the amounts set forth under Clauses “First,” “Second” and “Fifth” of Section 5.2(e) on such Distribution Date, then, in lieu of the Lenders making a Protective Advance therefor, the Borrower shall instruct the Securities Intermediary to apply such amounts held in reserve to pay such amounts set forth under Clauses “First,” “Second” and “Fifth” of Section 5.2(e) by reflecting such application in the related Calculation Date Report and Payment Instructions.

(h) For the avoidance of doubt and notwithstanding Section 9.1(d)(vii) , on and after the Partial Repayment Date, Premiums may be funded in accordance with an Alternative Information Notice delivered by the Administrative Agent pursuant to Section 5.2(e) . If Premiums are funded in accordance with an Alternative Information Notice delivered by the Administrative Agent pursuant to Section 5.2(b) , Section 5.2(c) or Section 5.2(e) , and the amount of Premiums funded is less than the amount set forth in the Calculation Date Report in respect of which such Alternative Information Notice was delivered, and as a result a Pledged Policy lapses, such lapse shall not constitute an Event of Default so long as the Borrower has provided at least fifteen (15) Business Days prior written notice of such lapse to the Administrative Agent.

Section 5.3 Permitted Investments .

(a) Funds at any time held in the Collection Account may be invested and reinvested at the direction of the Borrower (unless an Event of Default shall have occurred and be continuing, in which case at the written direction of the Administrative Agent) in one or more Permitted Investments in a manner provided in Section 5.3(c) . In the absence of any such direction, funds held in the Collection Account shall be invested in Permitted Investments described in clause (a) of the definition thereof. Funds at any time held in the Escrow Account shall be invested and reinvested at the direction of the Borrower in one or more Permitted Investments. In the absence of any such direction, funds held in the Escrow Account shall be invested in Permitted Investments described in clause (a) of the definition thereof.

 

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(b) Each investment made pursuant to this Section 5.3 on any date with respect to the Collection Account shall mature or be available not later than the Business Day preceding the Distribution Date after the day on which such investment is made, except that any investment made on the day preceding a Distribution Date shall mature on such Distribution Date.

(c) Any investment of funds in the Collection Account shall be made in Permitted Investments in which the Administrative Agent has a first priority, perfected Lien.

(d) The Administrative Agent shall not be liable in any manner by reason of any insufficiency in the Collection Account resulting from any loss on any Permitted Investment included therein.

Section 5.4 Shortfall Exclusion Election . Notwithstanding anything in this Loan Agreement to the contrary, if a Pledged Policy becomes a Shortfall Pledged Policy during a calendar year in which neither the Annual Policy Limit nor the Annual NDB Limit have been reached, and so long as neither the Aggregate Policy Limit nor the Aggregate NDB Limit have been reached (assuming that such Pledged Policy shall be treated as a Lapsed/Grace Policy), then, within two (2) Business Days after such Pledged Policy becomes a Shortfall Pledged Policy, the Borrower at its option may provide written notice to the Administrative Agent of the Borrower’s election (the “ Shortfall Exclusion Election ”) to treat such Pledged Policy as a Lapsed/Grace Policy. The Borrower may make only one Shortfall Exclusion Election during each calendar year. If (i) the Borrower makes a Shortfall Exclusion Election with respect to a Shortfall Pledged Policy during a calendar year and (ii) no Pledged Policy otherwise becomes a Lapsed/Grace Policy during the remainder of the calendar year in which such Shortfall Exclusion Election is made, then such Shortfall Pledged Policy shall not be included in calculating the Amortization Shortfall Amount and the Participation Interest Shortfall Amount. If (i) the Borrower makes a Shortfall Exclusion Election with respect to a Shortfall Pledged Policy during a calendar year and (ii) at least one other Pledged Policy becomes a Lapsed/Grace Policy during the remainder of the calendar year in which such Shortfall Exclusion Election is made, then such Shortfall Pledged Policy shall thereafter be included in calculating the Amortization Shortfall Amount and the Participation Interest Shortfall Amount, and an Event of Default under Section 10.1(p) shall be deemed to have occurred.

ARTICLE VI

INCREASED COSTS, ETC.

Section 6.1 Increased Costs . If any change in Regulation D of the Board of Governors of the Federal Reserve System, or any Regulatory Change, in each case occurring after the date hereof:

(A) shall subject any Affected Party to any Tax, duty or other charge with respect to any Advance made or funded by it, or shall change the basis of the imposition of any Tax on payments to such Affected Party of the principal of or interest on any

 

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Advance owed to or funded by it or any other amounts due under this Loan Agreement in respect of any Advance made or funded by it (except for changes in the rate of Tax on the overall net income of such Affected Party imposed by any applicable jurisdiction in which such Affected Party has an office); or

(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System, but excluding any reserve included in the determination of interest rates pursuant to Section 3.1 ), special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Affected Party;

(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or

(D) shall impose on any Affected Party any other condition affecting any Advance made or funded by any Affected Party;

and the result of any of the foregoing is or would be to (i) increase the cost to or impose a cost on an Affected Party funding or making or maintaining any Advance (including any commitment of such Affected Party with respect to any of the foregoing), (ii) to reduce the amount of any sum received or receivable by an Affected Party under this Loan Agreement or the Lender Notes, or (iii) in the good faith determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then after demand by such Affected Party to the Borrower (which demand shall be accompanied by a written statement setting forth the basis of such demand), the Borrower shall pay such Affected Party such additional amount or amounts as will (in the reasonable determination of such Affected Party) compensate such Affected Party for such increased cost or such reduction. Such written statement (which shall include calculations in reasonable detail) shall, in the absence of manifest error, be rebuttably presumptive evidence of the subject matter thereof.

Section 6.2 Funding Losses . The Borrower hereby agrees that upon demand by any Affected Party (which demand shall be accompanied by a statement setting forth the basis for the calculations of the amount being claimed) the Borrower will indemnify such Affected Party against any net loss or actual expense which such Affected Party actually sustains or incurs (including, without limitation, any net loss or expense actually incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Affected Party to fund or maintain any Advance made by any Lender to the Borrower), as reasonably determined by such Affected Party, as a result of (a) any payment or prepayment (including any mandatory prepayment) of any Advance on a date other than a Distribution Date, or (b) any failure of the Borrower to borrow any Advance on the date specified therefor in an Initial Advance Acceptance or an Additional Policy Advance Acceptance or with respect to an Ongoing Maintenance Advance, within five (5) Business Days after the Administrative Agent’s receipt of the related Borrowing Request. Such written statement shall, in the absence of manifest error, be rebuttable presumptive evidence of the subject matter thereof.

 

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Section 6.3 Withholding Taxes .

(a) Payments Free of Taxes . Any and all payments by or on account of any obligation of the Borrower shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Lender receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(b) Payment of Other Taxes by the Borrower . The Borrower shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent or applicable Lender timely reimburse it for the payment of, any Other Taxes.

(c) Indemnification by the Borrower . The Borrower shall indemnify the Administrative Agent and each Lender, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Lender or required to be withheld or deducted from a payment to such Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(d) Evidence of Payments . As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 6.3 , the Borrower shall deliver to the Administrative Agent and relevant Lender the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent and such Lender.

(e) Status of Lenders . (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under this Loan Agreement or the relevant Lender Note shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the

 

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Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 6.3(e)(ii)(A) , Section 6.3(e)(ii)(B) and Section 6.3(e)(ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii) Without limiting the generality of the foregoing:

(A) any Lender that is a U.S. Person shall deliver to the Borrower, the Securities Intermediary and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Loan Agreement (and from time to time thereafter upon the reasonable request of the Borrower, the Securities Intermediary or the Administrative Agent), executed originals (or copies if permitted by the Code and by the regulations promulgated by the Internal Revenue Service) of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower, the Securities Intermediary and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Loan Agreement (and from time to time thereafter upon the reasonable request of the Borrower, the Securities Intermediary or the Administrative Agent), whichever of the following is applicable:

(i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals (or copies if permitted by the Code and by the regulations promulgated by the Internal Revenue Service) of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(ii) executed originals (or copies if permitted by the Code and by the regulations promulgated by the Internal Revenue Service) of IRS Form W-8ECI;

(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) executed originals (or copies if permitted by the Code and by the regulations promulgated by the Internal Revenue Service) of IRS Form W-8BEN; or

(iv) to the extent a Foreign Lender is not the beneficial owner, executed originals (or copies if permitted by the Code and by the regulations promulgated by the Internal Revenue Service) of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner;

 

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(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower, the Securities Intermediary and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Loan Agreement (and from time to time thereafter upon the reasonable request of the Borrower, the Securities Intermediary or the Administrative Agent), executed originals (or copies if permitted by the Code and by the regulations promulgated by the Internal Revenue Service) of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower, the Securities Intermediary or the Administrative Agent to determine the withholding or deduction required to be made; and

(D) if a payment made to a Lender under this Loan Agreement or a Lender Note issued hereunder would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower, the Securities Intermediary and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower, the Securities Intermediary or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower, the Securities Intermediary or the Administrative Agent as may be necessary for the Borrower, the Securities Intermediary and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Loan Agreement.

(f) Treatment of Certain Refunds . If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 6.3 (including by the payment of additional amounts pursuant to this Section 6.3 ), it shall pay to the indemnifying party an amount equal to such

 

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refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (f) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(g) Survival . Each party’s obligations under this Section 6.3 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the commitments of the Lenders hereunder and the repayment, satisfaction or discharge of all obligations under this Loan Agreement.

Section 6.4 Designation of a Different Lending Office . If any Lender requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 6.3 , then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 6.3 , as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

ARTICLE VII

CONDITIONS TO BORROWING

The making of the Advances hereunder is subject to the following conditions precedent:

Section 7.1 Conditions Precedent to the Closing and the Initial Advance . The Administrative Agent and the Lenders shall have no obligation to consummate the transactions contemplated by this Loan Agreement and make the Initial Advance unless:

(a) Representations and Covenants . On and as of the date of the Initial Advance: (i) the representations of each of the Borrower, the Assignor, the Parent Pledgor, Imperial, the Portfolio Manager, the Servicer, the Custodian and the Securities Intermediary set forth in the Transaction Documents shall be true and correct in all material respects with the

 

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same effect as if made on such date, and (ii) each of the Borrower, the Assignor, the Parent Pledgor, Imperial, the Portfolio Manager, the Servicer, the Custodian and the Securities Intermediary shall be in compliance with the covenants set forth in the Transaction Documents to which it is a party.

(b) Closing Documents . The Administrative Agent shall have received all of the following, each duly executed and dated as of the Closing Date, in form and substance satisfactory to the Required Lenders:

(i) Transaction Documents . Duly executed and delivered counterparts of this Loan Agreement and each other Transaction Document, which agreements shall be in full force and effect.

(ii) Resolutions; Organizational Documentation . Certified copies of resolutions for the Borrower, the Assignor, the Parent Pledgor, Imperial, the Portfolio Manager and the Servicer authorizing or ratifying the execution, delivery and performance of each Transaction Document to which it is, or will be, a party, together with certified copies of the Borrower Organizational Documents and in the case of Imperial, the Assignor and the Parent Pledgor, a certified copy of their respective articles or certificate of incorporation or formation and by-laws, trust agreement or limited liability company agreements, as applicable, of the Borrower, Imperial, the Servicer, the Portfolio Manager, the Assignor and Parent Pledgor.

(iii) Consents, etc . Certified copies of all documents evidencing any necessary consents and governmental approvals required by the Borrower, the Assignor, the Parent Pledgor, Imperial, the Portfolio Manager and the Servicer with respect to each Transaction Document to which it is a party (including, without limitation, any and all approvals required for the Borrower or the Servicer to service the Collateral).

(iv) Incumbency and Signatures . A certificate of each of the Borrower, the Assignor, the Parent Pledgor, Imperial, the Portfolio Manager and the Servicer, certifying the names of its members, managers, directors or officers authorized to sign each Transaction Document to which it is, or will be, a party.

(v) Good Standing Certificates . Good standing certificates or equivalent certificates for each of the Borrower, the Assignor, the Parent Pledgor, Imperial, the Portfolio Manager and the Servicer issued as of a recent date acceptable to the Administrative Agent by: (i) the Secretary of State (or similar governmental authority) of the jurisdiction of such Person’s formation, and (ii) the Secretary of State (or similar governmental authority) of the jurisdiction where such Person’s chief executive office and principal place of business are located.

(vi) Financing Statements . Copies of UCC-1 financing statements, in form and substance satisfactory to Administrative Agent, to be filed on or before the Closing Date, naming each of the Borrower, the Parent Pledgor and the Assignor as debtor, and Administrative Agent, for the benefit of the Secured Parties, as secured party.

 

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(vii) Lien Search Report . Results of completed UCC and tax and judgment lien searches or their equivalent for the jurisdictions of formation and chief executive office of the Borrower, the Parent Pledgor and the Assignor dated within two (2) weeks before the Closing Date that name the Borrower, the Assignor and the Parent Pledgor as debtor (none of which shall show any of the Collateral or the Pledged Interests subject to any Liens other than those created pursuant to the Transaction Documents).

(viii) Payment of Fees . Evidence (which may be in the form of one or more wire instructions and/or confirmations) that all Fees payable hereunder or under any other Transaction Document and all costs and expenses then due and payable have been paid or will be paid out of the proceeds of the Initial Advance.

(ix) Opinions of Counsel . Opinions of counsel to the Borrower, the Assignor, the Parent Pledgor, the Servicer, Imperial, the Portfolio Manager, the Custodian and the Securities Intermediary, in form and substance satisfactory to the Administrative Agent.

(x) Accounts . Evidence that the Accounts, the Policy Account and the Borrower Account have been established in accordance with the Transaction Documents.

(xi) Collateral Packages . Copies of the complete Collateral Packages for the Subject Policies satisfactory to the Administrative Agent as of the Closing Date, including evidence that all Premiums required to be funded prior to the Closing Date in order to keep the Subject Policies in force and not in grace or lapse status through at least April 30, 2013 have been paid (except Subject Policies set forth on the Initial Advance Lexington Schedule, which may have Premiums funded through a different date as set forth on such schedule).

(xii) Reserved .

(xiii) Insurance Consultant . Reports produced by the Insurance Consultant, in form and substance satisfactory to the Administrative Agent.

(xiv) Annual Budget . The Borrower shall have produced an Annual Budget with respect to the Subject Policies as of the Closing Date, in form and substance reasonably acceptable to the Administrative Agent and the Insurance Consultant.

(xv) Solvency Certificate . A certificate of solvency executed by the chief financial officer of the Parent Pledgor certifying that the Borrower is Solvent.

(xvi) Others . Such other documents as the Administrative Agent may reasonably request prior to the Closing Date.

(c) Borrowing Base . The Initial Advance shall not exceed the Borrowing Base as of the date of the Initial Advance.

(d) Transaction Documents . Each of the Transaction Documents shall be in form and substance satisfactory to the Required Lenders in their sole discretion, and all consents, waivers and approvals necessary for the consummation of the transactions contemplated thereby shall have been obtained and shall be in full force and effect.

 

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(e) Eligible Policies . Each of the Subject Policies as of the Closing Date shall be an Eligible Policy, as determined by the Required Lenders in their sole discretion.

(f) Delivery of Policies to Custodian . All Subject Policies (except for Subject Policies set forth on Schedule 7.1(f)) have been delivered to and are held by the Custodian and the Custodian has verified to the Administrative Agent in writing its receipt of all originals or copies certified by the applicable Issuing Insurance Companies of such Subject Policies by delivering the required certification pursuant to the terms of the Account Control Agreement.

(g) Security Interest . The Required Lenders shall be satisfied that the Liens and security interests created under and granted by the Transaction Documents are first priority perfected security interests and will not be subject to any other senior or pari passu Liens, security interests or any other Adverse Claims prior to or after the Closing Date as determined in the Required Lenders’ sole discretion.

(h) No Material Change in Laws . Since January 1, 2013, no material adverse change in any Applicable Law or any tax treatment of life insurance death benefits or proceeds has occurred or reasonably could be expected to occur.

(i) Collateral Assignment . The Securities Intermediary or the Insurance Consultant shall have delivered to the related Issuing Insurance Companies a fully completed and executed collateral assignment in respect of each Subject Policy on the Closing Date (except for Subject Policies set forth on the Initial Advance Lexington Schedule and the Subject Policy set forth on Schedule 7.1(a)(i)), naming the Administrative Agent, on behalf of the Lenders, as the collateral assignee and the Administrative Agent shall have received verbal confirmation from each of the related Issuing Insurance Companies that all such collateral assignments have been received by such Issuing Insurance Companies.

(j) Acknowledgements . The Securities Intermediary shall have delivered written confirmation to the Administrative Agent that it has received an Acknowledgement for each Subject Policy and has credited each Subject Policy to the Policy Account and the Securities Intermediary shall have delivered copies of each such Acknowledgement to the Administrative Agent.

(k) Reserved .

(l) No Event of Default or Unmatured Event of Default . No Event of Default or Unmatured Event of Default which has not been waived in writing by the Required Lenders shall have occurred and be continuing or will result from the making of the Initial Advance.

(m) Borrowing Request; etc . The Administrative Agent shall have received a Borrowing Request (including (i) a confirmation that the Collateral Packages for the Subject Policies (taking into account the exceptions noted on Schedules V, VI, VII, VIII, IX, X and XI to the Account Control Agreement) have been uploaded to the FTP Site, and (ii) the Borrowing Base Certificate) for the Initial Advance (which may be an electronic or facsimile transmission).

 

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(n) Insurance Consultant . The Borrower shall have executed and delivered or caused all necessary third parties to execute and deliver, all documentation and authorizations necessary for the Insurance Consultant to communicate and receive verifications of coverage and obtain other information from the Issuing Insurance Companies related to the Subject Policies, as determined by the Administrative Agent in its sole and absolute discretion.

(o) Third Party Releases . The Borrower shall have executed and delivered or caused all necessary third parties to execute and deliver releases of Adverse Claims with respect to the Subject Policies, as determined by the Administrative Agent in its sole and absolute discretion and specified to the Borrower in writing prior to the Closing Date.

Section 7.2 Conditions Precedent to each Ongoing Maintenance Advance . The making of each Ongoing Maintenance Advance is subject to the following further conditions precedent:

(a) Representations and Covenants . On and as of the date of such Ongoing Maintenance Advance: (i) the representations of each of the Borrower, the Assignor, the Parent Pledgor, Imperial, the Portfolio Manager, the Servicer, the Securities Intermediary and the Custodian set forth in the Transaction Documents shall be true and correct in all material respects with the same effect as if made on such date, and (ii) each of the Borrower, the Assignor, the Parent Pledgor, Imperial, the Portfolio Manager, the Servicer, the Securities Intermediary and the Custodian shall be in compliance with the covenants set forth in the Transaction Documents to which it is a party.

(b) No Event of Default or Unmatured Event of Default . No Event of Default or Unmatured Event of Default which has not been waived in writing by the Required Lenders shall have occurred and be continuing or will result from the making of such Ongoing Maintenance Advance under any of the Transaction Documents.

(c) Borrowing Request; etc . The Administrative Agent shall have received a Borrowing Request (including the Borrowing Base Certificate) for such Ongoing Maintenance Advance.

(d) Commitment Termination Date . The Commitment Termination Date shall not have occurred.

(e) Material Adverse Effect . No event has occurred during the shorter of (i) the three (3) year period preceding the date of such Ongoing Maintenance Advance and (ii) the period of time commencing on the Closing Date and ending on the date of such Ongoing Maintenance Advance, that could reasonably be expected to have a Material Adverse Effect.

(f) Borrowing Base . The Ongoing Maintenance Advance shall not exceed an amount such that the Ongoing Maintenance Advance, when taken together with the outstanding balance of all previous Advances, would cause the aggregate outstanding balance of the Advances to exceed the Borrowing Base as of the date of such Ongoing Maintenance Advance.

 

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(g) No Liens; First Priority Security Interest . There shall be no encumbrance or Lien on any of the Collateral or the Pledged Interests other than Liens or encumbrances created or expressly permitted under the Transaction Documents.

(h) Transaction Documents . Each of the Transaction Documents shall be in full force and effect.

(i) No Material Change in Laws . Since the shorter of (i) the three (3) year period preceding the date of such Ongoing Maintenance Advance and (ii) the period of time commencing on the Closing Date and ending on the date of such Ongoing Maintenance Advance, no material adverse change in any Applicable Law or any tax treatment of life insurance death benefits or proceeds has occurred or reasonably could be expected to occur that would in the reasonable judgment of the Required Lenders (i) materially impair the collectability of a Pledged Policy for which the Premiums will be funded with the proceeds of such Ongoing Maintenance Advance or (ii) make such Ongoing Maintenance Advance or any of the outstanding Advances illegal.

(j) Fees . All Fees due and payable shall have been paid.

Section 7.3 Conditions Precedent to each Additional Policy Advance . The making of each Additional Policy Advance is subject to the following further conditions precedent:

(a) Representations and Covenants . On and as of the date of such Additional Policy Advance: (i) the representations of each of the Borrower, the Assignor, the Parent Pledgor, Imperial, the Portfolio Manager, the Servicer, the Custodian and the Securities Intermediary set forth in the Transaction Documents shall be true and correct in all material respects with the same effect as if made on such date, and (ii) each of the Borrower, the Assignor, the Parent Pledgor, Imperial, the Portfolio Manager, the Servicer, the Custodian and the Securities Intermediary shall be in compliance with the covenants set forth in the Transaction Documents to which it is a party.

(b) No Event of Default or Unmatured Event of Default . No Event of Default or Unmatured Event of Default which has not been waived in writing by the Required Lenders shall have occurred and be continuing or will result from the making of such Additional Policy Advance under any of the Transaction Documents.

(c) Borrowing Request; etc. The Administrative Agent shall have received a Borrowing Request (including (i) a confirmation that the Collateral Packages for the Subject Policies have been uploaded to the FTP Site and (ii) the Borrowing Base Certificate) for such Additional Policy Advance (which may be an electronic or facsimile transmission followed by actual delivery of the original Custodial Packages to the Custodian.

(d) Commitment Termination Date . The Commitment Termination Date shall not have occurred.

 

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(e) Material Adverse Effect . No event has occurred during the shorter of (i) the three (3) year period preceding the date of such Additional Policy Advance and (ii) the period of time commencing on the Closing Date and ending on the date of such Additional Policy Advance, that could reasonably be expected to have a Material Adverse Effect with respect to the Borrower, the Assignor, the Parent Pledgor or Imperial or any of the Collateral or the Pledged Interests.

(f) Borrowing Base . The Additional Policy Advance shall not exceed an amount such that the Additional Policy Advance, when taken together with the outstanding balance of all previous Advances, would cause the aggregate outstanding balance of the Advances to exceed the Borrowing Base as of the date of such Additional Policy Advance, and the calculation of the Lender Valuation shall include the Subject Policies.

(g) No Liens; First Priority Security Interest . There shall be no encumbrance or Lien on any of the Collateral, the Additional Policies or the Pledged Interests other than Liens or encumbrances created or permitted under the Transaction Documents. Furthermore, from and after the related Subsequent Advance Date, the Administrative Agent, for the benefit of the Secured Parties, shall have a first priority perfected security interest in, and assignment of, all of the Borrower’s rights, titles and interests (through the Securities Intermediary) in, to and under the Additional Policies.

(h) Transaction Documents . Each of the Transaction Documents shall be in full force and effect.

(i) Insurance Consultant Report . The Administrative Agent shall have received a report from the Insurance Consultant, in form and substance satisfactory to the Required Lenders in their sole discretion, regarding the value of the Collateral.

(j) Annual Budget . The Borrower shall have produced an Annual Budget with respect to the Additional Policies, in form and substance reasonably acceptable to the Administrative Agent and the Insurance Consultant.

(k) No Material Change in Laws . Since the shorter of (i) the three (3) year period preceding the date of such Additional Policy Advance and (ii) the period of time commencing on the Closing Date and ending on the date of such Additional Policy Advance, no material adverse change in any Applicable Law or any tax treatment of life insurance death benefits or proceeds has occurred or reasonably could be expected to occur that would in the reasonable judgment of the Required Lenders (i) materially impair the collectability of any Subject Policy or (ii) make such Additional Policy Advance or any of the outstanding Advances illegal.

(l) Eligible Policies . Each of the Additional Policies being funded on the related Subsequent Advance Date shall be an Eligible Policy, as determined by the Required Lenders in their sole discretion.

(m) Fees . All Fees due and payable shall have been paid.

 

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(n) Lender Approval . Each Lender’s executive loan committee or similar governing body shall have approved such Additional Policy Advance, which approval may be withheld or granted in such executive loan committee’s or similar governing body’s sole discretion; provided however , that each Lender’s funding of such Additional Policy Advance shall be deemed to demonstrate approval of such Additional Policy Advance by such Lender’s executive loan committee or similar governing body.

(o) Collateral Assignment . The Borrower shall have delivered to the Securities Intermediary a fully completed and executed collateral assignment in respect of each Additional Policy on such Advance Date, naming the Administrative Agent, on behalf of the Lenders, as the collateral assignee.

(p) Delivery of Policies to Custodian . All Additional Policies, and all documents comprising the related Custodial Packages (including all originals thereof), have been delivered to and are held by the Custodian, including evidence that all Premiums necessary to keep such Additional Policies in force have been paid through the period of time commencing on the proposed Subsequent Advance Date and ending thirty (30) days thereafter, and the Custodian has verified to the Administrative Agent in writing its receipt of all documents required to be contained in the related Custodial Package by delivering the required certification pursuant to the terms of the Account Control Agreement.

(q) Acknowledgements . The Securities Intermediary shall have delivered written confirmation to the Administrative Agent that it has received an Acknowledgement for each Subject Policy and has credited each Subject Policy to the Policy Account and the Securities Intermediary shall have delivered copies of each such Acknowledgement to the Administrative Agent.

(r) Change Forms . The Securities Intermediary shall confirm to the Administrative Agent in writing that it is holding completed Change Forms with respect to the Subject Policies executed by the Securities Intermediary in blank and the Administrative Agent shall have received copies of such Change Forms.

(s) Insurance Consultant . The Borrower shall have executed and delivered or caused all relevant third parties to execute and deliver all documentation and authorizations necessary for the Insurance Consultant to communicate and receive verifications of coverage and obtain other information from the Issuing Insurance Companies related to the Subject Policies, as determined by the Administrative Agent in its sole and absolute discretion.

(t) Third Party Releases . The Borrower shall have executed and delivered or caused all relevant third parties to execute and deliver all necessary releases of Adverse Interests with respect to the Subject Policies, as determined by the Administrative Agent in its sole and absolute discretion and specified to the Borrower in writing prior to the relevant Advance Date.

 

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ARTICLE VIII

REPRESENTATIONS AND WARRANTIES

Section 8.1 Representations and Warranties of the Borrower . The Borrower makes the following representations and warranties to the Administrative Agent and each Lender:

(a) Organization, etc . The Borrower has been duly organized and is validly existing and in good standing under the laws of the State of Delaware (and is not organized under the laws of any other jurisdiction or Governmental Authority) with the requisite power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted. The Borrower is duly licensed or qualified to do business as a foreign entity in good standing in each jurisdiction in which the failure to be so licensed or qualified would be reasonably likely to have a material adverse effect on any of the Pledged Policies, any other Collateral, any of the Pledged Interests, the business, assets, financial condition or operations of the Borrower or any of the rights or interests of the Administrative Agent or any of the Lenders hereunder or under any other Transaction Document.

(b) Power and Authority; Due Authorization . The Borrower has (a) all necessary power, authority and legal right to (i) execute, deliver and perform its obligations under this Loan Agreement and each of the other Transaction Documents to which it is a party, and (ii) to borrow moneys on the terms and subject to the conditions herein provided, and (b) duly authorized, by all necessary action, the execution, delivery and performance of this Loan Agreement and the other Transaction Documents to which it is a party, the borrowing hereunder on the terms and conditions of this Loan Agreement and the granting of security therefor on the terms and conditions provided herein.

(c) No Violation . The consummation of the transactions contemplated by this Loan Agreement and the other Transaction Documents and the fulfillment of the terms hereof and thereof will not and do not (a) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, (i) the Borrower Organizational Documents, or (ii) any material agreement or instrument to which the Borrower is a party or by which it or any of its properties is bound, (b) result in or require the creation or imposition of any Adverse Claim upon any of its properties pursuant to the terms of any such material agreement or instrument or (c) violate any Applicable Law.

(d) Validity and Binding Nature . This Loan Agreement is, and the other Transaction Documents to which it is a party when duly executed and delivered by the Borrower and the other parties thereto will be, the legal, valid and binding obligation of the Borrower, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and by general principles of equity.

(e) Government Approvals . No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body required for the due execution, delivery or performance by the Borrower of any Transaction Document to which it is a party, remains or remained unobtained or unfiled.

(f) Solvency . As of each Advance Date, after giving effect to each Advance made on such Advance Date, the Borrower is and will be Solvent and able to pay its debts as they come due, and has and will have adequate capital to conduct its business.

 

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(g) Margin Regulations . The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of any Advances, directly or indirectly, will be used for a purpose that violates, or would be inconsistent with, Regulations T, U and X promulgated by the Federal Reserve Board from time to time.

(h) Quality of Title . As of each Advance Date, the Collateral, including, without limitation, the Pledged Policies, is owned by the Borrower (directly or through the Securities Intermediary) free and clear of any Adverse Claim. As of the date of any Additional Policy Advance made pursuant to a Borrowing Request, the Subject Policies are owned by the Borrower (directly or through the Securities Intermediary) free and clear of any Adverse Claim.

(i) No Rescission . As of each Advance Date, no prior seller of any Pledged Policy or Subject Policy (if applicable) has exercised or, to the knowledge of the Borrower after reasonable investigation, attempted to exercise the right to rescind any transfer of such Policy, except with respect to any Pledged Policy or Subject Policy identified on Schedule 8.1(i), in which case, such prior seller subsequently abandoned such exercise or attempt to exercise (in exchange for specific compensation or such prior seller litigated such attempt to exercise and an unfavorable judgment or verdict was rendered against such prior seller and is not subject to a pending appeal or dispute, as indicated on Schedule 8.1(i)).

(j) Perfection . This Loan Agreement, the Borrower Interest Pledge Agreement, the Account Control Agreement and the financing statements filed in connection with this Loan Agreement create a valid first priority security interest in favor of the Administrative Agent (for the benefit of the Secured Parties) in the Collateral (excluding each of the Subject Policies set forth on Eligibility Criteria Clause (a) Schedule until the Securities Intermediary is designated as the “owner” and “beneficiary” under such Pledged Policy by the related Issuing Insurance Company), which security interest has been perfected (free and clear of any Adverse Claim) as security for the Obligations. As of the Closing Date, no effective financing statement or other instrument similar in effect covering any of the Collateral or any interest therein owned by the Borrower (directly or through the Securities Intermediary) is on file in any recording office except for financing statements in favor of the Administrative Agent (for the benefit of the Secured Parties) in accordance with this Loan Agreement and the other Transaction Documents. As of the date of any Additional Policy Advance made pursuant to a Borrowing Request, no effective financing statement or other instrument similar in effect covering any of the Subject Policies will be on file in any recording office except for financing statements in favor of the Administrative Agent (for the benefit of the Secured Parties) in accordance with this Loan Agreement and the other Transaction Documents.

(k) Offices . The principal place of business and chief executive office of the Borrower, the Assignor, the Parent Pledgor and Imperial is located at the address set forth on Schedule 13.2 (or at such other locations, notified to the Administrative Agent in jurisdictions where all action required hereby has been taken and completed).

(l) Compliance with Applicable Laws; Licenses, etc.

(i) The Borrower is in compliance with the requirements of all Applicable Laws, a breach of any of which, individually or in the aggregate, could

 

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reasonably be expected to have an adverse effect on any of the Pledged Policies, the business, assets, financial condition or operations of the Borrower or any of the rights or interests of the Administrative Agent or any of the Lenders hereunder or under any other Transaction Document.

(ii) The Borrower has not failed to obtain any licenses, permits, franchises or other governmental authorizations necessary to the ownership of its properties or to the conduct of its business, which violation or failure to obtain could reasonably be expected to have a material adverse effect on any of the Pledged Policies, any other Collateral, any of the Pledged Interests, the business, assets, financial condition or operations of the Borrower or any of the rights or interests of the Administrative Agent or any of the Lenders hereunder or under any other Transaction Document.

(iii) The Borrower has complied with all licensure requirements in each state in which it is required to be specifically registered or licensed as a purchaser, owner or servicer of life insurance policies.

(iv) There has been no event or circumstance that could reasonably be expected to result in the revocation of any license, permit, franchise or other governmental authorization of the Borrower necessary to the ownership of its properties or to the conduct of its business.

(m) No Proceedings . There is no order, judgment, decree, injunction, stipulation or consent order of or with any Governmental Authority to which the Borrower is subject, and there is no action, suit, arbitration, regulatory proceeding or investigation pending, or, to the actual knowledge of the Borrower, threatened, before or by any court, regulatory body, administrative agency or other tribunal or governmental instrumentality, against the Borrower that, individually or in the aggregate, could reasonably be expected to have a material adverse effect on any of the Pledged Policies, any other Collateral, any of the Pledged Interests, the business, assets, financial condition or operations of the Borrower or any of the rights or interests of the Administrative Agent or any of the Lenders hereunder or under any other Transaction Document; and there is no action, suit, proceeding, arbitration, regulatory or governmental investigation, pending or, to the actual knowledge of the Borrower, threatened, before or by any court, regulatory body, administrative agency, or other tribunal or governmental instrumentality (A) asserting the invalidity of this Loan Agreement, the Lender Notes or any other Transaction Document, (B) seeking to prevent the issuance of the Lender Notes or the consummation of any of the other transactions contemplated by this Loan Agreement or any other Transaction Document, (C) seeking to adversely affect the federal income tax attributes of the Borrower or (D) asserting that any Pledged Policy or Policy to become a Pledged Policy is invalid, void or otherwise unenforceable for any reason.

(n) Investment Company Act, Etc . The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

(o) Eligible Policies . As of the Closing Date, each Pledged Policy is an Eligible Policy. As of the date of any Borrowing Request relating to an Additional Policy Advance and the date of such Additional Policy Advance, each Additional Policy that will become a Pledged Policy on the relevant Advance Date is or will be an Eligible Policy.

 

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(p) Accuracy of Information . To the best of the Borrower’s knowledge and belief, after due inquiry, and in reliance on information provided by third parties (as to the accuracy or completeness of which the Borrower is not liable and has expressed no opinion or made any representation or warranty), all information furnished by, or on behalf of, the Borrower to the Administrative Agent or any other Secured Party in connection with any Transaction Document, or any transaction contemplated thereby, is or was as of the date it was furnished (if such information was furnished on an earlier date) true and accurate in every material respect (without omission of any information necessary to prevent such information from being materially misleading).

(q) No Material Adverse Change . Except as set forth on Schedule 8.1(q), since March 27, 2013, there has been no material adverse change in (A) the Borrower’s (i) financial condition, business, operations or prospects or (ii) ability to perform its obligations under any Transaction Document to which the Borrower is a party, (B) any of the Collateral or (C) any of the Pledged Interests.

(r) Trade Names and Subsidiaries . The Borrower has not used any other names, trade names or assumed names for the five year period preceding the date of this Loan Agreement. The Borrower has no Subsidiaries and does not own or hold, directly or indirectly, any equity interest in any Person.

(s) Accounts . Set forth in Schedule 8.1(s) is a complete and accurate description, as of the Closing Date, of the existing Accounts, the Policy Account and the Borrower Account. The Accounts and the Policy Account have each been validly and effectively collaterally assigned to the Administrative Agent, for the benefit of the Secured Parties, and shall be encumbered by the Lien created pursuant to this Loan Agreement and the Account Control Agreement. The Account Control Agreement is the legal, valid and binding obligation of the parties thereto, enforceable against such parties in accordance with their respective terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and by general principles of equity). None of the Borrower, the Servicer or the Portfolio Manager has granted any interest in the Accounts or the Policy Account to any Person other than the Administrative Agent and the Administrative Agent has “control” of the Accounts and the Policy Account within the meaning of the applicable UCC.

(t) Financial Statements . The financial statements required to be delivered pursuant to Section 9.1(d) : (i) were, as of the date and for the periods referred to therein, complete and correct in all respects, (ii) presented fairly the financial condition and results of operations of the related Person as at such time and (iii) were prepared in accordance with GAAP, consistently applied, except as noted therein (subject as to interim statements to normal year-end adjustments).

(u) No Event of Default. Except as set forth on Schedule 8.1(u), no Event of Default or Unmatured Event of Default has occurred or is continuing, or, in relation to any Borrowing Request, will result from the funding of the Advance and use of funds specified therein.

 

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(v) Foreign Assets Control Regulations, Etc .

(i) None of the Borrower, Pledgor, the Portfolio Manager or Servicer nor any Affiliate of any of them or of Imperial is (A) a person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control, U.S. Department of Treasury (“ OFAC ”) (an “ OFAC Listed Person ”) or (B) a department, agency or instrumentality of, or is otherwise controlled by or acting on behalf of, directly or indirectly, (x) any OFAC Listed Person or (y) any person, entity, organization, foreign country or regime that is subject to any OFAC Sanctions Program (each OFAC Listed Person and each other person, entity, organization and government of a country described in clause (B), a “ Blocked Person ”).

(ii) No part of the proceeds from the Advances issued hereunder constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used, directly or indirectly by the Borrower, Pledgor, Servicer, the Portfolio Manager, Imperial, or any Affiliate of any of them, in connection with any investment in, or, to the Borrower’s actual knowledge, any transactions or dealings with, any Blocked Person.

(iii) To the Borrower’s actual knowledge, none of the Borrower, Pledgor, the Portfolio Manager, or Servicer, Imperial or any Affiliate of any of them (A) is under investigation by any Governmental Authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes under any Applicable Law (collectively, “ Anti-Money Laundering Laws ”), (B) has been assessed civil penalties under any Anti-Money Laundering Laws or (C) has had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws. The Borrower has taken reasonable measures appropriate to the circumstances, to the extent, if any, required by Applicable Law, to ensure that the Borrower and each Affiliate thereof is and will continue to be in compliance with all applicable current and future Anti-Money Laundering Laws.

(iv) No part of the proceeds from Advances funded hereunder will be used, directly or indirectly, for any improper payments to any governmental official or employee, political party, official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage. The Borrower has taken reasonable measures appropriate to the circumstances, to the extent, if any, required by Applicable Law, to ensure that the Borrower and each Affiliate thereof is and will continue to be in compliance with all applicable current and future anti-corruption laws and regulations.

(w) Retained Death Benefit Policies . As of the Closing Date, all Pledged Policies that constitute Retained Death Benefit Policies are listed on Schedule 8.1(w) and the portion of the Net Death Benefit payable to any Person other than the Securities Intermediary

 

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does not exceed forty-five percent (45%) of the Net Death Benefit of any such Retained Death Benefit Policy. As of the date of any Additional Policy Advance made pursuant to a Borrowing Request, all Pledged Policies that are to be funded from such Advance that constitute Retained Death Benefit Policies are listed on Schedule 8.1(w) , which also indicates the percentage of the Net Death Benefit of each such Retained Death Benefit Policy that is payable to any Person other than the Securities Intermediary.

(x) Transaction Documents . The Borrower has not entered into any agreements or instruments other than the Transaction Documents, except as approved in writing by the Required Lenders in their sole and absolute discretion.

(y) Ownership of Borrower . All beneficial owners of the outstanding equity interests of the Borrower are U.S. Persons.

Section 8.2 Representations and Warranties of the Portfolio Manager . The Portfolio Manager makes the following representations and warranties to the Administrative Agent and each Lender:

(a) Organization, etc . The Portfolio Manager has been duly organized and is validly existing and in good standing under the laws of the State of Florida (and is not organized under the laws of any other jurisdiction or Governmental Authority) with the requisite power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted. The Portfolio Manager is duly licensed or qualified to do business as a foreign entity in good standing in each jurisdiction in which the failure to be so licensed or qualified would be reasonably likely to have a material adverse effect on any of the Pledged Policies, any other Collateral, any of the Pledged Interests, the business, assets, financial condition or operations of the Portfolio Manager or any of the rights or interests of the Administrative Agent or any of the Lenders hereunder or under any other Transaction Document.

(b) Power and Authority; Due Authorization . The Portfolio Manager has (a) all necessary power, authority and legal right to execute, deliver and perform its obligations under this Loan Agreement and each of the other Transaction Documents to which it is a party, and (b) duly authorized, by all necessary action, the execution, delivery and performance of this Loan Agreement and the other Transaction Documents to which it is a party.

(c) No Violation . The consummation of the transactions contemplated by this Loan Agreement and the other Transaction Documents and the fulfillment of the terms hereof and thereof will not and do not (a) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, (i) the organizational documents of the Portfolio Manager, or (ii) any material agreement or instrument to which the Portfolio Manager is a party or by which it or any of its properties is bound, (b) result in or require the creation or imposition of any Adverse Claim upon any of its properties pursuant to the terms of any such material agreement or instrument or (c) violate any Applicable Law.

(d) Validity and Binding Nature . This Loan Agreement is, and the other Transaction Documents to which it is a party when duly executed and delivered by the Portfolio

 

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Manager and the other parties thereto will be, the legal, valid and binding obligation of the Portfolio Manager, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and by general principles of equity.

(e) Government Approvals . No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body required for the due execution, delivery or performance by the Portfolio Manager of any Transaction Document to which it is a party, remains or remained unobtained or unfiled.

(f) Margin Regulations . The Portfolio Manager is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock.

(g) Offices . The principal place of business and chief executive office of the Portfolio Manager is located at the address set forth on Schedule 13.2 (or at such other locations, notified to the Administrative Agent in jurisdictions where all action required hereby has been taken and completed).

(h) Compliance with Applicable Laws; Licenses, etc.

(i) The Portfolio Manager is in compliance with the requirements of all Applicable Laws, a breach of any of which, individually or in the aggregate, could reasonably be expected to have an adverse effect on any of the Pledged Policies, the business, assets, financial condition or operations of the Portfolio Manager or any of the rights or interests of the Administrative Agent or any of the Lenders hereunder or under any other Transaction Document.

(ii) The Portfolio Manager has not failed to obtain any licenses, permits, franchises or other governmental authorizations necessary to the ownership of its properties or to the conduct of its business, which violation or failure to obtain could reasonably be expected to have a material adverse effect on any of the Pledged Policies, any other Collateral, any of the Pledged Interests, the business, assets, financial condition or operations of the Portfolio Manager or any of the rights or interests of the Administrative Agent or any of the Lenders hereunder or under any other Transaction Document.

(iii) The Portfolio Manager has complied with all licensure requirements in each state in which it is required to be specifically registered or licensed as a purchaser, owner or servicer of life insurance policies.

(iv) There has been no event or circumstance that could reasonably be expected to result in the revocation of any license, permit, franchise or other governmental authorization of the Portfolio Manager necessary to the ownership of its properties or to the conduct of its business.

(i) No Proceedings . There is no order, judgment, decree, injunction, stipulation or consent order of or with any Governmental Authority to which the Portfolio

 

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Manager is subject, and there is no action, suit, arbitration, regulatory proceeding or investigation pending, or, to the actual knowledge of the Portfolio Manager, threatened, before or by any court, regulatory body, administrative agency or other tribunal or governmental instrumentality, against the Portfolio Manager that, individually or in the aggregate, could reasonably be expected to have a material adverse effect on any of the Pledged Policies, any other Collateral, any of the Pledged Interests, the business, assets, financial condition or operations of the Portfolio Manager or any of the rights or interests of the Administrative Agent or any of the Lenders hereunder or under any other Transaction Document; and there is no action, suit, proceeding, arbitration, regulatory or governmental investigation, pending or, to the actual knowledge of the Portfolio Manager, threatened, before or by any court, regulatory body, administrative agency, or other tribunal or governmental instrumentality (A) asserting the invalidity of this Loan Agreement or any other Transaction Document, (B) seeking to adversely affect the federal income tax attributes of the Portfolio Manager or (C) asserting that any Pledged Policy or Policy to become a Pledged Policy is invalid, void or otherwise unenforceable for any reason.

(j) Investment Company Act, Etc . The Portfolio Manager is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

(k) Accuracy of Information . To the best of the Portfolio Manager’s knowledge and belief, after due inquiry, and in reliance on information provided by third parties (as to the accuracy or completeness of which the Portfolio Manager is not liable and has expressed no opinion or made any representation or warranty), all information furnished by, or on behalf of, the Portfolio Manager to the Administrative Agent or any other Secured Party in connection with any Transaction Document, or any transaction contemplated thereby, is or was as of the date it was furnished (if such information was furnished on an earlier date) true and accurate in every material respect (without omission of any information necessary to prevent such information from being materially misleading).

(l) No Material Adverse Change . Except as set forth on Schedule 8.2(l), since March 27, 2013, there has been no material adverse change in (A) the Portfolio Manager’s (i) financial condition, business, operations or prospects or (ii) ability to perform its obligations under any Transaction Document to which the Portfolio Manager is a party, (B) any of the Collateral or (C) any of the Pledged Interests.

(m) Trade Names and Subsidiaries . The Portfolio Manager has not used any other names, trade names or assumed names for the five year period preceding the date of this Loan Agreement. The Portfolio Manager has no Subsidiaries and does not own or hold, directly or indirectly, any equity interest in any Person.

(n) Foreign Assets Control Regulations, Etc .

(i) The Portfolio Manager is not (A) a person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control, U.S. Department of Treasury (“ OFAC ”) (an “ OFAC Listed Person ”) or (B) a department, agency or instrumentality of, or is otherwise controlled by

 

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or acting on behalf of, directly or indirectly, (x) any OFAC Listed Person or (y) any person, entity, organization, foreign country or regime that is subject to any OFAC Sanctions Program (each OFAC Listed Person and each other person, entity, organization and government of a country described in clause (B), a “ Blocked Person ”).

(ii) To the Portfolio Manager’s actual knowledge, it (A) is not under investigation by any Governmental Authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes under any Applicable Law (collectively, “ Anti-Money Laundering Laws ”), (B) has not been assessed civil penalties under any Anti-Money Laundering Laws or (C) has not had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws. The Portfolio Manager has taken reasonable measures appropriate to the circumstances, to the extent, if any, required by Applicable Law, to ensure that the Portfolio Manager and each Affiliate thereof is and will continue to be in compliance with all applicable current and future Anti-Money Laundering Laws.

(iii) The Portfolio Manager has taken reasonable measures appropriate to the circumstances, to the extent, if any, required by Applicable Law, to ensure that the Portfolio Manager and each Affiliate thereof is and will continue to be in compliance with all applicable current and future anti-corruption laws and regulations.

ARTICLE IX

COVENANTS

Section 9.1 Affirmative Covenants . From the date hereof until the first day following the date on which all of the Obligations (including, without limitation, the Aggregate Participation Interest) are performed and paid in full and this Loan Agreement is terminated, the Borrower hereby covenants and agrees as follows:

(a) Compliance with Laws, Etc . The Borrower shall comply in all material respects with all Applicable Laws.

(b) Preservation of Existence . The Borrower shall preserve and maintain its existence, rights, franchises and privileges, and sole jurisdiction of formation, and qualify and remain qualified in good standing as a foreign entity in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualifications could have a material adverse effect on any of the Pledged Policies, any other Collateral, any of the Pledged Interests, the business, assets, financial condition or operations of the Borrower or any of the rights or interests of the Administrative Agent or any of the Lenders hereunder or under any other Transaction Document.

(c) Performance and Compliance with the Transaction Documents and Pledged Policies . The Borrower shall timely and fully perform and comply in all material respects with all provisions, covenants and other promises required to be observed by it under the Transaction Documents and otherwise with respect to the Pledged Policies.

 

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(d) Reporting Requirements . During the term of this Loan Agreement, the Borrower shall furnish or cause to be furnished to the Administrative Agent and each Lender:

(i) (A) with respect to the Borrower (x) as soon as available and in any event within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, a copy of the unaudited financial statements of the Borrower or the Parent Pledgor (so long as such unaudited financial statements are on a consolidated basis and include the Borrower), as of the end of such month, certified by an officer or director of the Borrower or the Parent Pledgor (which certification shall state that the related balance sheets and statements fairly present the financial condition and results of operations for such fiscal quarter and, if financial statements are publicly filed by Imperial pursuant to applicable securities laws, such certification shall be in the same form and scope as the relevant certification delivered in connection with such filing), delivery of which financial statements shall be accompanied by a certificate of such officer to the effect that no Event of Default or Unmatured Event of Default has occurred and is continuing or, if an Event of Default or Unmatured Event of Default has occurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (y) as soon as available, and in any event within two-hundred seventy (270) days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending in 2013), a copy of the audited annual balance sheet for such fiscal year of the Borrower or the Parent Pledgor (so long as such audited annual balance sheet is on a consolidated basis and includes the Borrower) as at the end of such fiscal year, together with the related audited statements of earnings, stockholders’ equity and cash flows for such fiscal year, certified by an officer or director of the Borrower or the Parent Pledgor (which certification shall state that the related balance sheets and statements fairly present the financial condition and results of operations for such fiscal year, subject to year-end audit adjustments and, if financial statements are publicly filed by Imperial pursuant to applicable securities laws, such certification shall be in the same form and scope as the relevant certification delivered in connection with such filing), delivery of which balance sheets and statements shall be accompanied by a certificate of such officer to the effect that no Event of Default or Unmatured Event of Default has occurred and is continuing or, if an Event of Default or Unmatured Event of Default has occurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (B) if Imperial is no longer a Publicly Traded Company or if Imperial fails to timely make any necessary filings with the Securities and Exchange Commission, (x) as soon as available and in any event within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of Imperial, a copy of the unaudited financial statements of Imperial, as of the end of such month, certified by an officer or director of Imperial (which certification shall state that the related balance sheets and statements fairly present the financial condition and results of operations for such fiscal quarter and, if financial statements are publicly filed by Imperial pursuant to applicable securities laws, such certification shall be in the same form and scope as the relevant certification delivered in connection with such filing) and (y) as soon as available, and in any event within two-hundred seventy (270) days after the end of each fiscal year of Imperial, a copy of the audited annual balance sheet for such fiscal year of Imperial as at the end of such fiscal year, together

 

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with the related audited statements of earnings, stockholders’ equity and cash flows for such fiscal year, certified by an officer or director of Imperial (which certification shall state that the related balance sheets and statements fairly present the financial condition and results of operations for such fiscal year, subject to year-end audit adjustments and, if financial statements are publicly filed by Imperial pursuant to applicable securities laws, such certification shall be in the same form and scope as the relevant certification delivered in connection with such filing);

(ii) as soon as possible and in any event within two (2) Business Days after any officer of the Borrower, the Assignor, the Parent Pledgor, the Portfolio Manager, the Servicer or Imperial has actual knowledge of (A) the occurrence of an Event of Default or an Unmatured Event of Default, an officer’s certificate of the Borrower setting forth details of such event and the action that the Borrower proposes to take with respect thereto and (B) the downgrade, withdrawal or suspension of the financial strength rating of any Issuing Insurance Company, notice to the Administrative Agent thereof;

(iii) a copy of the Servicer Report on each Servicer Report Date;

(iv) promptly, from time to time, such other information, documents, records or reports respecting the Collateral, the Subject Policies or the condition or operations, financial or otherwise, of the Borrower as the Administrative Agent may from time to time reasonably request in order to protect the interests of the Administrative Agent or any Lender under or as contemplated by this Loan Agreement and the other Transaction Documents, including but not limited to, upon each sale of a Pledged Policy, a report that shall include such information as the Administrative Agent shall reasonably request, calculated as of before such sale and after such sale, taking into account the application of the proceeds of such sale;

(v) as soon as possible upon learning of the death of any Insured, an email notification to the Administrative Agent of (A) the identity of such Insured, (B) the cost basis (purchase price paid by the first person that purchased such Pledged Policy that was an Affiliate of the Borrower, the Assignor, the Parent Pledgor or Imperial or, if such Pledged Policy was acquired by such Affiliate in a foreclosure process, the amount of indebtedness allocated to such Pledged Policy by such Affiliate plus any additional accrued and unpaid interest thereon as of the date of foreclosure and, in each case, plus premiums paid thereon after the date of foreclosure or purchase, as applicable, and until the Closing Date) of the Pledged Policy relating to such Insured, (C) the Net Death Benefit of the Pledged Policy relating to such Insured, (D) the two (2) Life Expectancy Reports delivered with respect to such Insured relating to the applicable Advance and the names of the Pre-Approved Medical Underwriters which provided such Life Expectancy Reports, (E) the date the Pledged Policy was first acquired by an Affiliate of the Borrower, the Assignor, the Parent Pledgor or Imperial relating to such Insured and (F) the date of birth and date of death of such Insured;

(vi) no later than the Closing Date, and thereafter on December 1 of each calendar year (including the current calendar year), an annual budget substantially in

 

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form of Exhibit E (each, an “ Annual Budget ”). Within five (5) Business Days of delivery of the first such Annual Budget, and thereafter within twenty (20) Business Days of delivery of each subsequent Annual Budget to the Administrative Agent and each Lender, the Required Lenders will specify to the Administrative Agent, and the Administrative Agent will advise the Borrower the amount they have approved in their sole discretion for funding through Advances and/or Collections in respect of Expenses for (a) in the case of the first such Annual Budget, the current calendar year, and (b) in the case of any subsequent Annual Budget the succeeding calendar year; provided that at any time, in their sole discretion, the Required Lenders may notify the Administrative Agent and Borrower that they approve increases in such amounts or direct decreases in such amounts

(vii) no later than five (5) Business Days following the Partial Repayment Date, and within five (5) Business Days prior to the end of each calendar quarter thereafter, a schedule of Premiums on the Pledged Policies for the immediately succeeding calendar quarter. Within ten (10) Business Days of delivery of each such schedule of Premiums, the Required Lenders will specify to the Administrative Agent, and the Administrative Agent will advise the Borrower whether they have approved such schedule of Premiums in their discretion, exercised in a commercially reasonable manner.

(e) Use of Advances . The Borrower shall use the proceeds of Advances in accordance with Section 2.8(a) .

(f) Separate Legal Entity . The Borrower hereby acknowledges that each Lender and the Administrative Agent are entering into the transactions contemplated by this Loan Agreement and the other Transaction Documents in reliance upon the Borrower’s identity as a legal entity separate from its Affiliates and from Affiliates of Imperial. Therefore, from and after the date hereof, the Borrower shall take all reasonable steps to continue the Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of any other Person, and is not a division of any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in Section 9.1(b) , the Borrower shall take such actions as shall be required in order that:

(i) The Borrower will be a limited liability company whose primary activities are restricted in the Borrower Organizational Documents to owning Policies and certain related assets and financing the acquisition thereof and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;

(ii) At least one manager of the Borrower (the “ Independent Manager ”) shall be an individual who (i) is not a present or former director, manager, officer, employee, supplier, customer or five percent (5%) beneficial owner of the outstanding equity interests of the Borrower, Parent Pledgor, Servicer, Imperial or any Affiliate of any of them and (ii) has at least three years of employment experience with one or more entities with a national reputation and presence that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and is

 

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currently employed by such an entity; provided , however , that an individual shall not be deemed to be ineligible to be an Independent Manager solely because such individual serves or has served in the capacity of an “independent director” or similar capacity for special purpose entities formed by the Borrower or any Affiliate of the Borrower or Imperial. The Borrower Organizational Documents of the Borrower shall provide that (i) the board of directors or the member of the Borrower shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Manager shall approve the taking of such action in writing prior to the taking of such action, and (ii) such provision cannot be amended without the prior written consent of the Independent Manager;

(iii) Any employee, consultant or agent of the Borrower will be compensated from funds of the Borrower, as appropriate, for services provided to the Borrower;

(iv) To the extent, if any, that the Borrower and any other Person share items of expenses such as legal, auditing and other professional services, such expenses will be allocated to each of them on a reasonable and fair basis;

(v) The Borrower shall hold itself out as a separate entity;

(vi) The Borrower will maintain books and records separately from those of any other Person;

(vii) The Borrower shall pay its own material liabilities out of its own funds;

(viii) The Borrower shall not acquire any obligations or securities of its partners or shareholders;

(ix) All audited financial statements of any Person that are consolidated to include the Borrower will contain notes clearly and conspicuously indicating (in appropriate notes or otherwise) that (A) all of the Borrower’s assets are owned by the Borrower, and (B) the Borrower is a separate entity;

(x) The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those of any other Person;

(xi) The Borrower will strictly observe appropriate formalities in its dealings with all other Persons, and funds or other assets of the Borrower will not be commingled with those of any other Person, other than temporary commingling in connection with servicing the Pledged Policies to the extent explicitly permitted by the other Transaction Documents;

(xii) The Borrower shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any insurance policy with respect to any amounts payable due to occurrences or events related to any other Person;

 

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(xiii) The Borrower shall maintain an arm’s length relationship with its Affiliates and Affiliates of Imperial; and

(xiv) The Borrower will not hold itself out to be responsible for the debts of any other Person.

(xv) The Borrower will not fail to maintain all policies and procedures or take or continue to take all actions necessary or appropriate to ensure that all factual assumptions set forth in opinions of counsel of the Borrower or its Affiliates delivered in connection herewith or the other Transaction Documents remain true and accurate at all times.

(g) Defense . The Borrower shall, in consultation with the Administrative Agent and at its own expense, defend the Collateral against all lawsuits and statutory claims and Liens of all Persons at any time claiming the same or any interest therein through the Borrower or any Affiliate of Imperial adverse to the Administrative Agent or the Secured Parties.

(h) Perfection . The Borrower shall, at the Borrower’s expense, perform all acts and execute all documents requested in writing by the Administrative Agent at any time to evidence, perfect, maintain and enforce the security interest of the Administrative Agent in the Collateral and in the Pledged Interests and the priority thereof. The Borrower will, at the reasonable request of the Administrative Agent, deliver financing statements relating to the Collateral, and, where permitted by law, the Borrower hereby authorizes the Administrative Agent to file one or more financing statements covering all of the Collateral and other assets of the Borrower. The Borrower shall cause its primary electronic books and records relating to the Collateral to be marked, with a legend stating that the Pledged Policies and the other Collateral owned by the Borrower have been pledged to the Administrative Agent, for the benefit of the Secured Parties.

(i) Audit . The Borrower, the Parent Pledgor, the Assignor, the Portfolio Manager and Servicer shall permit each Lender, the Administrative Agent or their duly authorized representatives, attorneys or auditors during ordinary business hours and upon written notice given one (1) Business Day in advance, to visit the offices thereof and to inspect their accounts, records and computer systems, software and programs used or maintained by them in relation to the Collateral or their performance of duties under or in relation to the Transaction Documents to which they are party as such Lender or the Administrative Agent may reasonably request (a “ Collateral Audit ”) and the Borrower shall enable the Insurance Consultant to seek and receive from the related Issuing Insurance Companies any verifications of coverage related to the Pledged Policies as often as the Administrative Agent may request the Insurance Consultant to do so; provided, however, if no Event of Default or Unmatured Event of Default has occurred and is continuing, the total expenses incurred by or on behalf of Borrower related to a Collateral Audit and delivering any verifications of coverage related to the Pledged Policies shall be limited to no more than $2,000 (as adjusted annually for inflation or such higher amount if such higher amount is the Insurance Consultant’s reasonably determined prevailing market

 

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cost in the industry for such Collateral Audits of the type in question as adjusted for changes in audit standards) for each Pledged Policy during any twelve (12) month period. Upon written instructions from the Administrative Agent, the Borrower shall, and shall cause the Servicer (and the Administrative Agent may cause the Custodian) to release any document related to any Collateral to the Administrative Agent. The Administrative Agent may conduct a Collateral Audit no more than once per calendar year at the Borrower’s expense and no more frequently than once every two (2) calendar months at the Lenders’ expense. The Administrative Agent may conduct Collateral Audits as it wishes at the Lenders’ expense; provided, however, if an Event of Default or Unmatured Event of Default has occurred and is continuing, the Administrative Agent, at the Borrower’s expense, shall have the right to conduct a Collateral Audit at any time and as often the Administrative Agent determines is necessary or desirable.

(j) Additional Assistance . The Borrower shall provide such cooperation, information and assistance, and prepare and supply the Administrative Agent with such data regarding the performance by the Issuing Insurance Companies of their obligations under the Pledged Policies and the performance by the Borrower of its obligations under the Transaction Documents, as may be reasonably requested by the Administrative Agent from time to time.

(k) Accounts . The Borrower shall not maintain any bank accounts other than the Accounts and the Borrower Account. The Borrower shall not close any of the Accounts or the Borrower Account unless the Required Lenders shall have consented thereto in their sole discretion.

(l) Keeping of Records and Books of Account . The Borrower shall maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate the documents relating to the Collateral in the event of the destruction thereof), and keep and maintain all records and other information, reasonably necessary or reasonably advisable for the collection of proceeds of the Pledged Policies.

(m) Deposit of the Collections . The Borrower shall deposit or cause to be deposited all Collections into the Collection Account in accordance with Section 5.1 .

(n) Investment Company Act . The Borrower, the Assignor and Parent Pledgor shall not become an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

(o) [Reserved]

(p) Borrower Residence . Each of the Parent Pledgor and the Assignor shall at all times maintain its registered office and head office in Florida. The Borrower shall at all times maintain its principal place of business in Florida.

(q) Payment of Taxes . The Borrower shall pay and discharge, as they become due, all Taxes lawfully imposed upon it or incurred by it or its properties and assets, including, without limitation, lawful claims for labor, materials and supplies which, if unpaid might become a Lien or a charge upon any of the assets of the Borrower, including, without limitation, the

 

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Collateral, provided, however, that the Borrower shall have the right to contest any such taxes, assessments, debts, claims and other charges in good faith so long as adequate reserves are maintained in accordance with GAAP.

(r) Errors and Omissions . The Borrower shall maintain or be named as an additional insured under one or more errors and omissions policies maintained by an Affiliate, each with insurance companies rated A-, VII or higher by A.M. Best on all officers, employees or other Persons where the Borrower has the right to direct and control such individuals in any capacity with regard to the Pledged Policies to handle documents and papers related thereto. Each such policy shall insure against losses resulting from the errors, omissions and negligent acts of such officers, employees and other persons and shall be maintained in an aggregate amount of at least $10,000,000 or such lower amount as the Administrative Agent may designate in writing to the Borrower from time to time, and in a form reasonably acceptable to the Administrative Agent. No provision of this Section 9.1(r) requiring such errors and omissions policy(ies) shall diminish or relieve the Borrower from its duties and obligations as set forth in this Loan Agreement. Upon the request of the Administrative Agent at any time subsequent to the Closing Date, the Borrower shall cause to be delivered to the Administrative Agent a certification evidencing the Borrower’s coverage under such errors and omissions policy(ies). Any such insurance policy shall contain a provision or endorsement providing that such policy may not be canceled or modified in a materially adverse manner without ten (10) days’ prior written notice to the Administrative Agent.

(s) Pledged Policies . The Borrower shall maintain the Pledged Policies in full force and effect and not in a state of grace; provided that failure to do solely as a result of (i) any uncured Lender Default, (ii) the failure by the Administrative Agent to apply amounts on deposit in the Escrow Account in accordance with Section 5.2(d) to fund the same, which amounts are sufficient to pay Premiums on the Pledged Policies or (iii) the abandonment of a Pledged Policy in accordance with Section 2.7(b) , will not comprise a breach of this covenant; provided further that with respect to any Pledged Policy set forth on the Initial Advance Lexington Schedule, such Pledged Policy may be in a state of grace on the Closing Date but the Borrower shall cause such Pledged Policy to no longer be in state of grace by June 30, 2013.

(t) Further Assurances . The Borrower shall procure and deliver to the Administrative Agent and/or execute any security agreement, financing statement or other writing necessary to evidence, preserve, protect or enforce the Lenders’ rights and interests to or in the Collateral or in any other collateral agreed to by the parties that is requested in writing by the Administrative Agent or any Lender.

(u) Litigation . The Borrower shall promptly notify the Administrative Agent of:

(i) any litigation, administrative proceedings, audits, actions, proceedings, claims or investigations pending or threatened in writing, conducted or to be conducted by any Person or Governmental Authority, actions, proceedings, claims or investigations pending or threatened in writing against the Borrower or the entry of any judgment against the Borrower, which in each case could reasonably be expected to involve or create a liability of the Borrower which exceeds $50,000 per incident or $200,000 in the aggregate, whether or not insured against;

 

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(ii) the entry of any judgment against the Borrower or the creation of any Lien against any of the Collateral or the Pledged Interests; and

(iii) any actual or alleged violation by the Borrower of any Applicable Law which could reasonably be expected to have an adverse effect on any of the Pledged Policies, the business, assets, financial condition or operations of the Borrower or any of the rights or interests of the Administrative Agent or any of the Lenders hereunder or under any other Transaction Document.

(v) Insured Consent . The Borrower shall use commercially reasonable efforts to cause each Insured with respect to a Pledged Policy to consent to the release and delivery of its current and historical medical information and death certificate.

(w) In-Force Policy Illustrations . The Borrower shall cause the applicable Issuing Insurance Companies to deliver to the Administrative Agent an in-force Policy Illustration in respect of each Pledged Policy no later than March 31 of each calendar year.

(x) Cooperation . The Borrower shall assist the Administrative Agent with, and take all actions reasonably requested by the Administrative Agent in connection with, the engagement of servicers, medical underwriters and tracking agents and the enabling of such parties to perform the services for which they have been retained by the Administrative Agent relating to the Pledged Policies.

(y) Collateral Assignment . Prior to each Advance Date, the Borrower shall cause the Securities Intermediary or the Insurance Consultant to submit each collateral assignment in respect of each Policy pledged on such Advance Date (unless, with respect to the Closing Date, such Policy is set forth on the Initial Advance Lexington Schedule or on Schedule 7.1(a)(i)) to the applicable Issuing Insurance Company, naming the Administrative Agent, on behalf of the Lenders, as the collateral assignee. With respect to each Policy set forth on the Initial Advance Lexington Schedule, within three (3) Business Days of the Closing Date the Borrower shall cause the Securities Intermediary or the Insurance Consultant to submit each collateral assignment in respect of each such Policy to the applicable Issuing Insurance Company, naming the Administrative Agent, on behalf of the Lenders, as the collateral assignee and within seven (7) Business Days of the Closing Date, the Administrative Agent shall have received verbal confirmation from each of the related Issuing Insurance Companies that all such collateral assignments have been received by such Issuing Insurance Companies.

(z) Other Information . The Borrower shall use commercially reasonable efforts to obtain any other information reasonably requested by the Administrative Agent with respect to the Pledged Policies and the Insureds.

(aa) Transaction Documents . The Borrower shall duly and timely perform all of its covenants and obligations under all Transaction Documents, except with the prior written consent of the Administrative Agent.

 

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(bb) Mandatory Liquidation . After the earlier of the date on which (i) the number of Pledged Policies is less than or equal to one hundred (100) or (ii) the aggregate Net Death Benefit of the Pledged Policies is less than or equal to fifteen percent (15%) of the aggregate Net Death Benefit of the Pledged Policies on the Closing Date, the Borrower shall, within 180 days of the Borrower’s receipt of written direction from the Required Lenders, sell all of the Pledged Policies in accordance with Section 2.7(a) .

(cc) Payment of Premiums . On and after the Partial Repayment Date, subject to Section 2.7(b) , the Borrower shall pay or cause to be paid all Premiums due on the Pledged Policies and keep all the Pledged Policies in full force and effect and not in a state of grace.

(dd) Parent Pledgor Contribution Agreement and Assignor Contribution Agreement . The Borrower shall enforce the Parent Pledgor’s obligations under the Parent Pledgor Contribution Agreement, including, without limitation, the obligation of the Parent Pledgor to reacquire Pledged Policies in accordance with the terms thereof. The Borrower shall cause the Parent Pledgor to enforce its obligations under the Assignor Contribution Agreement, including, without limitation, the obligation of the Assignor to reacquire Pledged Policies in accordance with the terms thereof.

(ee) Servicing Agreement . The Borrower shall timely enforce its rights and obligations under the Servicing Agreement, including, without limitation, upon the Administrative Agent’s instruction after the occurrence of a Servicer Termination Event, terminating the Servicer in accordance with the terms thereof. The Borrower shall not engage the Servicer to perform any additional services under the Servicing Agreement without obtaining the Administrative Agent’s prior written consent, which consent may be given or withheld in the Required Lenders’ reasonable discretion.

(ff) Ownership of Borrower . The Borrower shall ensure that at all times, all of its beneficial owners of its outstanding equity interests are U.S. Persons.

(gg) Custodial Packages . Within fifteen (15) days of the Closing Date, the Borrower shall deliver or cause to be delivered all Custodial Packages (including all originals thereof) related to the Subject Policies for the Initial Advance to the Custodian. Within fifteen (15) days of the Closing Date, the Borrower shall cause the Custodian to deliver to the Administrative Agent a written confirmation identifying all such Subject Policies for which the Custodian has accepted delivery of the related purported Custodial Packages pursuant to the terms of the Account Control Agreement. Within sixty (60) days of the Custodian’s receipt of such Custodial Packages, the Borrower shall cause the Custodian to verify to the Administrative Agent in writing its receipt of all documents required to be contained in each of the Custodial Packages related to the Subject Policies for the Initial Advance by delivering the required certification pursuant to the terms of the Account Control Agreement. On or prior to each Advance Date, the Borrower shall cause the Servicer to upload the related Collateral Packages (and with respect to the Initial Advance, the Schedules relating thereto) to the FTP Site. With respect to each Pledged Policy set forth on Schedule 7.1(f) , the Borrower shall use commercially reasonable efforts to deliver or cause the delivery of such Pledged Policies to the Custodian.

 

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(hh) Delivery of Change Forms . Within two (2) Business Days of the Closing Date, the Borrower shall deliver or caused to be delivered to the Securities Intermediary completed but unsigned Change Forms for the Subject Policies related to the Initial Advance, to be executed by the Securities Intermediary in blank. Within seven (7) Business Days of the Closing Date, the Borrower shall cause the Securities Intermediary to confirm to the Administrative Agent in writing in the form of Exhibit L-3 to the Account Control Agreement that it is holding Change Forms with respect to the Subject Policies related to the Initial Advance executed by the Securities Intermediary in blank and the Administrative Agent shall have received copies of such Change Forms.

Section 9.2 Negative Covenants . From the date hereof until the first day following the date on which all of the Obligations (including, without limitation, the Aggregate Participation Interest) are performed and paid in full and this Loan Agreement is terminated, the Borrower hereby covenants and agrees that it shall not:

(a) Assignment of Pledged Policies, Etc . Except as provided herein and in the other Transaction Documents, sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist, any Adverse Claim upon or with respect to, any of the Pledged Policies or any other Collateral, including, without limitation, any Adverse Claim arising out of a Policy Loan.

(b) Amendments to Transaction Documents, etc . Amend, otherwise modify or waive any term or condition of: (i) this Loan Agreement, except with the prior written consent of all of the Lenders or (ii) any other Transaction Document, the Borrower Organizational Documents, any Pledged Policy or any other material contract, except in each case with the prior written consent of the Required Lenders.

(c) Deposit of Non-Collections . Deposit or otherwise credit, or cause or permit to be so deposited or credited, to the Collection Account any cash or other assets other than Collections and other amounts allowed or required to be credited to the Collection Account in accordance with Section 5.2 .

(d) Indebtedness . Contract, create, incur or assume any indebtedness other than indebtedness incurred pursuant to this Loan Agreement and the other Transaction Documents.

(e) Change of Accounts . Change or cause to be changed any of the Accounts or the Policy Account or amend the Account Control Agreement without prior written consent of the Required Lenders.

(f) Mergers, Acquisitions, Sales, Subsidiaries, etc .

(i) Be acquired directly or indirectly, or be a party to any merger or consolidation, or directly or indirectly purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, except for Permitted Investments or sell, transfer, assign, convey or lease any of its property and assets (or any interest therein) other than pursuant to, or as contemplated by, this Loan Agreement or the other Transaction Documents;

 

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(ii) make, incur or suffer to exist an Investment in, equity contribution to, loan or advance to, or payment obligation in respect of the deferred purchase price of, or payment for, property from, any other Person, except for Permitted Investments, pursuant to the Transaction Documents;

(iii) create any direct or indirect Subsidiary or otherwise acquire direct or indirect ownership of any equity interests in any other Person other than pursuant to the Transaction Documents; or

(iv) enter into any transaction with any Affiliate of the Borrower, Imperial, the Servicer or the Portfolio Manager or any Affiliate of any of them except for the transactions contemplated or permitted by the Transaction Documents and other transactions upon fair and reasonable terms materially no less favorable to the Borrower or than would be obtained in a comparable arm’s length transaction with a Person not an Affiliate of the Borrower, Imperial, the Servicer or the Portfolio Manager.

(g) Change in Business Policy . Make any change in the character of its business.

(h) Chief Executive Office . Move its chief executive office or jurisdiction of formation or permit the documents and books in its possession or under its control evidencing the Collateral to be moved, unless (i) the Borrower shall have given to the Administrative Agent not less than thirty (30) days’ prior written notice thereof, clearly describing the new location, and (ii) the Borrower shall have taken such action, satisfactory to the Administrative Agent, to maintain the title or ownership of the Borrower and any security interest of the Administrative Agent, in the Collateral at all times fully perfected and in full force and effect. The Borrower shall not in any event become or seek to become organized under the laws of more than one jurisdiction.

(i) Business Restrictions . Engage in any business or transactions, or be a party to any documents, agreements or instruments, other than the Transaction Documents or those incidental to the purposes thereof, or make any expenditure for the purchase of any assets if such expenditure is made by the Borrower through a withdrawal of funds from an Account.

(j) Sale of Assets . Sell, transfer or convey any assets, except as expressly permitted by the Transaction Documents.

(k) Independent Manager . Remove, replace or seek to replace its Independent Manager absent due cause, death or incapacity without the express prior written consent of the Administrative Agent and the Required Lenders, provided, however, that no such consent shall be required for the replacement of an Independent Manager in the event that such Independent Manager ceases to meet the qualifications set forth in Section 9.1(f)(ii) , and such Independent Manager is replaced by another Person who possesses such qualifications.

 

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(l) Further Policy Acquisitions . Acquire at any time any additional Policies that are not Pledged Policies without the prior written consent of the Administrative Agent.

(m) Use of Proceeds . Without the prior written consent of the Administrative Agent, use any proceeds arising from a sale under Section 2.7 other than pursuant to this Loan Agreement.

(n) Accounting Changes . Change any accounting practices, policies or treatment without the prior written consent of the Administrative Agent, except to the extent required by Applicable Law, changes in GAAP or requirements of its independent accountants.

(o) Foreign Assets Control Regulations, Etc . (i) Become or permit any of its subsidiaries to become a Blocked Person, (ii) have or permit any of its subsidiaries to have any investments in or engage in any dealings or transactions with any Blocked Person or (iii) violate or permit any of its subsidiaries to violate any Anti-Money Laundering Law.

ARTICLE X

EVENTS OF DEFAULT; REMEDIES

Section 10.1 Events of Default . Each of the following shall constitute an “Event of Default” under this Loan Agreement upon the (i) expiration of the time period set forth below or (ii) expiration of a Cure Notice delivered to the Borrower by the Required Lenders in their sole discretion or (iii) earlier revocation of such Cure Notice by the Required Lenders in their sole discretion:

(a) Non-Payment . (A) The Borrower shall fail to make when due, any payment to any Lender or the Administrative Agent under this Loan Agreement or any other Transaction Document and such failure continues for one (1) Business Day, or (B) so long as such failure is not solely due to an uncured Lender Default, the Borrower shall fail to make when due, any payment to any other Person under this Loan Agreement or any other Transaction Document, including, without limitation, the failure to pay any Premium, and such failure continues for thirty (30) days or (C) any Advance is not paid in full on the Maturity Date. For the avoidance of doubt, the Lenders making one or more Protective Advances to pay any Premiums due during such thirty (30) day period shall not constitute a cure of the related Event of Default.

(b) Breach of Representations and Warranties . Any representation or warranty made or deemed made by the Borrower, the Assignor, the Parent Pledgor, the Portfolio Manager, the Servicer or Imperial under or in connection with any Transaction Document to which it is a party or any information or report delivered by or on behalf of any such Person to the Administrative Agent or any Lender hereunder or under any other Transaction Document shall prove to have been incorrect or untrue in any material respect when made or delivered (or when such representation, warranty, information or report is deemed to have been made or delivered) and, if curable, such breach is not cured within thirty (30) days.

(c) Non-Compliance with Other Provisions . (i) The Borrower shall fail to perform or observe any covenant or agreement set forth in Section 9.1(y) , Section 9.1(dd) ,

 

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Section 9.1(ee) , Section 9.1(ff) , Section 9.1(gg) , Section 9.2 (other than Section 9.2(c) ) or (ii) the Borrower or, the Assignor, the Parent Pledgor, Imperial, the Portfolio Manager or the Servicer shall fail to perform or observe any other term, covenant or agreement contained in any Transaction Document to which it is party on its part to be performed or observed and any such failure described in this clause (ii) shall remain unremedied for thirty (30) days (or, with respect to a failure to deliver the Calculation Date Report or a failure to comply with any of Section 2.7 , Section 9.1(e) , Section 9.1(h) , Section 9.1(i) , Section 9.1(m) , Section 9.1(hh) , Section 9.2(c) , such failure shall remain unremedied for five (5) Business Days) from the earlier of (i) the date the Borrower receives notice of such failure and (ii) the date the Borrower has actual knowledge thereof.

(d) Non-Compliance by Other Parties . Any party to any Transaction Document other than the Borrower, the Assignor, the Parent Pledgor, Imperial, the Servicer, the Portfolio Manager, the Lenders or the Administrative Agent shall fail to perform or observe any term, covenant or agreement contained in this Loan Agreement or in any other Transaction Document on its part to be performed or observed and any such failure shall remain unremedied for thirty (30) days (or, with respect to a failure by the Securities Intermediary to make any deposit or withdrawal from any of the Accounts to be made by it under the Transaction Documents, such failure shall remain unremedied for one (1) Business Day) from the earlier of the (i) the date such Person receives notice of such failure and (ii) the date such Person has actual knowledge thereof.

(e) Validity of Transaction Documents . (i) This Loan Agreement or any other Transaction Document shall (except in accordance with its terms), in whole or in part, cease to be the legally valid, binding and enforceable obligation of the Borrower, the Assignor, the Parent Pledgor, Imperial, the Servicer or the Portfolio Manager or cease to be in full force and effect, (ii) the Borrower, the Assignor, the Parent Pledgor, Imperial, the Servicer or the Portfolio Manager shall directly or indirectly contest in any manner such effectiveness, validity, binding nature or enforceability of such document, (iii) any other party (other than any of the Lenders, the Administrative Agent or any other Affected Party) shall directly or indirectly contest in good faith such effectiveness, validity, binding nature or enforceability of such document, (iv) this Loan Agreement together with the Account Control Agreement shall cease to create a valid Lien in favor of the Administrative Agent in the Collateral, or the Lien of the Administrative Agent in the Collateral shall cease to be a valid and enforceable first priority perfected Lien, free and clear of any Adverse Claim or (v) the Borrower Interest Pledge Agreement shall cease to create a valid Lien in favor of the Administrative Agent in Pledged Interests, or the Lien of the Administrative Agent in the Pledged Interests shall cease to be a valid and enforceable first priority perfected Lien, free and clear of any Adverse Claim.

(f) Bankruptcy . An Event of Bankruptcy shall have occurred with respect to the Borrower, the Assignor, the Parent Pledgor or Imperial.

(g) Change in Control . A Change in Control shall have occurred with respect to the Borrower, the Parent Pledgor or the Assignor.

(h) Certain Events with Respect to Imperial . Imperial ceases to be a Publicly Traded Company or a Blocked Person shall become the owner, directly or indirectly, beneficially or of record, of equity representing five percent (5.00%) or more of the aggregate ordinary voting power represented by the issued and outstanding equity of Imperial.

 

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

(i) Tax Liens; ERISA Liens . The Internal Revenue Service shall file notice of a Lien pursuant to the Code with regard to any assets of the Borrower, the Assignor, the Parent Pledgor or Imperial or the PBGC shall, or shall indicate its intention to, file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower, the Assignor or the Parent Pledgor in excess of $100,000 or with regard to Imperial in excess of $3,000,000; provided, however, that in each case the filing of such a notice of Lien shall not be an Event of Default for so long as such filing is being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside. Notwithstanding anything provided in the preceding sentence, no Adverse Claim shall be permitted with respect to any Collateral or Pledged Interests.

(j) Defaults . A default by the Borrower (after giving effect to the applicable grace period) shall have occurred and be continuing under any instrument, agreement or legal commitment evidencing, securing or providing for the issuance of indebtedness for borrowed money or off balance sheet financing for which the Borrower (either individually or collectively) is liable to pay an amount in excess of $50,000, following which the provider of such borrowed money or off balance sheet financing has the right to accelerate the maturity thereof.

(k) Monetary Judgment . One or more judgments for the payment of money shall be rendered against the Borrower in an aggregate amount in excess of $[*] or against Imperial in an aggregate amount in excess of $[*], and, in each case, shall remain unpaid or undischarged, or a stay of execution thereof shall not be obtained, within thirty (30) days from the date of entry thereof.

(l) Material Adverse Effect . An event has occurred that has had or could reasonably be expected to have a Material Adverse Effect.

(m) Servicer Termination Events . A Servicer Termination Event shall have occurred and be continuing, but only if the Servicer has not been replaced by a Successor Servicer or if such Servicer Termination Event causes a Material Adverse Effect.

(n) Investment Company Act . The Borrower, the Assignor or Parent Pledgor shall become an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

(o) Organizational Document Amendments . The Borrower shall make any material amendment to any of its Borrower Organizational Documents without the prior written consent of the Required Lenders.

(p) Subject Policy Grace Period . Subject to Section 5.4 hereof, either (i) more than one Pledged Policy in any calendar year (the “ Annual Policy Limit ”), (ii) Pledged Policies the aggregate Net Death Benefit of which equals or exceeds $[*] in any calendar year (the “ Annual NDB Limit ”), (iii) more than [*] Pledged Policies (including Pledged Policies treated as Lapsed/Grace Policies pursuant to Section 5.4 hereof) since the date of this Loan Agreement (the

 

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Aggregate Policy Limit ”) or (iv) Pledged Policies (including Pledged Policies treated as Lapsed/Grace Policies pursuant to Section 5.4 hereof) the aggregate Net Death Benefit of which equals or exceeds $[*] since the date of this Loan Agreement (the “ Aggregate NDB Limit ”), in the case of any of (i), (ii), (iii) or (iv), lapse or enter a “grace period” not solely due to an uncured Lender Default, and are not restored to good standing within [*] Business Days after the Securities Intermediary receives written notice from the related Issuing Insurance Company that such Pledged Policy has entered a “grace period” (any such Pledged Policy, a “ Lapsed/Grace Policy ”); provided, however, that any Pledged Policy may be permitted to lapse with the prior written consent of the Required Lenders, in their sole discretion, and no such Pledged Policy permitted to lapse (nor the Net Death Benefits thereof) will be counted for purposes of this clause (p); provided further that with respect to any Pledged Policy set forth on the Initial Advance Lexington Schedule, such Pledged Policy shall not constitute a Lapsed/Graced Policy solely because such Pledged Policy is in a state of grace on the Closing Date so long as the Borrower causes such Pledged Policy to no longer be in state of grace by June 30, 2013.

(q) Ongoing Maintenance Costs . The failure by the Borrower to pay any Ongoing Maintenance Costs (other than Premiums) to the applicable Person when due that the Borrower is responsible to pay, so long as such failure is not solely due to an uncured Lender Default, and such failure shall remain unremedied for thirty (30) days from the earlier of (i) the date the Borrower receives notice of such failure and (ii) the date the Borrower has actual knowledge thereof.

Section 10.2 Remedies .

(a) Optional Termination . Upon the occurrence and during the continuance of an Event of Default (other than an Event of Default described in Section 10.1(f) ) that is not waived in writing by the Required Lenders and not cured within any applicable cure period, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, declare the Advances and other Obligations to be due and payable and the Lenders’ Commitments (if not theretofore terminated) to be terminated, whereupon the full unpaid amount of all the Advances and other Obligations shall be and become immediately due and payable (and the Maturity Date shall be deemed to have occurred), without further notice, demand or presentment, and the Lenders’ Commitment shall terminate.

(b) Automatic Termination . Upon the occurrence of an Event of Default described in Section 10.1(f) , (i) the Commitment Termination Date shall be deemed to have occurred automatically, and (ii) all outstanding Advances and other Obligations shall become immediately and automatically due and payable (and the Maturity Date shall be deemed to have occurred for all of the Advances), all without presentment, demand, protest, or notice of any kind.

(c) Sale of the Collateral .

(i) In addition to all rights and remedies under this Loan Agreement or otherwise, the Lenders and the Administrative Agent shall have all other rights and remedies provided under the relevant UCC and under other Applicable Laws, which rights shall be cumulative. Without limiting the generality of the foregoing, on and after

 

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the occurrence of an Event of Default that is not waived in writing by the Required Lenders, the Administrative Agent (on behalf of the Secured Parties and at the direction of the Required Lenders) may without being required to give any notice (except as herein provided or as may be required by mandatory provisions of law), sell the Collateral or any part thereof in any commercially reasonable manner at public or private sale, for cash, upon credit or for future delivery, as directed by the Required Lenders and at such price or prices as the Required Lenders may deem satisfactory. Any Lender or the Administrative Agent may participate as a bidder in any such sale and the Administrative Agent and/or the Lenders may credit bid in such sale. The Borrower will execute and deliver such documents and take such other action as the Administrative Agent reasonably deems necessary or advisable in order that any such sale may be made in compliance with Applicable Law. Upon any such sale, the Administrative Agent shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold.

(ii) If any such sale is consummated prior to the Partial Repayment Date, after deduction of payment for the outstanding principal balance of Advances plus accrued but unpaid interest thereon plus all other Obligations owing by the Borrower (excluding the Aggregate Participation Interest and including, for the avoidance of doubt, the Amortization Shortfall Amounts for all of the Shortfall Pledged Policies that remain unpaid), the Administrative Agent shall distribute the remaining proceeds of such sale as follows: (i) first, into the Borrower Account, an amount equal to the lesser of (A) the Initial Advance plus all Additional Policy Advances and (B) the Borrower’s Total Investment in the Pledged Policies, less, in each case, all amounts previously distributed pursuant to Clauses “Seventh,” “Ninth” and “Tenth” of Section 5.2(b) , Clauses “Ninth,” “Thirteenth” and “Fourteenth” of Section 5.2(c) and Clauses “Eighth” and “Ninth” of Section 5.2(e) , (ii) second, deposit an amount equal to the product of (X) the Participation Interest Percentage and (Y) the remaining amount of such proceeds, into the Participation Interest Account as payment by the Borrower for the Participation Interest for the Pledged Policies subject to such sale, (iii) third, deposit the aggregate unpaid Participation Interest Shortfall Amounts for all of the Shortfall Pledged Policies into the Participation Interest Account and (iv) fourth, deposit any remaining amount into the Borrower Account.

(iii) If any such sale is consummated on or after the Partial Repayment Date, after deduction of payment for the outstanding Obligations owing by the Borrower (excluding the Aggregate Participation Interest and including, for the avoidance of doubt, the Amortization Shortfall Amounts for all of the Shortfall Pledged Policies that remain unpaid), the Administrative Agent shall distribute the remaining proceeds of such sale as follows: (i) first, into the Borrower Account, an amount equal to the lesser of (A) the Initial Advance plus all Additional Policy Advances and (B) the Borrower’s Total Investment in the Pledged Policies, less, in each case, all amounts previously distributed pursuant to Clauses “Seventh,” “Ninth” and “Tenth” of Section 5.2(b) , Clauses “Ninth,” “Thirteenth” and “Fourteenth” of Section 5.2(c) and Clauses “Eighth” and “Ninth” of Section 5.2(e) , (ii) second, deposit an amount equal to the product of (X) the Participation Interest Percentage and (Y) the remaining amount of such proceeds, into the Participation

 

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Interest Account as payment by the Borrower for the Participation Interest for the Pledged Policies subject to such sale, (iii) third, deposit the aggregate unpaid Participation Interest Shortfall Amounts for all of the Shortfall Pledged Policies into the Participation Interest Account and (iv) fourth, deposit any remaining amount into the Borrower Account.

(iv) Any such sale under this Section 10.2(c) , other than a sale consummated pursuant to a credit bid made by the Administrative Agent or a Lender, shall be for cash. Each purchaser at any such sale shall hold the Collateral so sold to it absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of the Borrower which may be waived, and the Borrower, to the extent permitted by Applicable Law, hereby specifically waives all rights of redemption, stay or appraisal which it has or may have under any law now existing or hereafter adopted. The Administrative Agent at the direction of the Required Lenders, instead of exercising the power of sale herein conferred upon them, may proceed by a suit or suits at law or in equity to foreclose the security interests in the Collateral and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.

(d) In furtherance of the rights, powers and remedies of the Administrative Agent and the Required Lenders on and after the occurrence of an Event of Default that is not waived in writing by the Required Lenders, or cured within any applicable cure period, the Borrower hereby irrevocably appoints the Administrative Agent its true and lawful attorney, which appointment is coupled with an interest, with full power of substitution, in the name of the Borrower, or otherwise, for the sole use and benefit of the Administrative Agent (for the further benefit of the Secured Parties), but at the Borrower’s expense, to the extent permitted by law and subject to the last sentence of the immediately preceding subsection, to exercise, at any time and from time to time during the continuance of an Event of Default, all or any of the following powers with respect to all or any of the Collateral:

(i) to demand, sue for, collect, receive and give acquittance for any and all monies due or to become due thereon or by virtue thereof,

(ii) to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto,

(iii) to sell, transfer, assign, seize or otherwise deal in or with the Collateral or the proceeds or avails thereof, as fully and effectually as if the Administrative Agent was the absolute owner thereof, and

(iv) to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto;

provided that the Administrative Agent shall give the Borrower at least ten (10) days’ prior written notice of the time and place of any public sale or the time after which any private sale or other intended disposition of any of the Collateral is to be made. The Borrower agrees that such notice constitutes “reasonable notification” within the meaning of Section 9-611 (or other section of similar content) of the relevant UCC.

 

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(e) Notwithstanding anything to the contrary contained in this Loan Agreement, if at any time the rights, powers and privileges of the Required Lenders or the Administrative Agent following the occurrence of an Event of Default conflict (or are inconsistent) with the rights and obligations of the Servicer, the rights, powers and privileges of the Required Lenders or the Administrative Agent shall supersede the rights and obligations of the Servicer to the extent of such conflict (or inconsistency), with the express intent of maximizing the rights, powers and privileges of the Required Lenders or the Administrative Agent following the occurrence of an Event of Default.

(f) The parties hereto acknowledge that this Loan Agreement is, and is intended to be, a contract to extend financial accommodations to the Borrower within the meaning of Section 365(e)(2)(B) of the Federal Bankruptcy Code (11 U.S.C. § 365(e)(2)(B)) (or any amended or successor provision thereof or any amended or successor code).

(g) For the avoidance of doubt, the rights and remedies granted to the Lenders or the Administrative Agent under this Loan Agreement, any other Transaction Document, the relevant UCC or any other Applicable Law are cumulative and not exclusive, and the exercise of any such rights and remedies will not be waived or deemed waived by any such Person merely by the receipt of or acceptance by such Person of amounts on deposit in the Collection Account that are distributed pursuant to Section 5.2(c) of this Loan Agreement.

Section 10.3 Lender Default . If a Lender Default has occurred and is continuing, the Borrower shall have the right to prepay the outstanding principal amount of the Advances plus accrued and unpaid interest thereon at par (provided that such prepayment shall not reduce the amount of the Participation Interest with respect to any Pledged Policy) or sell its assets (subject to the sale provisions of Section 2.7(a) ); provided that the Borrower shall not have the right to incur any other debt unless the Administrative Agent, at the direction of the Required Lenders, approves such debt in their sole and absolute discretion. Notwithstanding the foregoing, upon the occurrence and continuance of a Lender Default, all other rights and remedies of the Administrative Agent and the Lenders under this Loan Agreement and the other Transaction Documents shall remain in full force and effect. A Lender Default shall cease to exist upon the earlier of the date such Lender Default is cured by a Lender or the Ongoing Maintenance Costs Reimbursable Amount relating to such Lender Default is paid pursuant to Sections 5.2(b) and/or (c)  hereof.

ARTICLE XI

INDEMNIFICATION

Section 11.1 General Indemnity of the Borrower . Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify each Lender and the Administrative Agent, (on their own behalf and on behalf of each of the Lenders’ and the Administrative Agent’s Affiliates and each of such entities’ respective successors, transferees, participants and permitted assigns and all officers, directors, shareholders, controlling persons, and employees of any of the foregoing) (each of the

 

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foregoing Persons being individually called an “ Indemnified Party ”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related and reasonable costs and expenses actually incurred, including reasonable attorneys’ fees and disbursements actually incurred (all of the foregoing being collectively called “ Indemnified Amounts ”) awarded against or incurred by any of them arising out of or relating to any Transaction Document or the transactions contemplated thereby, the acceptance and administration of this Loan Agreement by such Person, any commingling of funds related to the transactions contemplated hereby (whether or not permitted hereunder), or the use of proceeds therefrom by the Borrower, including (without limitation) in respect of the funding of any Advance or in respect of any Policy; excluding, however, (i) Indemnified Amounts to the extent determined by a court of competent jurisdiction to have resulted from gross negligence, fraud or willful misconduct on the part of any Indemnified Party (BUT EXPRESSLY EXCLUDING FROM THIS CLAUSE (i), AND EXPRESSLY INCLUDING IN THE INDEMNITY SET FORTH IN THIS SECTION 11.1 , INDEMNIFIED AMOUNTS ATTRIBUTABLE TO THE ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH INDEMNIFIED PARTY, IT BEING THE INTENT OF THE PARTIES THAT, TO THE EXTENT PROVIDED IN THIS SECTION 11.1 , INDEMNIFIED PARTIES SHALL BE INDEMNIFIED FOR THEIR OWN ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE NOT CONSTITUTING GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT), and (ii) any Indemnified Tax upon or measured by net income (except those described in Section 6.1(a) ) on any Indemnified Party; including (without limitation), however, Indemnified Amounts resulting from or relating to:

(i) any representation or warranty made by or on behalf of the Borrower, the Assignor, the Parent Pledgor, the Portfolio Manager or Imperial in any Transaction Document to which it is a party, which was incorrect in any respect when made;

(ii) failure by the Borrower, the Assignor, the Parent Pledgor, the Portfolio Manager, or Imperial to comply with any covenant made by it, or perform any obligation to be performed by it, in any Transaction Document to which it is a party;

(iii) except as expressly set forth in this Loan Agreement, the failure by the Borrower, the Assignor, the Parent Pledgor, the Portfolio Manager or Imperial to create and maintain in favor of the Administrative Agent, for the benefit of the Secured Parties a valid perfected first priority security interest in the Collateral, free and clear of any Adverse Claim;

(iv) the failure by the Borrower to pay when due any Taxes (including sales, excise or personal property taxes) payable in connection with the purchase and sale of the Collateral;

(v) the commingling of the Collections with other funds of the Borrower;

(vi) any legal action, judgment or garnishment affecting, or with respect to, distributions on any Pledged Policy or the Transaction Documents; and

(vii) any failure to comply with any Applicable Law with respect to any Pledged Policy or any other part of the Collateral.

 

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If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the payment of the amounts indemnified against in this Section 11.1 that is permissible under Applicable Law.

Section 11.2 General Indemnity of the Portfolio Manager . Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Portfolio Manager hereby agrees to indemnify each Indemnified Party, forthwith on demand, from and against any and all damages, losses, claims, liabilities and related and reasonable costs and expenses actually incurred, including reasonable attorneys’ fees and disbursements actually incurred (all of the foregoing being collectively called “ Portfolio Manager Indemnified Amounts ”) awarded against or incurred by any of them arising out of or relating to (i) any representation or warranty made by or on behalf of the Portfolio Manager in any Transaction Document to which it is a party, which was incorrect in any respect when made and (ii) failure by the Portfolio Manager to comply with any covenant made by it, or perform any obligation to be performed by it, in any Transaction Document to which it is a party; excluding, however, (A) Portfolio Manager Indemnified Amounts to the extent determined by a court of competent jurisdiction to have resulted from gross negligence, fraud or willful misconduct on the part of any Indemnified Party (BUT EXPRESSLY EXCLUDING FROM THIS CLAUSE (A), AND EXPRESSLY INCLUDING IN THE INDEMNITY SET FORTH IN THIS SECTION 11.2 , PORTFOLIO MANAGER INDEMNIFIED AMOUNTS ATTRIBUTABLE TO THE ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH INDEMNIFIED PARTY, IT BEING THE INTENT OF THE PARTIES THAT, TO THE EXTENT PROVIDED IN THIS SECTION 11.2 , INDEMNIFIED PARTIES SHALL BE INDEMNIFIED FOR THEIR OWN ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE NOT CONSTITUTING GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT). If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Portfolio Manager hereby agrees to make the maximum contribution to the payment of the amounts indemnified against in this Section 11.2 that is permissible under Applicable Law.

ARTICLE XII

ADMINISTRATIVE AGENT

Section 12.1 Appointment . Each Lender hereby irrevocably designates and appoints the Administrative Agent as the agent of such Lender under this Loan Agreement and the other Transaction Documents, and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions of this Loan Agreement and the other Transaction Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Loan Agreement and the other Transaction Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Loan Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Loan Agreement or any other Transaction Document or otherwise exist against the Administrative Agent.

 

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Section 12.2 Delegation of Duties . The Administrative Agent may execute any of its duties under this Loan Agreement and the other Transaction Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.

Section 12.3 Exculpatory Provisions . Neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Loan Agreement or any other Transaction Document (except for its or such Person’s own gross negligence, fraud or willful misconduct) or (b) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by the Borrower, the Assignor, the Parent Pledgor, Imperial, the Servicer, the Portfolio Manager, the Securities Intermediary or the Custodian or any officer thereof contained in any Transaction Document to which it is a party or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Loan Agreement or any other Transaction Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Loan Agreement or any other Transaction Document or for any failure of the Borrower, the Assignor, the Parent Pledgor, Imperial, the Servicer, the Portfolio Manager, the Securities Intermediary or the Custodian to perform its obligations hereunder or thereunder. The Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Loan Agreement or any other Transaction Document, or to inspect the properties, books or records of the Borrower, the Assignor, the Parent Pledgor, Imperial, the Servicer, the Portfolio Manager, the Custodian or the Securities Intermediary. The Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to the Loan Agreement or Applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of any Lender.

Section 12.4 Reliance by the Administrative Agent The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex, e-mail or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Borrower or the Servicer), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent may deem and treat each Lender as the owner of its pro rata share of the Advances for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Loan Agreement or any other Transaction Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Subject to the Transaction Documents, the Administrative Agent shall in all cases be

 

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fully protected in acting, or in refraining from acting, under this Loan Agreement and the other Transaction Documents in accordance with a request of the Required Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of an interest in any of the Lender Notes.

Section 12.5 Notice of Default . The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Unmatured Event of Default or Event of Default hereunder unless the Administrative Agent has received written notice from a Lender referring to this Loan Agreement, describing such Unmatured Event of Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall take such action, subject to the Transaction Documents with respect to such Unmatured Event of Default or Event of Default as shall be directed by the Required Lenders.

Section 12.6 Non-Reliance on the Administrative Agent and Other Lenders . Each Lender expressly acknowledges that neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Administrative Agent hereinafter taken, including any review of the affairs of the Borrower or the Servicer, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, operations, property, financial and other condition and creditworthiness of the Borrower and the Servicer and made its own decision to make its Advances hereunder and enter into this Loan Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Loan Agreement and the other Transaction Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Borrower and the Servicer. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of the Borrower or the Servicer which may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.

Section 12.7 Indemnification . The Lenders agree to indemnify the Administrative Agent in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their outstanding Advances, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including, without limitation, at any time following the payment of all of the Lender Notes) be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of, the Commitments, this Loan Agreement, any of the other Transaction Documents

 

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or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the Administrative Agent’s gross negligence, fraud or willful misconduct. The agreements in this Section 12.7 shall survive the payment of all of the Lender Notes and all other amounts payable hereunder and the termination of this Loan Agreement.

Section 12.8 The Administrative Agent in Its Individual Capacity The Administrative Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Borrower, the Servicer, Imperial, the Portfolio Manager or any of their Affiliates as though the Administrative Agent were not the Administrative Agent hereunder and under the other Transaction Documents. With respect to Advances made or renewed by it, the Administrative Agent shall have the same rights and powers under this Loan Agreement and the other Transaction Documents as any Lender and may exercise the same as though it were not the Administrative Agent, and the terms “Lender” and “Lenders” shall include the Administrative Agent in its individual capacity.

Section 12.9 Successor Administrative Agent . The Administrative Agent may resign as the Administrative Agent upon twenty (20) days’ notice to the Lenders effective upon the appointment of a successor agent. If the Administrative Agent shall resign as the Administrative Agent under this Loan Agreement and the other Transaction Documents, then the Required Lenders shall appoint a successor agent for the Lenders, which successor agent shall be an Affiliate of the Administrative Agent or a commercial bank organized under the laws of the United States of America or any State thereof or under the laws of another country which is doing business in the United States of America and, if such successor agent is not an Affiliate of the Administrative Agent, together with its Affiliates, having a combined capital, surplus and undivided profits of at least $100,000,000, which, if such successor agent is not an Affiliate of the Administrative Agent, shall be reasonably acceptable to the Borrower, whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term “Administrative Agent” shall mean such successor agent effective upon such appointment and approval, and the former Administrative Agent’s rights, powers and duties as the Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Loan Agreement or any holders of an interest in any of the Lender Notes. After any retiring Administrative Agent’s resignation as the Administrative Agent, all of the provisions of this Article XII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Loan Agreement and the other Transaction Documents.

ARTICLE XIII

MISCELLANEOUS

Section 13.1 Amendments, Etc . No amendment or waiver of, or consent to the Borrower’s departure from, any provision of this Loan Agreement shall be effective unless it is in writing and signed by the Administrative Agent, with the written consent of the Required Lenders (or, in the case of any amendment, waiver or consent that would result in a decrease in

 

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the interest rate on any Advance, a reduction in the principal amount of any Advance, an extension of time to make any payment of principal or interest on any Advance, the extension of the Commitment Termination Date or a release of all or any substantial portion of the Collateral (other than as expressly contemplated hereunder), by each Affected Party), and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No amendment or waiver of, or consent to the departure of any other party from, any provision of this Loan Agreement shall be effective unless it is in writing and signed by the Borrower.

Section 13.2 Notices, Etc . All notices, directions, instructions, demands and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including electronic mail communication) and sent to each party entitled thereto, at its address set forth on Schedule 13.2, or at such other address as shall be designated by such party in a written notice to the other parties hereto. All such notices, directions, instructions, demands and communications shall be effective: (a) if sent by overnight courier, on the Business Day after the day sent, (b) if by U.S. mail, three (3) Business Days after being deposited in the mail, (c) if delivered personally, when delivered, and (d) if sent by electronic mail, when the sender thereof shall have received electronic confirmation of the transmission thereof (provided that should such day not be a Business Day, on the next Business Day), except any such notice, direction, demands or other communications to the Administrative Agent shall only be effective upon actual receipt.

Section 13.3 No Waiver; Remedies . No failure on the part of any party to exercise, and no delay in exercising, any right hereunder or under any Transaction Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

Section 13.4 Binding Effect; Assignability; Term . This Loan Agreement shall be binding upon and inure to the benefit of the Borrower, each Lender, the Administrative Agent, the Portfolio Manager and the Servicer, and their respective successors and assigns, except that no party shall have the right to assign any of their respective rights, or to delegate any of their respective duties and obligations, hereunder without the prior written consent of the other parties except as set forth below. The Initial Lender may assign up to 49.9% of its Lender Notes, Commitment and Advances hereunder, and any other Lender may assign all or any portion of its Lender Notes, Commitment and Advances hereunder, in each case pursuant to an assignment and assumption agreement in substantially the form attached hereto as Exhibit C (each, an “ Assignment and Assumption Agreement ”), and in each case to (1) any Affiliate or (2) any financial institution or other Person with the approval of the Required Lenders and, so long as no Event of Default has occurred and is continuing, the Borrower; provided that (i) any such assignment shall be in an amount of not less than the lesser of (A) $2,000,000 and (B) one-hundred percent (100%) of such Lender’s outstanding Advances (provided, however, that in no event shall the Initial Lender fail to constitute at least fifty and one-tenths percent (50.1%) of the Lenders), (ii) the assigning Lender shall promptly give written notice of such assignment to the Administrative Agent and the Borrower and (iii) the assignee agrees in writing to be bound by the provisions of this Loan Agreement. Any attempted assignment or delegation in breach of this Section 13.4 shall be null and void. Notwithstanding the foregoing, (i) the Initial Lender or any

 

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Affiliate of the Initial Lender that becomes a Lender hereunder may, without the consent of the Borrower, assign all or any portion of its Lender Notes, Commitment and Advances hereunder to an Affiliate of the Initial Lender or such Affiliate or any Person that directly or indirectly owns any equity interest in the Initial Lender or such Affiliate and (ii) any Lender may, without the consent of the Borrower, (a) assign all of its Lenders Notes, Commitment and Advances hereunder to any Person if such Lender determines in its sole and absolute discretion that remaining a Lender hereunder would have an adverse regulatory impact on such Lender and (b) sell participation interests in its Advances and obligations hereunder to any Person or pledge any of its rights hereunder to any federal reserve bank, federal home loan bank or any federal depository institution. Any Lender which assigns all or any portion of its Lender Notes, Commitment and Advances hereunder pursuant to this Section 13.4 may retain or assign all or any portion of its interest in the Aggregate Participation Interest. For the avoidance of doubt, any Person which does not hold any Lender Note, has no Commitment hereunder and in respect of which no Advances are outstanding, but which has an interest in the Aggregate Participation Interest, shall not be included in determining the Required Lenders. This Loan Agreement shall create and constitute the continuing obligation of the parties hereto in accordance with its terms, and shall remain in full force and effect until such time as the Commitments have terminated and all the principal of and interest on the Advances and all other Obligations are paid in full, including, without limitation, the Aggregate Participation Interest; provided that rights and remedies of the Lenders and the Administrative Agent, as applicable, under Article XI and Section 3.1 , Section 3.3 and Section 13.8 shall survive any termination of this Loan Agreement.

Section 13.5 GOVERNING LAW; JURY TRIAL .

(a) THIS LOAN AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE, EXCLUDING CHOICE OF LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

(b) EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATING TO OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED BY THIS LOAN AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS.

Section 13.6 Execution in Counterparts. This Loan Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Loan Agreement by facsimile or transmitted electronically in either Tagged Image File Format (“TIFF”) or Portable Document Format (“PDF”) shall be equally effective as delivery of a manually executed counterpart hereof. Any party delivering an executed counterpart of this Loan Agreement by facsimile, TIFF or PDF shall also deliver a manually executed counterpart hereof, but failure to do so shall not affect the validity, enforceability, or binding effect of this Loan Agreement.

 

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Section 13.7 Submission to Jurisdiction . Each party hereto hereby submits to the exclusive jurisdiction of the courts of the State of New York and of any Federal court located in the State of New York (or any appellate court from any thereof) in any action or proceeding arising out of or relating to this Loan Agreement or the transactions contemplated hereby. Each party hereto hereby irrevocably waives any objection that it may have to the laying of venue of any such proceeding and any claim that any such proceeding has been brought in an inconvenient forum.

Section 13.8 Costs and Expenses . In addition to its obligations under Section 3.3 and Article XI, the Borrower agrees to pay on demand:

(a) all reasonable and actual costs and expenses incurred by the Administrative Agent and each Lender in connection with (i) the preparation, execution, delivery, administration and enforcement of, or any actual or claimed breach of or any amendments, waivers or consents under or with respect to, this Loan Agreement, the Lender Notes and the other Transaction Documents (whether or not such amendment, waiver or consent becomes effective), including, without limitation, the reasonable fees and expenses of counsel to any of such Persons actually incurred in connection therewith, (ii) the perfection of Administrative Agent’s security interest in the Collateral, (iii) the maintenance of the Accounts and the Borrower Account, and (iv) the audit of the books, records and procedures of the Servicer or the Borrower by the Administrative Agent’s auditors (which may be employees of the Administrative Agent), and

(b) all stamp and other Taxes and fees payable or determined to be payable in connection with the execution, delivery, filing and recording of this Loan Agreement, the Lender Notes or the other Transaction Documents, and agrees to indemnify each Indemnified Party against any liabilities with respect to or resulting from any delay in paying or omission to pay such Taxes and fees.

Section 13.9 Severability of Provisions . If any one or more provisions of this Loan Agreement shall for any reason be held invalid, then such provisions shall be deemed severable from the remaining provisions of this Loan Agreement and shall in no way affect the validity or enforceability of other provisions of this Loan Agreement.

Section 13.10 ENTIRE AGREEMENT . THIS LOAN AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS EXECUTED AND DELIVERED HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

Section 13.11 Conflicts . With respect to the matters set forth herein, in the event of any conflict between the provisions of this Loan Agreement and the provisions of any collateral assignment related to a Pledged Policy, the provisions of this Loan Agreement shall govern and control.

 

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Section 13.12 Confidentiality . No party to this Loan Agreement that receives any Confidential Information (the “ Receiving Party ”) from any other party (the “ Disclosing Party ”) under this Loan Agreement or any other Transaction Document shall disclose any Confidential Information to any Person without the consent of the Disclosing Party, other than (a) to the Servicer, Portfolio Manager, Securities Intermediary, Custodian and the Receiving Party’s Affiliates and its and their respective officers, directors, employees, trustees, agents and advisors (collectively, its “ Representatives ”) and to actual or prospective assignees under Section 13.4 , and then only on a confidential basis, (b) as required by any law, rule or regulation or judicial process, including any requirements to make disclosures thereof pursuant to applicable securities laws, (c) as requested or required by any state, Federal or foreign authority or examiner (including the National Association of Insurance Commissioners or any similar organization or quasi-regulatory authority) regulating the Receiving Party, the Servicer, Portfolio Manager, Securities Intermediary, Custodian and/or their respective Affiliates (d) to any rating agency when required by it, provided that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Confidential Information relating to the Disclosing Party received by it from the Receiving Party, (e) in connection with any litigation or proceeding to which the Receiving Party, the Servicer, Portfolio Manager, Securities Intermediary, Custodian and/or their respective Affiliates may be a party, (f) in connection with the exercise of any right or remedy under this Loan Agreement or any other Transaction Document, and any related or subsequent sale or other transaction involving any of the Collateral or other collateral or assets pledged pursuant to any Transaction Document to secure the repayment of the Advances or (g) if any such Confidential Information becomes publicly available so long as such availability is not caused by the Receiving Party or any of its Affiliates or any of their respective officers, directors, employees, trustee, agents and advisors. Notwithstanding the foregoing, it is expressly agreed that following the Closing Date, the Initial Lender may make or cause to be made a press release, public announcement or publicity statement (including placing a “tombstone” advertisement) relating to this Loan Agreement; provided that the parties hereto will consult with each other regarding the content and timing of any such press release, public announcement or publicity statement.

Section 13.13 Limitation on Liability . TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS LOAN AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS, THE ADMINISTRATIVE AGENT, THE LENDERS OR ANY INDEMNIFIED PARTY SHALL NOT BE LIABLE TO ANY PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THEIR RESPECTIVE ACTIVITIES RELATED TO THIS LOAN AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE TRANSACTIONS CONTEMPLATED THEREBY, THE LENDER NOTES, THE ADVANCES OR OTHERWISE IN CONNECTION WITH THE FOREGOING. WITHOUT LIMITING THE FOREGOING, THE PARTIES AGREE THAT NEITHER THE ADMINISTRATIVE AGENT, THE LENDERS NOR ANY INDEMNIFIED PARTY SHALL BE SUBJECT TO ANY EQUITABLE REMEDY OR RELIEF, INCLUDING SPECIFIC PERFORMANCE OR INJUNCTION RELATING TO ANY FAILURE BY ANY SUCH PARTY TO MAKE ANY ADVANCE UNDER, OR SUCH PARTY DECLINING TO MAKE ANY ADVANCE UNDER, THIS LOAN AGREEMENT. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL LENDERS’ LIABILITY FOR FAILURE TO FUND ANY ADVANCE EXCEED THE AMOUNT OF SUCH ADVANCE AND $20,000,000 IN AGGREGATE FOR ALL ADVANCES.

 

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Section 13.14 Relationship of Parties . Notwithstanding the obligation of the Borrower to pay the Aggregate Participation Interest to the Lenders in accordance with the terms hereof and that Advances made from time to time hereunder may be used to pay Ongoing Maintenance Costs, the relationship of each Secured Party and the Borrower is solely one of lender and borrower and this Loan Agreement does not constitute a partnership, tenancy-in-common, joint tenancy or joint venture between any of the Secured Parties and the Borrower, nor does this Loan Agreement create an agency or fiduciary relationship between any of the Secured Parties and the Borrowers. The Borrower is not the representative or agent of any of the Secured Parties and no Secured Party is a representative or agent of the Borrower. The parties hereto intend that the relationship among them shall be solely that of creditor and debtor. No Secured Party shall in any way be responsible or liable for the debts, losses, obligations or duties of the Borrower. IN WITNESS WHEREOF, the parties have caused this Loan and Security Agreement to be executed by their respective officers thereunto duly authorized as of the day and year first above written.

 

WHITE EAGLE ASSET PORTFOLIO, LLC, as Borrower
By:  

/s/ Richard S. O’Connell, Jr.

Name:   Richard S. O’Connell, Jr.
Title:   President & Chief Financial Officer
IMPERIAL FINANCE & TRADING, LLC, as Servicer
By:  

/s/ Richard S. O’Connell, Jr.

Name:   Richard S. O’Connell, Jr.
Title:   Chief Financial Officer
IMPERIAL FINANCE & TRADING, LLC, as Portfolio Manager
By:  

/s/ Richard S. O’Connell, Jr.

Name:   Richard S. O’Connell, Jr.
Title:   Chief Financial Officer

 

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LNV CORPORATION, as Initial Lender
By:  

/s/ Jacob Cherner

Name:   Jacob Cherner
Title:   Executive Vice President
CLMG CORP., as Administrative Agent
By:  

/s/ James Erwin

Name:   James Erwin
Title:   Executive Vice President

 

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    Schedule 2.1(a)

Lenders’ Commitments

 

Lender

   Commitment  

LNV Corporation

   $ 300,000,000   


    Schedule 7.1(a)(i)

Collateral Assignment Exception Policy

[Attached]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

No Collateral Assignment will be filed for the following Retained Death Benefit Policy:

 

5725   [*]     [ *]      [ *]      8/15/2008        [ *]      10,000,000.00        14.00     86.00


    Schedule 7.1(f)

Policy Delivery Exception Policies

[Attached]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Schedule 7.1(f) Duplicate Policies Ordered Not Yet Been Received*

 

Last Name

  

First Name

  

Carrier

  

Policy #

  

Type

[*]    [*]    [*]    [*]    Balance Sheet
[*]    [*]    [*]    [*]    Balance Sheet
[*]    [*]    [*]    [*]    Balance Sheet
[*]    [*]    [*]    [*]    Balance Sheet
[*]    [*]    [*]    [*]    Balance Sheet
[*]    [*]    [*]    [*]    Balance Sheet
[*]    [*]    [*]    [*]    Balance Sheet
[*]    [*]    [*]    [*]    Balance Sheet
[*]    [*]    [*]    [*]    Balance Sheet
[*]    [*]    [*]    [*]    Balance Sheet
[*]    [*]    [*]    [*]    Balance Sheet
[*]    [*]    [*]    [*]    Balance Sheet

 

* As of April 29, 2013


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

    Schedule 8.1(i)

Attempted Rescission Exercise Policies

[Attached]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Schedule 8.1(i)

 

Deal Type

   Quote
Internal
ID
     Policy
Owner
Last
Name
  Policy
Owner
First
Name
  Policy #   Issue Date     

Insurance Company

   Death Benefit  

Life Settlement - Retained Death Benefit

     5725       [*]   [*]   [*]     8/15/2008      

Lincoln National Life Insurance Company

     10,000,000.00   

Life Settlement - Retained Death Benefit

                 

Life Settlement - Retained Death Benefit

    
 
 
 
 
 
 
 
 
 
 
Two subsidiaries of Imperial Holdings, Inc., Imperial Premium Finance, LLC (“IPF”) and
Imperial Life Settlements, LLC (“ILS,” and together with IPF, the “Imperial Parties”), were
named as a parties in the matter styled Hal Katersky (the “Insured”), Barry Lavine as the
Individual Trustee of the Amended and Restated Hal Katersky Irrevocable Life Insurance Trust
DTD 8/29/2008 (“Katersky Trust”), Hillary A. Katersky, Andrew Katersky, Robin Katersky,
Jeffery Katersky and Dylan Zelman (collectively with the Insured, Barry Lavine and the
Katersky Trust, the “Katersky Parties”) v. Imperial Premium Finance, LLC; Imperial Life
Settlements, LLC; Bank of Utah; and the Lincoln National Life Insurance Company
(“Lincoln”), filed on May 23, 2012, in the United States District Court for the Central District
of California. The Katersky Parties sought equitable remedies, attorneys; fees and monetary
damages.
  
  
  
  
  
  
  
  
  
  
   

Life Settlement - Retained Death Benefit

  

Life Settlement - Retained Death Benefit

  

Life Settlement - Retained Death Benefit

  
  
  

Premium Finance - Ratained Death Benefit

    
 
 
 
 
 
 
 
 
On September 20, 2012, the Katersky Parties and the Imperial Parties reached a settlement to
resolve all claims. The settlement provided that once the jointly submitted change of ownership
and beneficiary forms were recorded by Lincoln, the parties would file a stipulation of dismissal
with prejudice, which would dismiss the case against all defendants. The change forms that
were submitted to - and recorded by - Lincoln pursuant to the settlement agreement designated
an entity designated by the Imperial Parties as the owner and primary beneficiary of the Policy,
and allowed the Katersky Parties to designate an irrevocable beneficiary entitled to $1.4 million
of the $10 million net death benefit. Pursuant to a joint motion for dismissal filed by all parties,
the case was dismissed with prejudice on November 15, 2012.
  
  
  
  
  
  
  
  
  


    Schedule 8.1(q)

Material Adverse Changes

None


    Schedule 8.1(s)

Account Information

 

Account Description

  

Bank

  

Account No.

Collection Account    Wilmington Trust, National Association   
Payment Account    Wilmington Trust, National Association   
Borrower Account    Wilmington Trust, National Association   
Escrow Account    Wilmington Trust, National Association   
Policy Account    Wilmington Trust, National Association   


    Schedule 8.1(u)

Unmatured Events of Default and Events of Default

None


    Schedule 8.1(w)

Retained Death Benefit Policies

[Attached]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Schedule 8.1(w) Retained Death Benefit Policies

 

Quote
Internal
ID

     Policy
Owner
Last
Name
  Policy
Owner
First
Name
  Policy #   Issue Date     

Insurance Company

   Death Benefit      Third Party
Retained
Percentage
    Company’s
percentage
 
  40575       [*]   [*]   [*]     12/16/2008       [*]      1,800,000.00         7.00     93.00
  42586       [*]   [*]   [*]     7/18/2009       [*]      3,500,000.00         3.50     96.50
  44771       [*]   [*]   [*]     12/19/2005       [*]      3,000,000.00         24.00     76.00
  45187       [*]   [*]   [*]     4/28/2009       [*]      5,000,000.00         44.00     56.00
  45321       [*]   [*]   [*]     6/4/2008       [*]      4,000,000.00         38.00     62.00
  47964       [*]   [*]   [*]     12/15/2008       [*]      3,000,000.00         29.00     71.00
  5725       [*]   [*]   [*]     8/15/2008       [*]      10,000,000.00         14.00     86.00


    Schedule 8.2(l)

Portfolio Manager Material Adverse Changes

None


    Schedule 13.2

Notice Addresses

CLMG CORP.

7195 Dallas Parkway

Plano, TX 75024

Attention: James Erwin

Telephone:

Facsimile:

Email:

* * * * *

LNV Corporation

c/o CLMG Corp.

7195 Dallas Parkway

Plano, TX 75024

Attention: James Erwin

Telephone:

Facsimile:

Email:

* * * * *

WHITE EAGLE ASSET PORTFOLIO, LLC

701 Park of Commerce Blvd., Suite 301

Boca Raton, FL 33487

Attention: General Counsel

Telephone:

Facsimile:

Email:

* * * * *

IMPERIAL FINANCE & TRADING, LLC

701 Park of Commerce Blvd., Suite 301

Boca Raton, FL 33487

Attention: General Counsel

Telephone:

Facsimile:

Email:

* * * * *


MARKLEY ASSET PORTFOLIO, LLC

701 Park of Commerce Blvd., Suite 301

Boca Raton, FL 33487

Attention: General Counsel

Telephone:

Facsimile:

Email:

* * * * *

OLIPP IV, LLC

701 Park of Commerce Blvd., Suite 301

Boca Raton, FL 33487

Attention: General Counsel

Telephone:

Facsimile:

Email:

* * * * *

IMPERIAL FINANCE & TRADING, LLC

701 Park of Commerce Blvd., Suite 301

Boca Raton, FL 33487

Attention: General Counsel

Telephone:

Facsimile:

Email:

* * * * *

IMPERIAL HOLDINGS, INC.

701 Park of Commerce Blvd., Suite 301

Boca Raton, FL 33487

Attention: General Counsel

Telephone:

Facsimile:

Email:

* * * * *


    Eligibility Criteria Clause (a) Schedule

Eligibility Criteria Clause (a) Exceptions

[Attached]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Eligibility Criteria Clause (a) Exceptions*

 

Policy
Owner
Last
Name

   Policy
Owner
First
Name
  Policy #   Issue Date     

Insurance Company

   Death Benefit      Current Policy Owner
[*]    [*]   [*]     6/11/2007       [*]      2,000,000.00       Imperial PFC Financing LLC
[*]    [*]   [*]     8/11/2008       [*]      2,500,000.00       Imperial PFC Financing LLC
[*]    [*]   [*]     5/7/2008       [*]      10,000,000.00       Imperial PFC Financing LLC
[*]    [*]   [*]     11/26/2009       [*]      2,000,000.00       Imperial PFC Financing II, LLC

 

* As of April 25, 2013


    Eligibility Criteria Clause (g) Schedule

Eligibility Criteria Clause (g) Exceptions

[Attached]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Eligibility Criteria Clause (g) Exceptions

             

Quote

Internal

ID

    

Policy Owner Last Name

  

Policy
Owner First
Name

  

Policy #

  

Insurance Company

   Death Benefit      21st LE
in
Months
  21st
Certificate
Date
     21st-
Mort
Factor
  AVS
LE in
Months
  AVS-
Mort
Factor
  AVS Date of
Underwriting
 
  105       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     2/28/2010       [*]   [*]   [*]     2/25/2010   
  108       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     9/30/2009       [*]   [*]   [*]  
  113       [*]    [*]    [*]    [*]    $ 1,000,000.00       [*]     3/1/2010       [*]   [*]   [*]     3/2/2010   
  152       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     6/17/2010       [*]   [*]   [*]     12/28/2011   
  238       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     6/24/2010       [*]   [*]   [*]     6/30/2010   
  437       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     5/11/2010       [*]   [*]   [*]     5/12/2010   
  935       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     4/15/2010       [*]   [*]   [*]     4/20/2010   
  1295       [*]    [*]    [*]    [*]    $ 5,900,000.00       [*]     6/11/2010       [*]   [*]   [*]     6/10/2010   
  1399       [*]    [*]    [*]    [*]    $ 6,500,000.00       [*]     6/26/2009       [*]   [*]   [*]     6/25/2009   
  2260       [*]    [*]    [*]    [*]    $ 7,000,000.00       [*]     8/9/2010       [*]   [*]   [*]     2/25/2013   
  2420       [*]    [*]    [*]    [*]    $ 4,500,000.00       [*]     7/28/2008       [*]   [*]   [*]     1/21/2013   
  2428       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     2/15/2010       [*]   [*]   [*]     2/16/2010   
  2852       [*]    [*]    [*]    [*]    $ 4,000,000.00       [*]     4/12/2010       [*]   [*]   [*]     3/8/2013   
  3543       [*]    [*]    [*]    [*]    $ 15,000,000.00       [*]     6/16/2010       [*]   [*]   [*]     6/17/2010   
  3738       [*]    [*]    [*]    [*]    $ 3,600,000.00       [*]     11/3/2010       [*]   [*]   [*]     11/5/2010   
  4056       [*]    [*]    [*]    [*]    $ 4,000,000.00       [*]     7/12/2010       [*]   [*]   [*]     7/14/2010   
  4247       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]     12/29/2010       [*]   [*]   [*]     1/30/2013   
  4396       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]     5/21/2010       [*]   [*]   [*]     2/21/2013   
  4459       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     11/1/2010       [*]   [*]   [*]     11/3/2010   
  5093       [*]    [*]    [*]    [*]    $ 1,500,000.00       [*]     7/21/2010       [*]   [*]   [*]     7/26/2010   
  5131       [*]    [*]    [*]    [*]    $ 4,000,000.00       [*]     5/3/2010       [*]   [*]   [*]     5/5/2010   
  5293       [*]    [*]    [*]    [*]    $ 2,345,000.00       [*]     2/25/2010       [*]   [*]   [*]     2/25/2010   
  5329       [*]    [*]    [*]    [*]    $ 4,000,000.00       [*]     4/29/2010       [*]   [*]   [*]     5/5/2010   
  5362       [*]    [*]    [*]    [*]    $ 2,500,000.00       [*]     9/14/2010       [*]   [*]   [*]     9/21/2010   
  5371       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     5/3/2010       [*]   [*]   [*]     3/14/2013   
  5666       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]     3/10/2010       [*]   [*]   [*]     2/15/2013   


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  6237       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     12/29/2010       [*]   [*]   [*]     1/13/2011   
  6273       [*]    [*]    [*]    [*]    $ 2,500,000.00       [*]     4/5/2010       [*]   [*]   [*]     4/9/2010   
  6447       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]     11/3/2010       [*]   [*]   [*]     11/5/2010   
  6937       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     6/24/2010       [*]   [*]   [*]     1/12/2012   
  7050       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     3/21/2011       [*]   [*]   [*]     3/25/2013   
  7320       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     3/27/2008       [*]   [*]   [*]     7/14/2008   
  7806       [*]    [*]    [*]    [*]    $ 1,800,000.00       [*]     5/12/2010       [*]   [*]   [*]     5/14/2010   
  8194       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     8/3/2010       [*]   [*]   [*]     2/7/2013   
  8527       [*]    [*]    [*]    [*]    $ 9,500,000.00       [*]     7/17/2008       [*]   [*]   [*]     7/15/2008   
  8834       [*]    [*]    [*]    [*]    $ 4,000,000.00       [*]      [*]   [*]   [*]     3/22/2013   
  9642       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     6/18/2010       [*]   [*]   [*]     2/28/2013   
  9698       [*]    [*]    [*]    [*]    $ 9,000,000.00       [*]     9/18/2007       [*]   [*]   [*]     1/22/2013   
  10430       [*]    [*]    [*]    [*]    $ 4,000,000.00       [*]     8/16/2010       [*]   [*]   [*]     8/20/2010   
  10464       [*]    [*]    [*]    [*]    $ 9,000,000.00       [*]     7/19/2010       [*]   [*]   [*]     7/16/2010   
  10700       [*]    [*]    [*]    [*]    $ 2,700,000.00       [*]     8/16/2010       [*]   [*]   [*]     2/15/2013   
  10704       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]     9/8/2010       [*]   [*]   [*]     9/16/2010   
  10769       [*]    [*]    [*]    [*]    $ 15,000,000.00       [*]     4/5/2010       [*]   [*]   [*]     4/12/2010   
  10864       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     8/26/2008       [*]   [*]   [*]     1/31/2013   
  10985       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]      [*]   [*]   [*]     1/18/2011   
  11179       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     5/17/2010       [*]   [*]   [*]     5/11/2010   
  11196       [*]    [*]    [*]    [*]    $ 2,900,000.00       [*]     6/11/2010       [*]   [*]   [*]     6/10/2010   
  11246       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     7/19/2010       [*]   [*]   [*]     7/21/2010   
  11258       [*]    [*]    [*]    [*]    $ 8,000,000.00       [*]     8/26/2010       [*]   [*]   [*]     2/7/2013   
  11343       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     7/6/2010       [*]   [*]   [*]     7/7/2010   
  11346       [*]    [*]    [*]    [*]    $ 2,500,000.00       [*]     7/1/2010       [*]   [*]   [*]     7/7/2010   
  11451       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]     8/4/2010       [*]   [*]   [*]     8/6/2010   
  11563       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     6/17/2010       [*]   [*]   [*]     5/26/2010   
  11603       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     3/15/2010       [*]   [*]   [*]     3/7/2013   
  11644       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]      [*]   [*]   [*]     12/30/2010   
  11681       [*]    [*]    [*]    [*]    $ 8,000,000.00       [*]     10/11/2010       [*]   [*]   [*]     10/19/2010   


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  11718       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     8/26/2008       [*]     [ *]      [ *]      1/31/2013   
  11719       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     8/6/2010       [*]     [ *]      [ *]      8/13/2010   
  11786       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     8/9/2010       [*]     [ *]      [ *]      8/13/2010   
  11788       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     8/9/2010       [*]     [ *]      [ *]      8/13/2010   
  12221       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     9/28/2010       [*]     [ *]      [ *]      10/1/2010   
  12261       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]     12/29/2010       [*]     [ *]      [ *]      1/17/2011   
  12265       [*]    [*]    [*]    [*]    $ 6,000,000.00       [*]     6/25/2010       [*]     [ *]      [ *]      6/29/2010   
  12288       [*]    [*]    [*]    [*]    $ 7,000,000.00       [*]     1/21/2010       [*]     [ *]      [ *]      1/19/2010   
  12506       [*]    [*]    [*]    [*]    $ 1,400,000.00       [*]     10/12/2010       [*]     [ *]      [ *]      10/18/2010   
  12681       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     2/10/2010       [*]     [ *]      [ *]      3/12/2010   
  12686       [*]    [*]    [*]    [*]    $ 1,750,000.00       [*]     12/29/2010       [*]     [ *]      [ *]      1/18/2013   
  12689       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     12/10/2009       [*]     [ *]      [ *]      12/11/2009   
  12690       [*]    [*]    [*]    [*]    $ 4,000,000.00       [*]     2/12/2010       [*]     [ *]      [ *]      2/12/2010   
  12696       [*]    [*]    [*]    [*]    $ 8,000,000.00       [*]     5/11/2010       [*]     [ *]      [ *]      5/6/2010   
  12697       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]     7/16/2010       [*]     [ *]      [ *]      7/27/2010   
  12698       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     4/8/2010       [*]     [ *]      [ *]      4/15/2010   
  12705       [*]    [*]    [*]    [*]    $ 826,000.00       [*]     3/15/2010       [*]     [ *]      [ *]      3/10/2010   
  12774       [*]    [*]    [*]    [*]    $ 20,000,000.00       [*]     6/23/2008       [*]     [ *]      [ *]      11/29/2010   
  12882       [*]    [*]    [*]    [*]    $ 4,000,000.00       [*]     7/6/2010       [*]     [ *]      [ *]      7/12/2010   
  12888       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     10/6/2008       [*]     [ *]      [ *]      12/17/2008   
  12912       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]     9/7/2010       [*]     [ *]      [ *]      9/13/2010   
  12913       [*]    [*]    [*]    [*]    $ 4,000,000.00       [*]     7/9/2010       [*]     [ *]      [ *]      7/9/2010   
  12952       [*]    [*]    [*]    [*]    $ 6,000,000.00       [*]     8/9/2010       [*]     [ *]      [ *]      8/13/2010   
  13004       [*]    [*]    [*]    [*]    $ 7,000,000.00       [*]     10/11/2010       [*]     [ *]      [ *]      10/18/2010   
  13017       [*]    [*]    [*]    [*]    $ 2,128,000.00       [*]     6/29/2010       [*]     [ *]      [ *]      7/1/2010   
  13018       [*]    [*]    [*]    [*]    $ 1,955,000.00       [*]     5/11/2010       [*]     [ *]      [ *]      5/10/2010   
  13020       [*]    [*]    [*]    [*]    $ 7,000,000.00       [*]     4/9/2010       [*]     [ *]      [ *]      4/15/2010   
  13182       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     10/28/2010       [*]     [ *]      [ *]      3/20/2013   
  13184       [*]    [*]    [*]    [*]    $ 1,500,000.00       [*]     4/5/2010       [*]     [ *]      [ *]      4/9/2010   


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  13227       [*]    [*]    [*]    [*]    $ 3,750,000.00       [*]     10/26/2010       [*]   [*]   [*]     1/14/2011   
  13420       [*]    [*]    [*]    [*]    $ 8,000,000.00       [*]     6/24/2010       [*]   [*]   [*]     6/29/2010   
  13640       [*]    [*]    [*]    [*]    $ 3,125,000.00       [*]     8/5/2010       [*]   [*]   [*]     3/19/2012   
  13641       [*]    [*]    [*]    [*]    $ 9,700,000.00       [*]     4/29/2010       [*]   [*]   [*]     4/30/2010   
  13642       [*]    [*]    [*]    [*]    $ 7,784,000.00       [*]     2/12/2010       [*]   [*]   [*]     2/15/2013   
  13645       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]     3/4/2010       [*]   [*]   [*]     12/15/2010   
  13646       [*]    [*]    [*]    [*]    $ 9,800,000.00       [*]     3/26/2010       [*]   [*]   [*]     3/31/2010   
  13649       [*]    [*]    [*]    [*]    $ 8,412,000.00       [*]     5/11/2010       [*]   [*]   [*]     2/15/2013   
  13650       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]     4/5/2010       [*]   [*]   [*]     4/9/2010   
  13653       [*]    [*]    [*]    [*]    $ 2,500,000.00       [*]     11/23/2009       [*]   [*]   [*]     3/15/2013   
  13656       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     3/18/2010       [*]   [*]   [*]     3/18/2010   
  13661       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     1/4/2010       [*]   [*]   [*]     12/30/2009   
  13662       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     10/28/2010       [*]   [*]   [*]     11/3/2010   
  13730       [*]    [*]    [*]    [*]    $ 1,100,000.00       [*]     5/11/2010       [*]   [*]   [*]     2/21/2013   
  13731       [*]    [*]    [*]    [*]    $ 1,000,000.00       [*]     2/23/2010       [*]   [*]   [*]     1/31/2013   
  13733       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     2/13/2010       [*]   [*]   [*]     1/28/2013   
  13734       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     6/17/2010       [*]   [*]   [*]     6/17/2010   
  13737       [*]    [*]    [*]    [*]    $ 1,172,500.00       [*]     7/7/2010       [*]   [*]   [*]     1/30/2013   
  13745       [*]    [*]    [*]    [*]    $ 5,200,000.00       [*]     5/28/2010       [*]   [*]   [*]     2/7/2013   
  13751       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     8/6/2008       [*]   [*]   [*]     1/18/2013   
  13757       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     10/13/2010       [*]   [*]   [*]     1/29/2013   
  13778       [*]    [*]    [*]    [*]    $ 8,000,000.00       [*]     5/25/2010       [*]   [*]   [*]     5/28/2010   
  13781       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     8/9/2010       [*]   [*]   [*]     8/10/2010   
  13814       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]      [*]   [*]   [*]     2/27/2013   
  13875       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]      [*]   [*]   [*]     12/20/2010   
  13942       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     2/13/2010       [*]   [*]   [*]     2/16/2010   
  13945       [*]    [*]    [*]    [*]    $ 2,025,000.00       [*]     4/29/2010       [*]   [*]   [*]     5/3/2010   
  13958       [*]    [*]    [*]    [*]    $ 4,200,000.00       [*]     4/14/2010       [*]   [*]   [*]     4/22/2010   
  13959       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     3/10/2010       [*]   [*]   [*]     1/12/2011   
  13988       [*]    [*]    [*]    [*]    $ 1,800,000.00       [*]     9/27/2010       [*]   [*]   [*]     10/5/2010   


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  14009       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     1/13/2010       [*]   [*]   [*]     1/30/2013   
  14160       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     11/12/2008       [*]   [*]   [*]     12/14/2010   
  14464       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     3/19/2008       [*]   [*]   [*]     1/23/2013   
  14726       [*]    [*]    [*]    [*]    $ 4,500,000.00       [*]     8/14/2008       [*]   [*]   [*]     6/6/2011   
  15107       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     4/15/2010       [*]   [*]   [*]     4/21/2010   
  15384       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     7/14/2010       [*]   [*]   [*]     2/12/2013   
  16403       [*]    [*]    [*]    [*]    $ 2,500,000.00       [*]     9/28/2010       [*]   [*]   [*]     2/15/2013   
  16418       [*]    [*]    [*]    [*]    $ 7,000,000.00       [*]     11/21/2008       [*]   [*]   [*]     6/1/2011   
  17380       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]     3/11/2009       [*]   [*]   [*]     2/13/2013   
  17566       [*]    [*]    [*]    [*]    $ 4,000,000.00       [*]      [*]   [*]   [*]     2/26/2013   
  17861       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]      [*]   [*]   [*]     3/21/2013   
  18504       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     3/17/2008       [*]   [*]   [*]     1/31/2011   
  19345       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]      [*]   [*]   [*]     2/22/2013   
  19808       [*]    [*]    [*]    [*]    $ 6,500,000.00       [*]     5/19/2010       [*]   [*]   [*]     2/14/2013   
  19809       [*]    [*]    [*]    [*]    $ 6,500,000.00       [*]     5/19/2010       [*]   [*]   [*]     2/14/2013   
  19810       [*]    [*]    [*]    [*]    $ 6,500,000.00       [*]     5/19/2010       [*]   [*]   [*]     2/14/2013   
  19856       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]      [*]   [*]   [*]     2/7/2013   
  20145       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]      [*]   [*]   [*]     2/22/2013   
  20209       [*]    [*]    [*]    [*]    $ 7,000,000.00       [*]     3/14/2009       [*]   [*]   [*]     7/18/2011   
  20296       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]      [*]   [*]   [*]     10/11/2011   
  20398       [*]    [*]    [*]    [*]    $ 4,000,000.00       [*]      [*]   [*]   [*]     3/8/2013   
  20447       [*]    [*]    [*]    [*]    $ 4,000,000.00       [*]     5/13/2010       [*]   [*]   [*]     5/26/2009   
  21655       [*]    [*]    [*]    [*]    $ 8,000,000.00       [*]      [*]   [*]   [*]     7/29/2011   
  22236       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]      [*]   [*]   [*]     7/21/2011   
  22337       [*]    [*]    [*]    [*]    $ 6,000,000.00       [*]      [*]   [*]   [*]     3/4/2013   
  23852       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]     12/29/2008       [*]   [*]   [*]     9/29/2011   
  24614       [*]    [*]    [*]    [*]    $ 1,500,000.00       [*]     8/6/2010       [*]   [*]   [*]     8/16/2010   
  25038       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     2/16/2009       [*]   [*]   [*]     11/23/2009   
  25248       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     2/22/2008       [*]   [*]   [*]     1/4/2010   
  25986       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]      [*]   [*]   [*]     2/8/2013   


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  26030       [*]    [*]    [*]    [*]    $ 2,500,000.00       [*]     12/10/2010       [*]   [*]   [*]     9/30/2010   
  26144       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     6/7/2010       [*]   [*]   [*]     2/7/2013   
  26246       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]      [*]   [*]   [*]     1/15/2013   
  26668       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]      [*]   [*]   [*]     1/12/2010   
  27205       [*]    [*]    [*]    [*]    $ 1,000,000.00       [*]      [*]   [*]   [*]     1/28/2013   
  27287       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     10/29/2008       [*]   [*]   [*]     6/22/2011   
  27430       [*]    [*]    [*]    [*]    $ 8,000,000.00       [*]      [*]   [*]   [*]     1/12/2010   
  27973       [*]    [*]    [*]    [*]    $ 1,000,000.00       [*]      [*]   [*]   [*]     2/11/2013   
  28102       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]      [*]   [*]   [*]     1/17/2013   
  28991       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]      [*]   [*]   [*]     3/5/2010   
  29156       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     10/29/2008       [*]   [*]   [*]     6/22/2011   
  30808       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     11/30/2009       [*]   [*]   [*]     10/18/2010   
  31622       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]      [*]   [*]   [*]     6/22/2010   
  31805       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]      [*]   [*]   [*]     1/17/2013   
  31854       [*]    [*]    [*]    [*]    $ 2,250,000.00       [*]     4/14/2010       [*]   [*]   [*]     5/13/2010   
  32028       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     8/2/2011       [*]   [*]   [*]     8/1/2011   
  32446       [*]    [*]    [*]    [*]    $ 8,000,000.00       [*]     5/26/2010       [*]   [*]   [*]     7/27/2010   
  32631       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]      [*]   [*]   [*]     4/20/2011   
  33418       [*]    [*]    [*]    [*]    $ 6,000,000.00       [*]     11/20/2009       [*]   [*]   [*]     10/20/2010   
  33592       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]      [*]   [*]   [*]     6/9/2011   
  33794       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     3/26/2010       [*]   [*]   [*]     4/5/2010   
  34084       [*]    [*]    [*]    [*]    $ 3,200,000.00       [*]     7/19/2010       [*]   [*]   [*]     10/15/2010   
  34141       [*]    [*]    [*]    [*]    $ 1,000,000.00       [*]     9/2/2009       [*]   [*]   [*]     7/20/2010   
  34415       [*]    [*]    [*]    [*]    $ 7,000,000.00       [*]     5/17/2011       [*]   [*]   [*]     6/9/2011   
  34543       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]     5/6/2008       [*]   [*]   [*]     11/15/2010   
  34678       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     6/17/2010       [*]   [*]   [*]     1/31/2011   
  35079       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]      [*]   [*]   [*]     4/2/2013   
  35646       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     6/29/2010       [*]   [*]   [*]     7/2/2010   
  35672       [*]    [*]    [*]    [*]    $ 2,200,000.00       [*]     10/13/2010       [*]   [*]   [*]     11/8/2010   
  35758       [*]    [*]    [*]    [*]    $ 3,000,000.00       [*]     10/25/2010       [*]   [*]   [*]     1/21/2011   


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  36116       [*]    [*]    [*]    [*]    $ 2,100,000.00       [*]     11/8/2010       [*]   [*]   [*]     11/5/2010   
  36467       [*]    [*]    [*]    [*]    $ 1,000,000.00       [*]     4/9/2010       [*]   [*]   [*]     1/5/2011   
  36993       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     3/25/2010       [*]   [*]   [*]     3/30/2010   
  36994       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     4/8/2010       [*]   [*]   [*]     4/13/2010   
  37097       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     5/6/2011       [*]   [*]   [*]     2/10/2011   
  37937       [*]    [*]    [*]    [*]    $ 2,000,000.00       [*]      [*]   [*]   [*]     3/21/2011   
  38231       [*]    [*]    [*]    [*]    $ 7,000,000.00       [*]     8/6/2010       [*]   [*]   [*]     2/22/2011   
  38438       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     11/1/2010       [*]   [*]   [*]     11/30/2010   
  38439       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     3/5/2010       [*]   [*]   [*]     11/11/2010   
  38442       [*]    [*]    [*]    [*]    $ 5,000,000.00       [*]     10/7/2010       [*]   [*]   [*]     10/11/2010   
  38451       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     7/7/2010       [*]   [*]   [*]     7/8/2010   
  39277       [*]    [*]    [*]    [*]    $ 9,000,000.00       [*]     2/3/2011       [*]   [*]   [*]     7/14/2011   
  39658       [*]    [*]    [*]    [*]    $ 1,000,000.00       [*]     12/28/2010       [*]   [*]   [*]     5/23/2011   
  39816       [*]    [*]    [*]    [*]    $ 4,000,000.00       [*]     8/30/2010       [*]   [*]   [*]     5/17/2011   
  39912       [*]    [*]    [*]    [*]    $ 6,000,000.00       [*]     4/18/2012       [*]   [*]   [*]     7/26/2012   
  39920       [*]    [*]    [*]    [*]    $ 4,000,000.00       [*]     9/26/2011       [*]   [*]   [*]     5/17/2011   
  42513       [*]    [*]    [*]    [*]    $ 10,000,000.00       [*]     5/17/2011       [*]   [*]   [*]     6/9/2011   


        Eligibility Criteria Clause (h) Schedule

Eligibility Criteria Clause (h) Exceptions

[Attached]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Eligibility Criteria Clause (h) Exceptions

Internal
ID

     Quote
Internal
ID
     Policy
Owner
Last Name
  Policy
Owner First
Name
  Policy #   Insurance Company   Death Benefit      21st LE
in
Months
     21st
Certificate
Date
     21st-
Mort
Factor
  AVS LE
in
Months
  AVS-
Mort
Factor
  AVS Date of
Underwriting
     Average
LE
  13697         13942       [*]   [*]   [*]   [*]   $ 10,000,000.00         [*]         2/13/2010       [*]   [*]   [*]     2/16/2010       [*]


        Eligibility Criteria Clause (i) Schedule

Eligibility Criteria Clause (i) Exceptions

[Attached]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Eligibility Criteria Clause (i) Exceptions

 

Internal
ID

     Quote
Internal
ID
     Policy
Owner
Last
Name
  Policy
Owner
First
Name
 

Policy #

  

Insurance Company

   Death Benefit  
  12493         12774       [*]   [*]   [*]    [*]    $ 20,000,000.00   
  3291         3543       [*]   [*]   [*]    [*]    $ 15,000,000.00   
  10508         10769       [*]   [*]   [*]    [*]    $ 15,000,000.00   
  12849         35667       [*]   [*]   [*]    [*]    $ 14,000,000.00   


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

        Eligibility Criteria Clause (m) Schedule

Eligibility Criteria Clause (m) Exceptions

[Attached]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Eligibility Criteria Clause (m) Schedule I Exceptions

 

Internal
ID

     Quote
Internal
ID
    

Policy Owner Last Name

  

Policy
Owner
First Name

  

Policy #

  

Insurance Company

   Death Benefit  
  10723         10985       [*]    [*]    [*]    [*]    $ 3,000,000.00   
  12493         12774       [*]    [*]    [*]    [*]    $ 20,000,000.00   
  12631         12912       [*]    [*]    [*]    [*]    $ 2,000,000.00   
  14864         15107       [*]    [*]    [*]    [*]    $ 10,000,000.00   
  13589         13875       [*]    [*]    [*]    [*]    $ 5,000,000.00   
  13912         14160       [*]    [*]    [*]    [*]    $ 5,000,000.00   
  16175         16418       [*]    [*]    [*]    [*]    $ 7,000,000.00   
  18266         18504       [*]    [*]    [*]    [*]    $ 3,000,000.00   
  21436         21655       [*]    [*]    [*]    [*]    $ 8,000,000.00   
  23634         23852       [*]    [*]    [*]    [*]    $ 2,000,000.00   
  3880         38442       [*]    [*]    [*]    [*]    $ 5,000,000.00   
  33206         33418       [*]    [*]    [*]    [*]    $ 6,000,000.00   
  228         238       [*]    [*]    [*]    [*]    $ 10,000,000.00   
  36909         37091       [*]    [*]    [*]    [*]    $ 5,000,000.00   
  5077         5293       [*]    [*]    [*]    [*]    $ 2,345,000.00   
  110         113       [*]    [*]    [*]    [*]    $ 1,000,000.00   
  146         151       [*]    [*]    [*]    [*]    $ 6,000,000.00   
  2671         35672       [*]    [*]    [*]    [*]    $ 2,200,000.00   
  5113         5329       [*]    [*]    [*]    [*]    $ 4,000,000.00   
  6696         6937       [*]    [*]    [*]    [*]    $ 5,000,000.00   
  12010         12288       [*]    [*]    [*]    [*]    $ 7,000,000.00   
  13492         13778       [*]    [*]    [*]    [*]    $ 8,000,000.00   
  13495         13781       [*]    [*]    [*]    [*]    $ 10,000,000.00   
  33875         34084       [*]    [*]    [*]    [*]    $ 3,200,000.00   


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

33932

     34141       [*]    [*]    [*]    [*]    $ 1,000,000.00   

31830

     32044       [*]    [*]    [*]    [*]    $ 5,000,000.00   

26454

     26668       [*]    [*]    [*]    [*]    $ 2,000,000.00   

901

     935       [*]    [*]    [*]    [*]    $ 5,000,000.00   

1131

     1295       [*]    [*]    [*]    [*]    $ 5,900,000.00   

2719

     36467       [*]    [*]    [*]    [*]    $ 1,000,000.00   

3842

     3948       [*]    [*]    [*]    [*]    $ 10,000,000.00   

4875

     5093       [*]    [*]    [*]    [*]    $ 1,500,000.00   

5992

     6237       [*]    [*]    [*]    [*]    $ 3,000,000.00   

7080

     7320       [*]    [*]    [*]    [*]    $ 5,000,000.00   

7171

     35646       [*]    [*]    [*]    [*]    $ 5,000,000.00   

8590

     8834       [*]    [*]    [*]    [*]    $ 4,000,000.00   

10444

     10704       [*]    [*]    [*]    [*]    $ 2,000,000.00   

10508

     10769       [*]    [*]    [*]    [*]    $ 15,000,000.00   

11987

     12265       [*]    [*]    [*]    [*]    $ 6,000,000.00   

12206

     12486       [*]    [*]    [*]    [*]    $ 10,000,000.00   

12736

     13017       [*]    [*]    [*]    [*]    $ 2,128,000.00   

13697

     13942       [*]    [*]    [*]    [*]    $ 10,000,000.00   

13709

     13958       [*]    [*]    [*]    [*]    $ 4,200,000.00   

20060

     20296       [*]    [*]    [*]    [*]    $ 3,000,000.00   

22017

     22236       [*]    [*]    [*]    [*]    $ 5,000,000.00   

27216

     27430       [*]    [*]    [*]    [*]    $ 8,000,000.00   

31405

     31622       [*]    [*]    [*]    [*]    $ 3,000,000.00   

32234

     32446       [*]    [*]    [*]    [*]    $ 8,000,000.00   

33380

     33592       [*]    [*]    [*]    [*]    $ 10,000,000.00   

30585

     30808       [*]    [*]    [*]    [*]    $ 3,000,000.00   

32163

     32375       [*]    [*]    [*]    [*]    $ 2,000,000.00   

33351

     33563       [*]    [*]    [*]    [*]    $ 10,000,000.00   

35160

     35367       [*]    [*]    [*]    [*]    $ 5,000,000.00   

35561

     35758       [*]    [*]    [*]    [*]    $ 3,000,000.00   


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  35843         36038       [*]    [*]    [*]    [*]    $ 5,000,000.00   
  37660         37842       [*]    [*]    [*]    [*]    $ 5,000,000.00   
  12601         12882       [*]    [*]    [*]    [*]    $ 4,000,000.00   
  12632         12913       [*]    [*]    [*]    [*]    $ 4,000,000.00   
  13364         13650       [*]    [*]    [*]    [*]    $ 2,000,000.00   
  105         108       [*]    [*]    [*]    [*]    $ 10,000,000.00   
  134         138       [*]    [*]    [*]    [*]    $ 835,000.00   
  171         177       [*]    [*]    [*]    [*]    $ 3,000,000.00   
  1231         1399       [*]    [*]    [*]    [*]    $ 6,500,000.00   
  2165         2428       [*]    [*]    [*]    [*]    $ 10,000,000.00   
  2926         3022       [*]    [*]    [*]    [*]    $ 1,200,000.00   
  3291         3543       [*]    [*]    [*]    [*]    $ 15,000,000.00   
  3449         3684       [*]    [*]    [*]    [*]    $ 8,000,000.00   
  3985         4226       [*]    [*]    [*]    [*]    $ 3,000,000.00   
  4227         4459       [*]    [*]    [*]    [*]    $ 5,000,000.00   
  4764         38448       [*]    [*]    [*]    [*]    $ 3,500,000.00   
  5143         5362       [*]    [*]    [*]    [*]    $ 2,500,000.00   
  5281         5503       [*]    [*]    [*]    [*]    $ 6,000,000.00   
  7564         7806       [*]    [*]    [*]    [*]    $ 1,800,000.00   
  8285         8527       [*]    [*]    [*]    [*]    $ 9,500,000.00   
  10208         10464       [*]    [*]    [*]    [*]    $ 9,000,000.00   
  10984         11246       [*]    [*]    [*]    [*]    $ 5,000,000.00   
  11081         11343       [*]    [*]    [*]    [*]    $ 3,000,000.00   
  11084         11346       [*]    [*]    [*]    [*]    $ 2,500,000.00   
  11299         11563       [*]    [*]    [*]    [*]    $ 10,000,000.00   
  11413         11681       [*]    [*]    [*]    [*]    $ 8,000,000.00   
  11451         11719       [*]    [*]    [*]    [*]    $ 10,000,000.00   
  11518         11786       [*]    [*]    [*]    [*]    $ 10,000,000.00   
  11520         11788       [*]    [*]    [*]    [*]    $ 10,000,000.00   
  11983         12261       [*]    [*]    [*]    [*]    $ 2,000,000.00   


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  12226         12506       [*]    [*]    [*]    [*]    $ 1,400,000.00   
  12401         12681       [*]    [*]    [*]    [*]    $ 3,000,000.00   
  12409         12689       [*]    [*]    [*]    [*]    $ 3,000,000.00   
  12416         12696       [*]    [*]    [*]    [*]    $ 8,000,000.00   
  12417         12697       [*]    [*]    [*]    [*]    $ 2,000,000.00   
  12425         12705       [*]    [*]    [*]    [*]    $ 826,000.00   
  12607         12888       [*]    [*]    [*]    [*]    $ 5,000,000.00   
  12671         12952       [*]    [*]    [*]    [*]    $ 6,000,000.00   
  12723         13004       [*]    [*]    [*]    [*]    $ 7,000,000.00   
  12739         13020       [*]    [*]    [*]    [*]    $ 7,000,000.00   
  12849         35667       [*]    [*]    [*]    [*]    $ 14,000,000.00   
  12902         13184       [*]    [*]    [*]    [*]    $ 1,500,000.00   
  13101         36993       [*]    [*]    [*]    [*]    $ 5,000,000.00   
  13136         13420       [*]    [*]    [*]    [*]    $ 8,000,000.00   
  13317         38439       [*]    [*]    [*]    [*]    $ 10,000,000.00   
  13355         13641       [*]    [*]    [*]    [*]    $ 9,700,000.00   
  13359         13645       [*]    [*]    [*]    [*]    $ 2,000,000.00   
  13370         13656       [*]    [*]    [*]    [*]    $ 10,000,000.00   
  13448         13734       [*]    [*]    [*]    [*]    $ 10,000,000.00   
  13493         38451       [*]    [*]    [*]    [*]    $ 10,000,000.00   
  13550         13836       [*]    [*]    [*]    [*]    $ 6,000,000.00   
  13640         12221       [*]    [*]    [*]    [*]    $ 5,000,000.00   
  13695         13945       [*]    [*]    [*]    [*]    $ 2,025,000.00   
  13710         13959       [*]    [*]    [*]    [*]    $ 3,000,000.00   
  19973         20209       [*]    [*]    [*]    [*]    $ 7,000,000.00   
  20231         20447       [*]    [*]    [*]    [*]    $ 4,000,000.00   
  23721         23939       [*]    [*]    [*]    [*]    $ 10,000,000.00   
  24397         24614       [*]    [*]    [*]    [*]    $ 1,500,000.00   
  25033         25248       [*]    [*]    [*]    [*]    $ 3,000,000.00   
  25816         26030       [*]    [*]    [*]    [*]    $ 2,500,000.00   
  34471         34678       [*]    [*]    [*]    [*]    $ 5,000,000.00   


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

        Initial Advance Lexington Schedule

AIG Subrogated Policies

[Attached]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Internal
ID
     Quote
Internal
ID
    

Policy
Owner

Last
Name

  

Policy
Owner

First
Name

   Person-Social
Security
   Policy
#
   Insurance Company    Death Benefit      Current Owner
  88         91       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  102         105       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  105         108       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  147         152       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  160         166       [*]    [*]    [*]    [*]    [*]    $ 1,200,000.00       Wilmington Trust, N.A. as Securities Intermediary
  167         173       [*]    [*]    [*]    [*]    [*]    $ 1,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  1131         1295       [*]    [*]    [*]    [*]    [*]    $ 5,900,000.00       Wilmington Trust, N.A. as Securities Intermediary
  1701         1908       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  2027         2291       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  2153         2420       [*]    [*]    [*]    [*]    [*]    $ 4,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  2165         2428       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  2458         2744       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  2568         2852       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  2885         2260       [*]    [*]    [*]    [*]    [*]    $ 7,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  2909         3170       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  2946         1934       [*]    [*]    [*]    [*]    [*]    $ 2,300,000.00       Wilmington Trust, N.A. as Securities Intermediary
  3291         3543       [*]    [*]    [*]    [*]    [*]    $ 15,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  3449         3684       [*]    [*]    [*]    [*]    [*]    $ 8,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  3822         4056       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  3984         4225       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  4004         4247       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  4227         4459       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  4263         4492       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  4875         5093       [*]    [*]    [*]    [*]    [*]    $ 1,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  4910         5131       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  4980         5011       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  5077         5293       [*]    [*]    [*]    [*]    [*]    $ 2,345,000.00       Wilmington Trust, N.A. as Securities Intermediary
  5143         5362       [*]    [*]    [*]    [*]    [*]    $ 2,500,000.00       Wilmington Trust, N.A. as Securities Intermediary


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  5152         5371       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  5311         5533       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  5424         5631       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  5440         5666       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  5459         5685       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  5512         5754       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  5513         5755       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  5659         5901       [*]    [*]    [*]    [*]    [*]    $ 5,600,000.00       Wilmington Trust, N.A. as Securities Intermediary
  5803         6046       [*]    [*]    [*]    [*]    [*]    $ 2,173,000.00       Wilmington Trust, N.A. as Securities Intermediary
  5863         4396       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  5963         6207       [*]    [*]    [*]    [*]    [*]    $ 1,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  5992         6237       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  6173         6228       [*]    [*]    [*]    [*]    [*]    $ 3,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  6696         6937       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  6810         7050       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  6875         7115       [*]    [*]    [*]    [*]    [*]    $ 1,200,000.00       Wilmington Trust, N.A. as Securities Intermediary
  7309         7550       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  7564         7806       [*]    [*]    [*]    [*]    [*]    $ 1,800,000.00       Wilmington Trust, N.A. as Securities Intermediary
  7953         8194       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  7982         8223       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  8022         8263       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  8478         8722       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  8574         8818       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  8590         8834       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  9391         9642       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  10057         10313       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  10208         10464       [*]    [*]    [*]    [*]    [*]    $ 9,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  10440         10700       [*]    [*]    [*]    [*]    [*]    $ 2,700,000.00       Wilmington Trust, N.A. as Securities Intermediary
  10444         10704       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  10508         10769       [*]    [*]    [*]    [*]    [*]    $ 15,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  10602         10864       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  10723         10985       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  10824         11086       [*]    [*]    [*]    [*]    [*]    $ 2,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  10984         11246       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  10991         11253       [*]    [*]    [*]    [*]    [*]    $ 4,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  10996         11258       [*]    [*]    [*]    [*]    [*]    $ 8,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  11002         11264       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  11081         11343       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  11299         11563       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  11338         11603       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  11413         11681       [*]    [*]    [*]    [*]    [*]    $ 8,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  11450         11718       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  11514         11782       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  11518         11786       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  11520         11788       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  11823         12099       [*]    [*]    [*]    [*]    [*]    $ 2,250,000.00       Wilmington Trust, N.A. as Securities Intermediary
  11983         12261       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12226         12506       [*]    [*]    [*]    [*]    [*]    $ 1,400,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12395         12675       [*]    [*]    [*]    [*]    [*]    $ 1,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12401         12681       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12403         12683       [*]    [*]    [*]    [*]    [*]    $ 7,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12404         12684       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12405         12685       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12406         12686       [*]    [*]    [*]    [*]    [*]    $ 1,750,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12407         12687       [*]    [*]    [*]    [*]    [*]    $ 1,300,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12408         12688       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12409         12689       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12410         12690       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12412         12692       [*]    [*]    [*]    [*]    [*]    $ 1,379,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12414         12694       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12416         12696       [*]    [*]    [*]    [*]    [*]    $ 8,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12417         12697       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  12425         12705       [*]    [*]    [*]    [*]    [*]    $ 826,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12426         12706       [*]    [*]    [*]    [*]    [*]    $ 9,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12427         12707       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12455         12735       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12493         12774       [*]    [*]    [*]    [*]    [*]    $ 20,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12543         12824       [*]    [*]    [*]    [*]    [*]    $ 1,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12581         12862       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12592         12873       [*]    [*]    [*]    [*]    [*]    $ 777,350.00       Wilmington Trust, N.A. as Securities Intermediary
  12601         12882       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12607         12888       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12620         12901       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12631         12912       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12632         12913       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12639         12920       [*]    [*]    [*]    [*]    [*]    $ 830,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12642         12923       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12645         12926       [*]    [*]    [*]    [*]    [*]    $ 2,405,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12671         12952       [*]    [*]    [*]    [*]    [*]    $ 6,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12721         13002       [*]    [*]    [*]    [*]    [*]    $ 775,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12736         13017       [*]    [*]    [*]    [*]    [*]    $ 2,128,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12737         13018       [*]    [*]    [*]    [*]    [*]    $ 1,955,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12739         13020       [*]    [*]    [*]    [*]    [*]    $ 7,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12898         13180       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12900         13182       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12901         13183       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12902         13184       [*]    [*]    [*]    [*]    [*]    $ 1,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12948         13230       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13136         13420       [*]    [*]    [*]    [*]    [*]    $ 8,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13255         13541       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13343         13629       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13355         13641       [*]    [*]    [*]    [*]    [*]    $ 9,700,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13356         13642       [*]    [*]    [*]    [*]    [*]    $ 7,784,000.00       Wilmington Trust, N.A. as Securities Intermediary


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  13357         13643       [*]    [*]    [*]    [*]    [*]    $ 8,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13358         13644       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13359         13645       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13360         13646       [*]    [*]    [*]    [*]    [*]    $ 9,800,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13361         13647       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13363         13649       [*]    [*]    [*]    [*]    [*]    $ 8,412,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13365         13651       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13367         13653       [*]    [*]    [*]    [*]    [*]    $ 2,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13370         13656       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13374         13660       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13375         13661       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13376         13662       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13401         13687       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13443         13729       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13444         13730       [*]    [*]    [*]    [*]    [*]    $ 1,100,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13445         13731       [*]    [*]    [*]    [*]    [*]    $ 1,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13447         13733       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13448         13734       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13451         13737       [*]    [*]    [*]    [*]    [*]    $ 1,172,500.00       Wilmington Trust, N.A. as Securities Intermediary
  13459         13745       [*]    [*]    [*]    [*]    [*]    $ 5,200,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13465         13751       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13492         13778       [*]    [*]    [*]    [*]    [*]    $ 8,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13495         13781       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13608         13894       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13695         13945       [*]    [*]    [*]    [*]    [*]    $ 2,025,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13697         13942       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13709         13958       [*]    [*]    [*]    [*]    [*]    $ 4,200,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13710         13959       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13779         14027       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13841         14090       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13844         14093       [*]    [*]    [*]    [*]    [*]    $ 9,000,000.00       Wilmington Trust, N.A. as Securities Intermediary


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  14071         14319       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  9406         9657       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  11188         11451       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13761         14009       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  14478         14726       [*]    [*]    [*]    [*]    [*]    $ 4,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  15308         15551       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  16931         17173       [*]    [*]    [*]    [*]    [*]    $ 9,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  17325         17566       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  17621         17861       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  18703         18941       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  19570         19808       [*]    [*]    [*]    [*]    [*]    $ 6,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  19571         19809       [*]    [*]    [*]    [*]    [*]    $ 6,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  19572         19810       [*]    [*]    [*]    [*]    [*]    $ 6,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  19618         19856       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  20060         20296       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  20162         20398       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  21141         21360       [*]    [*]    [*]    [*]    [*]    $ 1,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  21436         21655       [*]    [*]    [*]    [*]    [*]    $ 8,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  21716         21935       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  22017         22236       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  22118         22337       [*]    [*]    [*]    [*]    [*]    $ 6,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  22129         22348       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  23253         23471       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  23634         23852       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  23721         23939       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  23966         24184       [*]    [*]    [*]    [*]    [*]    $ 3,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  24397         24614       [*]    [*]    [*]    [*]    [*]    $ 1,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  24822         25038       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  25033         25248       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  25772         25986       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  25816         26030       [*]    [*]    [*]    [*]    [*]    $ 2,500,000.00       Wilmington Trust, N.A. as Securities Intermediary


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  25930         26144       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  26032         26246       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  26289         26503       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  26332         26546       [*]    [*]    [*]    [*]    [*]    $ 2,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  26501         26715       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  26940         27154       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  26991         27205       [*]    [*]    [*]    [*]    [*]    $ 1,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  27073         27287       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  27216         27430       [*]    [*]    [*]    [*]    [*]    $ 8,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  27759         27973       [*]    [*]    [*]    [*]    [*]    $ 1,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  27888         28102       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  28661         28875       [*]    [*]    [*]    [*]    [*]    $ 4,875,000.00       Wilmington Trust, N.A. as Securities Intermediary
  28777         28991       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  28942         29156       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  29126         29340       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  29127         29341       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  29128         29342       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  29129         29343       [*]    [*]    [*]    [*]    [*]    $ 1,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  29130         29344       [*]    [*]    [*]    [*]    [*]    $ 2,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  29455         29678       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  29571         29794       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  29591         29814       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  29858         30081       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  30070         30293       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  30149         30372       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  30244         30467       [*]    [*]    [*]    [*]    [*]    $ 7,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  30440         30663       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  31185         31405       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  31336         31555       [*]    [*]    [*]    [*]    [*]    $ 3,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  31405         31622       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  31596         31812       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  32234         32446       [*]    [*]    [*]    [*]    [*]    $ 8,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  32883         33095       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  33156         33368       [*]    [*]    [*]    [*]    [*]    $ 4,875,000.00       Wilmington Trust, N.A. as Securities Intermediary
  33380         33592       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  33875         34084       [*]    [*]    [*]    [*]    [*]    $ 3,200,000.00       Wilmington Trust, N.A. as Securities Intermediary
  33932         34141       [*]    [*]    [*]    [*]    [*]    $ 1,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  34872         35079       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  5288         5510       [*]    [*]    [*]    [*]    [*]    $ 2,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  8875         9120       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  9447         9698       [*]    [*]    [*]    [*]    [*]    $ 9,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12200         12480       [*]    [*]    [*]    [*]    [*]    $ 7,850,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12723         13004       [*]    [*]    [*]    [*]    [*]    $ 7,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  12945         13227       [*]    [*]    [*]    [*]    [*]    $ 3,750,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13021         13305       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13354         13640       [*]    [*]    [*]    [*]    [*]    $ 3,125,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13471         13757       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13528         13814       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13589         13875       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13626         13911       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13795         14043       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13912         14160       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  13978         14226       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  14013         14261       [*]    [*]    [*]    [*]    [*]    $ 4,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  14082         14330       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  14117         14365       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  14216         14464       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  14218         14466       [*]    [*]    [*]    [*]    [*]    $ 1,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  14219         14467       [*]    [*]    [*]    [*]    [*]    $ 1,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  14500         13929       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  14873         15116       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  15001         15244       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  15141         15384       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  15370         15613       [*]    [*]    [*]    [*]    [*]    $ 1,800,000.00       Wilmington Trust, N.A. as Securities Intermediary
  16102         16345       [*]    [*]    [*]    [*]    [*]    $ 1,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  16160         16403       [*]    [*]    [*]    [*]    [*]    $ 2,500,000.00       Wilmington Trust, N.A. as Securities Intermediary
  16175         16418       [*]    [*]    [*]    [*]    [*]    $ 7,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  16176         16419       [*]    [*]    [*]    [*]    [*]    $ 5,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  17138         17380       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  18266         18504       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  18631         18869       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  19107         19345       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  19333         19571       [*]    [*]    [*]    [*]    [*]    $ 3,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  19909         20145       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  19973         20209       [*]    [*]    [*]    [*]    [*]    $ 7,000,000.00       Wilmington Trust, N.A. as Securities Intermediary
  21490         21709       [*]    [*]    [*]    [*]    [*]    $ 1,758,713.00       Wilmington Trust, N.A. as Securities Intermediary
  4119         4196       [*]    [*]    [*]    [*]    [*]    $ 3,500,000.00       Imperial PFC Financing LLC
  4534         4756       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Imperial PFC Financing LLC
  9542         9795       [*]    [*]    [*]    [*]    [*]    $ 2,500,000.00       Imperial PFC Financing LLC
  10479         10739       [*]    [*]    [*]    [*]    [*]    $ 7,500,000.00       Imperial PFC Financing LLC
  12418         12698       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Imperial PFC Financing LLC
  13364         13650       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Imperial PFC Financing LLC
  26454         26668       [*]    [*]    [*]    [*]    [*]    $ 2,000,000.00       Imperial PFC Financing II, LLC
  14864         15107       [*]    [*]    [*]    [*]    [*]    $ 10,000,000.00       Imperial Life Financing II, LLC


    EXHIBIT A

FORM OF BORROWING REQUEST

[DATE]

CLMG Corp.,

as Administrative Agent

7195 Dallas Parkway

Plano, TX 75024

Attention: James Erwin

Telephone:

Facsimile:

Email:

Ladies and Gentlemen:

Reference is made to the Loan and Security Agreement, dated as of April 29, 2013 (as amended, supplemented or otherwise modified from time to time, the “ Loan Agreement ”), by and among White Eagle Asset Portfolio, LLC, as Borrower, the financial institutions party thereto, as Lenders, Imperial Finance & Trading, LLC, as Servicer and Portfolio Manager, and CLMG Corp., as Administrative Agent. All capitalized terms used but not defined herein shall have the meanings assigned to them in Annex I to the Loan Agreement.

The undersigned hereby gives you irrevocable notice, pursuant to Section 2.2 of the Loan Agreement, that it requests an Advance under the Loan Agreement and in connection therewith sets forth the following information related to such Advance:

 

  (i)

The Advance is [the Initial Advance] 1 [an Additional Policy Advance] 2 [an Ongoing Maintenance Advance] 3 ;

 

  (ii) The principal amount of the proposed Advance is $[            ]; [and]

 

  (iii)

[The Subject Policies to be pledged in connection with such Advance are identified on Exhibit A;] 1 [The Additional Policies to be pledged in connection with such Advance are identified on Exhibit A;] 2 [The proceeds of such Advance shall be used for the purposes set forth on Schedule I; and] 3

 

  [(iv)]

The Borrowing Base Certificate is attached hereto as Exhibit [A] 3 [B] 1, 2 .

[The undersigned hereby confirms that the related Collateral Packages have been uploaded to the FTP Site.] 1, 2

 

1  

To be included if Advance is the Initial Advance.

2  

To be included if Advance is an Additional Policy Advance.

3  

To be included if Advance is an Ongoing Maintenance Advance.


The undersigned hereby certifies that as of the date hereof, and as of the date of the requested Advance, all conditions precedent to the making of the Advance as set forth in Section [7.1][7.2][7.3] of the Loan Agreement have been met.

In accordance with the Loan Agreement, the undersigned hereby irrevocable requests the Administrative Agent to process this request.

 

Very truly yours,
WHITE EAGLE ASSET PORTFOLIO, LLC
By:  

 

Name:  
Title:  


[EXHIBIT A TO THE BORROWING REQUEST]

[SUBJECT] [ADDITIONAL] POLICIES

[Attach a spreadsheet containing the following data points for each Policy included in the Borrowing Request:

 

  1. Case Number

 

  2. Insured #1

 

  a. Age

 

  b. Date of Birth

 

  c. Date of Death

 

  d. Gender

 

  e. Smoking Status

 

  3. Insured #2 (if applicable)

 

  a. Age

 

  b. Date of Birth

 

  c. Date of Death

 

  d. Gender

 

  e. Smoking Status

 

  4. Number of Insured Lives

 

  5. Owner State of Residence

 

  6. Domicile of Trust (if applicable)

 

  7. Policy Issue Date

 

  8. Policy State of Issuance

 

  9. Policy Number

 

  10. Issuing Insurance Company

 

  11. Issuing Insurance Company Credit Rating

 

  12. Initial Face Amount

 

  13. Current Face Amount

 

  14. [Current Policy Account Balance][ Not required until after Imperial receives the policy’s next account statement, which will be after the policy anniversary date.]

 

  15. Type of Death Benefit (A, B, C)

 

  16. Policy Rating

 

  17. Policy Type (Term, Whole life, Variable Universal, Universal)

 

  18. Premium Finance (yes/no)

 

  19. Premium Finance Program (if applicable)

 

  20. Beneficial Interest Transfer (yes/no)

 

  21. Beneficial Interest Program (if applicable)

 

  22. Policy Purchase Price (first related entity to acquire policy)

 

  23. Policy Cost Basis

 

  24. Premiums Paid to Date (since policy origination)

 

  25. Medical Underwriting/reports

 

  a. Insured #1

 

  i. AVS, EMSI or Fasano – (LE / Mortality Multiplier / Date)

 

  ii.

21 st Services (Median LE / Mean LE / Mortality Multiplier / Date)

 

  b. Insured #2 (if applicable)

 

  i. AVS, EMSI or Fasano – (LE / Mortality Multiplier / Date)

 

  ii.

21 st Services (Median LE / Mean LE / Mortality Multiplier / Date)

 

  26. Death Benefit Payable Monthly or Quarterly out through Age 120

 

  27. [Level Premiums Payable Monthly or Quarterly through Age 120][ Not required until next illustrations are received following the Closing Date.]

 

  28. Optimized Premiums Payable Monthly or Quarterly through Age 120 with confirmation computed from policy illustration or Policy (disclosing whether shadow account or no lapse guarantee exists)

 

  29. Authorizations for Annuities or Annuities currently in place]


EXHIBIT [A][B] TO THE BORROWING REQUEST

BORROWING BASE CERTIFICATE


[SCHEDULE I TO THE BORROWING REQUEST]

USES OF ONGOING MAINTENANCE ADVANCE


    EXHIBIT B

FORM OF LENDER NOTE

 

     [New York, New York]
Up to $[300,000,000]    [    ], 20[    ]

FOR VALUE RECEIVED, the undersigned, White Eagle Asset Portfolio, LLC, a Delaware limited liability company (the “ Borrower ”) promises to pay to the order of [    ], a [    ] (together with its successors and permitted assigns, the “ Lender ”), in its capacity as a Lender, the aggregate unpaid principal amount of all Advances made by the Lender to, or for the benefit of, the Borrower, as recorded either on the grid attached to this Note or in the records of the Lender (and such recordation shall constitute prima facie evidence of the information so recorded; provided , however , that the failure to make any such recordation shall not in any way affect the Borrower’s obligation to repay this Note). The principal amount of each Advance evidenced hereby shall be payable on or prior to the Maturity Date as provided in the Loan Agreement. Borrower also promises to pay to the Lenders all other Obligations (which, for the avoidance of doubt, may exceed $[300,000,000]).

The Borrower further promises to pay interest on the unpaid principal amount of this Note from time to time outstanding, payable as provided in the Loan Agreement, at the rates per annum provided in the Loan Agreement; provided , however , that such interest rate shall not at any time exceed the maximum rate permitted by Applicable Law. All payments of principal of and interest on this Note shall be payable in lawful currency of the United States of America at the office of the Lender as provided in the Loan Agreement, in immediately available funds.

This Note is one of the Lender Notes referred to in that certain Loan and Security Agreement, dated as of April 29, 2013 (as amended, supplemented or otherwise modified from time to time, the “ Loan Agreement ”), by and among the Borrower, the financial institutions party thereto, as Lenders, [CLMG Corp.], as Administrative Agent and Imperial Finance & Trading, LLC, as Servicer and Portfolio Manager. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in Annex I to the Loan Agreement. In the event of any conflict between any term or provision of this Note and the Loan Agreement, the terms and provisions of the Loan Agreement shall govern and control. This Note is secured pursuant to the security interests granted in the Loan Agreement and the other Transaction Documents and reference is hereby made to the Loan Agreement and the other Transaction Documents for a statement of the terms and provisions of such security interests.

All parties now or hereafter liable with respect to this Note, whether as makers, endorsers, or otherwise, severally waive presentment for payment, demand, protest, and notice of dishonor and notice of the existence or nonpayment of all or any of the Advances.

Upon the occurrence of any Event of Default, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable, all as provided in the Loan Agreement.


This Note shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed in such State, excluding choice of law principles of the laws of such State that would require the application of the laws of a jurisdiction other than such State.

IN WITNESS WHEREOF, the undersigned has caused this Note to be executed by its duly authorized officer as of the day and year first above written.

 

WHITE EAGLE ASSET PORTFOLIO, LLC
By:  

 

Name:  
Title:  

 

2


GRID ATTACHED TO NOTE

DATED [            ], 20[    ]

WHITE EAGLE ASSET PORTFOLIO, LLC, AS BORROWER

PAYABLE TO THE ORDER OF

[        ]

 

Date

   Amount of
Advance
   Outstanding
Principal
Balance
   Interest Rate    Interest Period    Notation Made
By
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              


    EXHIBIT C

FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT

ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of [            ], 20[     ] (“ Agreement ”), by and between [            ], a [            ] (“ Assignor ”), and [            ], a [            ] (“ Assignee ”).

1. Reference to Loan Agreement . Reference is made to that certain Loan and Security Agreement, dated as of as of April 29, 2013 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”), by and among White Eagle Asset Portfolio, LLC, as Borrower, the financial institutions party thereto, as Lenders, Imperial Finance & Trading, LLC, as Servicer and Portfolio Manager, and CLMG Corp., as Administrative Agent. Capitalized terms used but not defined herein have the meanings ascribed to them in the Loan Agreement.

2. Assignment . The Assignor hereby sells and assigns to the Assignee without recourse and without representation or warranty (other than as expressly provided herein), and the Assignee hereby purchases and assumes from the Assignor, that interest in and to all of the Assignor’s rights and obligations under the Loan Agreement as of the date hereof which represents the percentage interest specified in Item 2 of Annex I attached hereto (the “ Assigned Share ”) of all of its outstanding rights and obligations under the Loan Agreement, including, without limitation, all rights and obligations with respect to the Assigned Share of the Commitment and all outstanding Advances.

3. Representations and Warranties of Assignor . The Assignor (i) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any liens or security interests; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, representations or warranties made in or in connection with the Loan Agreement or the other Transaction Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Agreement or the other Transaction Documents or any other instrument or document furnished pursuant thereto; and (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of their obligations under the Loan Agreement or the other Transaction Documents or any other instrument or document furnished pursuant thereto.

4. Representations and Warranties of Assignee . The Assignee (i) represents and warrants that it is authorized to enter into and perform the terms of this Agreement, the Loan Agreement and the other Transaction Documents to which it will become a party pursuant to this Agreement; (ii) confirms that it has received a copy of the Loan Agreement and the other Transaction Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (iii) agrees that it will, independently and without reliance upon the Administrative Agent, the Assignor or any other Lender and based on such documents and information as it shall deem appropriate at


the time, continue to make its own credit decisions in taking or not taking action under the Loan Agreement; (iv) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Loan Agreement and the other Transaction Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (v) agrees that it shall be bound by the provisions of the Loan Agreement.

5. Settlement Date . Following the execution of this Agreement by the Assignor and the Assignee, an executed original hereof (together with all attachments) will be delivered to the Administrative Agent. The effective date of this Assignment Agreement shall be the later of (x) the date upon which the following conditions have been satisfied: (i) the execution hereof by the Assignor and the Assignee and (ii) to the extent required the Loan Agreement, the consent hereto by the Required Lenders and/or the Borrower has been obtained or (y) such date as is otherwise specified in Item 3 of Annex I hereto (the “ Settlement Date ”).

6. Joinder . Upon the delivery of a fully executed original hereof to the Administrative Agent, as of the Settlement Date, (i) the Assignee shall be a party to the Loan Agreement and, to the extent provided in this Agreement, have the rights and obligations of a Lender thereunder and under the other Transaction Documents and (ii) the Assignor shall, to the extent provided in this Agreement, relinquish its rights and be released from its obligations under the Loan Agreement and the other Transaction Documents with respect to the Assigned Share.

7. Payments . Upon the effectiveness of this Agreement, the Assignee shall be entitled to all interest on the Assigned Share of the Advances at the rates determined in accordance with the Loan Agreement attached hereto which accrue on and after the Settlement Date, such interest to be paid to the Assignee pursuant to the provisions of Sections 5.2(b) and 5.2(c) of the Loan Agreement. It is further agreed that all payments of principal [and the Participation Interest Percentage] made on the Assigned Share of the Advances which occur on and after the Settlement Date will be paid to the Assignee pursuant to the provisions of Sections 5.2(b), 5.2(c) and 5.2(e) of the Loan Agreement, as applicable. Upon the Settlement Date, the Assignee shall pay to the Assignor an amount specified by the Assignor in writing which represents the Assigned Share of the principal amount of the respective Advances made by the Assignor pursuant to the Loan Agreement which are outstanding on the Settlement Date, net of any closing costs. The Assignor and the Assignee shall make all appropriate adjustments in payments under the Loan Agreement for periods prior to the Settlement Date directly between themselves.

8. Governing Law . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE, EXCLUDING CHOICE OF LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

[Remainder of Page Intentionally Left Blank]

 

2


IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first above written.

 

[NAME OF ASSIGNOR],
as Assignor
By:  

 

Name:  

 

Title:  

 

[NAME OF ASSIGNEE],
as Assignee
By:  

 

Name:  

 

Title:  

 

 

3


[Acknowledged and Agreed:

[                    ],

as a Lender

By:  

 

Name:  

 

Title:  

 

By:  

 

Name:  

 

Title:  

 

[                    ],

as a Lender

By:  

 

Name:  

 

Title:  

 

By:  

 

Name:  

 

Title:  

 

[                    ],

as Borrower

By:  

 

Name:  

 

Title:  

 

 

4


ANNEX I TO ASSIGNMENT AND ASSUMPTION AGREEMENT

 

1 Date of Assignment Agreement:

                     , 20    

 

2. Amounts (as of date of Assignment Agreement):

 

  (a) Aggregate principal amount of outstanding Advances of all Lenders:

$             

 

  (b) Assigned Share of (a) above:

    %

 

  (c) Amount of assigned principal of outstanding Advances:

$            

 

3. Settlement Date:

                     , 20    


    EXHIBIT D

FORM OF CALCULATION DATE REPORT


Calculation Date Report

Dated as of             

For the Distribution Date occurring on             

 

  I. Account Balances as of the date of this Calculation Date Report are as follows:

 

Collection Account

   $                

Payment Account

   $     

Borrower Account

   $     

Escrow Account

   $     

Borrower to complete the appropriate section below:

 

  II. Prior to the Partial Repayment Date, so long as an Unmatured Event of Default or an Event of Default has not occurred and is not continuing, funds on deposit in the Collection Account shall be distributed as provided in the following stages of the Priority of Payments pursuant to Section 5.2(b) of the Loan and Security Agreement:

 

First:

   $                

Second:

   $     

Third:

   $     

Fourth:

   $     

Fifth:

   $     

Sixth:

   $     

Seventh:

   $     

Eighth:

   $     

Ninth:

   $     

Tenth:

   $     

Eleventh:

   $     

Twelfth:

   $     

Thirteenth:

   $     

 

  III. Prior to the Partial Repayment Date, if an Unmatured Event of Default or Event of Default has occurred and is continuing and is not waived In writing by the Required Lenders, funds on deposit in the Collection Account shall be distributed as provided in the following stages of the Priority of Payments pursuant to Section 5.2(c) of the Loan and Security Agreement:

 

First:

   $                

Second:

   $     

Third:

   $     

Fourth:

   $     

Fifth:

   $     

Sixth:

   $     

Seventh:

   $     

Eighth:

   $     

Ninth:

   $     

Tenth:

   $     

Eleventh:

   $     

Twelfth:

   $     

Thirteenth:

   $     

Fourteenth:

   $     

Fifteenth:

   $     

Sixteenth:

   $     

Seventeenth:

   $     

 

  IV. Following the Partial Repayment Date, funds on deposit in the Collection Account shall be distributed as provided in the following stages of the Priority of Payments pursuant to Section 5.2(e) of the Loan and Security Agreement:

 

First:

   $                

Second:

   $     

Third:

   $     

Fourth:

   $     

Fifth:

   $     

Sixth:

   $     

Seventh:

   $     

Eighth:

   $     

Ninth:

   $     

Tenth:

   $     

Eleventh:

   $     

Twelfth:

   $     

The undersigned hereby certifies that the information set forth in this Calculation Date Report is true and correct.

 

White Eagle Asset Portfolio, LLC, as Borrower
By:  

 

Name:  
Title:  


    EXHIBIT E

FORM OF ANNUAL BUDGET

ATTACHED


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

Operational Plan – 18 Months (May 2013 to October 2014)

 

Draw Period

 

Premiums

 

Servicing

 

Management

 

Audit

 

Other

 

Total

5-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

5-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

6-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

6-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

7-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

7-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

8-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

8-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

9-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

9-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

10-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

10-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

11-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

11-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

12-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

12-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

1-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

1-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

2-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

2-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

3-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

3-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

4-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

4-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

5-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

5-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

6-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

6-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

7-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

7-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

8-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

8-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

9-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

9-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

10-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

10-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]
 

 

 

 

 

 

 

 

 

 

 

 

Totals

  [*]   [*]   [*]   [*]   [*]   [*]
 

 

 

 

 

 

 

 

 

 

 

 


    EXHIBIT F

FORM OF BORROWING BASE CERTIFICATE

[DATE]

CLMG Corp.,

as Administrative Agent

7195 Dallas Parkway

Plano, TX 75024

Attention: James Erwin

Telephone:

Facsimile:

Email:

Ladies and Gentlemen:

This Borrowing Base Certificate is delivered to you pursuant to Section 2.2 of that certain Loan and Security Agreement, dated as of April 29, 2013 (as amended, supplemented or otherwise modified from time to time, the “ Loan Agreement ”), by and among White Eagle Asset Portfolio, LLC, as Borrower, the financial institutions party thereto, as Lenders, Imperial Finance & Trading, LLC, as Servicer and Portfolio Manager, and CLMG Corp., as Administrative Agent. All capitalized terms used but not defined herein shall have the meanings assigned to them in Annex I to the Loan Agreement.

The Borrower hereby:

 

 

certifies that as of the date hereof, the Borrowing Base is $            ;

 

 

certifies that as of the date hereof, the aggregate amount of outstanding Advances, together with accrued but unpaid interest thereon is $            ;

 

 

certifies that after giving effect to the proposed Advance, the aggregate principal amount of all the outstanding Advances, together with accrued but unpaid interest thereon, will not exceed the Borrowing Base.

The Borrower’s delivery of this Borrowing Base Certificate and acceptance of the Advance requested hereunder constitutes a representation and warranty by the Borrower that, as of the date of such Advance (and after giving effect thereto) all conditions precedent have been satisfied.

The Borrower further agrees that if, prior to the time of the Advance requested hereby, any matter certified to herein by it will not be true and correct at such time as if then made, it will immediately so notify the Administrative Agent. Except to the extent, if any, that prior to the time of the Advance requested hereby, the Administrative Agent shall receive written notice to the contrary from the Borrower, each matter certified to herein shall be deemed once again to be certified as true and correct at the date of such Advance as if then made.


The undersigned has caused this Borrowing Base Certificate to be executed and delivered as of the date first set forth above in his or her capacity as the chief financial officer of the Borrower.

 

WHITE EAGLE ASSET PORTFOLIO, LLC
By:  

 

Name:  
Title:  


    EXHIBIT G

FORM OF ABANDONMENT NOTICE

[CLMG Corp.,

as Administrative Agent

7195 Dallas Parkway

Plano, TX 75024

Attention: James Erwin

Telephone:

Facsimile:

Email:] 1

[Imperial Finance & Trading, LLC,

as Portfolio Manager

701 Park of Commerce Blvd., Suite 301

Boca Raton, FL 33487

Attention: General Counsel

Telephone:

Facsimile:

Email:] 2

Ladies and Gentlemen:

Reference is made to the Loan and Security Agreement, dated as of April 29, 2013 (as amended, supplemented or otherwise modified from time to time, the “ Loan Agreement ”), by and among White Eagle Asset Portfolio, LLC, as Borrower, the financial institutions party thereto, as Lenders, Imperial Finance & Trading, LLC, as Servicer and Portfolio Manager, and CLMG Corp., as Administrative Agent. All capitalized terms used but not defined herein shall have the meanings assigned to them in Annex I to the Loan Agreement.

The undersigned hereby gives you notice, pursuant to Section 2.7(b) of the Loan Agreement, that the undersigned has determined that [the Premiums on the Pledged Policies listed on Schedule I attached hereto should no longer be paid] 1 [Advances should no longer be made in order to pay Premiums on the Pledged Policies listed on Schedule I attached hereto] 2 .

[The undersigned also hereby gives you notice that it wishes to permit the Required Lenders or their designee the right to assume ownership of the Pledged Policies listed on Schedule I attached hereto pursuant to Section 2.7(b) of the Loan Agreement without engaging in the Abandonment Sale Process.] 3

 

1   To be included if the Portfolio Manager is the Determining Party.
2   To be included if the Required Lenders constitute the Determining Party.
3   May be included if the Portfolio Manager is the Determining Party.


Very truly yours,
[IMPERIAL FINANCE & TRADING, LLC, as Portfolio Manager on behalf of the Borrower] 1
[CLMG CORP., as Administrative Agent on behalf of the Required Lenders] 2
By:  

 

Name:  
Title:  


SCHEDULE I TO ABANDONMENT NOTICE

POLICIES


ANNEX I

LIST OF DEFINED TERMS

21st Services ” means 21st Holdings, LLC and its Affiliates and their respective successors.

Abandonment Notice ” has the meaning set forth in Section 2.7(b) of the Loan Agreement.

Abandonment Price ” has the meaning set forth in Section 2.7(b) of the Loan Agreement.

Abandonment Sale Process ” has the meaning set forth in Section 2.7(b) of the Loan Agreement.

Account Control Agreement ” means the Securities Account Control and Custodian Agreement entered into April 29, 2013 by and among the Borrower, the Administrative Agent, the Securities Intermediary and the Custodian, and as the same may be amended, supplemented or otherwise modified from time to time in accordance with the Transaction Documents.

Accounts ” means the Collection Account, the Payment Account and the Escrow Account, collectively.

Acknowledgement ” means, with respect to any Policy, a written acknowledgement from the related Issuing Insurance Company confirming that the records of the Issuing Insurance Company name the Securities Intermediary as the owner and beneficiary of the applicable Policy.

Additional Policies ” means Policies to be acquired by the Borrower with the proceeds of an Additional Policy Advance and/or to be pledged to the Administrative Agent for the benefit of the Lenders in connection with an Additional Policy Advance.

Additional Policy Advance ” shall mean an Advance other than the Initial Advance pursuant to which Additional Policies are pledged to the Administrative Agent under the Loan Agreement.

Additional Policy Advance Amount ” with respect to any Additional Policy Advance, shall mean the amount specified in the related Additional Policy Advance Acceptance.

Additional Policy Advance Acceptance ” has the meaning set forth in Section 2.3(c) of the Loan Agreement.

Administrative Agent ” means CLMG Corp., as Administrative Agent under the Loan Agreement.

Administrative Agent’s Account ” has the meaning set forth in Section 4.3 of the Loan Agreement.


Administrative Agent Fee ” shall mean, with respect to any Distribution Date, a fee in an amount equal to $6,250.

Advance ” means the Initial Advance, an Additional Policy Advance, a Protective Advance or an Ongoing Maintenance Advance, as applicable, and collectively, the “ Advances ”.

Advance Date ” shall mean any date on which an Advance is funded by the Lenders pursuant to the terms of the Loan Agreement, which shall be the Closing Date, any Subsequent Advance Date or the date the Lenders fund any Protective Advance in their sole discretion.

Adverse Claim ” means a Lien, security interest, pledge, charge or encumbrance, or similar right or claim of any Person, other than any Permitted Liens.

Affected Party ” means each Lender, any permitted assignee of any Lender, and any holder of a participation interest in the rights and obligations of any Lender, the Administrative Agent and any Affiliate of any of the foregoing.

Affiliate ” means, with respect to any Person, any other Person that (i) directly or indirectly controls, is controlled by or is under common control with such Person or (ii) is an officer or director of such Person. A Person shall be deemed to be “controlled by” another Person if such other Person possesses, directly or indirectly, power (a) to vote twenty percent (20%) or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managing partners of such Person, or (b) to direct or cause the direction of the management and policies of such Person whether by contract or otherwise. The word “Affiliated” has a correlative meaning.

Aggregate NDB Limit ” has the meaning set forth in Section 10.1(p) of the Loan Agreement.

Aggregate Policy Limit ” has the meaning set forth in Section 10.1(p) of the Loan Agreement.

Aggregate Shortfall Amount Limit ” shall mean an amount equal to twenty-five percent (25%) of the aggregate Initial Face Amount of all of the Policies that are or have at any time been Pledged Policies.

Aggregate Participation Interest ” shall mean the aggregate of all of the Participation Interests for all of the Pledged Policies.

Alternative Information Notice ” has the meaning set forth in Section 5.2(a) of the Loan Agreement.

A.M. Best ” means A.M. Best Company, Inc. and any successor or successors thereto.

Amortization Shortfall Amount ” shall mean, with respect to a Pledged Policy that has become a Shortfall Pledged Policy, the excess of (x) the aggregate of the amounts that would have been distributed to the Administrative Agent for the account of the Lenders on the next Distribution Date occurring after the date on which such Pledged Policy became a Shortfall

 

I-2


Pledged Policy had such Pledged Policy matured and had the related death benefit been timely paid in full by the related Issuing Insurance Company by deposit thereof into the Collection Account prior to the related Calculation Date, pursuant to clauses “ Third ”, “ Fifth ” and “ Sixth ” of Section 5.2(b) of the Loan Agreement or clauses “ Third ”, “ Ninth ” and “ Eleventh ” of Section 5.2(c) of the Loan Agreement, as applicable, as determined by the Administrative Agent on such Calculation Date, over (y) the aggregate of the amounts that will actually be distributed to the Administrative Agent for the account of the Lenders on such Distribution Date pursuant to such clauses “ Third ”, “ Fifth ” and “ Sixth ” of Section 5.2(b) of the Loan Agreement or clauses “ Third ”, “ Ninth ” and “ Eleventh ” of Section 5.2(c) of the Loan Agreement, as applicable, as determined by the Administrative Agent on the related Calculation Date.

Annual Budget ” has the meaning specified in Section 9.1(d)(vi) of the Loan Agreement.

Annual NDB Limit ” has the meaning set forth in Section 10.1(p) of the Loan Agreement.

Annual Policy Limit ” has the meaning set forth in Section 10.1(p) of the Loan Agreement.

Anti-Money Laundering Laws ” has the meaning set forth in Section 8.1(v) of the Loan Agreement.

Applicable Law ” means, as to any Person or any matter, any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or of any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing, in each case applicable to or binding upon such Person (or any of its property) or such matter, or to which such Person (or any of its property) or such matter is subject, including, without limitation, any laws relating to assignments of contracts, life settlements, viatical settlements, insurance, consumers and consumer protection, usury, truth-in-lending, fair credit reporting, equal credit opportunity, federal and state securities or “blue sky” laws, the Federal Trade Commission Act and ERISA, and in the case of Section 6.3 of the Loan Agreement, FATCA.

Applicable Margin ” means four percent (4.00%).

Assignment and Assumption Agreement ” has the meaning set forth in Section 13.4 of the Loan Agreement.

Assignor ” means OLIPP IV, LLC, a Delaware limited liability company.

Assignor Contribution Agreement ” means the Contribution Agreement, dated as of April 29, 2013, by and between the Assignor, as the transferor, and the Parent Pledgor, as the transferee, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the Transaction Documents.

 

I-3


Available Amount ” means, with respect to any Distribution Date, the amount on deposit in the Collection Account.

AVS ” means AVS Underwriting, LLC and its successors.

Base Rate ” means, for any date of determination, the sum of (i) the Federal Funds Rate on such date plus (ii) one half of one percent (0.5%).

Blocked Person ” has the meaning set forth in Section 8.1(v) of the Loan Agreement.

Borrower ” has the meaning set forth in the recitals to the Loan Agreement.

Borrower Account ” has the meaning set forth in Section 5.1(c) of the Loan Agreement.

Borrower Failure Procedures ” has the meaning set forth in Section 5.2(a) of the Loan Agreement.

Borrower Interest Pledge Agreement ” means the Membership Interest Pledge Agreement, dated as of April 29, 2013, made by the Parent Pledgor in favor of the Administrative Agent on behalf of itself and the Lenders, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the Transaction Documents.

Borrower Organizational Documents ” means the certificate of formation and the limited liability company agreement of the Borrower.

Borrower Valuation ” has the meaning set forth in Section 6.5 of the Loan Agreement.

Borrowing Base ” means, on any date of determination, the lesser of (A) the sum of all of the following amounts that have been funded or are to be funded through the succeeding Distribution Date (i) the Initial Advance and all Additional Policy Advances, plus (ii) one-hundred percent (100%) of the sum of the Ongoing Maintenance Costs, plus (iii) one-hundred percent (100%) of the Debt Service, plus (iv) one-hundred percent (100%) of any other Fees and Expense Deposits and other fees and expenses funded and to be funded as approved by the Required Lenders in their sole discretion, less (v) any Required Amortization previously distributed and to be distributed pursuant to the Priority of Payments on the immediately succeeding Distribution Date; (B) seventy-five percent (75%) of the Lender Valuation of the Pledged Policies; (C) fifty percent (50%) of the aggregate face amount of the Pledged Policies (other than the Excluded Policies); and (D) the Facility Limit.

Borrowing Base Certificate ” means a certificate in the form of Exhibit F to the Loan Agreement.

Borrowing Request ” has the meaning set forth in Section 2.2(a) of the Loan Agreement.

Broker ” has the meaning set forth in Section 2.7(b) of the Loan Agreement.

 

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Business Day ” means any day on which commercial banks in Las Vegas, Nevada, Wilmington, Delaware, and Birmingham, Michigan, are not authorized or required to be closed.

Calculation Date ” means (i) the tenth (10th) day following March 31, June 30, September 30 or December 30 of each year, as applicable, beginning in July 2013, or if such day is not a Business Day, then the succeeding Business Day, but (ii) from and after the occurrence and during the continuance of an uncured and unwaived Event of Default, the tenth (10th) of each calendar month that commences thereafter, but (iii) from and after any cure or waiver of any Event of Default, the meaning in clause (i).

Calculation Date Report ” has the meaning set forth in Section 5.2(b) of the Loan Agreement.

Cash Flow Sweep Percentage ” means, on any date of determination, one-hundred percent (100%), unless the Required Lenders acting in their sole and absolute discretion agree at any time and from time to time that such percentage shall be less than one-hundred percent (100%), in which case, the percentage designated in writing by the Administrative Agent, acting at the direction of the Required Lenders, to the Borrower.

Change in Control ” means a change resulting when (i) the Borrower or the Parent Pledgor, as applicable, merges or consolidates with any other Person or permits any other Person to become the successor to its business, and the Borrower or the Parent Pledgor, as applicable, is not the surviving entity after such merger, consolidation or succession, other than as expressly permitted by the Transaction Documents, (ii) the Borrower or the Parent Pledgor, as applicable, conveys, transfers or leases substantially all of its assets as an entirety to another Person, other than as expressly permitted by the Transaction Documents, (iii) any Person shall become the owner, directly or indirectly, beneficially or of record, of equity representing more than fifty percent (50%) of the aggregate ordinary voting power represented by the issued and outstanding equity of the Borrower or the Parent Pledgor or (iv) the Assignor merges or consolidates with any other Person that is not expressly permitted by Section 7.18 of the Assignor Contribution Agreement.

Change Forms ” means, with respect to any Policy, all documents required by the applicable Issuing Insurance Company to be executed by the Borrower (or the Securities Intermediary, as owner thereof for the benefit of the Borrower or the Administrative Agent as secured party pursuant to the Account Control Agreement) to effect change of ownership of and designation of a new owner and beneficiary under such Policy.

Claims ” has the meaning set forth in the Account Control Agreement.

Closing Date ” means April 29, 2013.

Code ” means the Internal Revenue Code of 1986, as amended, or any successor statute.

Collateral ” has the meaning set forth in Section 2.6(a) of the Loan Agreement.

Collateral Audit ” has the meaning set forth in Section 9.1(i) in the Loan Agreement.

 

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Collateral Package ” means all documents and information in the possession or under the control of the Borrower, the Assignor, the Parent Pledgor, Imperial or any Affiliate of any of them, related to the Pledged Policies, including but not limited to, all Policy files related to the purchase or acquisition thereof by any Affiliate of Imperial and the transfer thereof to the Borrower (which shall include the most recent Policy Illustrations, Life Expectancy estimates, the Physician Competency Statement and medical records available to the Borrower) and all documents set forth on Exhibit M to the Account Control Agreement.

Collection Account ” has the meaning set forth in Section 5.1(a) of the Loan Agreement.

Collections ” means, collectively, all payments made from and after the Closing Date to or for the account of or the benefit of the Borrower, Imperial, the Servicer, the Assignor, the Parent Pledgor or any Affiliate of any of them or their agents (including the Securities Intermediary) by or on behalf of the Issuing Insurance Companies or any other Person in respect of the Policies, including without limitation, all Liquidation Proceeds, all proceeds of Policy Loans or withdrawals of cash surrender value made or taken from and after the Closing Date and any proceeds of any other Collateral and sale of Pledged Policies (including Net Proceeds), whether in the form of cash, checks, wire transfers, electronic transfers or any other form of cash payment.

Commitment ” means, with respect to any Lender, the maximum amount that may be advanced by such Lender under the Loan Agreement as specified in Schedule 2.1(a) to the Loan Agreement as the same is amended pursuant to any Assignment and Assumption Agreement.

Commitment Termination Date ” means the earliest to occur of: (i) the Scheduled Commitment Termination Date, and (ii) the effective date on which the Lenders’ Commitment is terminated following the occurrence of an Event of Default not cured within any applicable cure period, as described in Section 10.2 of the Loan Agreement.

Confidential Information ” means (i) the terms and conditions of the Loan Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, including (a) any term sheets, loan applications or other documents related to the Loan Agreement or the Transaction Documents and (b) any copies of such documents or any portions thereof and (ii) any Non-Public Information.

Cure Notice ” means a written notice from the Required Lenders to the Borrower indicating that the Required Lenders are granting the Borrower a cure period not exceeding ninety (90) days in order to cure an occurrence that would otherwise constitute an Event of Default.

Custodian ” means Wilmington Trust, National Association, in its capacity as custodian under the Account Control Agreement.

Custodial Package ” shall mean with respect to a Policy, each of the documents set forth on Exhibit M to the Account Control Agreement.

Debtor Relief Laws ” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.

 

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Debt Service ” means, on any date of determination, the sum of the accrued interest due on all outstanding Advances that do not directly reflect the Rate Floor.

Default Rate ” means, in the event that an Event of Default has occurred and is continuing, the interest rate per annum at which each Loan shall bear interest, equal to the sum of (i) the greater of (A) (1) LIBOR or, if LIBOR is unavailable, (2) the Base Rate and (B) one and a half percent (1.5%) plus (ii) six percent (6%).

Determining Party ” has the meaning set forth in Section 2.7(b) of the Loan Agreement.

Direct Assumption Policies ” has the meaning set forth in Section 2.7(b) of the Loan Agreement.

Disclosing Party ” has the meaning set forth in Section 13.12 of the Loan Agreement.

Distribution Date ” means the fifth day after each Calculation Date (or if such day is not a Business Day, the next succeeding Business Day), beginning in July, 2013.

Dollar ” and the sign “$” shall mean lawful money of the United States of America.

Eligibility Criteria ” with respect to any Policy, means the following criteria, which are to be satisfied or have been waived in writing by the Required Lenders in their sole and absolute discretion as of the Advance Date as of which such Policy becomes a Pledged Policy:

(A) Except if such Policy is set forth on Eligibility Criteria Clause (a) Schedule to the Loan Agreement, the Securities Intermediary is designated as the “owner” and “beneficiary” under the Policy by the Issuing Insurance Company.

(B) The Policy is (i) a single life or survivorship policy, (ii) a fixed or variable universal life, whole life, or convertible term (provided such Policy is converted to a “permanent” life insurance policy prior to becoming a Pledged Policy), (iii) denominated and payable in U.S. Dollars and (iv) issued by a U.S. domiciled insurance company.

(C) The Insured is a United States citizen or permanent resident alien currently residing in the United States as of the date the Policy was acquired by the Borrower, and has documented social security information and photographic identification.

(D) The Insured shall be an individual sixty (60) years old or older.

(E) The Policy shall be in full force.

(F) The Issuing Insurance Company shall (x) have at least one of, but no lower than any one of (i) a financial strength rating of “A-” from A.M. Best or (ii) a financial strength rating of less than “A-” from A.M. Best that is approved by the Required Lenders in their sole discretion or (y) be the Phoenix Life Insurance Company or the Conseco Life Insurance Company, or one of their respective affiliates.

 

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(G) Except if such Policy is set forth on Eligibility Criteria Clause (g) Schedule to the Loan Agreement, medical underwriting as to Life Expectancy shall be conducted with respect to the Policy by at least two Pre-Approved Medical Underwriters whose LE Reports must not be dated more than twelve (12) months prior to the related Advance Date with respect to Policies to be pledged on such Advance Date, and in each case, must be based on medical records obtained from the Insured that are not older than twenty-four (24) months as of such Advance Date.

(H) Except if such Policy is set forth on Eligibility Criteria Clause (h) Schedule to the Loan Agreement, the Insured must have an average Life Expectancy of no more than two-hundred fifty-two (252) months.

(I) Except if such Policy is set forth on Eligibility Criteria Clause (i) Schedule to the Loan Agreement, the Policy covering the life of an individual Insured shall not have a face amount of less than $70,000 or greater than $10.0 million, except as otherwise approved in writing by the Required Lenders.

(J) The Policy is beyond any relevant policy or statutory contestability and suicide periods.

(K) There must not be any outstanding Policy Loans or Liens outstanding in respect of the Policy, except for Permitted Liens that will be fully reflected in the pricing analysis and calculation, nor any other pledge or assignment outstanding on the Policy.

(L) The life expectancy reflected in the LE Report used to determine the Lender Valuation with respect to the related Advance is not less than twenty-four (24) months from the date of such Advance.

(M) The Policy and the legal and beneficial interests in the death benefit (taking into account the portion of the death benefit payable to a Person other than the Securities Intermediary who is designated as the “beneficiary” under a Retained Death Benefit Policy and previously disclosed in writing to the Administrative Agent) shall be capable of being sold, transferred and conveyed to the Borrower and its successors, assigns and designees, and the seller thereof to the Borrower shall have the right to do so. Any tracking/servicing (subject to any statutory prohibition applicable to life settlement providers) and custodial rights shall be fully assignable and transferable to the Borrower and its successors, assigns and designees or as otherwise directed by the Borrower. Except with respect to HIPAA Authorizations relating to the Policies set forth on Eligibility Criteria Clause (m) Schedule to the Loan Agreement, the documents and agreements contained in the related Collateral Package and listed on Exhibit M to the Account Control Agreement do not contain language purporting to limit their assignability, and none of the Borrower, Parent Pledgor, any Affiliate of either of them, or any Affiliate of Imperial is a party to any agreement that limits their assignability, and all such documents are fully assignable and transferable to the Borrower and its

 

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successors, assigns and designees or as otherwise directed by the Borrower; provided that Borrower makes no representation or warrant concerning whether applicable state law or public policy limit the assignability of any HIPAA Authorization or power of attorney or the enforceability thereof upon assignment.

(N) The Insured’s primary diagnosis leading to the Life Expectancy evaluation(s) must not be HIV or AIDS.

(O) The Policy shall not be purchased from a seller to which applicable state laws prohibiting the purchase or the transfer of ownership from such seller apply at the time of such purchase or transfer of ownership.

(P) The Borrower shall reasonably believe based on its review of the related Collateral Package and the other information available to or known by the Borrower or any Affiliate thereof, that the original owner/beneficiary under the Policy shall have had an insurable interest at the time of the initial issuance of the Policy.

(Q) The Policy shall not have a death benefit that, by the terms of the Policy, will decrease over time or from time to time, unless such decrease is scheduled and can be incorporated and fully reflected in the pricing of the Policy, and where the Policy shall contain no provisions limiting the future realization of the net death benefit, other than non-payment of premiums or the Insured reaching a certain age.

(R) The sale of the Policy from the Original Owner thereof complied with all Applicable Law.

(S) The transfer of the Policy is not subject to the payment of United States state sales taxes or any other taxes payable by the Borrower.

(T) The face amount of the Policy does not exceed five percent (5%) of the aggregate face amount of all Pledged Policies.

(U) The Rescission Period with respect to such Policy shall have expired.

(V) The Policy is not subject to any Applicable Law that makes unlawful the sale, transfer or assignment of such Policy.

(W) With respect to such Policy, the Borrower is not aware of any agreements, documents, assignments or instruments related to such Policy except for those agreements, documents, assignments and instruments that constitute and were included in the related Collateral Package that was delivered to the Administrative Agent.

(X) The related Collateral Package delivered to the Administrative Agent by or on behalf of the Borrower contain, at the very least, the documents set forth in Exhibit M to the Account Control Agreement.

Eligible Account ” means either (a) a segregated account with an Eligible Institution or (b) a segregated trust account with the corporate trust department of a depository institution

 

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organized under the laws of the United States or any of the states thereof, including the District of Columbia (or any domestic branch of a foreign bank), and acting as a trustee for funds deposited in such account, so long as the senior securities of such depository institution shall have a credit rating from each of Moody’s and S&P in one of its generic credit rating categories no lower than “A-” or “A3”, as the case may be.

Eligible Institution ” means a depositary institution organized under the laws of the United States of America or any one of the states thereof or the District of Columbia (or any domestic branch of a foreign bank), (a) which has both (x) a long-term unsecured senior debt rating of not less than “A” by S&P and “A2” by Moody’s, and (y) a short-term unsecured senior debt rating rated in the highest rating category by S&P and Moody’s and (b) whose deposits are insured by the Federal Deposit Insurance Corporation.

Eligible Policy ” means a Policy that, as of the Advance Date as of which such Policy first becomes a Pledged Policy, satisfies all of the Eligibility Criteria that have not been waived in writing by the Required Lenders.

ERISA ” means the U.S. Employee Retirement Income Security Act of 1974, 29 U.S.C. §1001 et seq ., as amended from time to time and the regulations promulgated thereunder.

Escrow Account ” has the meaning set forth in Section 5.1(d) of the Loan Agreement.

Event of Bankruptcy ” shall be deemed to have occurred with respect to a Person if either:

(A) a case or other proceeding shall be commenced, without the application or consent of such Person, in any court, seeking the liquidation, reorganization, debt arrangement, dissolution, winding up, examinership or composition or readjustment of debts of such Person, the appointment of a trustee, receiver, custodian, liquidator, examiner, assignee, sequestrator or the like for such Person or all or substantially all of its assets, or any similar action with respect to such Person under any law relating to bankruptcy, insolvency, reorganization, winding up, examinership or composition or adjustment of debts and such case or proceeding shall remain undismissed or unstayed for a period of sixty (60) days; or an order for relief in respect of such Person shall be entered in an involuntary case under the federal bankruptcy laws or other similar laws now or hereafter in effect; or

(B) such Person shall commence a voluntary case or other proceeding under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law now or hereafter in effect, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) for such Person or for any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail to, or admit in writing its inability to, pay its debts generally as they become due, or, if a corporation or similar entity, its board of directors shall vote to implement any of the foregoing.

Event of Default ” has the meaning set forth in Section 10.1 of the Loan Agreement.

 

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Excluded Policy ” means (i) any Policy pledged under the Loan Agreement for which no written acknowledgement of a collateral assignment was received by the Administrative Agent or the Securities Intermediary from the related Issuing Insurance Company within sixty (60) calendar days of the Advance Date as of which such Policy became a Pledged Policy, (ii) any Policy set forth on Eligibility Criteria Clause (a) Schedule to the Loan Agreement, (iii) any Policy pledged under the Loan Agreement in respect of which the Insurance Consultant is not authorized to, or is not accepted by the related Issuing Insurance Company to, communicate and receive verifications of coverage and obtain other information from such Issuing Insurance Company and (iv) any Policy set forth on Schedule 7.1(f) to the Loan Agreement. With respect to any Policy described in clause (i) of the immediately preceding sentence, if such written acknowledgement of a collateral assignment is received by the Administrative Agent or the Securities Intermediary after such date, such Policy shall cease to be an Excluded Policy on the date of such receipt. With respect to any Policy described in clause (ii) of the first sentence of this definition, such Policy shall cease to be an Excluded Policy on the date the Administrative Agent receives written confirmation from the Securities Intermediary that the Securities Intermediary is designated as the “owner” and “beneficiary” under such Policy by the related Issuing Insurance Company. With respect to any Policy described in clause (iii) of the first sentence of this definition, if the Insurance Consultant becomes authorized to, or becomes accepted by the related Issuing Insurance Company to, communicate and receive verifications of coverage and obtain other information from such Issuing Insurance Company, such Policy shall cease to be an Excluded Policy on the date of such authorization or acceptance. With respect to any Policy described in clause (iv) of the first sentence of this definition, such Policy shall cease to be an Excluded Policy on the date the Custodian receives an original or a copy from the related Issuing Insurance Company of such Policy.

Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Lender or required to be withheld or deducted from a payment to a Lender, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Lender being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in Lender Notes issued pursuant to the Loan Agreement pursuant to a law in effect on the date on which (i) such Lender acquires such interest in such Lender Notes (other than pursuant to an assignment request by the Borrower under Section 6.4) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 6.4, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Lender’s failure to comply with Section 6.3 and (d) any U.S. federal withholding Taxes imposed under FATCA.

Expense Deposit ” means, with respect to each Borrowing Request related to a proposed Additional Policy Advance, an amount required to reimburse the Administrative Agent and the Lenders for third-party out-of-pocket expenses incurred in connection with the review and evaluation of the Additional Policies identified in such Borrowing Request, as determined by the Administrative Agent in its reasonable discretion.

 

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Expenses ” means (i) Servicing Fees and costs and other amounts reimbursable to the Servicer pursuant to the Servicing Agreement, (ii) payments to the Custodian and Securities Intermediary, as applicable, of their accrued fees and reimbursable expenses related to the Pledged Policies, the Accounts or the Borrower Account, (iii) Expense Deposits, (iv) the reasonable administrative expenses of the Borrower related to the Pledged Policies or general operations of the Borrower including Collateral Audits and maintenance of the Collateral, in an amount not to exceed $15,000 per annum or a greater amount approved by the Required Lenders in their sole discretion, (v) Portfolio Manager Fees and (vi) Administrative Agent Fees. The Expenses to be funded during 2013 shall be approved by the Required Lenders as of the Closing Date. The Expenses to be funded during any succeeding calendar year shall be approved by the Required Lenders in their sole and absolute discretion upon review of the Annual Budget for such succeeding calendar year as contemplated by Section 9.1(d)(vi) of the Loan Agreement, which amounts, if comprising amounts described in the preceding clauses (iii) and (v) may be less than (or greater than) such amounts approved, in any preceding calendar year, in the Required Lenders’ sole and absolute discretion.

Facility Limit ” means $300,000,000; provided , however , that on April 29, 2018 and on each anniversary thereafter, such amount shall be reduced by an amount up to the lesser of (i) the sum of (a) $25,000,000 plus (b) the aggregate of the Facility Limit Shortfall Amounts not previously applied to reduce the Facility Limit, if any and (ii) an amount which would cause the then Facility Limit to equal the product of (A) 1.3 and (B) the highest aggregate principal balance of Advances (excluding Protective Advances) that were outstanding during the twelve month period immediately preceding such anniversary.

Facility Limit Shortfall Amount ” shall mean with respect to each date on which the Facility Limit is required to be reduced pursuant to the definition thereof, the excess, if any, of the $25,000,000 that constitutes the additional reduction to be applied on such date pursuant to clause (i)(a) of the definition thereof, over the amount of the actual reduction applied to such additional reduction.

Fasano ” means Fasano Associates, Inc. and its successors.

FATCA” means Sections 1471 through 1474 of the Code, as of the date of the Loan Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

Fee Letter ” means that certain Fee and Indemnification Agreement, dated as of April 29, 2013, among the Borrower, Imperial Holdings Inc. and Wilmington Trust, N.A., setting forth, among other things, the fees of the Securities Intermediary and the Custodian.

Fees ” means, (i) in relation to the Initial Advance, the Up-Front Fee and, (ii) in relation to any Advance other than the Initial Advance, any fee payable to a broker or other third party in relation to the acquisition of an Additional Policy or other transaction contemplated by the Loan Agreement, and in each case, the payment of which has been approved by the Required Lenders in their sole discretion.

 

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Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the interest rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it plus 0.75%.

Foreign Lender ” means a Lender that is not a U.S. Person.

FTP Site ” shall have the meaning set forth in Annex 1 to the Servicing Agreement.

GAAP ” means United States generally accepted accounting principles.

Governmental Authority ” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

Imperial ” means Imperial Holdings Inc., a Florida corporation, and its successors.

Indemnified Amounts ” has the meaning set forth in Section 11.1 of the Loan Agreement.

Indemnified Bank Person ” has the meaning set forth in the Account Control Agreement.

Indemnified Party ” has the meaning set forth in Section 11.1 of the Loan Agreement.

Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower and (b) to the extent not otherwise described in (a), Other Taxes.

Independent Manager ” has the meaning set forth in Section 9.1(f)(ii) of the Loan Agreement.

Initial Advance ” means an Advance in an amount equal to the sum of (i) for any Subject Policies set forth on the Initial Advance Lexington Schedule to the Loan Agreement, the lesser of (A) fifty percent (50%) of the Purchase Price and (B) fifty percent (50%) of the market value of such Subject Policies as determined by the Required Lenders in their sole discretion, plus (ii) for any Subject Policies not set forth on the Initial Advance Lexington Schedule to the Loan Agreement, fifty percent (50%) of the market value for such Subject Policies as determined by the Required Lenders in their sole discretion, plus (iii) the Up-Front Fee, plus (iv) the Initial Expense Deposit plus (v) certain fees and expenses of the Borrower, including reasonable attorneys’ fees, as approved by the Required Lenders in their sole discretion.

 

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Initial Advance Acceptance ” has the meaning set forth in Section 2.3(a) of the Loan Agreement.

Initial Expense Deposit ” means $3,000,000.

Initial Face Amount ” shall mean, with respect to each Policy that is or has ever been a Pledged Policy, the face amount of such Policy as of the date such Policy became a Pledged Policy.

Initial Lender ” has the meaning set forth in the recitals to the Loan Agreement.

Initial Policy Purchaser ” means, with respect to any Policy, any Person who purchased the Policy from the Original Owner.

Insurance Consultant ” means D3G Capital Management, LLC, a Texas limited liability company.

Insured ” means a natural person who is named as the insured on a Policy.

Interest Payment Date ” with respect to any Advance, means the first Distribution Date occurring after the initial funding of such Advance, and each subsequent Distribution Date thereafter.

Interest Period ” means with respect to each Advance and each Interest Payment Date, (i) the period from and including the date such Advance is funded, to but excluding the immediately succeeding Distribution Date, and, thereafter, (ii) the period from and including the most recent preceding Distribution Date to but excluding the succeeding Distribution Date;

provided , however , that for the last Interest Period that commences before the Maturity Date and so would otherwise end on a date occurring after the Maturity Date, such Interest Period shall end on and include the Maturity Date.

Investment ” means any investment in any Person, whether by means of share purchase, capital contribution, loan, time deposit or otherwise.

Issuing Insurance Company ” means with respect to any Policy, the insurance company that is obligated to pay the related benefit upon the death of the related Insured by the terms of such Policy (or the successor to such obligation).

Joint Policy ” means a Policy with more than one Insured that pays upon the death of the last Insured to die. Unless the context otherwise requires, joint Insureds of a Joint Policy shall collectively count, as applicable, as a “separate individual,” as a “single insured” or as an “insured person”.

Lapsed/Grace Policy ” has the meaning set forth in Section 10.1(p) of the Loan Agreement.

 

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Lender ” means each of the financial institutions party to the Loan Agreement as lender thereunder.

Lender’s Commitment ” means, with respect to a Lender, the Commitment for such Lender as set forth on Schedule 2.1(a) of the Loan Agreement or in the Assignment and Assumption Agreement pursuant to which such Lender becomes a party to the Loan Agreement.

Lender Default ” means with respect to a Lender, the failure of such Lender to make any Advance it is obligated to make under the Loan Agreement, which failure continues for thirty (30) Business Days after the date on which such Lender receives written notice of such failure from the Borrower.

Lender Note ” and “ Lender Notes ” each has the meaning set forth in Section 2.5 of the Loan Agreement.

Lender Valuation ” means, on any date of determination, the value of the Pledged Policies (other than the Excluded Policies) as determined by the Required Lenders in their reasonable discretion. For purposes of this definition, but without limitation as to what other methodology and assumptions might be reasonable, similar methodology and assumptions utilized by the Required Lenders in valuing the Pledged Policies related to the Initial Advance shall be deemed to be reasonable. In valuing each such Pledged Policy, the Required Lenders: (i) utilized reasonable actuarial practices on a probabilistic basis and took into consideration other means of valuing life insurance policies including available market comparisons, (ii) determined which Select Composite Valuation Basic Table to use for the related Insured, (iii) used their reasonable judgment to optimize premiums, (iv) generally utilized at least two (2) LE Reports to determine the life expectancy of the related Insured, however, depending on such Pledged Policy, the Required Lenders could have utilized only one of the two LE Reports supplied by the Borrower, the Required Lenders could have combined the two supplied LE Reports in a manner determined in the Required Lenders’ sole and absolute discretion or the Required Lenders could have adjusted an individual LE Report based upon the Required Lenders’ review of such LE Reports or a review conducted by a third-party approved by the Required Lenders of such LE Reports and (v) based the discount rate of such Pledged Policy on market based conditions, with upward and downward adjustments in such discount rate to account for such Pledged Policy’s individual characteristics, including, without limitation, whether such Pledged Policy had a return of premium rider, the applicable maturity date, the face value of such Pledged Policy, the life expectancy of the related Insured, any information related to the origination of such Pledged Policy (such as whether such Pledged Policy was premium financed or originated pursuant to a “beneficial interest” program), the completeness of the related Collateral Package, the shape of the COI curve, the identity of the related Issuing Insurance Company and other factors identified and weighed by the Required Lenders in their reasonable judgment. The Borrower hereby acknowledges that the foregoing methodology is likely to change over time to account for market conditions and the Required Lenders’ experience in the life settlement marketplace and that any such changes to the methodology shall be in the Required Lenders’ reasonable judgment.

LIBOR ” means, for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the British Bankers Association LIBOR Rate

 

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(“BBA LIBOR”) by Bloomberg, Reuters or other commercially available source providing quotations of BBA LIBOR, as designated by the Administrative Agent from time to time, at approximately 11:00 A.M. (London time) on the Rate Calculation Date for such Interest Period, as the London interbank offered rate for deposits in Dollars for a 12-month period.

Lien ” shall mean any mortgage, pledge, assignment, lien, security interest or other charge or encumbrance of any kind, including the retained security title of a conditional vendor or a lessor.

Life Expectancy ” means (A) with respect to any Policy, the average of two separate life expectancies of the related Insured, stated in months, provided by two separate Pre-Approved Medical Underwriters to achieve fifty (50%) percentile cumulative mortalities for such Insured and, if not provided, by applying the provided life expectancy in months to the mortality table selected by the Required Lenders to calculate a 50th percentile cumulative mortality schedule for such Insured; and (B) with respect to any Policy that is a Joint Policy means the joint life expectancy of the related Insureds in months provided by two (2) Pre-Approved Medical Underwriters to achieve a 50th percentile cumulative mortality for such Insureds and calculated in the Pricing Model by applying the weighted average of the cumulative mortality schedules provided for the two (2) joint life expectancies by the Pre-Approved Medical Underwriters and, if not provided, by applying the provided life expectancy in months to the mortality table selected by the Required Lenders to calculate a 50th percentile cumulative mortality for such Insureds.

Life Expectancy Date ” means, with respect to any Policy, the last day of the last month of the Life Expectancy for such Policy.

Life Expectancy Report ” or “ LE Report ” means, with respect to a Policy, an assessment by a Pre-Approved Medical Underwriter in a written statement dated within one-hundred eighty (180) days prior to the Advance Date on which such Policy became or is proposed to become a Pledged Policy, with respect to the Life Expectancy of the related Insured.

Liquidated Policy ” means any Pledged Policy that has been liquidated as a result of the death of the related Insured.

Liquidation Proceeds ” means any and all proceeds realized from Liquidated Policies.

Loan Agreement ” means the Loan and Security Agreement, dated as of the Closing Date among the Borrower, the Servicer, the Portfolio Manager, the Lenders party thereto and the Administrative Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time.

LTV ” means, on any date of determination, the fraction, expressed as a percentage, the numerator of which is the aggregate outstanding principal balance of all outstanding Advances, and the denominator of which is the Lender Valuation of the Pledged Policies (other than any Excluded Policies), as determined by the Required Lenders in their sole discretion.

Material Adverse Effect ” means, with respect to any event or circumstance, a material adverse effect on:

(A) the business, assets, financial condition or operations of the Borrower, the Assignor or the Parent Pledgor or any of the Collateral;

 

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

(B) the ability of the Borrower, the Assignor or the Parent Pledgor to perform its respective obligations under any Transaction Document to which such Person is a party;

(C) the validity or enforceability against the Borrower, the Assignor or the Parent Pledgor of any Transaction Document to which such Person is a party;

(D) the status, existence, perfection or priority of the Administrative Agent’s (for the benefit of the Secured Parties) security interest in any of the Collateral or in any of the Pledged Interests; or

(E) the Lender Valuation or the aggregate amount of Net Death Benefits of the Pledged Policies or the validity, enforceability or collectability of a material number of Pledged Policies.

[*]

Maturity Date ” means April 29, 2028.

Moody’s ” means Moody’s Investors Service, Inc. and its successors.

Net Death Benefit ” means, with respect to a Policy, the amount projected to be paid by the Issuing Insurance Company to the Borrower or the Securities Intermediary on its behalf as a result of the death of the related Insured.

Net Proceeds ” shall mean, with respect to a sale of the Collateral pursuant to Section 2.7 of the Loan Agreement, all proceeds of such sale net of the lesser of (x) reasonable third-party out-of-pocket expenses incurred by the Borrower which have been approved by the Administrative Agent in its sole and absolute discretion and (y) the greater of (i) $20,000 and (ii) one percent (1.00%) of the face amount of the Pledged Policies sold in such sale.

Non-Determining Party ” has the meaning set forth in Section 2.7(b) of the Loan Agreement.

Non-Public Information ” means any and all medical, health, financial and personally identifiable information about an Insured, a Policy seller, a Policy Beneficiary or any spouse or other individual closely related by blood or law to any such Person, including name, street or mailing address, e-mail address, telephone or other contact information, employer, social security or tax identification number, date of birth, driver’s license number, photograph or documentation of identity or residency (whether independently disclosed or contained in any disclosed document such as a Policy, life expectancy evaluation, life insurance application or viatical or life settlement application or agreement).


Obligations ” means all obligations (monetary or otherwise) of the Borrower to the Lenders or the Administrative Agent and their respective successors, permitted transferees and assigns arising under or in connection with the Loan Agreement, the Lender Notes and each other Transaction Document, in each case however created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, including, without limitation, the obligation of the Borrower to pay the Aggregate Participation Interest.

OFAC ” has the meaning set forth in Section 8.1(u) of the Loan Agreement.

OFAC Listed Person ” has the meaning set forth in Section 8.1(u) of the Loan Agreement.

OFAC Sanctions Program ” means any economic or trade sanction that OFAC is responsible for administering and enforcing. A list of OFAC Sanctions Programs may be found at http://www.ustreas.gov/offices/enforcement/ofac/programs/.

Ongoing Maintenance Advance ” shall mean an Advance made after the date of the making of the Initial Advance, the proceeds of which are used solely to pay amounts permitted pursuant to Section 2.8(a)(ii) of the Loan Agreement.

Ongoing Maintenance Costs ” means (i) the scheduled Premiums on the Pledged Policies (other than Excluded Policies) as set forth on the related Servicer Report and set forth in the related Annual Budget which has been approved by the Required Lenders pursuant to Section 9.1(d)(vi) of the Loan Agreement, as adjusted by the Administrative Agent to reflect any maturities or sales of Pledged Policies and any Advances and (ii) the Expenses of the Borrower.

Ongoing Maintenance Costs Reimbursable Amount ” shall mean as of any date of determination after the occurrence of a Lender Default, the aggregate amount of Ongoing Maintenance Costs the Borrower has actually paid after the occurrence of such Lender Default and would not have otherwise had to pay had such Lender Default not occurred, plus interest thereon at a rate equal to the Default Rate.

Original Owner ” means, with respect to a Policy, the Person to which the Policy was initially issued and who was listed as owner on the initial declarations page of such Policy or the policy application, as applicable.

Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Transaction Document, or sold or assigned an interest in any Advance or Transaction Document).

Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, the Loan Agreement, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.

 

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Parent Pledgor ” means Markley Asset Portfolio, LLC, a Delaware limited liability company.

Parent Pledgor Contribution Agreement ” means the Contribution Agreement, dated as of April 29, 2013, by and between the Parent Pledgor, as the transferor, and the Borrower, as the transferee, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the Transaction Documents.

Partial Repayment Date ” shall mean the date on which all Obligations have been paid in full in cash by the Borrower (other than the Aggregate Participation Interest, any Administrative Agent Fees due and payable after such date and any Protective Advances made after such date, and including, for the avoidance of doubt, the Amortization Shortfall Amounts for all of the Shortfall Pledged Policies that remain unpaid) and all Commitments have been terminated.

Participation Interest Account ” means an account to be designated in writing from time to time by the Initial Lender to the Borrower.

Participation Interest ” shall mean with respect to each Pledged Policy, the right of the Lenders to receive the Participation Interest Percentage of the portion of Collections (including Available Amounts), prior to the deduction of any Amortization Shortfall Amounts and Participation Interest Shortfall Amounts, distributable pursuant to (i) clause “ Eighth ” of Section 5.2(b) of the Loan Agreement, (ii) clause “ Tenth ” of Section 5.2(b) of the Loan Agreement, (iii) clause “ Eleventh ” of Section 5.2(b) of the Loan Agreement, (iv) clause “ Eleventh ” of Section 5.2(c) of the Loan Agreement, (v) clause “ Fourteenth ” of Section 5.2(c) of the Loan Agreement, (vi) clause “ Fifteenth ” of Section 5.2(c) of the Loan Agreement, (vii) Clause “ Ninth ” of Section 5.2(e) of the Loan Agreement, (viii) Clause “ Tenth ” of Section 5.2(e) of the Loan Agreement and/or (ix)  Section 10.2(c) of the Loan Agreement, as applicable.

Participation Interest Percentage ” shall initially equal fifty percent (50%). Such percentage shall be reduced once by three percent (3.00%) for each calendar quarter which is one of the first sixteen (16) calendar quarters occurring after the Closing Date in which one or more Lender Defaults has initially occurred and no other Lender made the Advances that the applicable Lenders which caused such Lender Default(s) were obligated to make; provided that such percentage shall not be reduced with respect to any such calendar quarter if any Lender or Lenders make additional Advances within twelve (12) months of the end of such calendar quarter, in an amount which equals or exceeds the amount of the Advances that the Lenders that caused the related Lender Default(s) to initially occur in such calendar quarter failed to advance.

Participation Interest Shortfall Amount ” shall mean, with respect to a Pledged Policy that has become a Shortfall Pledged Policy, the excess of (x) the aggregate of the amounts that would have been distributed to the Participation Interest Account on the next Distribution Date occurring after the date on which such Pledged Policy became a Shortfall Pledged Policy, had such Pledged Policy matured and had the related death benefit been paid in full by the related Issuing Insurance Company, by deposit thereof into the Collection Account prior to the related

 

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Calculation Date pursuant to clause “ Eleventh ” of Section 5.2(b) of the Loan Agreement, clause “ Fifteenth ” of Section 5.2(c) of the Loan Agreement or clause “ Tenth ” of Section 5.2(e) of the Loan Agreement, as applicable, as determined by the Administrative Agent on such Calculation Date, over (y) the aggregate of the amounts that will actually be distributed to the Participation Interest Account on such Distribution Date pursuant to clause “ Eleventh ” of Section 5.2(b) of the Loan Agreement, clause “ Fifteenth ” of Section 5.2(c) of the Loan Agreement or clause “ Tenth ” of Section 5.2(e) of the Loan Agreement, as applicable, but not taking into account any amounts that will actually be distributed pursuant to clause (ii) thereof which relate to such Shortfall Pledged Policy, as determined by the Administrative Agent on the related Calculation Date.

Payment Account ” has the meaning set forth in Section 5.1(b) of the Loan Agreement.

Payment Instructions ” has the meaning set forth in Section 5.2(b) of the Loan Agreement.

Payoff Notice ” has the meaning set forth in Section 6.5 of the Loan Agreement.

PBGC ” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.

Permitted Sale Cashflow Date ” shall mean the date on which (i) the sum of (a) the aggregate face amount of all Pledged Policies which were sold pursuant to Section 2.7(a) of the Loan Agreement (other than Pledged Policies sold pursuant to clause (iv) of the first sentence of Section 2.7(a) of the Loan Agreement) and (b) the aggregate face amount of all Pledged Policies which were sold pursuant to Section 2.7(b) of the Loan Agreement and in respect of which the Determining Party was the Borrower or the Portfolio Manager (other than Direct Assumption Policies) exceeds ten percent (10%) of the aggregate face amount of all the Pledged Policies as of the Closing Date, or (ii) the sum of (a) the Lender Valuation of all Pledged Policies which were sold pursuant to Section 2.7(a) of the Loan Agreement (other than Pledged Policies sold pursuant to clause (iv) of the first sentence of Section 2.7(a) of the Loan Agreement) as of their respective sale dates and (b) the Lender Valuation of all Pledged Policies which were sold pursuant to Section 2.7(b) of the Loan Agreement and in respect of which the Determining Party was the Borrower or the Portfolio Manager (other than Direct Assumption Policies) exceeds ten percent (10%) of the Lender Valuation as of the Closing Date or (iii) the sum of (a) the aggregate number of all Pledged Policies which were sold pursuant to Section 2.7(a) of the Loan Agreement (other than Pledged Policies sold pursuant to clause (iv) of the first sentence of Section 2.7(a) of the Loan Agreement) and (b) the aggregate number of all Pledged Policies which were sold pursuant to Section 2.7(b) of the Loan Agreement and in respect of which the Determining Party was the Borrower or the Portfolio Manager (other than Direct Assumption Policies) exceeds ten percent (10%) of the aggregate number of all Pledged Policies as of the Closing Date.

Permitted Investment ” means, at any time:

(A) marketable obligations issued by or the full and timely payment of which is directly and fully guaranteed or insured by the United States government or any other government with an equivalent rating, or any agency or instrumentality thereof when

 

I-4


such marketable obligations are backed by the full faith and credit of the United States government or such other equivalently rated government, as the case may be, but excluding any securities which are derivatives of such obligations; and

(B) time deposits, bankers’ acceptances and certificates of deposit of any domestic commercial bank or any United States branch or agency of a foreign commercial bank which (i) has capital, surplus and undivided profits in excess of $100,000,000 and which has a commercial paper or certificate of deposit rating in the highest rating category by Moody’s and in one of the two highest rating categories by S&P or (ii) is set forth in a list (which may be updated from time to time) approved in writing by the Required Lenders.

Permitted Lien ” with respect to any Pledged Policy or Subject Policy means a Lien, security interest, pledge, charge or encumbrance, or similar right or claim (i) in favor of the Administrative Agent pursuant to the Transaction Documents, or (ii) in the case of a Retained Death Benefit Policy, in favor of an original owner, insured or seller or any family member of any of the foregoing of a Pledged Policy or Subject Policy but only to the extent of the portion of the death benefit thereof retained by or in favor of such Person.

Person ” means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture, government or any agency or political subdivision thereof or any other entity.

Physician’s Competency Statement ” means, with respect to an Insured, a letter issued by such Insured’s attending physician confirming that such Insured is mentally competent as of the date of such letter.

Pledged Interests ” means, collectively, the ownership interests in the Borrower pledged to the Administrative Agent by the Parent Pledgor pursuant to the Borrower Interest Pledge Agreement.

Pledged Policy ” means each Policy pledged to secure Advances under the Loan Agreement that is not a Policy that has been sold or abandoned as contemplated by Section 2.7 of the Loan Agreement or been released from the Lien of the Administrative Agent pursuant to Section 2.6 of the Loan Agreement.

Policy ” means any life insurance policy.

Policy Account ” shall have the meaning set forth in the Account Control Agreement.

Policy Illustration ” means, with respect to any Policy, a level premium, policy values and Net Death Benefit projection produced by the Issuing Insurance Company or an agent of the Issuing Insurance Company, using the Issuing Insurance Company’s current/non-guaranteed values (with a non-guaranteed interest crediting rate not to exceed two-hundred (200) basis points over the guaranteed rate) sufficient to carry such Policy to its Policy Maturity Date, which Policy Illustration is not dated more than three hundred sixty-five (365) days prior to the applicable Advance Date.

 

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Policy Loan ” means with respect to a Policy, an outstanding loan secured thereby or that has setoff rights with respect thereto.

Policy Maturity Date ” means, with respect to a Policy, the date specified in the Policy, including any extensions thereto available and exercised under the terms of the Policy, on which coverage offered under the Policy terminates.

Portfolio Manager ” means Imperial Finance & Trading, LLC, acting as Portfolio Manager, or any successor Portfolio Manager.

Portfolio Manager Fee ” shall mean, with respect to each Distribution Date, a fee in an amount equal to $300 for each Policy that was a Pledged Policy during the immediately preceding calendar quarter.

Portfolio Manager Indemnified Amounts ” has the meaning set forth in Section 11.2 of the Loan Agreement.

Pre-Approved Medical Underwriters ” means any two (2) of Fasano, AVS or 21st Services.

Premium ” means, with respect to any Pledged Policy, as indicated by the context, any past due premium with respect thereto, or any scheduled premium.

Priority of Payments ” means the priority of payments set forth in Section 5.2 of the Loan Agreement.

Proposed Additional Policy Advance ” has the meaning set forth in Section 2.3(c) of the Loan Agreement.

Proposed Additional Policy Advance Notice ” has the meaning set forth in Section 2.3(c) of the Loan Agreement.

Proposed Initial Advance ” has the meaning set forth in Section 2.3(a) of the Loan Agreement.

Proposed Initial Advance Notice ” has the meaning set forth in Section 2.3(a) of the Loan Agreement.

Proposed Sale Agreement ” has the meaning set forth in Section 2.7(a)(ii) of the Loan Agreement.

Protective Advances ” has the meaning set forth in Section 2.1(e) of the Loan Agreement.

Publicly Traded Company ” means a Person whose securities are listed on a national securities exchange or quoted on an automated quotation system in the United States of America and any wholly-owned subsidiary of such a Person.

 

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Purchase Price ” means $37,260,895.

Rate Calculation Date ” for any Interest Period, means the last Business Day of the preceding calendar year.

Rate Floor ” has the meaning set forth in Section 3.1 of the Loan Agreement.

Receiving Party ” has the meaning set forth in Section 13.12 of the Loan Agreement.

Recovered Pledged Policy ” has the meaning set forth in Section 5.2(f) of the Loan Agreement.

Recipient ” means the Administrative Agent or a Lender, as applicable.

Regulatory Change ” means, relative to any Affected Party:

(A) any change in (or the adoption, implementation, change in the phase-in or commencement of effectiveness of) any: (i) United States Federal or state law or foreign law applicable to such Affected Party, (ii) regulation, interpretation, directive, requirement or request (whether or not having the force of law) applicable to such Affected Party of (A) any court or government authority charged with the interpretation or administration of any law referred to in clause (a)(i) , or of (B) any fiscal, monetary or other authority having jurisdiction over such Affected Party, or (iii) GAAP or regulatory accounting principles applicable to such Affected Party and affecting the application to such Affected Party of any law, regulation, interpretation, directive, requirement or request referred to in clause (a)(i) or (a)(ii) above;

(B) any change in the application to such Affected Party of any existing law, regulation, interpretation, directive, requirement, request or accounting principles referred to in clause (a)(i) , (a)(ii) or (a)(iii) above; or

(C) the issuance, publication or release of any regulation, interpretation, directive, requirement or request of a type described in clause (a)(ii) above to the effect that the obligations of any Lender hereunder are not entitled to be included in the zero percent category of off-balance sheet assets for purposes of any risk-weighted capital guidelines applicable to such Lender or any related Affected Party.

For the avoidance of doubt, any interpretation of Accounting Research Bulletin No. 51 by the Financial Accounting Standards Board (including, without limitation, Interpretation No. 46: Consolidation of Variable Interest Entities) shall constitute a Regulatory Change, regardless of whether it occurred before or after the date hereof.

Representatives ” has the meaning set forth in Section 13.12 of the Loan Agreement.

Required Amortization ” means, with respect to any Distribution Date, the product of (i) the Cash Flow Sweep Percentage and (ii) the Available Amount.

 

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Required Lenders ” means Lenders holding more than fifty percent (50%) of the aggregate Commitments.

Rescission Period ” means, with respect to any Policy, the contractual or statutory period during which the related Original Owner or any other Person can rescind the sale of such Policy to the Initial Purchaser.

Retained Death Benefit Policy ” means a Policy in which a Person in addition to the Securities Intermediary is designated as the “beneficiary” under the Policy by the related Issuing Insurance Company.

S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and its successors.

Sale Price ” has the meaning set forth in Section 2.7(a)(ii) of the Loan Agreement.

Scheduled Commitment Termination Date ” means April 29, 2028, as such date may be extended pursuant to the written consent of the Borrower and the Lenders.

Secured Parties ” means each Lender, the Administrative Agent and the Affected Parties.

Securities Intermediary ” means Wilmington Trust, National Association, in its capacity as securities intermediary under the Account Control Agreement.

Servicer ” means Imperial Finance & Trading, LLC, acting as Servicer, or any Successor Servicer.

Servicer Report ” has the meaning set forth in the Servicing Agreement.

Servicer Report Date ” means the date the Servicer Report is to be delivered pursuant to the terms of the Servicing Agreement.

Servicer Termination Event ” has the meaning set forth in the Servicing Agreement.

Servicing Agreement ” means the Servicing Agreement, dated as of the Closing Date, among the Servicer, the Administrative Agent, and the Borrower, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the Transaction Documents.

Servicing Fee ” has the meaning set forth in the Servicing Agreement.

Shortfall Exclusion Election ” has the meaning set forth in Section 5.4 of the Loan Agreement.

Shortfall Pledged Policy ” means, subject to Section 5.4 of the Loan Agreement, a Pledged Policy in respect of which the related Issuing Insurance Company has successfully challenged or rescinded (or prevailed in any similar action or arbitration or a settlement of any such action was consummated) such Pledged Policy and the result of such challenge or rescission

 

I-8


(or such similar action, arbitration or settlement) was that such Issuing Insurance Company either (a) paid an amount less than the face amount of such Pledged Policy plus any applicable statutory interest or (b) did not pay any portion of the related death benefit to the Securities Intermediary for deposit into the Collection Account. For avoidance of doubt, any Pledged Policy in respect of which an Issuing Insurance Company obtains a favorable judgment or verdict in a challenge or rescission action (or any similar action, including, without limitation, in an arbitration proceeding), shall be deemed to be a Shortfall Pledged Policy regardless of whether any appeal is pending, possible or planned. For purposes of clarity, and not by way of limitation, if a Pledged Policy becomes a Shortfall Pledged Policy as a result of a legal proceeding or arbitration proceeding, such Pledged Policy shall be deemed to become a Shortfall Pledged Policy on the date a judgment, verdict or ruling is rendered, or in the case of a settlement of any challenge or rescission action, on the date of execution of any settlement agreement or similar agreement, and otherwise, on the date designated by the Required Lenders in their discretion exercised in a commercially reasonable manner.

Solvent ” means with respect to any Person, that as of the date of determination (A)(i) the then fair saleable value of the property of such Person is (y) greater than the total amount of liabilities (including contingent liabilities that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability) of such Person and (z) not less than the amount that will be required to pay the reasonably projected liabilities on such Person’s then existing debts as they become absolute and matured considering all financing alternatives and potential asset sales reasonably available to such Person; (ii) such Person’s capital is not unreasonably small in relation to its business or any contemplated or undertaken transaction; and (iii) such Person does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due; and (B) such Person is “solvent” within the meaning given that term and similar terms under Applicable Laws relating to fraudulent transfers and conveyances.

Subject Policy ” means, with respect to an Advance, a Policy proposed to be pledged by the Borrower in connection with such Advance.

Subsequent Advance Acceptance ” shall have the meaning specified in Section 2.3(b) of the Loan Agreement.

Subsequent Advance Date ” with respect to any Advance other than the Initial Advance, shall mean the date that such Advance is made pursuant to and in accordance with the Loan Agreement.

Subsidiary ” means, with respect to any Person, any corporation or other entity of which securities or other ownership interests having ordinary voting power (other than securities or other ownership interests having such power only by reason of the happening of a contingency which has not occurred) to elect a majority of the Board of Directors or other Persons performing similar functions are at the time directly or indirectly owned by such Person.

Successor Servicer ” has the meaning set forth in the Servicing Agreement.

 

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Tax ” or “ Taxes ” means any and all fees (including documentation, recording, license and registration fees), taxes (including net income, gross income, franchise, value added, ad valorem, sales, use, property (personal and real, tangible and intangible) and stamp taxes), levies, imposts, duties, charges, assessments or withholdings of any nature whatsoever, general or special, ordinary or extraordinary, together with any and all penalties, fines, additions to tax and interest thereon, imposed by any Governmental Authority.

Total Investment ” means $76,120,000.

Transaction Documents ” means the Loan Agreement, the Servicing Agreement, the Assignor Contribution Agreement, the Parent Pledgor Contribution Agreement, the Borrower Interest Pledge Agreement, the Account Control Agreement, the Fee Letter, the Lender Notes, the UCC financing statements filed in connection with any of the foregoing, and in each case any other agreements, instruments, certificates or documents delivered or contemplated to be delivered thereunder or in connection therewith, as any of the foregoing may be amended, supplemented, amended and restated, or otherwise modified from time to time in accordance with the Loan Agreement.

UCC ” means the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction or jurisdictions.

Unmatured Event of Default ” shall mean any event that, if it continues uncured, will, with lapse of time or notice or both, constitute an Event of Default.

Up-Front Fee ” means $4,000,000.

U.S. Person ” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

U.S. Tax Compliance Certificate ” has the meaning set forth in Section 6.3(f)(ii)(B)(iii) of the Loan Agreement.

Withholding Agent ” means the Securities Intermediary.

 

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Exhibit 10.2

FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT AND SECURITY

ACCOUNT CONTROL AND CUSTODIAN AGREEMENT

THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT AND SECURITY ACCOUNT CONTROL AND CUSTODIAN AGREEMENT (the “Agreement”) is made and entered into this 9th day of August, 2013, by and among WHITE EAGLE ASSET PORTFOLIO, LLC, a Delaware limited liability company (the “Borrower”), IMPERIAL FINANCE AND TRADING, LLC, a Florida limited liability company (“Imperial”), WILMINGTON TRUST, NATIONAL ASSOCIATION, as Securities Intermediary and as Custodian (“Wilmington”), CLMG CORP., a Texas corporation (the “Agent”), as Administrative Agent, and LNV CORPORATION., a Nevada corporation (the “Lender”).

WITNESSETH:

A. The Borrower, Imperial, the Agent and the Lender are parties to that certain Loan and Security Agreement, dated as of April 29, 2013 (the “Loan Agreement”). Capitalized words and terms used herein, but not defined herein, have the meanings set forth in the Loan Agreement. The Borrower, the Agent and Wilmington, as both Securities Intermediary and Custodian, are parties to that certain Securities Account Control and Custodian Agreement, dated as of April 29, 2013 (the “Control Agreement”).

B. The Borrower and Imperial have requested that the Agent and the Lender agree to (i) amend the Loan Agreement to provide for an extended period during which certain covenants may be performed, (ii) consent to the amendment of the Servicing Agreement to correct an Annex thereto and (iii) consent to the amendment of the Control Agreement to correct an Exhibit thereto.

NOW, THEREFORE, for and in consideration of the premises, the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of all of which are hereby acknowledged and confessed by each of the parties hereto, the parties hereto hereby agree as follows:

 

  1. The third sentence of Section 9.1 (gg) of the Loan Agreement is modified to be and read as follows: “On or before August 31, 2013, the Borrower shall cause the Custodian to verify to the Administrative Agent in writing its receipt of all documents required to be contained in each of the Custodial Packages related to the Subject Policies for the Initial Advance by delivering the required certification pursuant to the terms of the Account Control Agreement.”

 

  2. The Agent and the Lender hereby consent to the Borrower and Imperial amending Section 1(e) of Annex 1 of the Servicing Agreement (to provide that the Servicer will have until August 31, 2013 to complete the initial premium optimizations described in such Section 1(e) with regard to the Pledged Policies that were in effect as of the Closing Date) by entering into a First Amendment to Servicing Agreement in the form attached hereto as Exhibit “A” .


  3. The Borrower, the Agent (with the consent of the Lender, as evidenced by its execution of this Agreement) and Wilmington, as Securities Intermediary and Custodian, hereby amend the Control Agreement by deleting Exhibit M attached thereto and replacing it with Exhibit M attached to this Agreement.

 

  4. AS A MATERIAL INDUCEMENT TO THE LENDER AND THE AGENT TO ENTER INTO THIS AGREEMENT, THE BORROWER AND IMPERIAL, EACH ON BEHALF OF ITSELF AND ITS SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES AND CONSTITUENTS (WHETHER OR NOT A PARTY HERETO) (BORROWER, IMPERIAL AND SUCH SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES AND CONSTITUENTS BEING REFERRED TO HEREIN COLLECTIVELY AND INDIVIDUALLY, AS “OBLIGORS, ET AL.”), HEREBY FULLY, FINALLY AND COMPLETELY RELEASE AND FOREVER DISCHARGE THE LENDER, THE AGENT AND THEIR RESPECTIVE OWNERS, SUCCESSORS, ASSIGNS, AFFILIATES, SUBSIDIARIES, PARENTS, OFFICERS, SHAREHOLDERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS, PAST, PRESENT AND FUTURE, AND THEIR RESPECTIVE HEIRS, PREDECESSORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY AND INDIVIDUALLY, “LENDER, ET AL.”) OF AND FROM ANY AND ALL CLAIMS, CONTROVERSIES, DISPUTES, LIABILITIES, OBLIGATIONS, DEMANDS, DAMAGES, EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES), DEBTS, LIENS, ACTIONS AND CAUSES OF ACTION OF ANY AND EVERY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY THEREOF RELATING TO THE LOAN, AND WAIVE AND RELEASE ANY DEFENSE, RIGHT OF COUNTERCLAIM, RIGHT OF SET-OFF OR DEDUCTION TO THE PAYMENT OF THE INDEBTEDNESS EVIDENCED BY THE LENDER NOTE AND/OR ANY OTHER LOAN DOCUMENT WHICH OBLIGORS, ET AL. NOW HAVE OR MAY CLAIM TO HAVE AGAINST LENDER, ET AL., OR ANY THEREOF, ARISING OUT OF, CONNECTED WITH OR RELATING TO ANY AND ALL ACTS, OMISSIONS OR EVENTS OCCURRING PRIOR TO THE EXECUTION OF THIS AGREEMENT.

THE BORROWER AND IMPERIAL HEREBY ACKNOWLEDGE, REPRESENT AND WARRANT TO THE LENDER AND THE AGENT THAT THEY AGREE TO ASSUME THE RISK OF ANY AND ALL UNKNOWN, UNANTICIPATED OR MISUNDERSTOOD DEFENSES AND CLAIMS WHICH ARE RELEASED BY THE PROVISIONS HEREOF IN FAVOR OF LENDER, ET AL., AND WAIVE AND RELEASE ALL RIGHTS AND BENEFITS WHICH THEY MIGHT OTHERWISE HAVE UNDER ANY FEDERAL, STATE OR LOCAL LAW OR STATUTE WITH REGARD TO THE RELEASE OF SUCH UNKNOWN, UNANTICIPATED OR MISUNDERSTOOD DEFENSES OR CLAIMS.


THE BORROWER AND IMPERIAL ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND EACH OF THE PROVISIONS OF THIS RELEASE. THE BORROWER AND IMPERIAL FULLY UNDERSTAND THAT THIS RELEASE CONSTITUTES A GENERAL RELEASE, AND THAT IT HAS IMPORTANT LEGAL CONSEQUENCES. THE BORROWER AND IMPERIAL UNDERSTAND AND CONFIRM THAT THEY ARE HEREBY RELEASING ANY AND ALL RELEASED CLAIMS THAT ANY MAY INDIVIDUALLY HAVE AS OF THE DATE HEREOF. THE BORROWER AND IMPERIAL HEREBY ACKNOWLEDGE THAT THEY HAVE HAD A FULL AND FAIR OPPORTUNITY TO OBTAIN A LAWYER’S ADVICE CONCERNING THE LEGAL CONSEQUENCES OF THIS RELEASE AND WAIVER.

 

  5. As an additional material inducement to the Lender and the Agent to enter into this Agreement and to amend certain of the Loan Documents as provided herein, the Borrower and Imperial hereby represent and warrant to, and agree with, the Lender that, as of the date hereof:

 

  (a) the Loan Documents, as amended hereby, are in full force and effect and neither Borrower nor Imperial has any defense, counterclaim or offset to the payment or performance of any of such party’s obligations in regard to the Loan or any of the Loan Documents, as amended hereby, and the Liens created and granted by the Loan Documents continue unimpaired and of first priority and secure all existing and future obligations owed to the Lender and/or the Agent in regard to the Loan;

 

  (b) the representations and warranties of the Borrower and Imperial set forth in the Loan Documents are true and correct in all material respects as of the date hereof and are hereby reaffirmed as if such representations and warranties had been made on the date hereof and shall continue in full force and effect;

 

  (c) this Agreement constitutes the legal, valid and binding obligation of the Borrower and Imperial, enforceable against the Borrower and Imperial in accordance with the terms hereof.

The representations and warranties of the Borrower and Imperial contained in this Agreement and in the Loan Documents shall survive the consummation of the transactions contemplated by this Agreement.

 

  6. In addition to the documents, instruments and acts described in this Agreement and which are to be executed and/or delivered and/or taken pursuant to this Agreement, the Borrower and Imperial shall execute and deliver, and/or cause to be executed and delivered, from time to time upon request by the Agent such other documents and instruments, and take such other action, as the Agent may reasonably request or require to more fully and completely evidence and carry out the transactions contemplated by this Agreement.


  7. The Borrower and Imperial hereby affirm, confirm, ratify, renew and extend the debts, duties, obligations, liabilities, rights, titles, security interests, Liens, powers and privileges created or arising by virtue of the Loan Documents, as amended hereby, until all of the Loan and all other Obligations have been paid and performed in full. The Borrower confirms that it is fully, unconditionally liable for the payment and performance of the Loan as provided in the Loan Documents and that neither the Agent nor the Lender has released, forgiven, discharged, impaired, waived or relinquished, and the Agent and the Lender do not hereby release, forgive, discharge, impair, waive or relinquish any rights, titles, interests, Liens, security interests, Collateral, parties, remedies or any other matter with respect to the Loan or any of the Loan Documents, but rather the Agent and the Lender are expressly retaining and reserving the same to their fullest extent.

 

  8. Except as expressly amended hereby, all the terms, provisions, debts, duties, Obligations, liabilities, representations, warranties, rights, titles, security interests, Liens, powers and privileges existing by virtue of the Loan Documents shall be and continue in full force and effect and are hereby acknowledged by the Borrower and Imperial to be legal, valid, binding and enforceable in accordance with their terms.

 

  9. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York and the laws of the United States applicable to transactions within New York, exclusive of any laws relating to conflicts of law.

 

  10. This Agreement shall constitute a Loan Document and shall be binding upon the parties hereto and their respective successors and assigns. Nothing contained herein shall act to amend or modify any of the provisions of the Loan Documents which restrict or prohibit assignment or transfer.

 

  11. Neither this Agreement nor any provision of any of the other Loan Documents may be waived, modified or amended, except by an instrument in writing signed by the party against which the enforcement of such waiver, modification or amendment is sought, and then only to the extent set forth in such instrument.

 

  12. This Agreement constitutes the entire agreement between the parties in regard to the amendment of the Loan and the Loan Documents effected hereby, and supercedes all prior agreements and understandings, if any, between the parties relating to the amendment of the Loan and the Loan Documents effected hereby.

 

  13. This Agreement may be signed in multiple counterparts and each shall be deemed to be an original, and the fascimile transmission of executed counterpart agreements shall be deemed to be an originally executed agreement; provided that executed original documents are provided to the parties promptly following such facsimile transmission.

 


  14. The Borrower agrees to pay and/or reimburse the Agent and the Lender for all costs and expenses incurred by the Agent and/or the Lender in regard to the amendment of the Loan Documents effected hereby.

EXECUTED as of the day and year first above written.

 

BORROWER:

WHITE EAGLE ASSET PORTFOLIO, LLC

By:

 

/s/ Antony Mitchell

Name:

  Antony Mitchell

Title:

  Chief Executive Officer

IMPERIAL FINANCE & TRADING, LLC,

as Servicer

By:

 

/s/ Antony Mitchell

Name:

  Antony Mitchell

Title:

  Chief Executive Officer


IMPERIAL FINANCE & TRADING, LLC,

as Portfolio Manager

By:

 

/s/ Antony Mitchell

Name:

  Antony Mitchell

Title:

  Chief Executive Officer

SECURITIES INTERMEDIARY AND CUSTODIAN:

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Securities Intermediary and Custodian

By:

 

/s/ Robert Donaldson

Name:

  Robert Donaldson

Title:

  Vice President

LENDER:

 

LNV CORPORATION

By:

 

/s/ W.T. Saurenmann

Name:

  W.T. Saurenmann

Title:

  Authorized Signatory

ADMINISTRATIVE AGENT:

CLMG CORP.

By:

 

/s/ W.T. Saurenmann

Name:

  W.T. Saurenmann

Title:

  Authorized Signatory


EXHIBIT A

FIRST AMENDMENT TO SERVICING AGREEMENT

This FIRST AMENDMENT TO SERVICING AGREEMENT (this “ Amendment ”), dated and effective as of August 9, 2013, is entered into by and between Imperial Finance & Trading, LLC, a Florida limited liability company (“ Servicer ”), and White Eagle Asset Portfolio, LLC, a Delaware limited liability company (the “ Borrower ”). Capitalized terms used herein and not otherwise defined have the meanings ascribed thereto in the Servicing Agreement specified below to which this Amendment relates.

WITNESSETH:

WHEREAS, Servicer and Borrower have heretofore entered into that Servicing Agreement dated as of April 29, 2013 (the “ Servicing Agreement ”), providing for the performance by Servicer of specified ongoing administration and servicing of certain life insurance policies that are from time to time owned directly or indirectly by Borrower, which life insurance policies serve as collateral for the credit advances made to the Borrower pursuant to that certain Loan and Security Agreement (the “ Loan Agreement ”), dated as of April 29, 2013, by and among Borrower, the financial institutions party thereto from time to time as lenders (each, a “ Lender ” and collectively, the “ Lenders ”), and CLMG Corp., as administrative agent for the Lenders (in such capacity, the “ Administrative Agent ”);

WHEREAS, Section 7.3 of the Servicing Agreement permits amendment by written agreement of the Servicer and Borrower with the consent of the Administrative Agent (while the Loan Agreement is in effect); and

WHEREAS, the Administrative Agent has consented to the amendment of the Servicing Agreement pursuant to that certain First Amendment To Loan And Security Agreement And Security Account Control And Custodian Agreement made and entered into August 9, 2013, by and among Borrower, Imperial Finance & Trading, LLC, Wilmington Trust, National Association, as Securities Intermediary and as Custodian (“ Wilmington ”), the Administrative Agent, and LNV Corporation, the sole Lender as of the date hereof;

NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby mutually covenant and agree for the equal and ratable benefit of the parties hereto and of each express third party beneficiary as follows:

1. Amendments to Annex I . The first sentence of Section 1(e) of Annex I of the Servicing Agreement is hereby amended and restated to read as follows:

“By August 31, 2013, Servicer shall, using the information contained in the relevant Policy Illustration described in paragraph 4(b) below received from the related Issuing Insurance Company in respect of each Pledged Policy that is a Pledged Policy as of the date of the Initial Advance, and then again within thirty


(30) days after its later receipt of a subsequent Policy Illustration relating thereto as described in paragraph 4(b) below from the related Issuing Insurance Company (using the information contained in such subsequent Policy Illustration), utilizing commercially reasonable practices and in accordance with the Servicing Standard, calculate the Premium optimization for such Pledged Policy and the Net Death Benefit for the term ending no sooner than the date upon which such Pledged Policy matures in a manner that the current cash value and future cash value shall be as low as reasonably possible while maintaining the Pledged Policy in full force and effect and not in a state of grace.”

2. Separability Clause . In case any provision of this Amendment shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

3. Effect of Headings . The section headings herein are for convenience only and shall not affect the construction hereof.

4. Governing Law . THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLE OF CONFLICTS OF LAW THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.

5. Multiple Originals . The exchange of copies of this Amendment and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Amendment as to the parties hereto and may be used in lieu of the original Amendment for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the date first above written.

 

IMPERIAL FINANCE & TRADING, LLC

By:

 

 

  Name:
  Title:

WHITE EAGLE ASSET PORTFOLIO, LLC

By:

 

 

  Name:
  Title:


EXHIBIT M

FORM OF CUSTODIAL PACKAGE INDEX FOR PREMIUM FINANCE FILE

Dated:                     , 201__

TOP PORTION TO BE COMPLETED BY OR ON BEHALF OF BORROWER PRIOR TO DELIVERY TO CUSTODIAN

Insured Name –

Policy number –

Issuing Insurance Company –

Name of Current Policy Owner – Wilmington Trust, N.A., as Securities Intermediary or other owner set forth on Schedule II to the Securities Account Control and Custodian Agreement]

Seller Name – [Insured/Not Insured] If Seller was not Insured, Seller was: [Individual/Trust/Limited Partnership/Corporation.] [if Trust, was Trustee an individual – Yes/No]

Was Policy issued as a result of a conversion of a prior existing Policy? – [Yes/No.]

Is Original Policy included, or has original been lost and a duplicate copy included? [Original/Duplicate]

 

    No.        Document
1.    Application and Loan Agreement
2.    Authorization for Disclosure of Protected Health Information
3.    Unless such Policy is set forth on both Schedule I and Schedule VIII to the Securities Account Control and Custodial Agreement, Death Certificate Authorization
4.    Insured’s ID (one of the following: driver’s license, Social Security card, passport, military ID, State ID card)
5.    If designated by Borrower above that seller was not the Insured and that seller was an individual, copy of seller’s ID (one of the following: driver’s license, passport, military ID, State ID card) , or if designated by Borrower above that seller was a trust, and the trustee was an individual, copy of trustee’s ID (one of the following: driver’s license, Social Security card, passport, military ID, State ID card), and if designated by Borrower above that seller was (1) a trust, a Trust Agreement, (2) a limited partnership, a limited partnership agreement, (3) a corporation, bylaws, or (4) an LLC, a limited liability company agreement or operating agreement
6.    What appears to be an original Policy or, if designated by Borrower above that original is lost, a duplicate copy of the Policy


    No.        Document
7.    If Policy is set forth on Schedule IV to the Securities Account Control and Custodial Agreement, Beneficiary Pledge Agreement or Security Agreement
8.    Insured’s application for life insurance policy included with the Policy
9.    Change Forms relating to the transfer of the Policy to the Current Policy Owner designated by Borrower above
10.    Change Forms that refer to a transfer of the Policy to one of: (i) Imperial PFC Financing, LLC, (ii) Imperial PFC Financing II, LLC, (iii) Imperial Life Financing II, LLC, (iv) PSC Financial, LLC, (v) OLIPP I, LLC, (vi) CTL Holdings, LLC or (vi) US Bank National Association, as Securities Intermediary.
11.    If the Borrower has designated above that Policy was issued as a result of a conversion of a prior existing Policy, a statement in the form of a confirming document or rider from the Issuing Insurance Company purporting to reflect such conversion and purporting to confirm that the contestability and suicide periods for such Policy have expired
12.    Policy Illustration, and unless such Policy is set forth on both Schedule I and Schedule III to the Securities Account Control and Custodial Agreement, such Policy Illustration is not dated more than three hundred sixty-five (365) days prior to the date of receipt by the Securities Intermediary
13.    Annual Policy Statement
14.    Unless such Policy is set forth on both Schedule I and Schedule IX to the Securities Account Control and Custodial Agreement, W-9 for the Seller
15.    Social Security confirmation for Insured (any one of a SS card, Medicare card, Driver’s License, Accurint, LexisNexis or similar search or copy of purported tax return or other documentation from the Social Security Administration showing the Social Security number)


FORM OF CUSTODIAL PACKAGE INDEX FOR LIFE SETTLEMENT FILE

Dated:                     , 201__

TOP PORTION TO BE COMPLETED BY OR ON BEHALF OF BORROWER PRIOR TO DELIVERY TO CUSTODIAN

Insured Name –

Policy number –

Issuing Insurance Company –

Name of Current Policy Owner – [Wilmington Trust, N.A., as Securities Intermediary or other owner set forth on Schedule II to the Securities Account Control and Custodian Agreement]

Seller Name – [Insured/Not Insured] If Seller was not Insured, Seller was: [Individual/Trust/Limited Partnership/Corporation.] [if Trust, was Trustee an individual – Yes/No]

Was Policy issued as a result of a conversion of a prior existing Policy? – [Yes/No.]

Retained Death Benefit Transaction? [Yes/No.]

Is Original Policy included, or has original been lost and a duplicate copy included? [Original/Duplicate]

 

    No.        Document
1.    Life/Viatical Settlement Application
2.    Power of Attorney for Medical Records Release and Death Certificate Authorization
3.    Life/Viatical Settlement Purchase and Sale Agreement (including Designation Side Letter for Retained Death Benefit transactions, if designated by Borrower above that this is a Retained Death Benefit Transaction)
4.    Insured’s ID (one of the following: driver’s license, Social Security card, passport, military ID, State ID card)
5.    If designated by Borrower above that seller was not the Insured and that seller was an individual, copy of seller’s ID (one of the following: driver’s license, passport, military ID, State ID card) , or if designated by Borrower above that seller was a trust, and the trustee was an individual, copy of trustee’s ID (one of the following: driver’s license, Social Security card, passport, military ID, State ID card), and if designated by Borrower above that seller was (1) a trust, a Trust Agreement, (2) a limited partnership, a limited partnership agreement, (3) a corporation, bylaws, or (4) an LLC, a limited liability company agreement or operating agreement
6.    What appears to be an original Policy or, if designated by Borrower above that original is lost, a duplicate copy of the Policy
7.    Beneficiary’s Consent to Change Beneficiary/Beneficiary Release of Policy


    No.        Document
8.    Insured’s application for life insurance policy included with the Policy
9.    Change Forms that refer to the transfer of the Policy to the Current Policy Owner designated by Borrower above
10.    Change Forms that refer to the transfer of the Policy to Imperial Life Settlements, LLC
11.    Designees of Insured
12.    If the Borrower has designated above that Policy was issued as a result of a conversion of a prior existing Policy, a statement in the form of a confirming document or rider from the Issuing Insurance Company purporting to reflect such conversion and purporting to confirm that the contestability and suicide periods for such Policy have expired
13.    Policy Illustration, and unless such Policy is set forth on both Schedule I and Schedule III to the Securities Account Control and Custodial Agreement, such Policy Illustration is not dated more than three hundred sixty-five (365) days prior to the date of receipt by the Securities Intermediary
14.    Annual Policy Statement
15.    W-9 for the Seller
16.    Social Security confirmation for Insured (any one of a SS card, Medicare card, Driver’s License, Accurint, LexisNexis or similar search or copy of a purported tax return or other documentation from the Social Security Administration showing the Social Security number)
17.    Unless such Policy is set forth on both Schedule I and Schedule X to the Securities Account Control and Custodial Agreement, Physician’s Statement
18.    Unless such Policy is set forth on both Schedule I and Schedule XI to the Securities Account Control and Custodial Agreement, Spousal Consent/Release


FORM OF CUSTODIAL PACKAGE INDEX FOR TERTIARY FILE

Dated:                     , 201__

TOP PORTION TO BE COMPLETED BY OR ON BEHALF OF BORROWER PRIOR TO DELIVERY TO CUSTODIAN

Insured Name –

Policy number –

Issuing Insurance Company –

Name of Current Policy Owner – [Wilmington Trust, N.A., as Securities Intermediary or other owner set forth on Schedule II to the Securities Account Control and Custodian Agreement]

Seller Name – [Insured/Not Insured] If Seller was not Insured, Seller was: [Individual/Trust/Limited Partnership/Corporation.]

Was Policy issued as a result of a conversion of a prior existing Policy? – [Yes/No.]

Is original Policy included, or has original been lost and a duplicate copy included? [Original/Duplicate]

 

    No.        Document
1.    Purchase and Sale Agreement
2.    (i) Each of (a) Authorization for Disclosure of Protected Health Information and (b) Death Certificate Authorization or (ii) Special Irrevocable Durable Power of Attorney and Medical Records Release
3.    Life Settlement Contract
4.    Insured’s ID (one of the following: driver’s license, passport, military ID, State ID card)
5.    If designated by Borrower above that seller was not the Insured and that seller was an individual, copy of seller’s ID (one of the following: driver’s license, passport, military ID, State ID card) , or if designated by Borrower above that seller was a trust, and the trustee was an individual, copy of trustee’s ID (one of the following: driver’s license, Social Security card, passport, military ID, State ID card), and if designated by Borrower above that seller was (1) a trust, a Trust Agreement, (2) a limited partnership, a limited partnership agreement, (3) a corporation, bylaws, or (4) an LLC, a limited liability company agreement or operating agreement
6.    What appears to be an original Policy or, if designated by Borrower above that original is lost, a duplicate copy of the Policy
7.    Insured’s application for life insurance policy included with the Policy
8.    Change Forms that refer to the transfer of the Policy to the Current Policy Owner designated by Borrower above


    No.        Document
9.    Change Forms that refer to the transfer of the Policy to OLIPP II, LLC
10.    Contacts For the Insured
11.    If the Borrower has designated above that Policy was issued as a result of a conversion of a prior existing Policy, a statement in the form of a confirming document or rider from the Issuing Insurance Company purporting to reflect such conversion and purporting to confirm that the contestability and suicide periods for such Policy have expired
12.    Policy Illustration, and unless such Policy is set forth on both Schedule I and Schedule III to the Securities Account Control and Custodial Agreement, such Policy Illustration is not dated more than three hundred sixty-five (365) days prior to the date of receipt by the Securities Intermediary
13.    Annual Policy Statement
14.    W-9 for the Seller
15.    Social Security confirmation for Insured (any one of a SS card, Medicare, Driver’s License, Accurint, LexisNexis or similar search or copy of purported tax return or other documentation from the Social Security Administration showing the Social Security number)
16.    Unless such Policy is set forth on both Schedule I and Schedule V to the Securities Account Control and Custodial Agreement, Letter of Competency for Insured
17.    Unless such Policy is set forth on both Schedule I and Schedule VI to the Securities Account Control and Custodial Agreement, Spousal Consent/Release

Exhibit 10.3

[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

SERVICING AGREEMENT

This SERVICING AGREEMENT, dated as of April 29, 2013 (this “ Agreement ”), by and between Imperial Finance & Trading, LLC, a Florida limited liability company (“ Servicer ”) and White Eagle Asset Portfolio, LLC, a Delaware limited liability company (the “ Borrower ”).

W I T N E S S E T H:

WHEREAS, pursuant to that certain Loan and Security Agreement, dated as of April 29, 2013 (as it may be amended, supplemented or modified from time to time in accordance with its terms, the “ Loan Agreement ”), by and among the Borrower, CLMG Corp., a Texas corporation, as the administrative agent for the Lenders (as defined below) (in such capacity, the “ Administrative Agent ”), Imperial Finance & Trading, LLC, as Portfolio Manager (as defined in the Loan Agreement) and as Servicer, and the financial institutions party thereto from time to time (each, a “ Lender ” and collectively, the “ Lenders ”), the Lenders have agreed to make credit advances to the Borrower from time to time upon the terms and subject to the conditions set forth in the Loan Agreement; and

WHEREAS, the Borrower desires to appoint Servicer with respect to the ongoing administration and servicing of certain life insurance policies that are from time to time owned (including as of the date hereof), directly or indirectly, by the Borrower, which life insurance policies serve as collateral for the credit advances made by the Lenders to the Borrower under the Loan Agreement, and Servicer desires to accept such appointment and perform its covenants, duties, obligations and services hereunder, all in accordance with the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the parties hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1. Certain Definitions . Capitalized terms used in this Agreement but not otherwise defined shall have the respective meanings set forth in the Loan Agreement which also contains rules as to usage and construction which shall be applicable to this Agreement.

Administrative Agent ” has the meaning set forth in the recitals.

Borrower ” has the meaning set forth in the recitals.


Borrower Indemnitees ” means, collectively, Servicer, the Administrative Agent, the Lenders, each Affiliate of any of the foregoing and each stockholder, member, partner (limited, general or other), manager, officer, director, trustee, employee, agent and representative of Servicer or any of its Affiliates.

Death Benefit ” means the cash amount of a Pledged Policy to be paid upon the death of the Insured under such Pledged Policy, which amount will be net of any policy loans made under such Pledged Policy (and accrued interest thereon).

E&O Insurance ” has the meaning set forth in Section 3.2(d).

Lender ” has the meaning set forth in the recitals.

Loan Agreement ” has the meaning set forth in the recitals.

Loss ” means any incurred loss, liability, claim, cost, damage, expense, tax, penalty, interest or fine, whether or not arising out of a third party claim, including reasonable attorneys’ fees and other out-of-pocket costs and expenses related to such incurred loss, liability, claim, damage, tax, penalty, interest or fine.

Paid Through Date ” means, with respect to each Pledged Policy and a Premium Payment in respect thereof, the latest eligible date the related Issuing Insurance Company will accept a Premium Payment for such Pledged Policy, as determined by Servicer based on the contractual terms of such Pledged Policy, if any.

Policy Information ” has the meaning given to such term in paragraph 4(a) of Annex 1 hereto.

Premium Due Date ” has the meaning given to such term in paragraph 1(b) of Annex 1 hereto.

Premium Due Date Schedule ” means a written schedule prepared by the Servicer that contains all the following information:

 

  1. the Pledged Policy identification code;

 

  2. the Pledged Policy number;

 

  3. the Paid Through Date;

 

  4. the Insured’s first and last name;

 

  5. Issuing Insurance Company’s full legal name;

 

  6. Issuing Insurance Company’s contact information for purposes of remitting Premium Payments;

 

  7. the Premium Payment amount; and

 

  8. Issuing Insurance Company’s applicable wire instructions and/or overnight payment address.

 

Servicing Agreement

Page 2 of 19


Premium Payment ” has the meaning given to such term in paragraph 1(b) of Annex 1 hereto.

Premium Payment Schedule ” means, with respect to each Pledged Policy, a written schedule of premium payments to be made in respect of such Pledged Policy (including the dates upon which such payments are due to the applicable Issuing Insurance Company), which schedule shall be prepared by Servicer per the directed or agreed upon optimization parameters in accordance with the Servicing Standard in order to pay the applicable Premiums, which may be updated from time to time by Servicer with the consent of the Administrative Agent.

Premium Remittance Schedule ” means a written schedule prepared by the Servicer that contains the following information:

 

  1. the date on which the Securities Intermediary remitted Premium Payment to the applicable Issuing Insurance Company;

 

  2. whether the Premium Payment was remitted to the Issuing Insurance Company by check or wire;

 

  3. If remitted by wire transfer, the wire payment tracking number;

 

  4. If remitted by check, the check number;

 

  5. the Pledged Policy identification code;

 

  6. the Pledged Policy number;

 

  7. the date each Premium Payment is due;

 

  8. the Insured’s first and last name;

 

  9. Issuing Insurance Company’s full legal name;

 

  10. Issuing Insurance Company’s contact information for purposes of remitting Premium Payments; and

 

  11. the Premium Payment amount.

Servicer Collateral Audit ” has the meaning set forth in Section 3.2(b).

Servicer Indemnitees ” means, collectively, the Administrative Agent, the Lenders, the Borrower, each Affiliate of the Borrower, the Lenders and the Administrative Agent, and each stockholder, member, partner (limited, general or other), manager, officer, director, trustee, employee, agent, representative, successor and assignee of the Borrower, the Lenders and the Administrative Agent or any of their Affiliates.

Servicer Material Adverse Effect ” means, with respect to any event or circumstance, a material adverse effect on:

(a) the business, assets, financial condition or operations of Servicer;

(b) the ability of Servicer to perform any of its obligations under this Agreement; or

(c) the validity or enforceability against Servicer of this Agreement.

 

Servicing Agreement

Page 3 of 19


Servicer Report ” has the meaning given to such term in paragraph 4(c) of Annex 1 hereto.

Servicer Termination Event ” has the meaning set forth in Section 4.1(a) .

Services ” has the meaning set forth in Section 2.1 .

Servicing Fee ” has the meaning set forth in Section 5.1 .

Servicing Standard ” has the meaning set forth in Section 6.1(b) .

Successor Servicer ” has the meaning set forth in Section 4.2 .

Tracking Services ” means, collectively, the portion of the Services described in paragraph 2 of Annex 1 hereto.

ARTICLE II

RESPONSIBILITIES OF SERVICER

Section 2.1. The Borrower hereby appoints and engages Servicer to provide the services described on Annex 1 hereto (the “ Services ”), pursuant to, and in accordance with, the terms and provisions of this Agreement, and Servicer hereby accepts such appointment and agrees to perform its covenants, duties, obligations and the Services on the terms and conditions set forth in this Agreement. Servicer will, for the benefit of the Borrower and so long as the Loan Agreement is in effect, the Administrative Agent and the Lenders, perform the Services in all cases subject to the Servicing Standard. Servicer shall also take such ancillary actions (even if not specifically set forth in Annex 1) as are reasonably necessary to service the Pledged Policies in accordance with the Servicing Standard. Servicer and the Borrower agree that in the event the Borrower, or so long as the Loan Agreement is in effect, the Administrative Agent, requests Servicer perform additional work other than the Services and such ancillary actions, Servicer will decide in its reasonable discretion whether to perform such work. If Servicer reasonably declines to perform such work, such declination shall not constitute a default and may not serve as a reason for the termination of Servicer.

Section 2.2. Servicer Reports . Servicer shall deliver a Servicer Report to the Borrower, and so long as the Loan Agreement is in effect, to the Administrative Agent, no later than the seventh (7th) day of each calendar month (or if such day is not a Business Day, the next succeeding Business Day).

Section 2.3. Servicer’s Customary Practices and Procedures . The parties hereto acknowledge that as of the date hereof, the Servicer is in the process of implementing new customary practices and procedures, which shall be approved by the Administrative Agent at the direction of the Required Lenders in their reasonable discretion and shall be completed within sixty (60) days of the date hereof. Prior to such implementation, the Servicer shall comply with the Servicing Standard and after such implementation, the Servicer shall comply with the

 

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Servicer’s customary practices and procedures and the Servicing Standard. Servicer shall not materially revise Servicer’s customary practices and procedures without the prior written consent of the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent.

Section 2.4. No Other Duties . Servicer’s duties shall be limited to those expressly specified in this Agreement and Servicer shall have no implied duties or obligations.

Section 2.5. Independent Contractor Relationship . Servicer’s relationship with the Borrower will be that of an independent contractor and nothing in this Agreement should be deemed or construed by the parties hereto or by any other Person to make Servicer a general or special dependent agent, legal representative, joint venturer, partner or employee of the Borrower, the Administrative Agent or any Lender or otherwise create the relationship of a partnership, joint venture or other joint or common undertaking for any purpose. Servicer assumes full responsibility for the acts of its personnel while performing services hereunder and shall be responsible for their supervision, direction and control, compensation, benefits and taxes. Servicer does not have, expressly or by implication, or may represent itself as having, directly or indirectly, any authority to act for or on behalf of the Borrower, the Administrative Agent or any Lender or to make contracts or enter into any agreements in the name of the Borrower, the Administrative Agent or any Lender or to obligate or bind the Borrower, the Administrative Agent or any Lender in any manner whatsoever unless with respect to the Borrower only, specifically required to do so in this Agreement or requested to do so by the Borrower, in writing.

ARTICLE III

REPRESENTATIONS, WARRANTIES AND COVENANTS

Section 3.1. Representations and Warranties of Servicer . Servicer, as of the date hereof, hereby represents and warrants to, and covenants with the Borrower as follows.

(a) Organization and Good Standing . Servicer is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Florida and has all requisite limited liability company power and authority to own, lease and operate its properties and to carry on its business as now conducted. Servicer is duly qualified and authorized to do business as a foreign limited liability company and is in good standing under the laws of each jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification or authorization, except where the failure to be so qualified, authorized or in good standing would not reasonably be expected to have a material adverse effect on Servicer’s ability to perform its obligations under this Agreement.

(b) Authorization of Agreement . Servicer has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite limited liability company action on the part of Servicer. This

 

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Agreement has been duly and validly executed and delivered by Servicer and (assuming the due authorization, execution and delivery by the Borrower) this Agreement constitutes the legal, valid and binding obligation of Servicer, enforceable against Servicer in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).

(c) Conflicts; Consents of Third Parties .

(i) None of the execution and delivery by Servicer of this Agreement, the consummation of the transactions contemplated hereby, or compliance by Servicer with any of the provisions hereof will conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination or cancellation under, any provision of (A) the certificate of formation and limited liability company agreement of Servicer; (B) any contract or permit to which Servicer is a party or by which any of the properties or assets of Servicer are bound; (C) any order of any Governmental Authority applicable to Servicer or by which any of the properties or assets of Servicer are bound or (D) any Applicable Law, other than, in the case of clause (B), such conflicts, violations, defaults, terminations or cancellations that would not reasonably be expected to have a material adverse effect on Servicer’s ability to perform its obligations under this Agreement.

(ii) No consent, waiver, approval, order, permit, license or authorization of, or declaration or filing with, or notification to, any Person or Governmental Authority is required on the part of Servicer in connection with the execution and delivery of this Agreement, the compliance by Servicer with any of the provisions hereof, or the consummation of the transactions contemplated hereby, or the taking by Servicer of any other action contemplated hereby, except for such consents, licenses, waivers, approvals, orders, permits or authorizations the failure of which to obtain would not have a material adverse effect on Servicer’s ability to perform its obligations under this Agreement.

(d) No Proceedings . There is no order, judgment, decree, injunction, stipulation or consent order of or with any Governmental Authority to which Servicer is subject, and there is no action, suit, arbitration, regulatory proceeding or investigation pending, or, to the knowledge of Servicer, threatened, before or by any court, regulatory body, administrative agency or other tribunal or governmental instrumentality, against Servicer that, individually or in the aggregate, could reasonably be expected to have a material adverse effect on any of the Pledged Policies or the business, assets, financial condition or operations of Servicer; and there is no action, suit, proceeding, arbitration, regulatory or governmental investigation, pending or, to the knowledge of Servicer, threatened, before or by any court, regulatory body, administrative agency, or other tribunal or governmental instrumentality (A) asserting the invalidity of this Agreement or under any other Transaction Document or (B) asserting that any Pledged Policy or Policy to become a Pledged Policy is invalid, void or otherwise unenforceable for any reason.

(e) Ability to Perform Services . Servicer possesses the requisite assets, employees and experience to perform the Services in accordance with the Servicing Standard.

 

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Section 3.2. Covenants of Servicer .

(a) Compliance with Laws, Etc . Servicer shall comply with all Applicable Laws.

(b) Audit . Servicer shall permit Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent and each Lender, or their duly authorized representatives, attorneys or auditors during ordinary business hours and upon one (1) Business Day written notice, to visit the offices thereof and to inspect its accounts, records and computer systems, software and programs used or maintained by Servicer in relation to the Collateral or its performance of duties hereunder at such times as Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent, may reasonably request (a “ Servicer Collateral Audit ”) and Servicer shall enable the Insurance Consultant to seek and receive from the related Issuing Insurance Companies any verifications of coverage related to the Pledged Policies as often as Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent, may request the Insurance Consultant to do so; provided, however, if no Event of Default or Unmatured Event of Default has occurred and is continuing, the total expenses incurred by or on behalf of Borrower related to a Servicer Collateral Audit and delivering any verifications of coverage related to the Pledged Policies shall be limited to no more than $2,000 (as adjusted annually for inflation or such higher amount if such higher amount is the Insurance Consultant’s reasonably determined prevailing market cost in the industry for such Servicer Collateral Audits of the type in question as adjusted for changes in audit standards) for each Pledged Policy during any twelve (12) month period. So long as the Loan Agreement is in effect, upon written instructions from the Administrative Agent, the Borrower shall, and shall cause the Servicer to release any document related to any Collateral to the Administrative Agent. So long as the Loan Agreement is in effect, the Administrative Agent may conduct a Servicer Collateral Audit no more than once per calendar year at the Borrower’s expense and no more frequently than once every two (2) calendar months at the Lenders’ expense. So long as the Loan Agreement is in effect, the Administrative Agent may conduct Servicer Collateral Audits as it wishes at the Lenders’ expense; provided, however, if an Event of Default or Unmatured Event of Default has occurred and is continuing, the Administrative Agent, at the Borrower’s expense, shall have the right to conduct a Servicer Collateral Audit at any time and as often the Administrative Agent determines is necessary or desirable.

(c) Forwarding of Communications; Turnover of Monies . Following the date hereof, if Servicer or any of its employees, agents, representatives, Affiliates or third party service providers at any time receives any written communications or cash, checks or other instruments relating to the Pledged Policies, such recipient will segregate and hold such payments in trust for the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent (on behalf of the Secured Parties), and will, promptly upon receipt (but in any event within two (2) Business Days of receipt thereof) remit all such communications, cash, checks and instruments, duly endorsed or with duly executed instruments of transfer, to the

 

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Collection Account. In addition, the Servicer shall deliver or cause to be delivered to the Borrower, the Custodian, and so long as the Loan Agreement is in effect, the Administrative Agent and the Insurance Consultant, within two (2) Business Days after the Servicer’s receipt of written notice of any material adverse change, or of any fact, event or circumstance that would reasonably be expected to result in a material adverse change, in the ability of Servicer to perform the Services or to otherwise comply with any of its obligations under this Agreement, a notice setting forth the details thereof and the action, if any, the Servicer is taking or proposes to take with respect thereto.

(d) Insurance . During the term of this Agreement, Servicer shall maintain errors and omissions insurance (the “ E&O Insurance ”) with respect to its operations and with respect to its obligations under this Agreement which is adequate, reasonable and customary in light of Servicer’s operations and consistent with the Servicing Standard, but in no event with an aggregate claim limit that is less than ten million dollars ($10,000,000). The E&O Insurance shall be on terms and conditions and issued by an insurer, in each case, reasonably acceptable to the Administrative Agent acting at the direction of the Required Lenders.

(e) Further Assurances . Servicer shall use its reasonable, good faith efforts to take, or cause to be taken, all actions that are, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things that are, necessary, proper or otherwise advisable under all Applicable Law to more fully effect the purposes of this Agreement.

(f) Investigative Services . Servicer may, at its own expense, use third party investigative services approved by the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent (such approval shall be in the Borrower’s, and so long as the Loan Agreement is in effect, the Administrative Agent’s, sole and absolute discretion) to conduct the Tracking Services.

(g) Licenses . Servicer shall maintain all licenses, permits, certificates of authority or other authorizations required from any Governmental Authority in order to perform its obligations under this Agreement.

Section 3.3. Representations and Warranties of the Borrower . The Borrower, as of the date hereof, hereby represents and warrants to, and covenants with Servicer as follows.

(a) Organization and Good Standing . The Borrower is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware and has all requisite limited partnership power and authority to own, lease and operate its properties and to carry on its business as now conducted.

(b) Authorization of Agreement . The Borrower has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all requisite action on the part the Borrower. This Agreement has been

 

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duly and validly executed and delivered by the Borrower and (assuming the due authorization, execution and delivery by the Servicer) this Agreement constitutes the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).

(c) Conflicts; Consents of Third Parties .

(i) None of the execution and delivery by the Borrower of this Agreement, the consummation of the transactions contemplated hereby, or compliance by the Borrower with any of the provisions hereof will conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination or cancellation under, any provision of (A) the Borrower Organizational Documents; (B) any contract or permit to which the Borrower is a party or by which any of the properties or assets of the Borrower are bound; (C) any order of any Governmental Authority applicable to the Borrower or by which any of the properties or assets of the Borrower are bound or (D) any Applicable Law, other than, in the case of clause (B), such conflicts, violations, defaults, terminations or cancellations that would not have a material adverse effect on the Borrower’s ability to perform its obligations under this Agreement.

(ii) No consent, waiver, approval, order, permit or authorization of, or declaration or filing with, or notification to, any Person or Governmental Authority is required on the part of the Borrower in connection with the execution and delivery of this Agreement, the compliance by the Borrower with any of the provisions hereof, or the consummation of the transactions contemplated hereby, or the taking by the Borrower of any other action contemplated hereby, except for such consents, waivers, approvals, orders, permits or authorizations the failure of which to obtain would not have a material adverse effect on the Borrower’s ability to perform its obligations under this Agreement.

(d) No Proceedings . There is no order, judgment, decree, injunction, stipulation or consent order of or with any Governmental Authority to which the Borrower is subject, and there is no action, suit, arbitration, regulatory proceeding or investigation pending, or, to the actual knowledge of the Borrower, threatened, before or by any court, regulatory body, administrative agency or other tribunal or governmental instrumentality, against the Borrower that, individually or in the aggregate, could reasonably be expected to have a material adverse effect on any of the Pledged Policies or the business, assets, financial condition or operations of the Borrower; and there is no action, suit, proceeding, arbitration, regulatory or governmental investigation, pending or, to the actual knowledge of any the Borrower, threatened, before or by any court, regulatory body, administrative agency, or other tribunal or governmental instrumentality (A) asserting the invalidity of this Agreement or any other Transaction Document or (B) asserting that any Pledged Policy or Policy to become a Pledged Policy is invalid, void or otherwise unenforceable for any reason.

 

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Section 3.4. Covenants of the Borrower .

(a) The Borrower shall deliver or cause to be delivered to Servicer, the Custodian, and so long as the Loan Agreement is in effect, the Administrative Agent and the Insurance Consultant, within three (3) Business Days after the Borrower’s or any of its Affiliates’ receipt, a copy of each written notice or other letter or document received by the Borrower (other than invoices and other information which are not material to the status of a Pledged Policy or such notices, letters or documents received from the Securities Intermediary which have already been delivered to Servicer) in connection with a Pledged Policy, the Services or the other transactions contemplated by this Agreement from any Issuing Insurance Company, Insured, Governmental Authority or arbitrator.

(b) The Borrower shall deliver or cause to be delivered to Servicer, the Custodian, and so long as the Loan Agreement is in effect, the Administrative Agent and the Insurance Consultant, within three (3) Business Days after the transmission thereof by the Borrower or any of their Affiliates, a copy of each material written notice or other letter or document given by the Borrower in connection with a Pledged Policy or the Services to any Issuing Insurance Company, Insured, Governmental Authority or arbitrator.

(c) The Borrower shall deliver or cause to be delivered to Servicer, the Custodian, and so long as the Loan Agreement is in effect, the Administrative Agent and the Insurance Consultant, promptly upon (and in any event within two (2) Business Days after) the Borrower’s or any of its Affiliates’ receipt of written notice of any threatened or pending action by or before any Governmental Authority or arbitrator or any other Person (other than such notices received from the Securities Intermediary which have already been delivered to Servicer) which (i) involves or affects any Pledged Policy, this Agreement, the Loan Agreement or the transactions contemplated hereby or thereby, (ii) in any manner challenges the validity or enforceability of any Pledged Policy or this Agreement or (iii) in any manner challenges or seeks to restrain or prohibit the transactions contemplated by this Agreement, in each case, a notice setting forth the details thereof and any action, if any, the Borrower is taking or proposes to take with respect thereto.

(d) The Borrower shall deliver or cause to be delivered to Servicer, the Custodian, and so long as the Loan Agreement is in effect, the Administrative Agent and the Insurance Consultant, within two (2) Business Days after the Borrower or any of its Affiliates’ receipt of written notice of any material adverse change, or of any fact, event or circumstance that would reasonably be expected to result in a material adverse change, in the ability of Servicer to perform the Services or to otherwise comply with any of its obligations under this Agreement, a notice setting forth the details thereof and the action, if any, the Borrower is taking or propose to take with respect thereto.

(e) The Borrower shall use its reasonable, good faith efforts to take, or cause to be taken, all actions that are, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things that are, necessary, proper or otherwise advisable under all Applicable Law to more fully effect the purposes of this Agreement.

 

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ARTICLE IV

TERMINATION

Section 4.1. Termination .

(a) This Agreement shall terminate automatically upon (i) the collection of the Death Benefit in respect of the last Pledged Policy to reach maturity or (ii) the date on which all of the Obligations (including, without limitation, the Aggregate Participation Interest) shall have been irrevocably paid in full in cash.

(b) Servicer may be terminated in writing by (each of the following Sections 4.1(b)(i)(A) , (B) , (C) , (D) , (E) , (F) , (G) , (H) , (I)  and (J) , a “ Servicer Termination Event ”):

(i) (1) the Borrower (with the prior written consent of the Administrative Agent, which consent may be granted or withheld in its sole and absolute discretion) or (2) so long as the Loan Agreement is in effect, the Administrative Agent, effective upon delivery by the Borrower or the Administrative Agent, as applicable, of written notice of termination to Servicer and the appointment of a Successor Servicer in accordance with Section 4.3 below if any of the following events occur:

(A) Servicer fails to perform or observe any of the covenants, conditions or agreements to be performed or observed by it hereunder (other than Section 3.2(c) and paragraphs 3(c), 5(a) and 5(b) of Annex 1) and such failure shall continue for a period in excess of thirty (30) calendar days after the earlier of (i) knowledge thereof by Servicer or (ii) written notice thereof is given to Servicer;

(B) Servicer fails to perform or observe any of the covenants, conditions or agreements set forth in Section 3.2(c) or paragraphs 3(c), 5(a) or 5(b) of Annex 1 ;

(C) any Event of Bankruptcy shall occur with respect to Servicer;

(D) any representation or warranty made or deemed made by Servicer under this Agreement shall prove to have been incorrect or untrue in any material respect when made (or when such representation, warranty, information or report is deemed to have been made or delivered) and, if curable, such breach is not cured within thirty (30) days;

(E) any information or report prepared and delivered by or on behalf of Servicer hereunder shall prove to have been incorrect or untrue in any material respect and, if curable, such breach is not cured within fifteen (15) days;

 

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(F) an event has occurred that has had or could reasonably be expected to have a Servicer Material Adverse Effect;

(G) Servicer (if it is the initial Servicer) ceases to be a Publicly Traded Company or a Blocked Person shall become the owner, directly or indirectly, beneficially or of record, of equity representing five percent (5.00%) or more of the aggregate ordinary voting power represented by the issued and outstanding equity of Servicer;

(H) the Internal Revenue Service shall file notice of a Lien pursuant to the Code with regard to any assets of Servicer or the PBGC shall, or shall indicate its intention to, file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of Servicer in excess of $3,000,000, unless such filing is being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside;

(I) the Lenders shall have exercised, or commenced the exercise of, their rights under Section 10.2 of the Loan Agreement upon the occurrence and continuance of an Event of Default; or

(J) one or more judgments for the payment of money shall be rendered against Servicer in an aggregate amount in excess of $3,000,000, and shall remain unpaid or undischarged, or a stay of execution thereof shall not be obtained, within thirty (30) days from the date of entry thereof.

(ii) Servicer effective upon the occurrence of both of the following events:

(A) the Borrower’s failure to pay or cause to be paid the portion of the Servicing Fee payable to the Servicer pursuant to the Priority of Payments in accordance with the terms of the Loan Agreement; and

(B) the appointment of a Successor Servicer in accordance with Section 4.3 below.

The Borrower shall pay to Servicer its fees and expenses accrued through the effective date of termination.

Section 4.2. Resignation . Servicer shall not resign from the obligations and duties hereby imposed on it except (a) upon determination that (i) the performance of its duties hereunder is no longer permissible under Applicable Law and (ii) there is no reasonable action that Servicer could take to make the performance of its duties hereunder permissible under Applicable Law or (b) upon the assumption, by an agreement supplemental hereto, in form satisfactory to the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent, of the obligations and duties of Servicer hereunder, by any other entity approved by the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent (such

 

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approval shall be in the Administrative Agent’s sole and absolute discretion) (such entity, the “ Successor Servicer ”). Any determination permitting the resignation of Servicer shall be evidenced as to clause (a) above by an opinion of counsel in form and substance acceptable to the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent, to such effect delivered to the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent.

Section 4.3. Servicer Termination and Resignation . Servicer shall cooperate with the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent, and any Success Servicer in effecting the termination of the responsibilities and rights of Servicer under this Agreement, including, without limitation, delivery to such Successor Servicer of any and all data maintained by Servicer related to the Pledged Policies, this Agreement and any of its obligations under this Agreement and designating such Successor Servicer as Servicer’s agent, assignee, designee, authorized representative, and any other similar designation required by such Successor Servicer for the purposes of complying with Applicable Law with respect to performing any of the services described in this Agreement. No termination of Servicer nor any resignation by Servicer shall be effective unless and until a Successor Servicer is appointed pursuant to clause (b) of Section 4.2 above and Servicer shall have transferred all data to such Successor Servicer as required in the previous sentence. Borrower shall remain obligated to pay any unpaid costs and expenses to any servicer which has resigned or been terminated hereunder. Borrower hereby agrees that MLF LexServ, L.P. shall be an acceptable Successor Servicer.

ARTICLE V

SERVICING FEES

Section 5.1. Servicing Fee . The Borrower will pay to Servicer for its servicing obligations under this Agreement on each Distribution Date a fee (the “ Servicing Fee ”) in arrears, equal to $350 for each Policy that was a Pledged Policy during the immediately preceding calendar quarter.

Section 5.2. Servicer’s Expenses . Servicer shall pay out of the Servicing Fee all costs and expenses of performing its obligations under this Agreement other than expenses associated with the procurement of Life Expectancy Reports, which shall be reimbursable by the Borrower.

ARTICLE VI

STANDARD OF CARE; INDEMNITY

Section 6.1. Standard of Care .

(a) Servicer may rely in good faith on any document of any kind (or a copy thereof) on its face appearing to have been properly executed and submitted by any person authorized to submit the same with respect to any matters arising under this Agreement.

 

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(b) In performing the Services, Servicer shall perform its duties, covenants, obligations and services hereunder (i) with at least the same degree of skill, care, diligence and effort as used by other Persons of established reputation responsible for servicing Policies (and in any event at least the same degree of skill and care as Servicer exercises with respect to comparable assets held for its own account) and (ii) in compliance with all Applicable Law (the foregoing, the “ Servicing Standard ”). Servicer shall also ensure that each of its agents, if any, perform their duties and obligations in regards to the Pledged Policies in accordance with the Servicing Standard. Subject to the specific requirements and prohibitions of this Agreement, (i) Servicer shall perform the Services for the benefit of the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent and the Lenders, without regard to any relationship which Servicer or any Affiliate thereof may otherwise have with any Issuing Insurance Company or Insured, and (ii) Servicer shall at all times act in accordance with the provisions of each Pledged Policy in all material respects and observe and comply with all Applicable Law.

Section 6.2. Indemnification .

(a) Servicer shall reimburse, indemnify, defend and hold harmless each Servicer Indemnitee for, against and in respect of any and all Losses which such Servicer Indemnitee may incur or suffer resulting from, arising out of, based upon or relating to (i) any breach by Servicer of any of its representations or warranties made herein, (ii) any breach or failure to perform by Servicer of any of its duties, covenants or obligations contained herein, including without limitation, the breach or failure to perform the Services; provided , however , Servicer shall not be required to so reimburse, indemnify, defend or hold harmless any Servicer Indemnitee to the extent of any Loss resulting from, arising out of, based upon or relating to any gross negligence, willful misconduct, bad faith or violation of any Applicable Law on the part of such Servicer Indemnitee; provided further that, the Servicer’s aggregate liability under this Section shall not exceed the sum of (i) the aggregate compensation and other consideration paid or to be paid to Servicer by the Borrower under this Agreement, (ii) the aggregate insurance coverage available under the Servicer’s E&O Insurance and (iii) the difference, if any, between (A) the sum of clauses (i) and (ii) and (B) thirty million dollars ($30,000,000). The obligations of Servicer set forth in this Section 6.2(a) hereof shall survive any termination of this Agreement.

(b) The Borrower shall reimburse, indemnify, defend and hold harmless each Borrower Indemnitee for, against and in respect of any and all Losses which such Borrower Indemnitee may incur or suffer resulting from, arising out of, based upon or relating to (i) any breach by the Borrower of any of its representations or warranties set forth in this Agreement, or (ii) any breach or failure by the Borrower to perform any of its duties, covenants or obligations contained in this Agreement; provided , however , the Borrower shall not be required to so reimburse, indemnify, defend or hold harmless any Borrower Indemnitee to the extent of any Loss resulting from, arising out of, based upon or relating to any gross negligence, willful misconduct, bad faith or violation of any Applicable Law on the part of such Borrower Indemnitee. The obligations of the Borrower set forth in this Section 6.2(b) hereof shall survive the termination of this Agreement.

 

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(c) Indemnification Procedures .

(i) Notice of Claim . If any claim or demand is asserted by any person entitled to indemnification under the provisions of Section 6.02 (individually or collectively, the “ Indemnified Party ”), written notice of such claim or demand shall promptly be given to each party from whom indemnification is sought (individually, the “ Indemnifying Party ”). The Indemnified Party shall make available to the Indemnifying Party and its counsel and accountants at reasonable times and for reasonable periods, during normal business hours, copies of all books and records of the Indemnified Party reasonably requested by the Indemnifying Party relating to any such possible claim for indemnification, and each party hereunder will render to the other such assistance as it may reasonably require of the other (at the expense of the party requesting assistance) in order to ensure prompt and adequate defense of any suit, claim or proceeding based upon a state of facts which may give rise to a right of indemnification hereunder.

(ii) Right to Control Defense; Counsel . Subject to the terms hereof, the Indemnifying Party, at its own expense, shall have the right to assume control (subject to the right of the Indemnified Party to participate at the Indemnified Party’s expense and with counsel of the Indemnified Party’s choice and further subject to Governmental Authority requirements and the requirements of any applicable regulator) of the defense, compromise or settlement of the matter (subject to the last sentence of this Section 6.2(c)(ii)), including, at the Indemnifying Party’s expense, employment of counsel of the Indemnifying Party’s choice and reasonably acceptable to the Indemnified Party, by providing written notification to the Indemnified Party within fifteen (15) calendar days of receipt of the notice of the claim or demand. The Indemnified Party shall either consent or object, in writing, to the counsel retained by the Indemnifying Party for such purposes within fifteen (15) calendar days of the Indemnified Party’s receipt of written notice of the selected counsel, provided that such consent shall not be unreasonably withheld or conditioned. The Indemnified Party shall have the right to employ its own counsel if the Indemnified Party so elects to assume such defense, but the fees and expense of such counsel shall be at the Indemnified Party’s expense, unless (1) the employment of such counsel shall have been authorized in writing by the Indemnifying Party; (2) such Indemnified Party shall have reasonably concluded that the interests of such parties are conflicting such that it would be inappropriate for the same counsel to represent both parties or shall have reasonably concluded that the ability of the parties to prevail in the defense of any claim are improved if separate counsel represents the Indemnified Party (in which case the Indemnifying Party shall not have the right to direct the defense of such action on behalf of the Indemnified Party), and in either of such events such reasonable fees and expenses shall be borne by the Indemnifying Party; (3) the Indemnified Party shall have reasonably concluded that it is necessary to institute separate litigation, whether in the same or another court, in order to defend the claims asserted against it; or (4) the Indemnifying Party shall have employed counsel reasonably acceptable to the Indemnified Party to take charge of the defense of such action after the Indemnifying Party elected to assume the defense thereof, provided that the Indemnified Party did not unreasonably withhold consent to, such counsel. The Indemnifying Party

 

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shall not, without the prior written consent of the Indemnified Party, effect any settlement or compromise or consent of any pending or threatened action, suit or proceeding in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability on any claims that are the subject matter of such action and any related future claims and does not include a statement as to or an admission of fault, culpability or failure to act or on behalf of any Indemnified Party.

(iii) Defense and Settlement of Claims . If the Indemnifying Party gives notice to any Indemnified Party that the Indemnifying Party will assume control of the defense (to the extent permitted by Governmental Authority requirements and the requirements of any applicable regulator), including compromise or settlement of the matter, the Indemnifying Party shall institute and maintain any such defense diligently and reasonably and shall keep the Indemnified Party fully advised of the status thereof. In such event, the Indemnifying Party will be deemed to have waived all defenses to the claims for indemnification by the Indemnified Party with respect to that matter. Any Losses of the Indemnified Party caused by a failure of the Indemnifying Party to defend, compromise or settle a claim or demand in a reasonable and expeditious manner, after the Indemnifying Party has given notice that it will assume control of the defense (to the extent permitted by Governmental Authority requirements and the requirements of any applicable regulator), compromise or settlement of the matter, shall be included in the Losses for which the Indemnifying Party shall be obligated to indemnify the Indemnified Party.

ARTICLE VII

MISCELLANEOUS

Section 7.1. Expenses . Except as otherwise provided in this Agreement, each of Servicer and the Borrower shall bear its own expenses incurred in connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby.

Section 7.2. Submission to Jurisdiction; No Jury Trial; Service of Process .

(a) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK OVER ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND EACH PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH DISPUTE OR ANY SUIT, ACTION OR PROCEEDING RELATED THERETO MAY BE HEARD AND DETERMINED IN SUCH COURTS. THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR

 

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HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH DISPUTE BROUGHT IN SUCH COURT OR ANY DEFENSE OF INCONVENIENT FORUM FOR THE MAINTENANCE OF SUCH DISPUTE. EACH OF THE PARTIES HERETO AGREES THAT A JUDGMENT IN ANY SUCH DISPUTE MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.

(b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(c) Each of the parties hereto hereby consents to process being served by any party to this Agreement in any suit, action or proceeding by the delivery of a copy thereof in accordance with the provisions of Section 7.5 , in addition to any other manner allowable by Law.

Section 7.3. Entire Agreement; Amendment; Waiver; Remedies Cumulative . This Agreement (including the schedules and exhibits hereto) represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof. This Agreement may only be modified, amended or waived in writing signed by the parties hereto, and so long as the Loan Agreement is in effect, with the prior written consent of the Administrative Agent (or, in the case of a waiver, by the party from whom such waiver is sought, and so long as the Loan Agreement is in effect, with the prior written consent of the Administrative Agent). The waiver by any party hereto of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach.

Section 7.4. Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of New York, including General Obligations Law Sections 5-1401 and 5-1402, but otherwise without regard to principles of conflicts-of-laws.

 

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Section 7.5. Notices . All notices and other communications under this Agreement shall be in writing (including electronic mail communication) and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission), provided that the facsimile is sent during normal business hours of the recipient, if not, the facsimile will be deemed to be received the next Business Day, (iii) if sent by electronic mail, when the sender thereof shall have received electronic confirmation of the transmission thereof (provided that should such day not be a Business Day, on the next Business Day) or (iv) one Business Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses, electronic mail addresses and facsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this provision):

If to Servicer, to:

701 Park of Commerce Boulevard

Suite 301

Boca Raton, Florida 33487

Attention: General Counsel

Telephone:

Facsimile:

Email:

If to the Borrower, to:

701 Park of Commerce Boulevard

Suite 301

Boca Raton, Florida 33487

Attention: General Counsel

Telephone:

Facsimile:

Email:

If to the Administrative Agent (so long as the Loan Agreement is in effect), to:

7195 Dallas Parkway

Plano, Texas 75024

Attention: James Erwin

Telephone:

Facsimile:

Email:

with a copy to (which shall not constitute notice):

Boris Ziser, Esq.

Stroock & Stroock & Lavan LLP

180 Maiden Lane

New York, New York 10038

Telephone:

Facsimile:

Email:

If to the Insurance Consultant (so long as the Loan Agreement is in effect), to:

2911 Turtle Creek Blvd.

Suite 300

Dallas, Texas 75214

Attention: Robert Hughes

Telephone:

Facsimile:

Email:

Section 7.6. Severability . If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other terms or provisions

 

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Page 18 of 19


of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

Section 7.7. Binding Effect; Assignment . This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any Person or entity not a party to this Agreement except as provided below. No assignment of this Agreement or of any rights or obligations hereunder may be made by either Servicer or the Borrower, directly or indirectly (by operation of law or otherwise), without the prior written consent of the other parties hereto, and so long as the Loan Agreement is in effect, the Administrative Agent, and any attempted assignment without the required consent shall be void. The Administrative Agent and each of the Lenders shall be an express third party beneficiary of this Agreement so long as the Loan Agreement is in effect (including, without limitation, all representations, warranties and indemnities hereunder), with the right to enforce any rights hereunder directly, as if such party was a direct party hereto.

Section 7.8. Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first written above.

 

IMPERIAL FINANCE & TRADING, LLC, as Servicer
By:  

/s/ Richard S. O’Connell, Jr.

  Name:   Richard S. O’Connell, Jr.
  Title:   Chief Financial Officer
WHITE EAGLE ASSET PORTFOLIO, LLC, as Borrower
By:  

/s/ Richard S. O’Connell, Jr.

  Name:   Richard S. O’Connell, Jr.
  Title:   President & Chief Financial Officer

 

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Page 19 of 19


ANNEX 1

SERVICES

Servicer shall manage, service and administer each Pledged Policy by providing the following Services, in all cases subject to the Servicing Standard:

1. Premium Tracking and Premium Confirmation .

(a) Servicer shall (i) maintain a Premium Payment Schedule, Premium Due Date Schedule and Premium Remittance Schedule with respect to each Pledged Policy, (ii) monitor insurance premium and other invoices and notices received by Servicer from the Issuing Insurance Companies which have been forwarded by the Securities Intermediary pursuant to the Account Control Agreement to Servicer with respect to the Pledged Policies and (iii) notify the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent, within two (2) Business Days of the Servicer’s receipt of any such invoice or notice if any such invoice or notice from any such Issuing Insurance Company states that a Pledged Policy (x) is in, or will enter, a state of grace, (y) will lapse or has lapsed or (z) will enter, or is in, a state of default.

(b) On or before the tenth (10 th ) day following March 31, June 30, September 30 or December 30 of each year, Servicer shall provide each of the Borrower, the Securities Intermediary, and so long as the Loan Agreement is in effect, the Administrative Agent and the Insurance Consultant, with (i) a Premium Due Date Schedule, which identifies each Pledged Policy for which a premium payment is due to the applicable Issuing Insurance Company (each, a “ Premium Due Date ”) during the next succeeding calendar year and the amount of such premium payment (the “ Premium Payment ”) required to be paid to such Issuing Insurance Company on such Premium Due Date, (ii) a Premium Payment Schedule, which identifies all scheduled Premium Payments to be made in respect of each Pledged Policy and (iii) a Premium Remittance Schedule, which identifies all Premium Payments made in respect of each Pledged Policy during the previous calendar year.

(c) If there is a Premium Due Date (based on the applicable Premium Payment Schedule) with respect to a Pledged Policy occurring during the period beginning on the date such Policy first becomes a Pledged Policy and ending on the last day of the calendar month immediately following the calendar quarter in which such Policy first becomes a Pledged Policy, Servicer shall, promptly following such Policy first becoming a Pledged Policy (and in any event prior to such Premium Due Date), provide each of the Administrative Agent, the Borrower, the Insurance Consultant and the Securities Intermediary with a Premium Due Date Schedule in respect of such Pledged Policy.

(d) For each Premium Due Date with respect to a Pledged Policy, (i) if the Securities Intermediary remitted the respective Premium Payment to the applicable Issuing Insurance Company by check, Servicer shall confirm whether such Issuing Insurance Company has cashed such check and take all the reasonably necessary acts to confirm with such Issuing Insurance Company that it has credited such Premium Payment to the correct Pledged Policy account and the Servicer shall use its commercially reasonable efforts to confirm with such Issuing Insurance Company that after giving effect to such Premium Payment, such Pledged Policy has not lapsed, is not in any state of grace or default, and will not lapse or enter into any

 

A-1


state of grace or default prior to the next scheduled Premium Due Date (based upon the Premium Payment Schedule) and (ii) if the Securities Intermediary remitted the respective Premium Payment to the applicable Issuing Insurance Company in immediately available funds, Servicer shall confirm with such Issuing Insurance Company that such Issuing Insurance Company received such Premium Payment and credited such Premium Payment to the correct Pledged Policy account and the Servicer shall use its commercially reasonable efforts to confirm with such Issuing Insurance Company that after giving effect to such Premium Payment, such Pledged Policy has not lapsed, is not in any state of grace or default, and will not enter into any state of grace or default prior to the next scheduled Premium Payment Date (based upon the Premium Payment Schedule).

(e) Within thirty (30) days after its receipt of a Policy Illustration as described in paragraph 4(b) below from the related Issuing Insurance Company in respect of a Pledged Policy, Servicer shall, using the information contained in such Policy Illustration, utilizing commercially reasonable practices and in accordance with the Servicing Standard, calculate the Premium optimization for such Pledged Policy and the Net Death Benefit for the term ending no sooner than the date upon which such Pledged Policy matures in a manner that the current cash value and future cash value shall be as low as reasonably possible while maintaining the Pledged Policy in full force and effect and not in a state of grace. The Servicer will have no liability for any calculation, optimization, projection or recalculation of Premiums or the Net Death Benefit with respect to any Pledged Policy as to which the related Issuing Insurance Company later specifies different minimum Premiums due to avoid lapse or pays a different amount of Net Death Benefit, as long as such differences are not caused by the bad faith or negligence of the Servicer.

2. Insured Tracking .

(a) Servicer shall monitor the health status of each Insured and the current address and contact information of the Insured periodically (in the case of any Insured with a remaining Life Expectancy of (i) 12 months or less, at least monthly, and (ii) over 12 months, at least quarterly), subject to any restrictions imposed by Applicable Law. Servicer’s monitoring duties and responsibilities shall be to perform periodic (as set forth in the preceding sentence) written or verbal communication (or good faith attempt at same) with each such Insured, regarding the current health status and address and contact information of such Insured or, if the Insured has died, whether a claim for a Death Benefit may be submitted with respect to the related Pledged Policy. Contact method options include, but are not limited to, telephone, facsimile transmission, email or other electronic communication, written communication via mail service and/or any available database with information about an Insured, an Insured’s physician(s) and/or a designated contact of an Insured. Servicer shall inform the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent and the Insurance Consultant, in writing on (a) a monthly basis of any determination by Servicer that a claim for payment of any Death Benefit under a Pledged Policy may be made and/or (b) a quarterly basis whether there has been a change in the residence or other contact information for any Insured or a designated contact of an Insured. At the request of the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent, Servicer shall use additional efforts consistent with its usual business procedures to locate any Insured under a Pledged Policy whose health status Servicer has not been able to confirm for two (2) consecutive contact periods. In respect

 

Annex 1-2


thereof and subject to the Borrower’s prior written approval, the fees and expenses of any arm’s length third party retained by Servicer in regard to such additional efforts shall be paid by the Borrower on a pass-through basis. In the event that such additional efforts to contact the Insured or his or her representatives are exhausted and the health of the Insured cannot be confirmed, within two (2) Business Days thereof the Servicer shall notify the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent, and forthwith deliver to the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent, a copy of the complete tracking file in respect of the Insured. Servicer may use investigative services, subject to and in accordance with Section 3.2(f) hereof, to conduct the Tracking Services as set forth herein.

(b) In addition, twice per calendar month Servicer shall perform an electronic mortality verification for each Insured with a summary of Servicer’s findings of any mortality to be reported to the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent and the Insurance Consultant, within five (5) Business Days and confirmed with contact by Servicer to the Insured and/or his or her representative and contacts under clause (a) above immediately following Servicer’s obtaining of positive notification of mortality.

3. Death Benefit Processing .

(a) Servicer shall, following its verification of the death of an Insured under a Pledged Policy, take all reasonable action (consistent with the Servicing Standard) to obtain a death certificate from the applicable Governmental Authority with respect to such Insured, which death certificate shall include, if available, the cause of death of such Insured and conform to the applicable Issuing Insurance Company’s procedure for submission of a death claim for such Pledged Policy. Servicer shall provide the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent and the Insurance Consultant, with written notice of the death of each Insured under a Pledged Policy within five (5) Business Days of Servicer receiving a verified notification of death with respect to such Insured.

(b) Servicer shall, no later than three (3) Business Days following its verification of the death of an Insured under a Pledged Policy (or of the second Insured under a Pledged Policy that is a Joint Policy), initiate the process to obtain a copy, or certified copy if required by the applicable Issuing Insurance Company, of the death certificate certified by the applicable Governmental Authority for such Pledged Policy. Servicer shall use its best efforts to promptly take all reasonable actions (consistent with the Servicing Standard) to obtain and complete all necessary Death Benefit claim forms with respect to such Pledged Policy and to submit the death certificate and all necessary Death Benefit claim forms to the applicable Issuing Insurance Company, with a copy to the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent and the Insurance Consultant. Servicer shall also, within two (2) Business Days after it receives notice from an Issuing Insurance Company that such Issuing Insurance Company has denied a claim for the payment of a Death Benefit in respect of any such Pledged Policy, notify the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent and the Insurance Consultant, of such denial.

(c) If Servicer shall receive any check or other instrument of payment for such Death Benefits or other proceeds of a Pledged Policy, Servicer shall hold such Death Benefits or other proceeds in trust solely for the benefit of the Borrower, and so long as the Loan Agreement

 

Annex 1-3


is in effect, the Administrative Agent, and within two (2) Business Days of Servicer’s receipt of any Death Benefit or other proceeds in respect of any Pledged Policy, notify the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent, and deposit such amount into the Collection Account.

4. Administrative Services . Servicer shall perform the following administrative Services in respect of the Pledged Policies:

(a) maintain an electronic database relating to all of the Pledged Policies which contains all material data (the “ Policy Information ”) as provided to Servicer by the Borrower and/or other parties or otherwise obtained by Servicer, necessary for Servicer’s performance of the Services, which will include for each of the Pledged Policies: (i) the policy number; (ii) current contact information for all contact persons affiliated with the Issuing Insurance Company who are pertinent to the administration of pending claims made with respect to a Pledged Policy; (iii) current contact information and social security numbers of each Insured under a Pledged Policy; (iv) current contact information of each contact person for each Insured under a Pledged Policy; (v) name and current contact information of each physician and other medical personnel materially responsible for the medical care and treatment of each Insured under a Pledged Policy; (vi) the current life status of each Insured under a Pledged Policy; and (vii) a record of each Premium Payment that has been confirmed by Servicer (and the date upon which such payment was made as set forth on the Premium Remittance Schedule) to the relevant Issuing Insurance Company;

(b) obtain a Policy Illustration (i) with respect to any Policy not listed on the Initial Advance Lexington Schedule to the Loan Agreement, in the calendar month immediately following a Policy becoming a Pledged Policy and an updated Policy Illustration for each Pledged Policy no later than March 31 of each calendar year (or more frequently as directed by the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent and (ii) with respect to any Policy listed on the Initial Advance Lexington Schedule to the Loan Agreement, in the third calendar month after such Policy becomes a Pledged Policy and an updated Policy Illustration for each Pledged Policy no later than March 31 of each calendar year (or more frequently as directed by the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent; provided that Borrower shall agree in writing to pay to Servicer such additional fees and expenses as reasonably determined by the parties as a condition precedent to Servicer’s obtaining more than one (1) Policy Illustration during any calendar year);

(c) without limiting clause (d) below, provide the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent and the Insurance Consultant, with one or more monthly reports, in the form attached as Annex 2 hereto (each, a “ Servicer Report ”), by no later than the seventh (7th) day of each calendar month (or if such day is not a Business Day, the next succeeding Business Day);

(d) upon request made to Servicer, deliver to the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent, such reports as the Borrower, or so long as the Loan Agreement is in effect, the Administrative Agent, reasonably request, and shall permit the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent, and their respective designees reasonably to monitor and audit Servicer’s performance of the Services at no cost (other than expenses approved and paid by Servicer) or disruption to Servicer’s business;

 

Annex 1-4


(e) respond to inquiries from, and communicate as necessary or otherwise appropriate with, the Issuing Insurance Companies relating solely to the Pledged Policies and Services described in Sections 1, 3 and 4 of this Annex 1 ;

(f) using commercially reasonable efforts in accordance with the Servicing Standard, obtain an updated HIPAA compliant medical information release form for each Insured under a Pledged Policy on an annual basis if requested by the Borrower, or so long as the Loan Agreement is in effect, the Administrative Agent (or more frequently as directed by the Borrower, or so long as the Loan Agreement is in effect, the Administrative Agent);

(g) no less frequently than once every twenty four (24) months or, so long as the Loan Agreement is in effect, if requested by the Administrative Agent, once per calendar year, obtain an updated Life Expectancy Report for each Insured under a Pledged Policy, if requested by the Borrower, or so long as the Loan Agreement is in effect, the Administrative Agent (or more frequently as directed by the Borrower, or so long as the Loan Agreement is in effect, the Administrative Agent);

(h) if requested by the Borrower, or so long as the Loan Agreement is in effect, the Administrative Agent, obtain or cause a third-party to obtain a verification of coverage for each Pledged Policy on an annual basis, which may be obtained telephonically via a recorded call with the related Issuing Insurance Company;

(i) provided that Servicer has an updated HIPAA compliant medical release form for an Insured, obtain twice per calendar year updated medical records for such Insured under a Pledged Policy, if requested by the Borrower, or so long as the Loan Agreement is in effect, the Administrative Agent (or more frequently as directed by the Borrower, or so long as the Loan Agreement is in effect, the Administrative Agent); and

(j) request with respect to each Pledged Policy an annual statement from the related Issuing Insurance Company in the month following such Pledged Policy’s anniversary and furnish a copy of such statement to the Borrower, and so long as the Loan Agreement is in effect, the Administrative Agent.

5. FTP Site .

(a) So long as the Loan Agreement is in effect, Servicer shall upload to a File Transfer Protocol Site maintained by or on behalf of the Administrative Agent (the “ FTP Site ”) any and all documents or other data required under this Agreement to be delivered to the Borrower, the Administrative Agent and the Insurance Consultant, within three (3) Business Days that such document or data is required to be delivered to such party hereunder.

(b) No later than the Closing Date, Servicer shall upload to the FTP Site the complete Collateral Packages relating to each of the Policies that will become Pledged Policies on the Closing Date. No later than the date on which an Additional Policy Advance is funded and a related Additional Policy becomes a Pledged Policy, Servicer shall upload to the FTP Site the completed Collateral Packages relating to each such Policy.

 

Annex 1-5


(c) Without limiting paragraph 4 above, Servicer shall upload to the FTP Site, within five (5) Business Days after Servicer’s receipt thereof, a copy of each material written notice, letter, instrument or other document received by Servicer in connection with a Pledged Policy, the Services or the other transactions contemplated by this Agreement from any Issuing Insurance Company, Insured, Governmental Authority, arbitrator or other Person.

(d) Without limiting paragraph 4 above, Servicer shall upload to the FTP Site, within three (3) Business Days after the transmission thereof by Servicer, a copy of each material written notice, letter, instrument or other document (other than premium payments) given by Servicer in connection with a Pledged Policy, the Services or the other transactions contemplated hereby to any Issuing Insurance Company, Insured, Governmental Authority, arbitrator or other Person.

(e) On the date on which Servicer uploads any document or other data to the FTP Site, Servicer shall notify the Borrower, the Administrative Agent and the Insurance Consultant, of such transmission to the FTP Site.

 

Annex 1-6


EXHIBIT A

FORM OF MONTHLY REPORT


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

Imperial Finance and Trading

Servicing Duty and Frequency Report

Effective as of April 15, 2013

 

Service Description

 

Frequency

  Department   Owner   FTP Site   Verification

Premium Payment Schedule

  Quarterly   Finance   [*]   Yes   Yes

Premium Due Date Schedule

  Quarterly   Pricing   [*]   Yes   Yes

Premium Remittance Schedule

  Quarterly   Data Entry   [*]   Yes   Yes

Insured Contact Information

  Quarterly   Servicing   [*]   Yes   No

Health Calls LE < than 12 months

  Monthly   Servicing   [*]   Yes   No

Health Calls LE > than 12 months

  Yearly   Servicing   [*]   Yes   No

HIPPA Compliant Medical Release

  Yearly   Data Entry   [*]   Yes   No

Medical Reports

  Yearly   Data Entry   [*]   Yes   No

LE Report < 12 months

  Monthly   Data Entry   [*]   Yes   No

LE Report > 12 months

  Every 24 months   Data Entry   [*]   Yes   No

Verification of Coverage (VOC)

  Yearly   Servicing   [*]   Yes   No

Policy Annual Statement

  Anniversary Date   Servicing   [*]   Yes   No

Policy Illustration Receipt / or request

  30 days from   Servicing   [*]   Yes   No

Mortality Verification

  Bi-weekly   Servicing   [*]   Yes   No

Mortality Notice

  5 Business days   Servicing   [*]   Yes   No

Mortality Processing

  3 Business days   Servicing   [*]   Yes   No

Any Documentation received by the company must be placed on the FTP Site

  2 Business days   All   All   Yes   NA


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Operational Plan – 18 Months (May 2013 to October 2014)

 

Draw Period

 

Premiums

  Servicing   Management   Audit   Other   Total

5-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

5-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

6-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

6-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

7-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

7-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

8-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

8-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

9-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

9-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

10-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

10-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

11-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

11-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

12-2013-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

12-2013 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

1-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

1-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

2-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

2-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

3-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

3-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

4-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

4-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

5-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

5-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

6-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

6-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

7-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

7-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

8-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

8-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

9-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

9-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]

10-2014-Draw 1

  [*]   [*]   [*]   [*]   [*]   [*]

10-2014 Draw 2

  [*]   [*]   [*]   [*]   [*]   [*]
 

 

 

 

 

 

 

 

 

 

 

 

Totals

  [*]   [*]   [*]   [*]   [*]   [*]
 

 

 

 

 

 

 

 

 

 

 

 

Premium Due Date Schedule

Frequency : On or Before the 10 th day following March 31, June 30, September 10 and December 30

 

Policy
Identification

/Quote
No.

  Policy
Number
  Paid
Through
Date
  Insureds
Name

first/last
  Carrier
Legal
Name
  Remittance
Carrier

Contact
info.
  Premium
Amount
  Carrier
payment
instructions
Wire

and or
Overnight
address
             
             
             
             
             
 


Premium Payment Schedule

Frequency: On or Before the 10 th day following March 31, June 30, September 30 and December 30

 

Policy
No.

   Insurance
Carrier
   Payment due
Date for next
succeeding
calendar year
   Premium
Amount
        
        
        
        
        


Premium Remittance Schedule Report

Frequency: On or Before the 10 th day following March 31, June 30, September 30 and December 30

 

Policy No.

  Policy
Identification

/Code
No.
  Insured
Name
First

/Last
  Carrier
Legal
Name
  Remittance
Carrier
Contact
Info
  Premium
due

date
  Premium
Payment
Amount
  Sl Actual
remittance
date
  Wire
or
Check
  Wire
Tracking
no.
  Check
no.
  Carrier
Confirmation
Check

or
Wire
Received
  Carrier
Confirmation
Premium
Applied

to policy
  Carrier
Confirmation
Policy

in
Good
standing
                         
                         
                         
                         
                         


Imperial Finance and Trading Monthly Servicer Report

For the period Ending xxx (monthly Report)

 

No. of Policies Serviced

  Policy
No.
  Policy
Code
No.
  Name
of
Insured
  Date
of
Birth
  Age   Gender   Smoking   Carrier
Name
  Policy
Challenge
Y/N
  Date of
Last
Premium
Payment
  Premium
Payment
Amount
  Premium
Payment
Schedule
Report
  Any
Grace
notice
received
Yes or
No
  Date
of last
Health
call
  HIPPA
date
                             
                             
                             
                             
                             


Date of Meds

  LE Exp Date   Illustration
Date
  Mortality
Verification
date
  VOC
Date
  Annual
Statement
Date
  Date of
Death
Notification
  Date
of
Death
  Date
Death
claim
filed
with
carrier
  Date
Claim
was
received
and
deposited
  Death
Benefit
Amount
Received
                   
                   
                   
                   
                   

Exhibit 10.4

FIRST AMENDMENT TO SERVICING AGREEMENT

This FIRST AMENDMENT TO SERVICING AGREEMENT (this “ Amendment ”), dated and effective as of August 9, 2013, is entered into by and between Imperial Finance & Trading, LLC, a Florida limited liability company (“ Servicer ”), and White Eagle Asset Portfolio, LLC, a Delaware limited liability company (the “ Borrower ”). Capitalized terms used herein and not otherwise defined have the meanings ascribed thereto in the Servicing Agreement specified below to which this Amendment relates.

W I T N E S S E T H:

WHEREAS, Servicer and Borrower have heretofore entered into that Servicing Agreement dated as of April 29, 2013 (the “ Servicing Agreement ”), providing for the performance by Servicer of specified ongoing administration and servicing of certain life insurance policies that are from time to time owned directly or indirectly by Borrower, which life insurance policies serve as collateral for the credit advances made to the Borrower pursuant to that certain Loan and Security Agreement (the “ Loan Agreement ”), dated as of April 29, 2013, by and among Borrower, the financial institutions party thereto from time to time as lenders (each, a “ Lender ” and collectively, the “ Lenders ”), and CLMG Corp., as administrative agent for the Lenders (in such capacity, the “ Administrative Agent ”);

WHEREAS, Section 7.3 of the Servicing Agreement permits amendment by written agreement of the Servicer and Borrower with the consent of the Administrative Agent (while the Loan Agreement is in effect); and

WHEREAS, the Administrative Agent has consented to the amendment of the Servicing Agreement pursuant to that certain First Amendment To Loan And Security Agreement And Security Account Control And Custodian Agreement made and entered into August 9, 2013, by and among Borrower, Imperial Finance & Trading, LLC, Wilmington Trust, National Association, as Securities Intermediary and as Custodian (“ Wilmington ”), the Administrative Agent, and LNV Corporation, the sole Lender as of the date hereof;

NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby mutually covenant and agree for the equal and ratable benefit of the parties hereto and of each express third party beneficiary as follows:

1. Amendments to Annex I . The first sentence of Section 1(e) of Annex I of the Servicing Agreement is hereby amended and restated to read as follows:

“By August 31, 2013, Servicer shall, using the information contained in the relevant Policy Illustration described in paragraph 4(b) below received from the


related Issuing Insurance Company in respect of each Pledged Policy that is a Pledged Policy as of the date of the Initial Advance, and then again within thirty (30) days after its later receipt of a subsequent Policy Illustration relating thereto as described in paragraph 4(b) below from the related Issuing Insurance Company (using the information contained in such subsequent Policy Illustration), utilizing commercially reasonable practices and in accordance with the Servicing Standard, calculate the Premium optimization for such Pledged Policy and the Net Death Benefit for the term ending no sooner than the date upon which such Pledged Policy matures in a manner that the current cash value and future cash value shall be as low as reasonably possible while maintaining the Pledged Policy in full force and effect and not in a state of grace.”

2. Separability Clause . In case any provision of this Amendment shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

3. Effect of Headings . The section headings herein are for convenience only and shall not affect the construction hereof.

4. Governing Law . THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLE OF CONFLICTS OF LAW THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.

5. Multiple Originals . The exchange of copies of this Amendment and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Amendment as to the parties hereto and may be used in lieu of the original Amendment for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

[Signature Page Follows]

 

2


IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the date first above written.

 

IMPERIAL FINANCE & TRADING, LLC
By:       /s/ Antony Mitchell
  Name:   Antony Mitchell
  Title:   Chief Executive Officer
WHITE EAGLE ASSET PORTFOLIO, LLC
By:       /s/ Antony Mitchell
  Name:   Antony Mitchell
  Title:   Chief Executive Officer

Exhibit 10.5

[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

MASTER TERMINATION AGREEMENT AND RELEASE

This MASTER TERMINATION AGREEMENT AND RELEASE (this “ Agreement ”), effective as of April 30, 2013 (the “ Effective Date ”), is by and among Lexington Insurance Company (the “ Insurer ”) and the parties listed on Schedule I hereto (the “ LPIC Parties ”).

W I T N E S S E T H:

WHEREAS, the Insurer and the applicable LPIC Parties entered into the insurance policies and the other transaction documents listed on Schedule II hereto (including any ancillary documents not listed on Schedule II) and, in each case, as amended, supplemented or otherwise modified through the Effective Date (collectively, the “ LPIC Documents ”);

WHEREAS , the Insurer holds various rights relating to the Covered Policies and the proceeds thereof (such rights, the “ Policy Related Rights ”) and the LPIC Parties continue to have various obligations to the Insurer under the terms of the LPIC Documents (the “ LPIC Party Obligations ”);

WHEREAS , the LPIC Parties are requesting that the Insurer release the Policy Related Rights, the LPIC Party Obligations and any other claims the Insurer may have or possess against the LPIC Parties relating to the LPIC Documents in return for the Release Payment, and the Insurer is willing to agree to grant such releases, subject to the terms and conditions of this Agreement; and

WHEREAS, the Insurer and the LPIC Parties wish to terminate the LPIC Documents and terminate all of the Insurer’s and the LPIC Parties’ remaining obligations thereunder.

NOW, THEREFORE, in consideration of the promises herein contained and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. To the extent capitalized terms are used in this Agreement but not specifically defined herein, such terms shall have the same meaning as in the LPIC Documents.

2. Subject to Section 4, each LPIC Party does hereby on its own behalf and on behalf of its affiliates and its and their respective current and former employees, officers, directors, shareholders, controlling persons, independent contractors, agents, advisors, attorneys, principals, representatives, transferees, subrogees, participants, executors, administrators, trustees, fiduciaries, beneficiaries and assigns (each an “ LPIC Party Releasor ” and collectively, the “ LPIC Party Releasors ”), and each of them, hereby fully and unconditionally releases, remises, aquits and forever discharges the Insurer, its current and former parent company(ies), subsidiaries, divisions, affiliates, assigns, predecessor and successor companies, members, employees, officers, directors, shareholders, independent contractors, agents, attorneys, principals, representatives, transferees, subrogees, executors, administrators, trustees, fiduciaries,


beneficiaries and assigns, and each of them, including, in the case of natural persons, both in their individual and any corporate, representative or other capacity(s) (collectively, the “ Insurer Releasees ”) of and from any and all past, present or future claims (including claims for indemnification or contribution), cause of actions, rights, suits, debts, due charges, complaints, obligations (monetary and non-monetary), promises, demands, liabilities, disputes, controversies, damages and expenses (including attorneys’ fees and costs) of any nature whatsoever, in law or in equity, contract, tort or other legal theory, whether known or unknown, fixed or contingent, foreseen or unforeseen, asserted or unasserted, whether previously existing, currently existing or arising in the future, whether under federal or state or other law, based upon, arising out of or related to the Covered Policies, Covered Loans or LPIC Documents (including, without limitation, any agreements, documents or instruments not listed on Schedule IV hereto) or any transactions insured or arising thereunder or any related acts, failures to act, misrepresentations, misstatements, facts, events, transactions or occurrences, which the Insurer Releasors now have, claim to have, or may have in the future against the Insurer Releasees (“ LPIC Claims ”). It is the intention of the parties hereto that this release operate as a full and final settlement of the Insurer Releasees’ past, current and future liabilities to the LPIC Party Releasors under, in connection with or relating to the LPIC Documents, Covered Policies or Covered Loans or any transactions insured or arising thereunder or any related acts, failures to act, misrepresentations, misstatements, facts, events, transactions or occurrences regardless of whether the LPIC Party Releasors may discover facts in addition to or different from those which the LPIC Party Releasors know or believe to be true with respect to such matters. Each LPIC Party acknowledges and agrees that there may be development on reported claims and/or known claims and/or future liabilities under the LPIC Documents which such LPIC Party is releasing hereunder.

3. Subject solely to Section 4 and receipt by the Insurer of counterparts to this Agreement signed by each LPIC Party, the Insurer does hereby release the Policy Related Rights, the LPIC Party Obligations (including any rights or obligations that are stated to survive the termination of the LPIC Documents under which they exist) and any other rights that the Insurer may have in connection with the Policy Rights, including, without limitation, any and all rights that may arise out of any agreements, documents or instruments not set forth on Schedule II hereto. For the avoidance of doubt, the policies listed on Schedule IV hereto are Covered Policies. Subject to Section 4 and receipt by the Insurer of counterparts to this Agreement signed by each LPIC Party, the Insurer, on its own behalf and on behalf of its current and former employees, officers, directors, shareholders, controlling persons, independent contractors, agents, advisors, attorneys, principals, representatives, transferees, subrogees, participants, executors, administrators (including claims administrators), trustees, fiduciaries, beneficiaries and assigns (“ Insurer Releasors ”), and each of them, hereby fully and unconditionally releases, remises, aquits and forever discharges each LPIC Party, its current and former parent company(ies), subsidiaries, divisions, affiliates, assigns, predecessor and successor companies, members, employees, officers, directors, shareholders, independent contractors, agents, attorneys, principals, representatives, transferees, subrogees, executors, administrators, trustees, fiduciaries, beneficiaries and assigns, and each of them, including, in the case of natural persons, both in their individual and any corporate, representative or other capacity(s) (collectively, the “ LPIC Party Releasees ”) of and from any and all past, present or future claims (including claims for indemnification or contribution), cause of actions, rights, suits, debts, due charges, complaints, obligations (monetary and non-monetary), promises, demands, liabilities, disputes, controversies,

 

2


damages and expenses (including attorneys’ fees and costs) of any nature whatsoever, in law or in equity, contract, tort or other legal theory, whether known or unknown, fixed or contingent, foreseen or unforeseen, asserted or unasserted, whether previously existing, currently existing or arising in the future, whether under federal or state or other law, based upon, arising out of or related to the Covered Policies, Covered Loans or LPIC Documents or any transactions insured or arising thereunder or any related acts, failures to act, misrepresentations, misstatements, facts, events, transactions or occurrences, which the Insurer Releasors now have, claim to have, or may have in the future against the LPIC Party Releasees (“ Insurer Claims ”). It is the intention of the parties hereto that this release operate as a full and final settlement of the LPIC Party Releasees’ past, current and future liabilities to the Insurer Releasors under, in connection with or relating to the LPIC Documents, Covered Policies or Covered Loans or any transactions insured or arising thereunder or any related acts, failures to act, misrepresentations, misstatements, facts, events, transactions or occurrences regardless of whether the Insurer Releasors may discover facts in addition to or different from those which the Insurer Releasors know or believe to be true with respect to such matters.

4. The LPIC Documents will automatically terminate upon receipt by the Insurer of the Release Payment as contemplated below and receipt by the Insurer of counterparts to this Agreement signed by each LPIC Party. It is an express condition precedent to the effectiveness of the releases set forth in Sections 2 and 3, the covenant not to sue set forth in Section 5 and the effectiveness of the termination of the LPIC Documents that the Insurer shall have received from or on behalf of the LPIC Parties, $48,500,000 the (“ Release Payment ”) via wire transfer in immediately available funds to the account of the Insurer forth on Schedule III as consideration for such releases. This Agreement will terminate without any further action and the releases set forth in Sections 2 and 3, the covenant not to sue set forth in Section 5 and the termination of the LPIC Documents will not become effective if the Insurer does not receive the full Release Payment as specified in the immediately preceding sentence and counterparts to this Agreement signed by each LPIC Party on or before the Effective Date.

5. Except to enforce this Agreement, including, without limitation, Sections 2 and 3 hereinabove, each LPIC Party, on its own behalf and on behalf of the LPIC Party Releasors, agrees never to file or make, or permit to be filed or made on their behalf, or any one of them, any lawsuit, arbitration, charge, complaint, or other claim asserting any LPIC Claims against any Insurer Releasee and the Insurer, on its own behalf and on behalf of the Insurer Releasors, agrees never to file or make, or permit to be filed or made on their behalf, or any one of them, any lawsuit, arbitration, charge, complaint, or other claim asserting any Insurer Claims against any LPIC Party Releasee. This Agreement may and shall be pled by the LPIC Party Releasees or the Insurer Releasees, or any of them, as a full and complete defense to, and may be used as a basis for an injunction against and the immediate dismissal of any action, suit, arbitration, or other proceeding that may be instituted, prosecuted, or maintained against the LPIC Party Releasees or the Insurer Releasees, or any of them, in breach thereof. If any LPIC Party Releasor hereto files or makes, or permits to be filed or made on their behalf, a lawsuit, arbitration, charge, complaint, or other claim asserting any LPIC Claims against any Insurer Releasee or any Insurer Releasor hereto files or makes, or permits to be filed or made on their behalf, a lawsuit, arbitration, charge, complaint, or other claim asserting any Insurer Claims against any LPIC Party Releasee, such lawsuit, arbitration, charge, complaint, or other claim shall immediately be dismissed with prejudice, the provisions of this Agreement shall remain in full force and effect, and the filing or

 

3


asserting party shall be liable to the other party or releasee, or any of them, for all costs, expenses, and attorneys’ fees incurred in defending against such lawsuit, arbitration, charge, complaint, or other claim.

6. Each of the parties represents and warrants that (i) it has not assigned, transferred, or otherwise conveyed to any third party any rights or claims within the scope of the above releases discussed herein, and (ii) this Agreement is being executed by such party’s duly authorized representative.

7. This Agreement shall inure to the benefit of and be binding solely upon the parties hereto and their successors and assigns and is not intended to create any third party beneficiaries other than (i) with respect to the releases set forth in Sections 2 and 3 and the covenant not to sue set forth in Section 5, the Insurer Releasees and the LPIC Party Releasees and (ii) with respect to the releases set forth in the first sentence of Section 3 and the termination set forth in the first sentence of Section 4, White Eagle Asset Portfolio, LLC (an affiliate of Imperial Holdings, Inc.), as borrower, CLMG Corp., as administrative agent pursuant to that certain Loan and Security Agreement, dated as of the date hereof, under which certain advances will be used to make a portion of the Release Payment, and the lenders under such Loan and Security Agreement and their respective successors, assigns and pledgees thereunder.

8. This Agreement contains the full and complete understanding and agreement between the parties hereto with respect to the subject matter hereof, and the parties acknowledge that none are entering into this Agreement in reliance upon any term, condition, representation or warranty not stated herein and that this Agreement replaces any and all prior agreements whether oral or written, pertaining to the subject matter hereof. The Insurer and LPIC Parties further waive any and all claims that this Agreement was induced by any misrepresentation or non-disclosure and knowingly waive any and all rights to rescind or avoid this Agreement based upon presently existing facts, known or unknown. Each party hereto acknowledges that it is aware that it, or its attorneys, may hereafter discover facts different from or in addition to those which it or its attorneys now know or believe to be true with respect to the matters released, and the parties hereto agree that the releases in Section 2 and 3 shall be and remain in effect as a full and complete release of the parties released notwithstanding any such different or additional facts.

9. The parties to this Agreement understand and agree that this Agreement has been negotiated at arm’s length and on equal footing as between the LPIC Parties and the Insurer, that such parties are sophisticated, and that such parties fully understand and agree to all the terms and conditions contained in this Agreement. Accordingly, in any dispute concerning the meaning of this Agreement, or any term or condition hereof, such dispute shall be resolved without any presumption or rule of construction in favor of any party or any related or similar doctrine.

10. This Agreement may not be modified or amended except in a written instrument agreed to and signed by the parties.

11. This Agreement shall be governed by the laws of the State of New York without regard to the conflicts of law provisions thereof (other than Section 5-1401 and 5-1402 of the New York General Obligations Law).

 

4


12. No waiver of any of the provisions of this Agreement shall be effective unless in writing and signed by the waiving party. No failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.

13. If any term, covenant, warranty, or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other terms, covenants, warranties and other provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party.

14. Each party agrees to execute and deliver all such other documents or agreements and to take all such other action as may be reasonably necessary or desirable to further effectuate the purposes and intent of this Agreement.

15. All notices, demands or requests made pursuant to, under or by virtue of this Agreement must be in writing and shall be (i) personally delivered, (ii) delivered by express mail, Federal Express or other comparable overnight courier service, (iii) sent by facsimile, with confirmation of delivery within one (1) business day, or (iv) mailed to the party to which the notice, demand or request is being made by certified or registered mail, postage prepaid, return receipt requested, as follows:

To the Insurer:

Lexington Insurance Company

180 Maiden Lane, 19th Floor

New York, New York 10038

Facsimile:

Attn:

To Imperial Holdings, Inc. or any of its affiliates:

Imperial Holdings, Inc.

701 Park of Commerce Blvd., Suite 301

Boca Raton, Florida 33487

Attention:

Facsimile:

To CTL Holdings, LLC:

c/o Orrick, Herrington & Sutcliffe LLP

51 West 52nd Street

New York, New York 10019-6142

Attention:

Facsimile:

 

5


All notices shall be deemed to have been given on the date that the same shall have been delivered in accordance with the provisions of this Section 15. Any party may, from time to time, specify as its address for purposes of this Agreement any other address upon the giving of two (2) days’ prior notice thereof to the other parties.

16. In the event it is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to recover the costs of such action, including reasonable attorneys’ fees.

17. This Agreement may be executed in counterparts, all of which when taken together shall constitute one and the same instrument, and any party hereto may execute this Agreement by signing any such counterpart. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or by PDF file (portable document format file) shall be as effective as delivery of a manually executed counterpart of this Agreement.

[ THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK ]

 

6


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.

 

LEXINGTON INSURANCE COMPANY    

IMPERIAL HOLDINGS, INC.

(fka Imperial Holdings LLC)

By:  

/s/ Martin H. Scherzer

    By:  

/s/ Antony Mitchell

  Name:   Martin H. Scherzer       Name:   Antony Mitchell
  Title:   Authorized Representative       Title:   Chief Executive Officer
IMPERIAL PFC FINANCING, LLC     IMPERIAL PFC FINANCING II, LLC
By:   Imperial Premium Finance, LLC, its sole member     By:   Imperial Premium Finance, LLC, its sole member
By:   Imperial Holdings, Inc., its sole member     By:   Imperial Holdings, Inc., its sole member
By:  

/s/ Antony Mitchell

    By:  

/s/ Antony Mitchell

  Name:   Antony Mitchell       Name:   Antony Mitchell
  Title:   Chief Executive Officer       Title:   Chief Executive Officer
IMPERIAL LIFE FINANCING II, LLC     IMPERIAL PREMIUM FINANCE, LLC
By:   Imperial Premium Finance, LLC, its sole member     By:   Imperial Holdings, Inc., its sole member
By:   Imperial Holdings, Inc., its sole member        
By:  

/s/ Antony Mitchell

    By:  

/s/ Antony Mitchell

  Name:   Antony Mitchell       Name:   Antony Mitchell
  Title:   Chief Executive Officer       Title:   Chief Executive Officer
IMPERIAL LIFE & ANNUITY SERVICES, LLC     CTL HOLDINGS, LLC
By:   Imperial Holdings, Inc., its sole member        
By:  

/s/ Antony Mitchell

    By:  

/s/ Beverly Gross

  Name:   Antony Mitchell       Name:   Beverly Gross
  Title:   Chief Executive Officer       Title:   Vice President


Schedule I

LPIC Parties

 

1) Imperial Holdings, Inc. (fka Imperial Holdings LLC)

 

2) Imperial PFC Financing, LLC

 

3) Imperial PFC Financing II, LLC

 

4) Imperial Life Financing II, LLC

 

5) Imperial Life & Annuity Services, LLC

 

6) Imperial Premium Finance, LLC

 

7) CTL Holdings, LLC


Schedule II

LPIC Documents

 

1) Lender Protection Insurance Policy No. 7113477 issued by the Insurer to CTL Holdings, LLC.

 

2) Letter Agreement between the Insurer and Imperial Holdings LLC dated December 27, 2007.

 

3) LPIC Services and Remarketing Agreement between the Insurer and Imperial Life & Annuity Services, LLC dated as of December 27, 2007.

 

4) Lender Protection Insurance Policy No. 7113481 issued by the Insurer to Imperial PFC Financing, LLC.

 

5) Omnibus Claims Settlement Agreement between the Insurer and Imperial PFC Financing, LLC dated as of September 8, 2010.

 

6) Amended and Restated Servicing Agreement among Portfolio Servicing Financing Company, Imperial PFC Financing, LLC and the Insurer dated as of September 8, 2010.

 

7) Deposit Account Control Agreement among Wells Fargo Bank, N.A., Imperial PFC Financing, LLC and the Insurer dated as of September 8, 2010.

 

8) Collateral Agency Agreement among Portfolio Servicing Financing Company, Imperial PFC Financing, LLC, Imperial Premium Finance, LLC and the Insurer, dated as of September 8, 2010.

 

9) Pledge and Security Agreement between Imperial PFC Financing, LLC and the Insurer dated as of September 8, 2010.

 

10) Pledge and Security Agreement between Imperial Premium Finance, LLC and the Insurer dated as of September 8, 2010.

 

11) Letter Agreement between the Insurer and Imperial Holdings LLC dated August 7, 2008.

 

12) LPIC Services and Remarketing Agreement between the Insurer and Imperial Life & Annuity Services, LLC dated as of August 7, 2008.

 

13) Lender Protection Insurance Policy No. 7113486 issued by the Insurer to Imperial Life Financing II, LLC.

 

14) Letter Agreement among the Insurer, National Fire & Marine Insurance Company and Imperial Holdings LLC dated March 13, 2009.

 

15) LPIC Services and Remarketing Agreement among the Insurer, National Fire & Marine Insurance Company and Imperial Life & Annuity Services, LLC dated as of March 13, 2009.

 

16) Lender Protection Insurance Policy No. 7113491 issued by the Insurer to Imperial PFC Financing II, LLC.

 

17) Letter Agreement among the Insurer, National Fire & Marine Insurance Company and Imperial Holdings LLC dated September 14, 2009.

 

18) LPIC Services and Remarketing Agreement among the Insurer, National Fire & Marine Insurance Company and Imperial Life & Annuity Services, LLC dated as of September 14, 2009.


19) Letter Agreement between the Insurer and Imperial Holdings, Inc., dated January 7, 2013.

 

20) Consent Letter Agreement among the Insurer, Imperial Holdings, Inc. and Imperial PFC Financing, LLC, dated February 8, 2013.


Schedule III

Insurer Account Information

Wire Information:

Bank Name: Wells Fargo Bank

Account Name:

Account Number:

ABA Number:

Swift Code:

Reference:

Bank Contact Person:

Email:

Phone:


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

Schedule IV

Covered Policies

 

Internal

ID

   Quote
Internal
ID
   Insured Life
Last Name
  Insured Life
First Name
  Policy #   Insurance Company   LPIC
Certificate
Number
  Death Benefit      Loan Number

88

   91    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

102

   105    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

105

   108    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

147

   152    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

160

   166    [*]   [*]   [*]   [*]   [*]     1,200,000.00       [*]

167

   173    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

1131

   1295    [*]   [*]   [*]   [*]   [*]     5,900,000.00       [*]

1701

   1908    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

2027

   2291    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

2153

   2420    [*]   [*]   [*]   [*]   [*]     4,500,000.00       [*]

2165

   2428    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

2458

   2744    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

2568

   2852    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

2885

   2260    [*]   [*]   [*]   [*]   [*]     7,000,000.00       [*]

2909

   3170    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

2946

   1934    [*]   [*]   [*]   [*]   [*]     2,300,000.00       [*]

3291

   3543    [*]   [*]   [*]   [*]   [*]     15,000,000.00       [*]

3449

   3684    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

3822

   4056    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

3984

   4225    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

4004

   4247    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

4119

   4196    [*]   [*]   [*]   [*]   [*]     3,500,000.00       [*]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

4227

   4459    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

4263

   4492    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

4875

   5093    [*]   [*]   [*]   [*]   [*]     1,500,000.00       [*]

4910

   5131    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

4980

   5011    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

5077

   5293    [*]   [*]   [*]   [*]   [*]     2,345,000.00       [*]

5143

   5362    [*]   [*]   [*]   [*]   [*]     2,500,000.00       [*]

5152

   5371    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

5311

   5533    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

5424

   5631    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

5440

   5666    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

5459

   5685    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

5512

   5754    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

5513

   5755    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

5659

   5901    [*]   [*]   [*]   [*]   [*]     5,600,000.00       [*]

5803

   6046    [*]   [*]   [*]   [*]   [*]     2,173,000.00       [*]

5863

   4396    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

5963

   6207    [*]   [*]   [*]   [*]   [*]     1,500,000.00       [*]

5992

   6237    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

6173

   6228    [*]   [*]   [*]   [*]   [*]     3,500,000.00       [*]

6696

   6937    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

6810

   7050    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

6875

   7115    [*]   [*]   [*]   [*]   [*]     1,200,000.00       [*]

7309

   7550    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

7564

   7806    [*]   [*]   [*]   [*]   [*]     1,800,000.00       [*]

7953

   8194    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

7982

   8223    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

8022

   8263    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

8478

   8722    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

8574

   8818    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

8590

   8834    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

9391

   9642    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

10057

   10313    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

10208

   10464    [*]   [*]   [*]   [*]   [*]     9,000,000.00       [*]

10440

   10700    [*]   [*]   [*]   [*]   [*]     2,700,000.00       [*]

10444

   10704    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

10479

   10739    [*]   [*]   [*]   [*]   [*]     7,500,000.00       [*]

10508

   10769    [*]   [*]   [*]   [*]   [*]     15,000,000.00       [*]

10602

   10864    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

10723

   10985    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

10824

   11086    [*]   [*]   [*]   [*]   [*]     2,500,000.00       [*]

10984

   11246    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

10991

   11253    [*]   [*]   [*]   [*]   [*]     4,500,000.00       [*]

10996

   11258    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

11002

   11264    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

11081

   11343    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

11299

   11563    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

11338

   11603    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

11413

   11681    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

11450

   11718    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

11514

   11782    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

11518

   11786    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

11520

   11788    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

11823

   12099    [*]   [*]   [*]   [*]   [*]     2,250,000.00       [*]

11983

   12261    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

12226

   12506    [*]   [*]   [*]   [*]   [*]     1,400,000.00       [*]

12395

   12675    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

12401

   12681    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

12403

   12683    [*]   [*]   [*]   [*]   [*]     7,500,000.00       [*]

12404

   12684    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

12405

   12685    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

12406

   12686    [*]   [*]   [*]   [*]   [*]     1,750,000.00       [*]

12407

   12687    [*]   [*]   [*]   [*]   [*]     1,300,000.00       [*]

12408

   12688    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

12409

   12689    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

12410

   12690    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

12412

   12692    [*]   [*]   [*]   [*]   [*]     1,379,000.00       [*]

12414

   12694    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

12416

   12696    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

12417

   12697    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

12425

   12705    [*]   [*]   [*]   [*]   [*]     826,000.00       [*]

12426

   12706    [*]   [*]   [*]   [*]   [*]     9,000,000.00       [*]

12427

   12707    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

12455

   12735    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

12493

   12774    [*]   [*]   [*]   [*]   [*]     20,000,000.00       [*]

12543

   12824    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

12581

   12862    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

12592

   12873    [*]   [*]   [*]   [*]   [*]     777,350.00       [*]

12601

   12882    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

12607

   12888    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

12620

   12901    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

12631

   12912    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

12632

   12913    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

12639

   12920    [*]   [*]   [*]   [*]   [*]     830,000.00       [*]

12642

   12923    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

12645

   12926    [*]   [*]   [*]   [*]   [*]     2,405,000.00       [*]

12671

   12952    [*]   [*]   [*]   [*]   [*]     6,000,000.00       [*]

12721

   13002    [*]   [*]   [*]   [*]   [*]     775,000.00       [*]

12736

   13017    [*]   [*]   [*]   [*]   [*]     2,128,000.00       [*]

12737

   13018    [*]   [*]   [*]   [*]   [*]     1,955,000.00       [*]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

12739

   13020    [*]   [*]   [*]   [*]   [*]     7,000,000.00       [*]

12898

   13180    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

12900

   13182    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

12901

   13183    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

12902

   13184    [*]   [*]   [*]   [*]   [*]     1,500,000.00       [*]

12948

   13230    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

13136

   13420    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

13255

   13541    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

13343

   13629    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

13355

   13641    [*]   [*]   [*]   [*]   [*]     9,700,000.00       [*]

13356

   13642    [*]   [*]   [*]   [*]   [*]     7,784,000.00       [*]

13357

   13643    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

13358

   13644    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

13359

   13645    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

13360

   13646    [*]   [*]   [*]   [*]   [*]     9,800,000.00       [*]

13361

   13647    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

13363

   13649    [*]   [*]   [*]   [*]   [*]     8,412,000.00       [*]

13364

   13650    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

13365

   13651    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

13367

   13653    [*]   [*]   [*]   [*]   [*]     2,500,000.00       [*]

13370

   13656    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

13374

   13660    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

13375

   13661    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

13376

   13662    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

13401

   13687    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

13443

   13729    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

13444

   13730    [*]   [*]   [*]   [*]   [*]     1,100,000.00       [*]

13445

   13731    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

13447

   13733    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

13448

   13734    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

13451

   13737    [*]   [*]   [*]   [*]   [*]     1,172,500.00       [*]

13459

   13745    [*]   [*]   [*]   [*]   [*]     5,200,000.00       [*]

13465

   13751    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

13492

   13778    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

13495

   13781    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

13608

   13894    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

13695

   13945    [*]   [*]   [*]   [*]   [*]     2,025,000.00       [*]

13697

   13942    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

13709

   13958    [*]   [*]   [*]   [*]   [*]     4,200,000.00       [*]

13710

   13959    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

13779

   14027    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

13841

   14090    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

13844

   14093    [*]   [*]   [*]   [*]   [*]     9,000,000.00       [*]

14071

   14319    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

4534

   4756    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

8950

   9198    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

9432

   9683    [*]   [*]   [*]   [*]   [*]     1,500,000.00       [*]

9542

   9795    [*]   [*]   [*]   [*]   [*]     2,500,000.00       [*]

11342

   11608    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

12418

   12698    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

12494

   12775    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

12876

   13158    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

12877

   13159    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

13372

   13658    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

13741

   13989    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

4229

   4461    [*]   [*]   [*]   [*]   [*]     5,500,000.00       [*]

3881

   4110    [*]   [*]   [*]   [*]   [*]     4,500,000.00       [*]

4979

   4830    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

5793

   6035    [*]   [*]   [*]   [*]   [*]     3,500,000.00       [*]

7329

   7571    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

10977

   11239    [*]   [*]   [*]   [*]   [*]     1,300,000.00       [*]

11177

   11440    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

11194

   11457    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

12512

   12793    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

9406

   9657    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

11188

   11451    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

13761

   14009    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

14478

   14726    [*]   [*]   [*]   [*]   [*]     4,500,000.00       [*]

15308

   15551    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

16931

   17173    [*]   [*]   [*]   [*]   [*]     9,000,000.00       [*]

17325

   17566    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

17621

   17861    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

18703

   18941    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

19570

   19808    [*]   [*]   [*]   [*]   [*]     6,500,000.00       [*]

19571

   19809    [*]   [*]   [*]   [*]   [*]     6,500,000.00       [*]

19572

   19810    [*]   [*]   [*]   [*]   [*]     6,500,000.00       [*]

19618

   19856    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

20060

   20296    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

20162

   20398    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

21141

   21360    [*]   [*]   [*]   [*]   [*]     1,500,000.00       [*]

21436

   21655    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

21716

   21935    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

22017

   22236    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

22118

   22337    [*]   [*]   [*]   [*]   [*]     6,000,000.00       [*]

22129

   22348    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

23253

   23471    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

23634

   23852    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

23721

   23939    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

23966

   24184    [*]   [*]   [*]   [*]   [*]     3,500,000.00       [*]

24397

   24614    [*]   [*]   [*]   [*]   [*]     1,500,000.00       [*]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

24822

   25038    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

25033

   25248    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

25772

   25986    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

25816

   26030    [*]   [*]   [*]   [*]   [*]     2,500,000.00       [*]

25930

   26144    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

26032

   26246    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

26289

   26503    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

26332

   26546    [*]   [*]   [*]   [*]   [*]     2,500,000.00       [*]

26501

   26715    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

26940

   27154    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

26991

   27205    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

27073

   27287    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

27216

   27430    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

27759

   27973    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

27888

   28102    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

28661

   28875    [*]   [*]   [*]   [*]   [*]     4,875,000.00       [*]

28777

   28991    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

28942

   29156    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

29126

   29340    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

29127

   29341    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

29128

   29342    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

29129

   29343    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

29130

   29344    [*]   [*]   [*]   [*]   [*]     2,500,000.00       [*]

29455

   29678    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

29571

   29794    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

29591

   29814    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

29858

   30081    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

30070

   30293    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

30149

   30372    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

30244

   30467    [*]   [*]   [*]   [*]   [*]     7,000,000.00       [*]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

30440

   30663    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

31185

   31405    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

31336

   31555    [*]   [*]   [*]   [*]   [*]     3,500,000.00       [*]

31405

   31622    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

31596

   31812    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

32234

   32446    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

32883

   33095    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

33156

   33368    [*]   [*]   [*]   [*]   [*]     4,875,000.00       [*]

33380

   33592    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

33875

   34084    [*]   [*]   [*]   [*]   [*]     3,200,000.00       [*]

33932

   34141    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

34872

   35079    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

19553

   19791    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

19261

   19499    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

20340

   20559    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

20963

   21182    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

20988

   21207    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

22333

   22552    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

24196

   24414    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

25496

   25711    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

25657

   25872    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

26228

   26442    [*]   [*]   [*]   [*]   [*]     6,000,000.00       [*]

26256

   26470    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

26454

   26668    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

26642

   26856    [*]   [*]   [*]   [*]   [*]     1,800,000.00       [*]

27226

   27440    [*]   [*]   [*]   [*]   [*]     2,600,000.00       [*]

27302

   27516    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

27573

   27787    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

27702

   27916    [*]   [*]   [*]   [*]   [*]     8,500,000.00       [*]

27938

   28152    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

27956

   28170    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

35257

   35464    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

21687

   21906    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

22302

   22521    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

24353

   24570    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

24813

   25029    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

25246

   25461    [*]   [*]   [*]   [*]   [*]     3,500,000.00       [*]

25584

   25799    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

28251

   28465    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

29079

   29293    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

29575

   29798    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

30450

   30673    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

33130

   33342    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

34871

   35078    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

325

   355    [*]   [*]   [*]   [*]   [*]     630,000.00       [*]

474

   535    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

490

   552    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

554

   639    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

556

   641    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

742

   871    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

979

   1132    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

1066

   1216    [*]   [*]   [*]   [*]   [*]     2,100,000.00       [*]

1095

   1253    [*]   [*]   [*]   [*]   [*]     4,800,000.00       [*]

1216

   1380    [*]   [*]   [*]   [*]   [*]     2,500,000.00       [*]

1225

   1391    [*]   [*]   [*]   [*]   [*]     959,700.00       [*]

1315

   1156    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

1450

   1600    [*]   [*]   [*]   [*]   [*]     1,700,000.00       [*]

1478

   1654    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

1495

   1666    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

1507

   1679    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

1551

   1723    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

1648

   1846    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

1699

   1749    [*]   [*]   [*]   [*]   [*]     2,538,000.00       [*]

1756

   1524    [*]   [*]   [*]   [*]   [*]     2,855,000.00       [*]

1861

   2090    [*]   [*]   [*]   [*]   [*]     8,990,000.00       [*]

1882

   2054    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

1883

   2063    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

1917

   2158    [*]   [*]   [*]   [*]   [*]     4,505,000.00       [*]

1918

   2159    [*]   [*]   [*]   [*]   [*]     892,000.00       [*]

1958

   917    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

2046

   2311    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

2118

   1030    [*]   [*]   [*]   [*]   [*]     935,000.00       [*]

2120

   2033    [*]   [*]   [*]   [*]   [*]     1,255,000.00       [*]

2121

   2118    [*]   [*]   [*]   [*]   [*]     3,399,000.00       [*]

2198

   2469    [*]   [*]   [*]   [*]   [*]     863,000.00       [*]

2352

   2210    [*]   [*]   [*]   [*]   [*]     1,140,000.00       [*]

2368

   2239    [*]   [*]   [*]   [*]   [*]     2,405,000.00       [*]

2390

   2666    [*]   [*]   [*]   [*]   [*]     1,585,000.00       [*]

2460

   2209    [*]   [*]   [*]   [*]   [*]     4,300,000.00       [*]

2483

   992    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

2488

   2171    [*]   [*]   [*]   [*]   [*]     1,150,000.00       [*]

2489

   2240    [*]   [*]   [*]   [*]   [*]     1,034,000.00       [*]

2490

   2320    [*]   [*]   [*]   [*]   [*]     945,000.00       [*]

2509

   1159    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

2525

   2807    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

2559

   1853    [*]   [*]   [*]   [*]   [*]     7,140,000.00       [*]

2584

   2060    [*]   [*]   [*]   [*]   [*]     840,000.00       [*]

2634

   1232    [*]   [*]   [*]   [*]   [*]     17,700,000.00       [*]

2670

   948    [*]   [*]   [*]   [*]   [*]     1,700,000.00       [*]

2672

   2146    [*]   [*]   [*]   [*]   [*]     3,300,000.00       [*]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

2694

   895    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

2785

   2162    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

2792

   2967    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

2818

   1180    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

2822

   1731    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

2824

   2144    [*]   [*]   [*]   [*]   [*]     2,770,000.00       [*]

2825

   2153    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

2827

   2430    [*]   [*]   [*]   [*]   [*]     8,000,000.00       [*]

2829

   2631    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

2854

   1743    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

2856

   2965    [*]   [*]   [*]   [*]   [*]     5,548,000.00       [*]

2919

   1776    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

2920

   1891    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

2921

   1994    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

2923

   2389    [*]   [*]   [*]   [*]   [*]     735,000.00       [*]

2932

   3183    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

3044

   2355    [*]   [*]   [*]   [*]   [*]     3,850,000.00       [*]

3121

   1982    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

3205

   1473    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

3223

   3045    [*]   [*]   [*]   [*]   [*]     2,500,000.00       [*]

3234

   1257    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

3270

   3190    [*]   [*]   [*]   [*]   [*]     1,600,000.00       [*]

3347

   2594    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

3395

   3636    [*]   [*]   [*]   [*]   [*]     1,100,000.00       [*]

3396

   3637    [*]   [*]   [*]   [*]   [*]     3,100,000.00       [*]

3424

   1424    [*]   [*]   [*]   [*]   [*]     6,000,000.00       [*]

3425

   3084    [*]   [*]   [*]   [*]   [*]     2,345,000.00       [*]

3439

   3673    [*]   [*]   [*]   [*]   [*]     1,478,000.00       [*]

3460

   2466    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

3645

   3395    [*]   [*]   [*]   [*]   [*]     1,800,000.00       [*]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

3785

   2838    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

3838

   866    [*]   [*]   [*]   [*]   [*]     1,600,000.00       [*]

3844

   4073    [*]   [*]   [*]   [*]   [*]     630,700.00       [*]

3914

   4154    [*]   [*]   [*]   [*]   [*]     1,589,000.00       [*]

4232

   4465    [*]   [*]   [*]   [*]   [*]     1,600,000.00       [*]

4364

   4047    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

4466

   1535    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

4508

   3441    [*]   [*]   [*]   [*]   [*]     1,257,000.00       [*]

4975

   5192    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

5049

   5264    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

5074

   5290    [*]   [*]   [*]   [*]   [*]     1,850,000.00       [*]

5154

   5374    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

5238

   5457    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

5621

   5863    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

2263

   499    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

5163

   5383    [*]   [*]   [*]   [*]   [*]     1,000,000.00       [*]

488

   550    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

4489

   4713    [*]   [*]   [*]   [*]   [*]     3,450,000.00       [*]

5288

   5510    [*]   [*]   [*]   [*]   [*]     2,500,000.00       [*]

8875

   9120    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

9447

   9698    [*]   [*]   [*]   [*]   [*]     9,000,000.00       [*]

12200

   12480    [*]   [*]   [*]   [*]   [*]     7,850,000.00       [*]

12723

   13004    [*]   [*]   [*]   [*]   [*]     7,000,000.00       [*]

12945

   13227    [*]   [*]   [*]   [*]   [*]     3,750,000.00       [*]

13021

   13305    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

13354

   13640    [*]   [*]   [*]   [*]   [*]     3,125,000.00       [*]

13471

   13757    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

13528

   13814    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

13589

   13875    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

13626

   13911    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

13795

   14043    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

13912

   14160    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

13978

   14226    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

14013

   14261    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

14082

   14330    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

14117

   14365    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

14216

   14464    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

14218

   14466    [*]   [*]   [*]   [*]   [*]     1,500,000.00       [*]

14219

   14467    [*]   [*]   [*]   [*]   [*]     1,500,000.00       [*]

14500

   13929    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

14864

   15107    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

14873

   15116    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

15001

   15244    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

15141

   15384    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

15370

   15613    [*]   [*]   [*]   [*]   [*]     1,800,000.00       [*]

16102

   16345    [*]   [*]   [*]   [*]   [*]     1,500,000.00       [*]

16160

   16403    [*]   [*]   [*]   [*]   [*]     2,500,000.00       [*]

16175

   16418    [*]   [*]   [*]   [*]   [*]     7,000,000.00       [*]

16176

   16419    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

17138

   17380    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

18266

   18504    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

18631

   18869    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

19107

   19345    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

19333

   19571    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

19909

   20145    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

19973

   20209    [*]   [*]   [*]   [*]   [*]     7,000,000.00       [*]

21490

   21709    [*]   [*]   [*]   [*]   [*]     1,758,713.00       [*]

11921

   12199    [*]   [*]   [*]   [*]   [*]     2,500,000.00       [*]

15637

   15880    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

18403

   18641    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

7699

   7941    [*]   [*]   [*]   [*]   [*]     4,000,000.00       [*]

13020

   13304    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

15439

   15682    [*]   [*]   [*]   [*]   [*]     2,000,000.00       [*]

15494

   15737    [*]   [*]   [*]   [*]   [*]     7,000,000.00       [*]

15842

   16085    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

16153

   16396    [*]   [*]   [*]   [*]   [*]     7,000,000.00       [*]

16867

   17109    [*]   [*]   [*]   [*]   [*]     10,000,000.00       [*]

21789

   22008    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

14248

   14248    [*]   [*]   [*]   [*]   [*]     2,500,000.00       [*]

22551

   22551    [*]   [*]   [*]   [*]   [*]     3,000,000.00       [*]

14086

   14086    [*]   [*]   [*]   [*]   [*]     5,000,000.00       [*]

Exhibit 10.6

[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

EXECUTION VERSION

AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT

Dated as of May 21, 2013

WASHINGTON SQUARE FINANCIAL, LLC

as the Seller

and

COMPASS SETTLEMENTS LLC

as the Purchaser


Table of Contents

 

             Page  

ARTICLE I

 

DEFINITIONS

     1   

SECTION 1.01.

 

Certain Definitions

     1   

SECTION 1.02.

 

Accounting Terms

     17   

SECTION 1.03.

 

Other Terms

     17   

SECTION 1.04.

 

Computation of Time Periods

     17   

ARTICLE II

 

AMOUNTS AND TERMS OF THE PURCHASES

     18   

SECTION 2.01.

 

Purchases of Receivables; Agreement to Purchase

     18   

SECTION 2.02.

 

Payment for the Purchases

     20   

SECTION 2.03.

 

Payments and Computations, Etc.

     21   

SECTION 2.04.

 

Transfer of Records to the Purchaser

     21   

SECTION 2.05.

 

Concentration Limits

     22   

SECTION 2.06.

 

Maximum Purchase Amount Increases

     23   

SECTION 2.07.

 

Modifications to Eligibility Criteria

     23   

SECTION 2.08.

 

Power of Attorney

     23   

ARTICLE III

 

CONDITIONS PRECEDENT

     24   

SECTION 3.01.

 

Conditions Precedent to Agreement

     24   

SECTION 3.02.

 

Conditions Precedent to Ongoing Purchases

     25   

SECTION 3.03.

 

Effect of Payment of Purchase Price

     26   

ARTICLE IV

 

REPRESENTATIONS AND WARRANTIES

     26   

SECTION 4.01.

 

Representations and Warranties of the Seller

     26   

SECTION 4.02.

 

Representations and Warranties of the Seller Relating to the Receivables and Related Assets

     30   

SECTION 4.03.

 

Representations and Warranties of the Purchaser

     31   

SECTION 4.04.

 

Survival of Representations and Warranties

     32   

ARTICLE V

 

GENERAL COVENANTS OF THE SELLER

     32   

SECTION 5.01.

 

Affirmative Covenants of the Seller

     32   

SECTION 5.02.

 

Negative Covenants of the Seller

     37   

ARTICLE VI

 

ADMINISTRATION AND COLLECTION

     40   

SECTION 6.01.

 

Servicing of Receivables

     40   

SECTION 6.02.

 

Responsibilities of the Seller

     41   

SECTION 6.03.

 

Further Action Evidencing Purchases

     41   

 

i


Table of Contents

(continued)

 

             Page  

ARTICLE VII

 

INDEMNIFICATION

     41   

SECTION 7.01.

 

Indemnities by the Seller

     41   

ARTICLE VIII

 

CONFIDENTIALITY

     44   

SECTION 8.01.

 

Restrictions on Use and Disclosure

     44   

SECTION 8.02.

 

Exceptions

     44   

SECTION 8.03.

 

Non-Public Personal and Customer Information

     44   

SECTION 8.04.

 

Unauthorized Access Notification

     44   

SECTION 8.05.

 

Return or Destruction

     45   

SECTION 8.06.

 

Audit Right

     45   

SECTION 8.07.

 

Subcontracting

     45   

SECTION 8.08.

 

Use of Confidential Information

     45   

ARTICLE IX

 

MISCELLANEOUS

     46   

SECTION 9.01.

 

Waivers; Amendments

     46   

SECTION 9.02.

 

Notices

     46   

SECTION 9.03.

 

Effectiveness; Binding Effect; Assignability

     47   

SECTION 9.04.

 

GOVERNING LAW; WAIVER OF JURY TRIAL

     47   

SECTION 9.05.

 

Costs and Expenses; Waiver of Setoff

     47   

SECTION 9.06.

 

Execution in Counterparts; Severability

     47   

SECTION 9.07.

 

Purchase Termination

     48   

SECTION 9.08.

 

Third Party Beneficiaries

     48   

SECTION 9.09.

 

Entire Agreement

     48   

SECTION 9.10.

 

Section and Paragraph Headings

     48   

SECTION 9.11.

 

Tax Disclosure

     48   

 

ii


Table of Contents

(continued)

 

              Page
EXHIBITS AND SCHEDULES

Exhibit A

  -   

Form of Purchase Request

  

Exhibit B

  -   

Form of Settlement Purchase Agreement

  

Exhibit C

  -   

Mortality Table

  

Exhibit D

  -   

Form of Pipeline Report

  

Exhibit E

  -   

Form of Bill of Sale

  

Exhibit F

  -   

Form of Purchase Designee Joinder

  

Schedule I

  -   

Addresses and Locations of Books and Records of the Seller

  

Schedule II

  -   

ERISA Matters

  

Schedule III

  -   

Lockbox Accounts; Lockbox Numbers

  

Schedule IV

  -   

Definition of Eligible Receivable

  

Schedule V

  -   

Approved States

  

Schedule VI

  -   

Schedule of Existing Receivables

  

 

iii


AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT

This AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT (this “ Agreement ”), dated as of May 21, 2013 (the “ Amendment Date ”) is made by and between WASHINGTON SQUARE FINANCIAL, LLC, a Georgia limited liability company (the “ Seller ”), and COMPASS SETTLEMENTS LLC, a Delaware limited liability company (the “ Purchaser ”).

RECITALS:

WHEREAS, the Seller has purchased and owns, and from time to time hereafter may purchase and own, “Receivables” (or portions thereof) from various “Claimants” pursuant to various “Settlement Purchase Agreements”;

WHEREAS, the Purchaser and the Seller entered into that certain Purchase and Sale Agreement dated as of December 30, 2011, (the “ Original Agreement ”) whereby the Seller agreed to sell, transfer or otherwise convey to the Purchaser from time to time, and the Purchaser agreed to purchase or otherwise acquire or accept from the Seller, all of the Seller’s right, title and interest in certain such Receivables, together with the Related Assets related thereto, whether now owned or hereafter acquired by the Seller (the “ Purchased Assets ”);

WHEREAS, the Purchaser and the Seller desire to amend and restate the Original Agreement on the terms and conditions provided herein; and

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.01. Certain Definitions . For all purposes of this Agreement, as used in this Agreement (including in the recitals hereto), the following terms shall have the following meanings:

Adverse Claim ” means a Lien or other right or claim of any Person other than (i) Permitted Liens, and, (ii) with respect to the Receivables and Related Assets, any Lien or other right or claim in favor of the Purchaser pursuant to the Transaction Documents.

Affiliate ” shall mean, with reference to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with reference to any specified Person shall mean the power to direct the management and policies of such specified Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

1


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Aggregate Discounted Receivables Balance ” means, for purposes of this Agreement with respect to any designated group of Receivables, at any time, the sum at such time of the respective Discounted Receivables Balances of such Receivables.

Agreement ” shall have the meaning specified in the Preamble hereof.

A.M. Best ” means A.M. Best Company, Inc. and its successors.

Amendment Date ” shall have the meaning specified in the Preamble hereof.

Approved Medical Underwriter ” means [*], or such other third party medical underwriter as reasonably designated by the Purchaser; provided , however , that it shall not be reasonable for the Purchaser to designate any other such third party medical underwriter unless the same designation is being made under all other purchase or financing facilities established or maintained by Purchaser or its Affiliates with other originators of Life Contingent Structured Settlements.

Approved State ” means each of the states listed on Schedule V attached hereto and made a part hereof.

Breach ” shall have the meaning assigned thereto in Section 5.01(l) .

Business Day ” shall mean any day other than a Saturday or Sunday or any other day on which national banking associations or state banking institutions in New York, New York are authorized or obligated by law, executive order or governmental decree to be closed.

Change in Control ” means at any time, (i) any sale, lease, exchange or other transfer (in a single transaction or a series of related transactions) of all or substantially all of the assets of the Seller to any Person or “group” (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder) other than to the Seller or in the ordinary course of business or (ii) the acquisition of ownership, beneficially or of record, by any Person or “group” (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder) (other than the Seller’s senior management or current members) of 50% or more of the indirect or direct equity interests in the Seller without Purchaser’s approval upon prior written notice (such approval not to be unreasonably withheld by Purchaser).

Claimant ” shall mean any Person(s) which is entitled to receive payments under a Settlement Agreement. In the event that a Settlement Agreement provides payments to more than one Person, “Claimant” shall refer to all such Persons.

Closing Date ” shall mean December 30, 2011.

Collection Account ” means the account identified as such on Schedule III .

Collections ” shall mean with respect to any Receivables and Related Assets, all cash or other payments thereon and other cash proceeds thereof, whether in the form of cash, checks, wire transfers, electronic transfers or any other form of cash payment, including, without

 

2


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

limitation, in each case with respect to any Receivables and Related Assets, any interest earned on such amounts while on deposit in any collection account; provided , however , that (i) Collections shall not include Split Payments and (ii) Collections shall not include any amounts related to Scheduled Payments due prior to the applicable Cut-Off Date for any Receivable.

Confidential Information ” of a party means all confidential or proprietary information, including without limitation, all information not generally known to the public, all work product, Customer Information, Purchaser and Seller data and the terms and conditions of this Agreement. The term also includes any such information that is to be made available to either party by or on behalf of the Purchaser or Seller, any Affiliate or licensee of the Purchaser or Seller, any Purchaser customer or any of their personnel in connection with this Agreement.

Control ” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.

Credit Policy Manual ” shall mean the credit and collection policies and practices of the Seller in effect on the Amendment Date relating to Receivables and Related Assets, as modified from time to time to the extent such change would not result in a breach of covenant by the Seller pursuant to Section 5.02(c) .

CSI ” means Contingent Settlements I, LLC, a Georgia limited liability company.

Customer Information ” means: (a) any Purchaser account number; (b) any transaction information concerning a Purchaser account; or (c) any Purchaser or third-party information related to (a) or (b) that may constitute non-public information under applicable laws and regulations, including, but not limited to those related to data protection and privacy or from which an individual customer’s identity or personal particulars are apparent or can be reasonably ascertained.

Cut-Off Date ” means, with respect to any Receivable described in any Purchase Request, the Purchase Date with respect to the Purchase of such Receivable.

Delinquent Receivable ” shall mean a Receivable with respect to which: (a) any Scheduled Payment (or any portion thereof) due thereunder is more than 30 days past due; or (b) any Scheduled Payment (or any portion thereof) has been diverted by the Claimant or any other Person and such diverted payment has not been returned to the Purchaser within 15 days after such diversion.

Discount Factor ” means at any time with respect to [*].

Discount Rate ” shall mean a per annum rate equal to the sum of (a) the Purchase Rate and (b) the Servicing Fee Rate.

Discounted Receivables Balance ” means at any time with respect to any Receivable, the sum of the products obtained by multiplying (i) the amount of each remaining Eligible Life Contingent Payment payable under such Receivable (net of the Split Payment obligations associated therewith), (ii) the Survival Probability relating to each such Eligible Life Contingent Payment and (iii) the Discount Factor relating to each such Eligible Life Contingent Payment.

 

3


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Eligible Annuity Provider ” means a Settlement Annuity Provider (a) whose financial strength is rated by S&P and/or by Moody’s and does not have a long term credit rating below [*] by S&P or below [*] by Moody’s or (b) if such Settlement Annuity Provider is not rated by S&P or Moody’s, whose financial strength is rated by A.M. Best and/or Fitch and does not have a long term credit rating below [*] by A.M. Best or below [*] by Fitch.

Eligible Life Contingent Payments ” means, as of the date of Purchase for any Eligible Receivable, the Life Contingent Periodic Payments scheduled to occur within [*] years of the applicable Purchase Date that the related Obligor (and the applicable Settlement Annuity Provider engaged by such Obligor) is obligated to pay only if the Referenced Settlement Recipient is alive on the date a Scheduled Payment is due; provided , that , with respect to Existing Receivables, “Eligible Life Contingent Payments” shall mean, as of the date of Purchase for such Existing Receivable, the Life Contingent Periodic Payments (i) scheduled to occur within [*] years of the applicable Original Purchase Date of such Existing Receivable and (ii) occurring on or after the Purchase Date of such Receivable that the related Obligor (and the applicable Settlement Annuity Provider engaged by such Obligor) is obligated to pay only if the Referenced Settlement Recipient is alive on the date a Scheduled Payment is due.

Eligible Receivable ” means, with respect to this Agreement, a Receivable, which, as of the date of its sale or conveyance to the Purchaser by the Seller hereunder, would constitute an “Eligible Receivable” under Schedule IV , or would constitute an “Eligible Receivable” under Schedule IV taking into account any conditions waived by the Purchaser in writing; provided , that , an Existing Receivable which, as of its Original Purchase Date, would constitute an “Eligible Receivable” under Schedule IV to the Purchase and Contribution Agreement or would constitute an “Eligible Receivable” under Schedule IV to the Purchase and Contribution Agreement taking into account any conditions waived by the Purchaser hereunder in writing shall be an “Eligible Receivable” hereunder and provided , further that a Warehouse Receivable which, as of its purchase by the Seller or CSI would constitute an “Eligible Receivable” under Schedule IV to the Purchase and Contribution Agreement, or would constitute an “Eligible Receivable” under Schedule IV to the Purchase and Contribution Agreement taking into account any conditions waived by the Purchaser hereunder in writing shall be an “Eligible Receivable” hereunder.

ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder.

ERISA Affiliate ” shall mean with respect to any Person, at any time, such trade or business (whether or not incorporated) that would, at the time, be treated together with such Person as a single employer under Section 4001 of ERISA or any of Sections 414(b), (c), (m) or (o) of the Internal Revenue Code.

 

4


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Event of Bankruptcy ” shall be deemed to have occurred with respect to a Person if either:

(i) a case or other proceeding shall be commenced, without the application or consent of such Person, in any court, seeking the liquidation, reorganization, dissolution, winding up, or composition or readjustment of debts of such Person, the appointment of a trustee, receiver, custodian, liquidator, assignee, sequestrator or the like for such Person or all or substantially all of its assets, or any similar action with respect to such Person under any law relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts; and, in each such case or proceeding, such case or proceeding shall remain undismissed or unstayed for 60 days or more or an order for relief in respect of such Person shall be entered in an involuntary case under the federal bankruptcy laws or other similar laws now or hereafter in effect; or

(ii) such Person shall commence a voluntary case or other proceeding under any applicable bankruptcy, insolvency, reorganization, dissolution or other similar law now or hereafter in effect, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) for such Person or for any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail to, or admit in writing its inability to, pay its debts generally as they become due, or, if a corporation or similar entity, its board of directors shall vote to implement any of the foregoing.

Excess Portion ” shall mean with respect to any Receivable, the Eligible Life Contingent Payments of such Receivable scheduled to occur after [*] years of the Purchase Date of such Receivable; provided , that , with respect to an Existing Receivable, “Excess Portion” shall mean the Eligible Life Contingent Payments of such Receivable scheduled to occur after [*] years of the Original Purchase Date of such Receivable.

Existing Receivable ” means, with respect to this Agreement, each Receivable sold or conveyed to CSI by the Seller pursuant to the Purchase and Contribution Agreement that is identified as such on Schedule VI hereto.

Facility Purchase Limit ” shall mean $45,000,000 (which, for the avoidance of doubt, shall not include Existing Receivables sold hereunder).

Fitch ” means Fitch, Inc. and its successors.

GAAP ” means U.S. generally accepted accounting principles.

GLB Act ” means collectively the Gramm-Leach-Bliley Act (15 U.S.C. Section 6801 et seq.) and its implementing regulations, as the same may be amended from time to time.

Governmental Authority ” means, with respect to any Person, any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any court or arbitrator having jurisdiction over such Person or its property.

High Mortality Verification Requirement Annuity Provider ” means [*], their respective affiliates and other annuity providers as may be reasonably designated from time to

 

5


time by the Purchaser; provided , however , that it shall not be reasonable for the Purchaser to designate any other such annuity providers unless the same designation is being made under all other purchase or financing facilities established or maintained by Purchaser or its Affiliates with other originators of Life Contingent Structured Settlements.

Highly Mortality Sensitive Receivable ” means a Receivable for which its Mortality Stressed Receivables Balance is less than its respective Discounted Receivables Balance.

Holdback Cut-Off Date ” has the meaning specified in Section 2.02(c) hereof.

Holdback Funds ” means, as of any date of determination and with respect to any Receivable, the portion (if any) of the purchase price payable by the Seller to the related Claimant under the related Settlement Purchase Agreement held back by the Seller pursuant to the terms of such Settlement Purchase Agreement solely to address any possible administrative delays in the change of ownership of such Receivable and in an amount not to exceed the sum of the first three Scheduled Payments sold by such Claimant to the Seller, and that remains unsatisfied as of such date.

Holdback Receivable ” means any Receivable in respect of which the Seller has held back Holdback Funds from the purchase price payable by the Seller to the related Claimant.

Imperial ” means Imperial Holdings, Inc., or any successor thereto.

Initial Scheduled Payment ” means, for each Holdback Receivable in respect of which there remain outstanding Holdback Funds, each Scheduled Payment in respect of which Holdback Funds were held back by the Seller pursuant to the related Settlement Purchase Agreement.

Internal Revenue Code ” means the Internal Revenue Code of 1986, as amended.

Joinder ” shall have the meaning assigned thereto in Section 2.01(f) .

Lien ” shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, encumbrance, lien (statutory or other), preference, participation interest, priority or other security agreement or preferential arrangement of any kind or nature whatsoever, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing and the filing of any financing statement under the UCC or comparable law of any jurisdiction to evidence any of the foregoing but not including any statutory liens with respect to payments not yet due and payable.

Life Contingent Periodic Payments ” shall mean the Scheduled Payments that the Obligor and the applicable Settlement Annuity Provider that issued a Settlement Annuity Contract to fund such payment obligations related to such Receivable are obligated to pay only if the Referenced Settlement Recipient is alive on the date a Scheduled Payment is due, but not otherwise.

 

6


Life Contingent Structured Settlement ” means a Structured Settlement providing for Life Contingent Periodic Payments, but which Structured Settlement may also include Term Certain Periodic Payments.

Limited Purchase Availability Event ” shall occur as of any date of determination when the Purchase Availability as of such date is less than $2,500,000.

Lockbox Account ” means each post office box or account identified as such on Schedule III maintained by the Purchaser or its Affiliates for the purpose of receiving payments on the Receivables made by the Obligors or Settlement Annuity Providers.

Marketability ” means any Lien or encumbrance of any Person other than the Purchaser, which impairs the good and marketable title to, or the use and value of, the affected Receivable.

Material Adverse Effect ” means, with respect to any event or circumstance, a material adverse effect on:

(i) the business, assets, financial conditions or operations of the Seller;

(ii) the ability of the Seller to perform its obligations under this Agreement or any other Transaction Document;

(iii) the validity or enforceability against Seller of this Agreement or any other Transaction Document;

(iv) the status, existence, perfection or priority of (i) Purchaser’s ownership interest in the Receivables and the Related Assets or (ii) if applicable, Purchaser’s security interest in the Receivables and the Related Assets established under Section 2.01(d) ;

(v) the validity, enforceability, collectability or Marketability of the Receivables, or the Related Assets;

(vi) the ability of the Seller to continue its structured settlement business as a going concern; or

(vii) Seller’s ability to make resources available for the advertising or marketing of its structured settlement business.

Maximum Purchase Amount ” shall be $25,000,000 as of the Amendment Date, as such amount may be increased from time to time pursuant to Section 2.06 hereof.

Medical Authorization ” shall mean, with respect to a Referenced Settlement Recipient, the medical authorization form, duly completed by such Referenced Settlement Recipient and in such form as reasonably approved by the Purchaser.

 

7


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Medical Questionnaire ” shall mean, with respect to a Referenced Settlement Recipient, the questionnaire concerning medical information, duly completed by or for such Referenced Settlement Recipient and in such form as provided by the Purchaser.

Medical Underwriting Report ” means, with respect to a Referenced Settlement Recipient, the medical underwriting report provided by the Approved Medical Underwriter in respect of that Reference Settlement Recipient (i.e., the reference life).

Moody’s ” means Moody’s Investor Services Inc, or any Affiliate.

Mortality Rating ” means with respect to each Referenced Settlement Recipient for each Receivable, the [*] for such Referenced Settlement Recipient as determined by the Approved Medical Underwriter as specified in the Medical Underwriting Report, (b) the [*] and (c) the [*].

Mortality Rating Adjustment ” means [*].

Mortality Stress Factor ” means [*].

Mortality Stressed Receivables Balance ” means at any time with respect to any Receivable, the sum of the products obtained by multiplying (i) the amount of each remaining Eligible Life Contingent Payment payable under such Receivable (net of the Split Payment obligations associated therewith), (ii) the [*] and (iii) the [*].

Mortality Table ” means the mortality table attached hereto as Exhibit C .

Multiemployer Plan ” shall mean a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which contributions are or have been made during the preceding six years by any Person or any ERISA Affiliate of such Person.

Obligor ” shall mean with respect to any Receivable, any party obligated to make Scheduled Payments under any Settlement Agreement that has purchased a Settlement Annuity Contract from an Eligible Annuity Provider to fund such payment obligations.

Original Agreement ” has the meaning set forth in the Recitals to this Agreement.

Original Purchase Date ” shall mean with respect to each Existing Receivable the date of its sale or conveyance to CSI by the Seller under the Purchase and Contribution Agreement as identified on Schedule VI hereto.

Permitted Liens ” shall mean with respect to any Receivable or the Related Assets relating thereto which are sold, transferred, contributed or otherwise conveyed to the Purchaser hereunder, (a) any Lien created under the Transaction Documents in favor of the Purchaser against the Seller, (b) Liens for federal, state, municipal and other local taxes in each case that are not yet due and payable or that the validity or amount thereof is currently being contested in good faith by an appropriate Person in appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained to the extent required by GAAP and (c) claims for payments to third parties or Claimants for non-assigned amounts due under a Split Payment.

 

8


Person ” means any individual, corporation, estate, partnership, business or trust, limited liability company, sole proprietorship, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization or government or any agency or political subdivision thereof or other entity.

Pipeline Report ” shall have the meaning assigned thereto in Section 5.01(p) .

Plan ” shall mean, with respect to any Person, any defined benefit plan (as defined in Section 3(35) of ERISA) that (a) is or was at any time during the past six years maintained by such Person or any ERISA Affiliate of such Person, or to which contributions by any such Person are or were at any time during the past six years required to be made or under which such Person has or could have any liability, (b) is subject to the provisions of Title IV of ERISA and (c) is not a Multiemployer Plan.

Plan Event ” shall mean, with respect to any Person, (a) the imposition of an obligation of such Person or any of its ERISA Affiliates under Section 4041 of ERISA to provide any affected parties written notice of an intent to terminate a Plan in a distress termination described in Section 4041(c) of ERISA, (b) the receipt of any notice by any Plan to the effect that the PBGC intends to apply for the appointment of a trustee to administer any Plan, (c) the termination of any Plan which results in any liability of such Person and/or any of its ERISA Affiliates in excess of the Plan Liability Threshold, (d) the withdrawal of such Person or any ERISA Affiliate of such Person from any Plan described in Section 4063 of ERISA which may reasonably be expected to result in any liability of such Person and/or any of its ERISA Affiliates in excess of the Plan Liability Threshold, (e) the complete or partial withdrawal of such Person or any ERISA Affiliate of such person from any Multiemployer Plan which may reasonably be expected to result in any liability of such Person and/or any of its ERISA Affiliates in excess of the Plan Liability Threshold, (f) a Reportable Event or an event described in Section 4068(f) of ERISA which may reasonably be expected to result in any liability of such Person and/or any of its ERISA Affiliates in excess of the Plan Liability Threshold, and (g) any other event or condition which under ERISA or the Code may reasonably be expected to constitute grounds for the imposition of a lien on the property of such Person in respect of any Plan or Multiemployer Plan.

Plan Liability Threshold ” shall mean, with respect to any Person and its ERISA Affiliates, any liability of such Person and such ERISA Affiliates with respect to any Plan Event which when aggregated with all other liabilities of such Person and its ERISA Affiliates incurred as a result of any other Plan Events during the immediately preceding twelve month period, plus any unpaid liabilities of such Person and its ERISA Affiliates arising as a result of any Plan Events occurring at any other time, exceeds $1,000,000.

Power of Attorney ” shall mean an irrevocable power of attorney executed by a Claimant in favor of the Seller or any other Person with full power of substitution (which Person has irrevocably appointed the Seller as its substitute), in each case, with full power of substitution at the election of the Seller, pursuant to a Settlement Purchase Agreement, authorizing the Seller (or any such substitute therefor) to act for and on behalf of the Claimant in connection with the enforcement of such Claimant’s Receivable.

 

9


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Primary Purchaser ” means Compass Settlements LLC, a Delaware limited liability company.

Purchase ” means, on any Purchase Date, as applicable, the sale, assignment, contribution, transfer and/or other conveyance of any Receivable and all Related Assets related thereto from the Seller to the Purchaser for which the Purchase Price has not been previously paid and which have not previously been sold, assigned, contributed, transferred or otherwise conveyed to the Purchaser by the Seller in accordance with the terms of Sections 2.01 and 2.02 hereof; and “ Purchased ” means the past tense of Purchase.

Purchase and Contribution Agreement ” means that certain Purchase and Contribution Agreement, dated as of April 12, 2011, between the Seller, as seller, and CSI, as purchaser.

Purchase Availability ” means, as of any date of determination, (a) the Maximum Purchase Amount as of such date less (b) the aggregate Purchase Price of Receivables purchased by the Purchaser pursuant to this Agreement (excluding Existing Receivables) since the Closing Date.

Purchase Commitment Termination Date ” means the earliest to occur of: (i) the date on which the aggregate Purchase Price of Receivables (excluding Existing Receivables) purchased by the Purchaser under this Agreement or the Original Agreement shall be equal to the Maximum Purchase Amount (not including the Purchase Price for any Receivables repurchased by the Seller pursuant to Section 5.01(l) ), (ii) the date which is twelve (12) months following the Amendment Date and (iii) the occurrence of a Purchase Commitment Termination Event (unless waived by the Purchaser).

Purchase Commitment Termination Event ” means any one of the following events (whatever the reason for such Purchase Commitment Termination Event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless otherwise waived by the Purchaser:

(i) failure on the part of the Seller to make any payment or deposit required under this Agreement within [*] after the date such payment or deposit is required to be made by the Seller;

(ii) a default in the observance or performance in any respect of any covenant or agreement of Seller made in this Agreement, and such default has a Material Adverse Effect, which default continues unremedied for a period of [*] after the first to occur of (i) actual knowledge thereof by a Responsible Officer of the Seller, or (ii) the delivery to the Seller by the Purchaser of a notice specifying such default and requiring it to be remedied and stating that such notice is a notice of default hereunder;

 

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

(iii) any representation, warranty, certification or written statement of the Seller in this Agreement shall prove to have been incorrect in any respect when made, and such incorrect representation, warranty, certification or written statement has a Material Adverse Effect, which default continues unremedied for a period of [*] after the first to occur of (i) actual knowledge thereof by a Responsible Officer of the Seller, or (ii) the delivery to the Seller by the Purchaser of a notice specifying such incorrect representation, warranty, certification or written statement and requiring it to be remedied and stating that such notice is a notice of default hereunder; provided that, for the avoidance of doubt, if any representation, warranty, certification or written statement of the Seller under this Agreement that relates to a Purchased Asset shall prove to have been incorrect when made, as long as the Seller complies with its repurchase or substitution obligations under Section 5.01(l) of this Agreement, no Purchase Commitment Termination Event shall occur or be deemed to occur as a consequence of any such false or incorrect representation, warranty, certification or written statement;

(iv) an event has occurred with respect to the Seller or its Affiliates which has a Material Adverse Effect on the Seller, other than a Material Adverse Effect contemplated in (ii) above;

(v) the Seller or any of its Affiliates shall be subject to civil or criminal investigation by any Governmental Authority, other than the SEC Investigation which is reasonably expected to have a Material Adverse Effect;

(vi) the Seller or Imperial shall be subject of an Event of Bankruptcy; or

(vii) the occurrence of a Change in Control with respect to the Seller without the consent of the Purchaser, which consent shall not be unreasonably withheld.

Purchase Date ” shall mean each date on which a Purchase is to occur, which shall initially be December 30, 2011 and subsequently every other Thursday (or the next succeeding Business Day if such Thursday is not a Business Day) occurring prior to the end of the Purchase Commitment Termination Date (e.g., January 12, 2012, January 26, 2012, etc…), or any other date agreed to between the Seller and the Purchaser in accordance with Section 2.02(a) as the date on which a Purchase will occur.

Purchase Price ” means, with respect to any Receivable, the Discounted Receivables Balance of such Receivable, calculated as of the applicable Purchase Date; provided , that , with respect to Existing Receivables, the “Purchase Price” shall mean the Discounted Receivables Balance of such Receivable, calculated as of the applicable Original Purchase Date.

Purchase Rate ” means [*] per annum; provided , that, if the “Purchase Rate” is reduced below [*] on any other purchase facility of Purchaser under which Purchaser is purchasing life contingent structured settlements of similar nature (determined by excluding any differences in servicing costs), the Purchase Rate will be reduced to such level; provided , further , if the mortality pricing methodology (e.g pricing model and mortality rating adjustments) under any such purchase facility is modified to become materially different than the mortality pricing methodology under this Agreement and the effect of such difference is to result in a

 

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lower effective Purchase Rate or discount rate for determining the Purchase Price for Receivables under that other facility (determined by excluding any differences in servicing costs), the “Purchase Rate” under this Agreement or the pricing model used hereunder will be adjusted so that the effective discount rate used under this Agreement to determine the Purchase Price for Receivables is no higher than the effective discount rate used in such other facility (determined excluding any differences in servicing costs).

Purchase Request ” means a report in the form attached hereto as Exhibit A , to be delivered by the Seller to the Purchaser with respect to a Purchase Date in accordance with Section 2.01(a) , including Annex 1 thereto, setting forth information with respect to each Receivable to be Purchased.

Purchase Termination Date ” means the earliest to occur of (i) the date upon which the ability of the Seller to permit Purchases hereunder has been terminated (and cannot be reinstated) pursuant to Section 2.01(c) and (ii) the Purchase Commitment Termination Date.

Purchased Assets ” shall have the meaning specified in the Recitals to this Agreement.

Purchaser ” shall have the meaning specified in the Preamble of this Agreement.

Purchaser Designee ” means an entity which has been designated by the Purchaser to purchase Receivables pursuant to Section 2.01(f) hereunder.

Purchaser Designee Collection Account ” means the collection account identified as such on a Joinder.

Purchaser Designee Lockbox Account ” means each post office box or account identified as such on a Joinder maintained by a Purchaser Designee or its Affiliates for the purpose of receiving payments on the Receivables made by the Obligors or Settlement Annuity Providers.

Purchasing Entity ” shall mean, with respect to any Eligible Receivable, the Purchaser or a Purchaser Designee, as designated pursuant to Section 2.01(f) .

Receivable ” shall mean, (i) all rights to certain Scheduled Payments (or portions thereof) due or to become due in connection with a Settlement Agreement, contingent and absolute and (ii) all other rights (but not obligations or liabilities), in any case which are purchased by the Seller from a Claimant pursuant to a Settlement Purchase Agreement, including, without limitation, all rights to receive such periodic Scheduled Payments from any Obligor (or its assignee) and all rights to receive any payments under any Settlement Annuity Contract purchased by any Obligor (or its assignee) to fund its payment obligations under such Settlement Agreement, whether such Scheduled Payments (or such portions thereof) constitute accounts, general intangibles (including, without limitation, payment intangibles), investment property, intangible or tangible chattel paper (including, without limitation, electronic chattel paper), instruments, documents, securities, cash, supporting obligations, or any other kind of property. Notwithstanding the foregoing, the term “Receivable” shall not include any Scheduled Payments due prior to the applicable Cut-Off Date for such Receivable or any Term Certain Periodic Payments.

 

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Records ” means, with respect to any Receivable, all documents, books, records and other information pertaining to such Receivable, any Related Assets and the related Claimant, including, without limitation, each of the following related documents: (i) a photocopy of the related executed Settlement Purchase Agreement, together with all documents thereby required to be delivered by the Claimant or any other Person to the Seller pursuant thereto in connection with the sale and assignment of such Receivable, (ii) a copy of the related executed Settlement Agreement (if available), (iii) a copy of the Settlement Annuity Contract, or alternatively, a benefits letter from the Settlement Annuity Provider, (iv) any applicable powers of attorney (and any related documents used to create such powers) that were used to execute documents on behalf of the Claimant, (v) copies of applicable notices, agreements, instruments and documents required to be obtained under the applicable state transfer statutes, including rate disclosure statements, (vi) evidence of the amounts of any advances made by the Seller to the Claimant that will be satisfied by offsetting such amounts against Seller’s payment obligations under the related Settlement Purchase Agreement (vii) except to the extent dependent on the performance of the Purchaser, from and after the sale of such Receivable, evidence that Seller has fully satisfied its then current payment obligations under the related Settlement Purchase Agreement (which evidence may be provided within ten (10) days of the Purchase Date for such Receivable), (viii) personal information of the Claimant, (including, as applicable, copies of marital status confirmation and related documents such as divorce decrees and property settlements, probate documents (if the Claimant is an heir) to establish title and authority to sell the Scheduled Payments, government issued photo identification (to confirm identity) and the Claimant’s credit report), (ix) a copy (or electronic copy) of the related Transfer Order, (x) a copy (or electronic copy) of the notice from the Seller to the related Obligor and the Settlement Annuity Provider of the assignment of such Receivable, required in connection with the assignment thereof; (xi) a copy (or electronic copy) of UCC, tax and judgment lien searches against the Claimant; (xii) a copy of an acknowledgment from the related Obligor or Settlement Annuity Provider of the Transfer Order’s instructions to direct Scheduled Payments to be made to the Lockbox Account (to be provided within ten (10) days of receipt by the Seller, which may occur after the related Purchase Date of such Receivable) in the name of the Purchaser, as well as evidence that the Seller has instructed such Obligor or Settlement Annuity Provider to remit all Scheduled Payments in respect of such Receivable to the Lockbox Account (unless such Obligor or Settlement Annuity Provider does not customarily provide such acknowledgement, in which case a stipulation referenced in (xiii) below must be provided), (xiii) a written stipulation from an Obligor or Settlement Annuity Provider that it will abide by the terms of the Transfer Order (unless such Obligor or Settlement Annuity Provider does not customarily provide such written stipulation, in which case an acknowledgement referenced in (xii) above must be provided), (xiv) written confirmation of payment in full of any fee (in respect of changes in payment instructions) required by the related Obligor or Settlement Annuity Provider, which may include a copy of the applicable check issued in payment of such fee, the accompanying cover letter and overnight courier’s delivery confirmation that such check was delivered, (xv) a copy of an executed Medical Authorization, (xvi) a copy of the Medical Questionnaire and (xvii) the related Medical Underwriting Report from an Approved Medical Underwriter.

 

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Referenced Settlement Recipient ” means with respect to any Receivable, the person whose life is the “reference life” with respect to the life contingent payments under such Receivable.

Related Assets ” means, with respect to any Receivable, (i) any Related Property, and (ii) all Collections with respect to such Receivable and any other proceeds of such Receivable received on or after the applicable Cut-Off Date (except to the extent such Collections and other proceeds relate to Scheduled Payments due prior to such Cut-Off Date).

Related Property ” means, with respect to any Receivable, all of the Seller’s rights, title, interests, remedies, powers and privileges (a) under the Settlement Purchase Agreement pursuant to which such Receivable was purchased by the Seller and the related Power of Attorney (if any), (b) to and in all security interests or other Liens and property subject thereto from time to time securing payment of such Receivable, if any, whether pursuant to the Settlement Purchase Agreement related to such Receivable or otherwise, (c) to and in all Lockbox Accounts, related lock-boxes and other bank accounts, in each case, into which any Collections are deposited or concentrated, all monies and other items of payment therein (but only to the extent relating to the Receivables), (d) under any other agreements or documents of whatever character (including guaranties, letters of credit, annuity contracts or other credit support) from time to time supporting or securing payment of such Receivable whether pursuant to any related Settlement Agreement, Assignment, Settlement Annuity Contract, Settlement Purchase Agreement or any other agreement related to such Receivable, (e) to and in all Records and all other instruments and rights relating to such Receivable and (f) to and in all products and proceeds of any of the foregoing. In no event shall Related Property include any interest rate hedging instruments or agreements entered into by the Seller in respect of any such Receivable.

Reportable Event ” shall mean any of the events set forth in Section 4043 of ERISA.

Requirements of Law ” shall mean any law, treaty, rule or regulation, including, without limitation, the Transfer Statutes of the Approved States, or final determination of an arbitrator or Governmental Authority, and, when used with respect to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person.

Responsible Officer ” means, when used with respect to Seller, the Chief Executive Officer, the Chief Investment Officer, the Chief Credit Officer, the Chief Financial Officer or any Managing Director thereof.

S&P ” means Standard & Poor’s Corporation, Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business, or any Affiliate.

Scheduled Payments ” shall mean, with respect to a Settlement Agreement, all payments from time to time required to be paid by an Obligor pursuant to the terms of such Settlement Agreement and required to be paid by the related Settlement Annuity Provider pursuant to the related Settlement Annuity Contract.

SEC Investigation ” means the investigation of Imperial by the U.S. Securities and Exchange Commission and more particularly described in the Form 8-K filing made with the U.S. Securities and Exchange Commission under Commission File No. 001-35064 on February 21, 2012.

 

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Seller ” shall have the meaning specified in the Preamble of this Agreement.

Seller Information ” means: (a) any transaction information concerning a Receivable; or (b) third-party information related thereto that may constitute non-public personal information under applicable law, including, but not limited to those related to data protection and privacy or from which an individual Seller’s identity or personal particulars are apparent or can be reasonably ascertained.

Servicer ” means Portfolio Financial Servicing Company or any successor thereto or such other entity acting as servicer for the Receivables purchased hereunder.

Servicer Records ” means all such documents, records and other information pertaining to such Receivable reasonably requested by the Servicer which the Servicer requires to fulfill its duties.

Servicing Fee Rate ” means [*].

Settlement Agreement ” shall mean an agreement entered into by a Claimant and an Obligor evidencing, among other things, the right of such Claimant to receive payments in connection with a Structured Settlement from the counterparty thereunder.

Settlement Annuity Contract ” shall mean an annuity contract issued by a Settlement Annuity Provider to fund the obligations of an Obligor under a Settlement Agreement.

Settlement Annuity Provider ” means, with respect to any Structured Settlement and a related Settlement Annuity Contract, the insurance company that issued and is obligated under such Settlement Annuity Contract.

Settlement Purchase Agreement ” shall mean a sale agreement substantially in the form of Exhibit “B” pursuant to which a Claimant sells, assigns and conveys to the Seller all or a portion of such Claimant’s right, title and interest in certain payments which the Claimant is to receive under a Settlement Agreement.

Smoking Adjustment ” shall mean, with respect to any Medical Underwriting Report issued by [*]:

(i) [*], if the “Smoking Status” specified on such Medical Underwriting Report is [*] or any derivative thereof with similar meaning; or

(ii) [*], if the “Smoking Status” specified on such Medical Underwriting Report is [*] or any derivative thereof with similar meaning; or

(iii) [*], if the “Smoking Status” specified on such Medical Underwriting Report is [*] or any derivative thereof with similar meaning.

 

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Split Payment ” shall mean, with respect to any Settlement Purchase Agreement pursuant to which the Claimant has reserved an interest in specified payments to be made by an Obligor or Settlement Annuity Provider to the Seller where the Seller has an obligation to pay over such reserved interest of the Claimant to the Claimant, or the Claimant’s successors or assigns (which interest shall solely be in the form of an independent claim against the Seller for payment to such Person of certain amounts upon, and to the extent of, receipt by the Seller of the Scheduled Payments sold (or portions of which have been sold) by the Claimant to the Seller pursuant to such Settlement Purchase Agreement), the amount of each such payment obligation so reserved and payable by the Seller to such Claimant from time to time pursuant to (and in accordance with) such Settlement Purchase Agreement.

Stressed Discount Factor ” means at any time with respect to an [*].

Stressed Discount Rate ” means [*].

Stressed Mortality Rating ” means with respect to each Referenced Settlement Recipient, the [*].

Stressed Survival Probability ” means the probability that the [*].

Structured Settlement ” shall mean an arrangement satisfying all applicable requirements of Section 5891 of the Internal Revenue Code in which periodic payments are disbursed over a specified period of time as compensation for an injury, damage or other claim settlement.

Survival Probability ” means the probability that the [*].

Tobacco Use Receivable ” means a Receivable for which the “Smoking Status” specified on the related Medical Underwriting Report is “Smoker”, “S” or any derivative thereof with similar meaning.

Term Certain Periodic Payments ” shall mean, with respect to any Receivable, the Scheduled Payments that the Obligor (and the applicable Settlement Annuity Provider that issued a Settlement Annuity Contract to fund such payment obligations related to such Receivable) is obligated to disburse, irrespective of the death of the respective Referenced Settlement Recipient.

Termination Date ” means that date following the Purchase Termination Date upon which the Aggregate Discounted Receivables Balance of the Receivables sold to the Purchaser hereunder has been reduced to zero.

Transaction Documents ” means this Agreement, the UCC financing statements filed in connection with any of the foregoing, and other instruments, certificates, agreements, reports and documents to be executed and delivered under or in connection herewith or therewith, as any of the foregoing may be amended, supplemented, amended and restated, or otherwise modified from time to time in accordance with this Agreement.

 

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Transfer Order ” shall mean a final written order of a court of competent jurisdiction which order shall (i) evidence such court’s approval of a transfer of some or all of a Claimant’s rights to a Receivable to the Seller which transfer has been made in accordance with such state’s Transfer Statute, which order is binding with respect to such Claimant and each of the parties required to be notified under such state’s Transfer Statute, and (ii) direct the related Obligor and/or Settlement Annuity Provider, as applicable (and any assignees thereof), to remit all payments in respect of such Receivable to the order of the Purchaser at the Lockbox Account.

Transition Lockbox Account ” means each post office box or account identified as such on Schedule III .

Transition Purchase Entity ” means Contingent Settlements I, LLC, a limited liability company organized under the State of Georgia.

Transfer Statute ” shall mean any statute which has been enacted in any state, as such statute shall be amended from time to time, and which authorizes, subject to compliance therewith, the transfer of a Structured Settlement (or a portion thereof) by the original payee thereunder to a transferee.

UCC ” means the Uniform Commercial Code as in effect in the State of Georgia.

U.S. Government Investigation ” means the governmental investigation of Imperial more particularly described in the Form 8-K filings made with the U.S. Securities and Exchange Commission under Commission File No. 001-35064 on September 28, 2011 and October 4, 2011.

Warehouse Receivable ” means each Receivable acquired by the Seller or CSI prior to the date of the Original Agreement that is not an Existing Receivable.

SECTION 1.02. Accounting Terms . Under this Agreement, all accounting terms not specifically defined herein shall be interpreted, all accounting determinations made, and all financial statements prepared, in accordance with GAAP.

SECTION 1.03. Other Terms . All other undefined terms contained in this Agreement shall, unless the context indicates otherwise, have the meanings as provided for by the UCC to the extent the same are used or defined therein. The words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole, including the exhibits and schedules hereto, as the same may from time to time be amended or supplemented and not to any particular section, subsection, or clause contained in this Agreement, and all references to Sections, Exhibits and Schedules shall mean, unless the context clearly indicates otherwise, the Sections hereof and the Exhibits and Schedules attached hereto, the terms of which Exhibits and Schedules are hereby incorporated into this Agreement. Terms used herein in the singular also include the plural, and vice versa, whenever appropriate in the context in which such terms are used and the term “including” means “including without limitation.”

SECTION 1.04. Computation of Time Periods . In this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”, and the word “within” means “from and excluding a specified date and to and including a later specified date”.

 

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ARTICLE II

AMOUNTS AND TERMS OF THE PURCHASES

SECTION 2.01. Purchases of Receivables; Agreement to Purchase .

(a) Subject to the terms and conditions hereinafter set forth (including the conditions set forth in Article III ), in respect of each Purchase Date for which a Purchase Request has been timely delivered and accepted in accordance with Section 2.02(a) , the Purchaser shall purchase from the Seller, and the Seller shall sell, transfer, assign and otherwise convey to the Purchaser all of the Seller’s right, title and interest in the Eligible Receivables described in such Purchase Requests, together with all of the Related Assets relating to such Receivables. On each such Purchase Date, the Purchaser shall pay the Purchase Price to the Seller, by no later than 5:00 p.m. (New York time) in the manner set forth under Section 2.02 . To the extent that (i) Receivables with one or more Term Certain Periodic Payments are sold to the Purchaser hereunder, (ii) the Purchaser receives any amounts in respect of Receivables that have been repurchased pursuant to Section 5.01(l) , or (iii) the Purchaser receives any amounts in respect to Warehouse Receivables that have not been purchased by the Purchaser hereunder, the Purchaser shall promptly remit funds equivalent to the amount of such Term Certain Periodic Payments or other amounts described in clauses (ii) and (iii), to the extent actually received by the Purchaser, to the Seller. Remittances by the Purchaser with respect to such Term Certain Periodic Payments or other amounts described in clauses (ii) and (iii) of the preceding sentence, as the case may be, shall be made via check, wire transfer or such other form of payment as the Purchaser may select in its sole discretion. The Seller shall use commercially reasonable efforts to structure transactions to minimize the number of payments to be made by the Purchaser under this Section 2.01(a) relating to the amounts described in clauses (i), (ii) and (iii) above. From and after the Purchase Termination Date, each of the Purchaser and the Seller shall use commercially reasonable efforts to transition receipt of the amounts described in clauses (i), (ii) and (iii) above relating to Receivables with no remaining Scheduled Payments due to the Purchaser to a lockbox designated by the Seller.

(b) It is the intention of the parties hereto that each Purchase of Receivables made hereunder shall constitute a “sale” from the Seller to the Purchaser under applicable laws and regulations, which sales are absolute and irrevocable and provide the Purchaser with all indicia and rights of ownership of the Receivables and Related Assets. Neither the Seller nor the Purchaser intends the transactions contemplated hereunder to be, or for any purpose to be characterized as, loans from the Purchaser to the Seller secured by such property. Except for certain indemnities pursuant to Section 7.01 , each sale of Receivables and Related Assets by the Seller to the Purchaser is made without recourse to the Seller; provided , however , that (i) the Seller shall be liable to the Purchaser for all representations, warranties and covenants made by the Seller pursuant to the terms of this Agreement (including, without limitation, the repurchase obligation described in Section 5.01(l) ), and (ii) such sale does not constitute and is not intended to result in an assumption by the Purchaser or any assignee thereof of any obligation of the Seller or any other Person to any Claimant, Obligor, Settlement Annuity Provider or any other Person

 

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in connection with the Receivables, Related Assets or the related Settlement Purchase Agreements, or any other obligations of the Seller or any other Person thereunder or in connection therewith, other than to return (or provide for the return of) any Scheduled Payments (or any portion thereof) not covered under the Settlement Purchase Agreement and not sold to the Purchaser hereunder back to such Claimant (it being understood and agreed that the Servicer shall remit or cause to be remitted all amounts in respect of Split Payments). In view of the intention of the parties hereto that the Purchases of Receivables and Related Assets made hereunder shall constitute sales or absolute transfers of such Receivables and such Related Assets rather than a loan secured by such Receivables and Related Assets, the Seller agrees to note in its books and records that such Receivables and Related Assets have been sold to the Purchaser and to respond to any inquiries made by third parties as to the ownership of such Receivables and Related Assets so sold that such Receivables and Related Assets have been sold to the Purchaser.

(c) Notwithstanding any other provision of this Agreement to the contrary, the Purchaser shall not Purchase from the Seller nor shall the Seller sell to the Purchaser any Receivable from and after the time of any bankruptcy filing by or against the Seller or the Purchaser; provided , however , that should any such bankruptcy or insolvency proceeding instituted against the Seller (as distinguished from by the Seller) be withdrawn or dismissed, then the Purchaser shall be entitled to resume purchasing Receivables and Related Assets from the Seller after the withdrawal or dismissal of such filing or proceeding.

(d) If, notwithstanding the provisions of Section 2.01(b) , a court of competent jurisdiction were to hold that any Purchase of Receivables and Related Assets hereunder does not constitute a valid sale of the affected Receivables and Related Assets as set forth above but instead constitutes a loan in the amount of the Purchase Price or otherwise of such Receivables (together with interest thereon to be computed at an interest rate consistent with the economic terms of this Agreement), then this Agreement shall be deemed a present grant of a security interest (within the meaning of Articles 8 and 9 of the UCC as in effect in all applicable jurisdictions) in favor of the Purchaser in all of the Seller’s rights, title and interest in, to and under the Purchased Assets effective upon each such Purchase, and the Seller hereby grants such a security interest to the Purchaser in the Purchased Assets which are the subject of such Purchase, and this Agreement shall constitute a security agreement within the meaning of Article 8 and Article 9 of the UCC of all applicable jurisdictions.

(e) The Seller shall use commercially reasonable efforts to minimize the number of Split Payments and mortality tracking requirements for Receivables originated by the Seller to be purchased by the Purchaser hereunder.

(f) The Purchaser may elect, in its sole discretion, to designate and cause a Purchaser Designee that has previously been approved in writing by the Seller (such approval not to be unreasonably withheld), subject to the satisfaction of the terms and conditions set forth herein, to purchase, certain Eligible Receivables on any Purchase Date rather than the Purchaser, in satisfaction of the Purchaser’s obligations pursuant to Section 2.01(a) hereunder. Each such Purchaser Designee shall execute a joinder agreement in the form of Exhibit F hereto (“ Joinder ”). Upon designation of an Eligible Receivable for purchase by a Purchaser Designee pursuant to the notification requirements of Section 2.01(g) , all references to “Purchaser”,

 

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“Lockbox Account” and “Collection Account” hereunder with respect to such Eligible Receivable shall be understood to refer to such Purchaser Designee, such Purchaser Designee’s Lockbox Account and such Purchaser Designee’s Collection Account, respectively, except as the context may otherwise require. For the avoidance of doubt, the Seller and the Purchaser hereby acknowledge and agree: (i) notwithstanding the designation of Receivables for purchase by a Purchaser Designee pursuant to this Section, the obligation of the Purchaser to purchase Receivables pursuant to Section 2.01(a) hereunder shall be a sole obligation of the Primary Purchaser and any right of recourse with respect to such obligation shall be solely to the Primary Purchaser, (ii) following the purchase of a Receivable by a Purchaser Designee hereunder, all obligations of the Purchaser with respect to such Receivable hereunder (including without limitation, the obligations of the Purchaser to remit Split Payments in Section 5.01(f) hereunder) shall be sole obligations of the Purchaser Designee and any right of recourse with respect to such obligations shall be solely to such Purchaser Designee and (iii) all references to “Receivables” in Section 2.05 shall be understood to refer to all Receivables purchased by the Purchaser and all Purchaser Designees collectively.

(g) With respect to any Receivable the Seller intends to sell hereunder, prior to the submission of any pleading relating to the Transfer Order for such Receivable to a court of competent jurisdiction for approval, the Seller shall notify the Purchaser of such anticipated submission and will provide the Purchaser such information as is set forth in Exhibit D hereto with respect to such Receivable. No later than one (1) Business Day after receipt of such information from the Seller, the Purchaser may provide the Seller notification that such Receivable shall be purchased by a Purchaser Designee (rather than the Purchaser), in which case the instructions in the related Transfer Order shall direct Scheduled Payments to be made to the Purchaser Designee Lockbox Account in the name of the Purchaser Designee, as specified in such notification. If the Seller does not receive such notification, all such Eligible Receivables and Related Assets shall be purchased by the Purchaser.

SECTION 2.02. Payment for the Purchases . (a) Not less than five (5) Business Days prior to each Purchase Date on which the Seller intends to sell Receivables (and Related Assets) to the Purchaser hereunder, the Seller shall deliver to the Purchaser a Purchase Request with respect to such Receivables. Upon acceptance thereof by the Purchaser and the satisfaction of the conditions precedent set forth in Article III, the Purchaser shall remit to the Seller payment in cash (subject to Section 2.02(b) ) of the Purchase Price for such Receivables (being the sum of the Purchase Prices for each such Receivable), by no later than 5:00 p.m. (New York time) on such Purchase Date. In addition, the Purchaser may request of the Seller, and the Seller shall deliver, on or before the applicable Purchase Date such approvals, information, reports or documents as the Purchaser may reasonably request. To the extent that the Purchaser reasonably disputes any of the information in such Purchase Request with respect to any Receivable described therein, the Seller and the Purchaser shall reconcile such information as promptly as possible and if unable to reconcile and agree on the content of such information prior to 4:30 p.m. (New York time) on the applicable Purchase Date, the Seller shall exclude from the final Purchase Request on such Purchase Date any Receivable subject to such dispute until such information is acceptable to the Purchaser (and such excluded Receivables shall be deemed not sold on such date).

 

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(b) With respect to any Receivable to be sold hereunder, on the Closing Date or any Purchase Date, the Purchaser may not purchase such Receivable unless the Purchaser pays to the Seller an amount, in cash, that is at least equal to the Purchase Price in respect of such Receivable.

(c) If any Initial Scheduled Payment with respect to a Purchased Receivable constituting a Holdback Receivable is remitted to the Lockbox Account or the Collection Account by the third Business Day following the due date therefor (the “ Holdback Cut-Off Date ”), the Seller agrees to pay to the applicable Claimant the portion of the Holdback Funds representing the purchase price payable by the Seller to the such Claimant for such Initial Scheduled Payment under the related Settlement Purchase Agreement by not later than 5:00 p.m. (New York time) on the fourth Business Day following the Holdback Cut-Off Date unless such portion has already been released to the related Claimant or the Seller’s obligation to pay such amount to the related Claimant has been extinguished pursuant to the terms of the related Settlement Purchase Agreement because one or more Initial Scheduled Payments has not been remitted to the Seller or its assigns, in each case prior to the Closing Date or applicable Purchase Date. If any Initial Scheduled Payment with respect to a Purchased Receivable constituting a Holdback Receivable is not remitted to the Lockbox Account or the Collection Account by the Holdback Cut-Off Date in respect thereof, the Seller agrees to pay to the Purchaser an amount equal to such Initial Scheduled Payment by not later than 5:00 p.m. (New York time) on the second Business Day following the Holdback Cut-Off Date; provided , that , if subsequent to the Holdback Cut-Off Date the Purchaser receives such Initial Scheduled Payment with respect to which the Seller has made a payment to the Purchaser, the Purchaser hereby agrees to remit such Initial Scheduled Payment to the Seller.

SECTION 2.03. Payments and Computations, Etc . All amounts to be paid by the Seller to the Purchaser hereunder shall be paid in accordance with the terms hereof no later than 1:00 P.M. (New York time) on the day when due in Dollars in immediately available funds to the Lockbox Account or the Collection Account. All amounts to be paid by the Purchaser to the Seller hereunder shall be paid in accordance with the terms hereof no later than 5:00 P.M. (New York time) on the day when due to such account as may be specified therefor by the Seller from time to time by notice to the Purchaser. Payments received by the Purchaser or the Seller after such times shall be deemed to have been received on the next Business Day. In the event that any payment becomes due on a day which is not a Business Day, then such payment shall be made on the next succeeding Business Day. The Seller shall, to the extent permitted by law, pay to the Purchaser, on demand, interest on all amounts not paid when due hereunder at 2% per annum above the per annum rate designated by J.P. Morgan Chase & Co. as its “prime rate” for commercial borrowers (such rate not necessarily being the lowest rate offered by such bank) as in effect on the date such payment was due; provided , however , that such interest rate shall not at any time exceed the maximum rate permitted by applicable law. All computations of interest payable hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first but excluding the last day) elapsed.

SECTION 2.04. Transfer of Records to the Purchaser .

(a) In connection with the Purchases of Receivables hereunder, the Seller hereby sells, transfers, assigns and otherwise conveys to the Purchaser all of the Seller’s right

 

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

and title to, and interest in, the Records relating to all Purchased Assets, without the need for any further documentation in connection with any Purchase other than a bill of sale in accordance with Section 3.02(d) .

(b)The Seller shall deliver electronic copies of all Records relating to Receivables to be sold hereunder to Purchaser via a secure FTP site (as designated by the Purchaser) at least five (5) Business days prior to the date on which such Receivables are scheduled to be sold.

(c) The Seller shall deliver electronic copies of all Servicer Records relating to Receivables to be sold hereunder to Servicer via a secure FTP site (or such other means as are reasonably requested by the Servicer) at least two (2) Business days prior to the date on which such Receivables are scheduled to be sold.

(d) The Seller shall take such commercially reasonable action as is requested by the Purchaser (or its assignees), from time to time hereafter, that may be necessary or appropriate to ensure that the Purchaser (and its assignees) has an enforceable ownership or security interest, as applicable, in all of the Purchased Assets purchased from the Seller hereunder.

(e) For the avoidance of doubt, any Records sold, transferred, assigned or otherwise conveyed to the Purchaser hereunder shall be subject to the restrictions set forth in Section 8.08 .

SECTION 2.05. Concentration Limits .

(a) The Seller shall not list any Receivables on a Purchase Request which would cause the Discounted Receivable Balance of all Receivables sold to the Purchaser by the Seller following the related Purchase Date and payable by (i), with respect to each of the two Obligors and two Settlement Annuity Providers comprising the two largest portions of the Aggregate Discounted Receivables Balance following the related Purchase Date, any single Obligor or an any single Settlement Annuity Provider to exceed [*] and (ii) any single Obligor or any single Settlement Annuity Provider (excluding from consideration for this purpose the two Obligors and Settlement Annuity Providers obligated under Receivables comprising the two largest portions of the Aggregate Discounted Receivables Balance following the related Purchase Date) to exceed [*], in each case, of the Aggregate Discounted Receivables Balance of all Receivables sold to the Purchaser by the Seller following the related Purchase Date.

(b) The Seller shall not list any Receivables on a Purchase Request which would cause the Discounted Receivable Balance of all Receivables sold to the Purchaser by the Seller following the related Purchase Date with Transfer Orders issued by courts located in any single state to exceed [*] (or [*] solely with respect to Receivables located in the state of Florida) of the Aggregate Discounted Receivables Balance of all Receivables sold to the Purchaser by the Seller following the related Purchase Date.

(c) The Seller shall not list any Receivables on a Purchase Request which would cause the Discounted Receivable Balance of all Highly Mortality Sensitive Receivables sold to the Purchaser by the Seller following the related Purchase Date to exceed [*] of the Aggregate Discounted Receivables Balance of all Receivables sold to the Purchaser by the Seller following such Purchase Date.

 

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

(d) The Seller shall not list any Receivables on a Purchase Request which would cause the average Purchase Price for Receivables sold to the Purchaser by the Seller to be greater than [*]; provided , that , for the purpose of this calculation all Receivables with the same Referenced Settlement Recipient sold to the Purchaser by the Seller shall be treated as one Receivable with an aggregate Purchase Price equal to the sum of the Purchase Prices of such Receivables.

(e) The Seller shall not list any Receivables on a Purchase Request which would cause the Discounted Receivable Balance of all Tobacco Use Receivables sold to the Purchaser by the Seller following the related Purchase Date to exceed [*] of the Aggregate Discounted Receivables Balance of all Receivables sold to the Purchaser by the Seller following the related Purchase Date.

(f) The Seller shall not list any Receivables on a Purchase Request which would cause the Discounted Receivable Balance of the Excess Portion of all Receivables sold to the Purchaser by the Seller to exceed [*] of the Aggregate Discounted Receivables Balance of all Receivables sold to the Purchaser by the Seller following the related Purchase Date.

SECTION 2.06. Maximum Purchase Amount Increases . From time to time, prior to the Purchase Commitment Termination Date, the Purchaser, in its sole discretion, may increase the Maximum Purchase Amount, in increments not less than $10,000,000, through written notice thereof to the Seller. The Maximum Purchase Amount shall not exceed the Facility Purchase Limit.

SECTION 2.07. Modifications to Eligibility Criteria . The Purchaser may amend the definition of “Eligible Receivable” in Schedule IV at any time with consent of the Seller; provided , that , all Receivables listed on the Pipeline Report provided by the Seller to the Purchaser on the date of effectiveness of such amendment shall be considered Eligible Receivables if such Receivables satisfy the definition of Eligible Receivable prior to the effectiveness of such amendment; provided , further , that such consent may not be unreasonably withheld by the Seller unless such amendment materially and adversely impacts the ability of the Seller to originate assets for purchase under this Agreement or the pricing or value of such assets. Notwithstanding the foregoing, the Seller shall not be required to consent to any change in the definition of Eligible Receivable to the extent that such change adversely impacts the ability of the Seller to originate assets for purchase under this Agreement or the pricing or value of such assets if a substantially similar change is not being made to the definition of Eligible Receivable contained in all other purchase facilities established or maintained by the Purchaser or its Affiliates with other originators of Life Contingent Structured Settlements.

SECTION 2.08. Power of Attorney . The Seller hereby irrevocably appoints the Purchaser and its designees as its attorney-in-fact with right of substitution so that Purchaser or any Person designated by the Purchaser shall be authorized, without need of further authorization from the Seller, after the occurrence of a Purchase Commitment Termination Event, to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and

 

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receipts for moneys due and to become due under or in connection with the Receivables and the Related Assets sold to Purchaser hereunder, to receive, endorse and collect any drafts or other documents in connection therewith, and to file any claims or take any action or institute any proceedings that the Purchaser (or such designee) may deem to be necessary or desirable for the collection thereof or to enforce compliance with the terms and conditions of, or to perform any obligations or enforce any rights of the Seller in respect of, the Receivables and the Related Assets sold to Purchaser hereunder. This special power of attorney shall be deemed coupled with an interest and cannot be revoked by the Seller.

ARTICLE III

CONDITIONS PRECEDENT

SECTION 3.01. Conditions Precedent to Agreement . The effectiveness of this Agreement and any obligations of the Purchaser hereunder other than those contained in Section 8.08, which the Purchaser shall be subject to whether or not the conditions in this Section 3.01 are met, are subject to each of the following conditions precedent being satisfied in all material respects (except with respect to the condition precedent set forth in Section 3.01(g) which shall be satisfied in all respects) or waived (in each case, as determined by the Purchaser in its reasonable discretion):

(a) the conditions precedent to the execution, delivery and effectiveness of each of the other Transaction Documents (other than a condition precedent in any such other Transaction Document relating to the effectiveness of this Agreement) shall have been fulfilled;

(b) Purchaser shall have received satisfactory legal opinions and/or bring down reliance letters in respect of certain corporate and enforceability matters;

(c) Purchaser shall have received closing certificates (officer’s certificates certifying to and attaching each party’s constituent documents, resolutions indicating the authority to execute the Transaction Documents, good standing certificate (or equivalent) and incumbency of relevant officers scheduled to consummate the transactions contemplated by the Transaction Documents) satisfactory to the Purchaser from the Seller and Imperial;

(d) notwithstanding the provisions of Section 4.01(d) , Seller shall have made an arrangement, satisfactory to the Purchaser, in connection with filing and recording, at the Seller’s own expense, all UCC-1 financing statements necessary or advisable to perfect the Purchaser’s ownership interest in the Purchased Assets in each applicable jurisdiction;

(e) Imperial shall have duly executed and delivered to the Purchaser a letter reaffirming its guarantee of Seller’s obligations under this Agreement and the other Transaction Documents in form satisfactory to the Purchaser;

(f) Purchaser shall have received copies of reports of a UCC lien search conducted in the central filing office and any relevant local offices of the Seller with respect to the Receivables reflecting the absence of Liens on the Receivables and Related Assets, except for Permitted Liens or Liens created hereunder in favor of the Purchaser or except for Liens as to which Purchaser has received UCC termination statements; and

 

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(g) the representations and warranties of Seller contained in Section 4.01 are true and correct in all material respects (except (A) to the extent such representations and warranties expressly related to an earlier date, in which case as of such earlier date and (B) for such representations and warranties which are qualified by their terms by references to “materiality” or “Material Adverse Effect,” which such representations and warranties as so qualified shall be true and correct in all respects).

SECTION 3.02. Conditions Precedent to Ongoing Purchases . The obligation of the Purchaser on each Purchase Date to accept and pay the Purchase Price for the transfers of Receivables and Related Assets under this Agreement is subject to the conditions precedent that as on such Purchase Date or waiver thereof:

(a) (i) the representations and warranties of Seller contained in Section 4.01 are true and correct in all material respects (except (A) to the extent such representations and warranties expressly relate to an earlier date, in which case of such earlier date and (B) for such representations and warranties which are qualified by their terms by references to “materiality” or “Material Adverse Effect,” which such representations and warranties as so qualified shall be true and correct in all respects), and (ii) the representations and warranties contained in Section 4.02 are true and correct in all respects;

(b) no Purchase Commitment Termination Event shall have occurred and be continuing as of such Closing Date or Purchase Date;

(c) the Purchase of such Receivables and Related Assets would not cause any of the Concentration Limits listed in Section 2.05 to no longer be satisfied, unless and except to the extent Purchaser has provided a written waiver thereof in respect of such Receivables and Related Assets;

(d) the Purchaser or the Purchaser Designee, as applicable, shall receive a bill of sale relating to the Receivables and Related Assets, substantially in the form of Exhibit E ;

(e) the Purchaser shall have received the Records for each Receivable (and Related Assets) to be sold on a Purchase Date no later than five (5) Business Days prior to such Purchase Date in accordance with Section 2.04(b) , and a Purchase Request in respect of such Receivables no later than five (5) Business Days prior to such Purchase Date in accordance with Section 2.02(a) , and determined that such Purchase Request is not deficient in any respect (except with respect to any Receivables excluded under the terms of Section 2.02 hereof).

(f) Upon the filing of a UCC financing statement against the Seller after the Closing Date, Purchaser shall have received copies of reports of a UCC lien search in the central filing office of the state of organization of the Seller with respect to the Receivables reflecting the absence of Liens on the Receivables and Related Assets, except for Permitted Liens or Liens created hereunder in favor of the Purchaser or except for Liens as to which Purchaser has received UCC termination statements.

The Seller, by executing the related Purchase Request (once approved by the Purchaser), shall be deemed to have certified as to Section 3.02(a) of this Agreement, with respect to the Receivables and Related Assets sold on the applicable Purchase Date, that its representations and warranties contained in Article IV are true and correct in all material respects on and as of such Purchase Date.

 

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SECTION 3.03. Effect of Payment of Purchase Price . Upon the payment of the Purchase Price by the Purchaser to the Seller for any Purchase pursuant to Section 2.02(b) , title to the Receivables and Related Assets included in such Purchase shall vest in the Purchaser.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

SECTION 4.01. Representations and Warranties of the Seller . The Seller hereby represents and warrants that as of the Amendment Date and (except for representations and warranties which relate to a specific date only) each Purchase Date thereafter until the Purchase Termination Date:

(a) Organization and Good Standing . The exact legal name of the Seller is Washington Square Financial, LLC. The Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Georgia. The Seller’s organizational identification number is 10004150. The Seller has full power and authority to own its properties and conduct its business as presently owned or conducted, and to execute, deliver and perform its obligations under this Agreement, the Settlement Purchase Agreements, and each of the other Transaction Documents to which it is a party.

(b) Due Qualification . The Seller is duly qualified to do business and is in good standing as a foreign limited liability company, and has obtained all necessary licenses and approvals, in each jurisdiction where the conduct of business requires such licenses and approvals except where the failure to be so qualified or obtain such licenses and approvals would not reasonably be expected to have a Material Adverse Effect on the performance of the Seller’s obligations under the Transaction Documents to which it is a party.

(c) Due Authorization; Conflicts . The execution, delivery and performance by the Seller of this Agreement and each of the other Transaction Documents to which it is a party are (i) within the Seller’s powers, (ii) have been duly authorized by all necessary corporate, partnership and/or limited liability company action, (iii) require no action by or in respect of, or filing with, any Governmental Authority or official thereof, and (iv) do not contravene, or constitute a default under, (x) the Seller’s limited liability company operating agreement, (y) any law, rule, regulation, order, decree or contractual restriction binding on, or affecting, the Seller, or (z) any agreement, contract, indenture, credit agreement, mortgage, or other instrument, document or agreement to which the Seller or any of its assets are subject or by which the Seller or any of its assets may be affected.

(d) Consents . No authorization or approval or other action by, and no notice to or registration of or filing with, any Governmental Authority or other regulatory body is required to be made by the Seller for the due execution, delivery and performance by the Seller, or to ensure the legality, validity, binding effect or enforceability of, this Agreement, the Settlement Purchase Agreements or any of the other Transaction Documents to which it is a party, except for (i) the filing of UCC financing statements against the Seller in respect of the transactions contemplated herein, all of which that need to be filed or are advisable to be filed to

 

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perfect Purchaser’s ownership interest in the Purchased Assets in each applicable jurisdiction (as comprised as of the date of the making or remaking of this representation and warranty) have been so made at the Seller’s own expense, or delivered to the Purchaser in form suitable for filing at the Seller’s own expense, and (ii) any securities filings by Imperial Holdings, Inc. with the United States Securities and Exchange Commission.

(e) Enforceability . Each of this Agreement and any of the other Transaction Documents to which it is a party is and will be the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally or general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).

(f) Proceedings . There are no judgments or other judicial or administrative orders outstanding against the Seller nor is there any pending or, to the Seller’s knowledge, threatened action or proceeding affecting the Seller before any court, governmental agency or arbitrator, other than the SEC Investigation and the class action litigation and similar actions disclosed by, and contemplated in, Imperial’s Quarterly Report on Form 10-Q for the three and nine month periods ended September 30, 2011.

(g) Compliance with Laws, Etc . The Seller is not in violation of (i) any law, rule, regulation, order, writ, judgment, decree, determination or award applicable to it or any of the Receivables or Related Assets or (ii) any indenture, lease, loan or other agreement to which it is a party or by which it or its assets may be bound or affected except in the case of this clause (ii) for such violations that would not reasonably be expected to have a Material Adverse Effect.

(h) Lockbox Accounts . All action required to be taken with respect to the Lockbox Account pursuant to Section 5.02(h) has been taken. No financial institution (other than institutions which are listed on Schedule III or elsewhere herein) holds any deposit account or services the Lockbox Account for the receipt of Scheduled Payments in respect of the Receivables and Related Assets. All Obligors and Settlement Annuity Providers have been directed and instructed to make payments on the Receivables to the Lockbox Account and such instructions are in full force and effect.

(i) Locations . The principal place of business and chief executive office of the Seller are located at 701 Park of Commerce Blvd., Ste. 301, Boca Raton, FL 33487 and the Seller keeps all of its records relating to the Receivables and Related Assets at such office.

(j) Accuracy of Information . Each certificate, information, exhibit, financial statement, document, book, record, report or disclosure furnished by the Seller to the Purchaser is true, accurate and complete in all material respects.

(k) Intentionally Omitted .

(l) Records . The Records are true, accurate and complete in all material respects as of the related Purchase Date and include all amendments, supplements and modifications delivered to Seller or entered into by Seller in respect thereof.

 

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(m) Investment Company Act Matters . The Seller is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act.

(n) Title to Property . The Seller, with respect to any Receivables, Related Assets or other Purchased Assets, immediately prior to the Purchase thereof by the Purchaser hereunder, had good, indefeasible, and merchantable title to and ownership of such Receivables, Related Assets or other Purchased Assets, free and clear of all Liens except for Permitted Liens. From and after the sale of a Receivable to Purchaser hereunder, no effective financing statement or other instrument similar in effect covering any of the Receivables and Related Assets or any other interest therein, naming the Seller as debtor, is on file in any recording office except for financing statements (i) in favor of Purchaser in accordance with this Agreement or (ii) with respect to which UCC-3 termination statements or amendments necessary to release all Adverse Claims of any Person in the Receivables and Related Assets granted by Purchaser or the Seller have been filed. For the avoidance of doubt, with respect to any Receivables and Related Assets sold on the Closing Date or any Purchase Date, the Seller shall have no right, title or interest in such Receivables and Related Assets after the Closing Date or such Purchase Date, as applicable, except in connection with a repurchase thereof.

(o) Tradenames . Except for the name “Imperial Structured Settlements”, the Seller has no tradenames, fictitious names, assumed names or “doing business as” names and since the date of its organization and registration as a limited liability company.

(p) Solvency . After giving effect to each Purchase of Purchased Assets hereunder, the Seller is and will be solvent and able to pay its debts as they come due, and has and will have adequate capital to conduct its business.

(q) Valid Sale . This Agreement constitutes a valid sale to the Purchaser of all right, title and interest of the Seller in and to the Receivables and Related Assets now or hereafter Purchased hereunder and in and to all other Purchased Assets and the proceeds thereof free and clear of any Lien, other than any Permitted Lien.

(r) Nature of Purchases . The Purchaser has given reasonably equivalent value to the Seller in consideration for each Purchase by the Purchaser from the Seller of the Receivables and Related Assets pursuant hereto, and no such transfer has been made for or on account of an antecedent debt owed by the Seller to the Purchaser.

(s) Licenses . The Seller has complied in all respects with all registration and licensing requirements in each jurisdiction in which it is required to be specially registered or licensed as a purchaser of Receivables, except where the failure to obtain or possess such registration or licensure would not have a Material Adverse Effect on the Purchased Receivables or the performance of the Seller’s obligations under this Agreement.

(t) ERISA Matters . Except as set forth on Schedule II , neither the Seller nor any of its ERISA Affiliates has maintained or participated in any Plan or Multiemployer Plan during the past six (6) years. With respect to any such Plan and/or Multiemployer Plan, (i) such Plan and/or Multiemployer Plan complied and complies in all material respects with all

 

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applicable Requirements of Law, (ii) no Reportable Event has occurred with respect to any such Plan and/or Multiemployer Plan, (iii) no such Plan or Multiemployer Plan has been terminated, and (iv) no funding deficiency has occurred in respect of any such Plan or Multiemployer Plan, except, in each case, where the occurrence of any of the foregoing could not be reasonably expected to result in liability to the Purchaser in excess of the Plan Liability Threshold or result in a Lien against the Purchased Assets (or any portion thereof). With respect to any such Plan or Multiemployer Plan that is intended to qualify for special tax treatment under Sections 401(a) or 403(a) of the Internal Revenue Code, such Plan or Multiemployer Plan is in compliance with the applicable requirements of the Internal Revenue Code for such qualifications.

(u) Policies and Procedures . No change has been made to the Credit Policy Manual, except any such change which would not result in the Seller being in breach of Section 5.02(c) .

(v) Origination and Servicing Policies . On and prior to any Purchase Date, with respect to any Receivables and Related Assets which were Purchased on such Purchase Date, the Seller is in compliance with its Credit Policy Manual. After the Closing Date or any Purchase Date, with respect to any Receivables and Related Assets that were Purchased on the Closing Date or such Purchase Date, as applicable, the Seller shall have no authority with respect to the collection, amendment, modification, adjustment, extension or cancellation of such Receivable or Related Asset.

(w) Tax Status; Sale Treatment . The Seller has (i) filed all tax returns (federal, state and local) required to be filed relating to the Receivables and Related Assets, (ii) paid or made adequate provision for the payment of all taxes, assessments and other governmental charges (except for taxes, assessments or other governmental charges that are being contested in good faith by the Seller through appropriate proceedings and with respect to which adequate reserves have been maintained in accordance with GAAP) relating to the Receivables and Related Assets, and (iii) accounted for each sale of Receivables and Related Assets hereunder in its books and financial statements as sales, consistent with GAAP.

(x) No Claim or Interest . Neither the Seller nor any Person claiming through or under the Seller has any claim to or interest in the Lockbox Account or the Collection Account.

(y) Certain Regulatory Matters . The execution, delivery and performance by the Seller of this Agreement and each of the other Transaction Documents to which it is a party do not contravene any law, rule, regulation, order, decree or contractual restriction binding on, or affecting, the Seller with respect to the SEC Investigation.

(z) Creditors . The sale, assignment and transfer of the Receivables and Related Assets by the Seller and any Affiliate of the Seller is not being done to hinder, delay or defraud any creditors of such Seller or its Affiliates.

(aa) Patriot Act . Neither the Seller nor any of its Affiliates is (A) a Person listed in the Annex to Executive Order No. 13224 (2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who

 

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Commit, Threaten to Commit, or Support Terrorism), (B) named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control, (C) a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank, (D) a senior non-U.S. political figure or an immediate family member or close associate of such figure, or (E) otherwise prohibited from investing in the Receivables pursuant to applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules or orders.

(bb) No Public Offering . Neither the Seller nor any of its Affiliates (i) have offered or sold or will offer or sell the Receivables and Related Assets by any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D of the Securities Act or (ii) have engaged or will engage in any directed selling efforts within the meaning of Regulation S of the Securities Act with respect to the Receivables and Related Assets.

(cc) Accuracy of Representations and Warranties . The Seller hereby reaffirms that, unless otherwise waived by the Purchaser, each representation and warranty made by Seller pursuant to the Original Agreement was, as of its date, true and correct in all material respects (except for such representations and warranties which are qualified by their terms by references to “materiality” or “material adverse effect,” which such representations and warranties as so qualified were true and correct in all respects) and that, immediately prior to this amendment and restatement of the Original Agreement, other than breaches that were waived by the Purchaser, there existed no breach of any covenant or agreement of the Original Agreement. For the avoidance of doubt, the Seller hereby agrees that any such breach of any representation, warranty, covenant or agreement of the Seller under the Original Agreement prior to the Amendment Date that was not waived by the Purchaser shall be treated as a breach of a representation or warranty under this Section 4.01 .

SECTION 4.02. Representations and Warranties of the Seller Relating to the Receivables and Related Assets . The Seller hereby represents and warrants to the Purchaser as of the Amendment Date and on each Purchase Date that:

(a) Eligibility . Each Receivable to be Purchased by the Purchaser pursuant hereto is an Eligible Receivable on the applicable Purchase Date.

(b) No Adverse Selection . The Receivables sold under this Agreement have not been adversely selected based on the credit quality of the relevant Settlement Annuity Provider or Obligor, as applicable, the health and medical characteristics of the relevant Referenced Settlement Recipient, the likelihood of payment of such Receivable, or on any other adverse selection criteria.

(c) Judgment and Tax Liens . No Receivable will be subject to a judgment or tax Lien that has priority to the Purchaser’s interest in such Receivable other than a Permitted Lien.

(d) Letter to Settlement Annuity Provider and Obligor . With respect to each Receivable, the Seller has delivered a copy of the Transfer Order to the related Settlement Annuity Provider and related Obligor, in each case directing such Settlement Annuity Provider or Obligor (as applicable) to make all Scheduled Payments with respect to such Receivable to the order of the Purchaser at the Lockbox Account.

 

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(e) Reaffirmation of Representations and Warranties . The Seller hereby reaffirms that, unless otherwise waived by the Purchaser, each representation and warranty made by Seller pursuant to Section 4.02 of the Original Agreement was, as of its date, true and correct in all material respects (except for such representations and warranties which are qualified by their terms by references to “materiality” or “material adverse effect,” which such representations and warranties as so qualified shall be true and correct in all respects). For the avoidance of doubt, the Seller hereby agrees that any such breach of any representation or warranty made by the Seller under Section 4.02 of the Original Agreement prior to the Amendment Date that was not waived by the Purchaser shall be treated as a breach of a representation or warranty under this Section 4.02 , including, without limitation, for purposes of the Seller’s obligation to repurchase or substitute Receivables under Section 5.01(l) .

SECTION 4.03. Representations and Warranties of the Purchaser . The Purchaser represents and warrants that as of the Amendment Date and (except for representations and warranties which relate to a specific date only) each Purchase Date:

(a) Corporate Existence and Power . The exact legal name of the Purchaser is Compass Settlements LLC. The Purchaser is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware. The Purchaser’s organizational identification number is 5015766. The Purchaser has full power and all governmental licenses, authorizations, consents and approvals required to carry on its business in each jurisdiction in which its business is now conducted. The Purchaser is duly qualified to do business in, and is in good standing in, every other jurisdiction in which the nature of its business requires it to be so qualified.

(b) Corporate and Governmental Authorization; Contravention . The execution, delivery and performance by the Purchaser of this Agreement and the other Transaction Documents to which it is a party (i) are within the Purchaser’s limited liability company powers, (ii) have been duly authorized by all necessary limited liability company action, (iii) require no action by or in respect of, or filing with, any Governmental Authority or official thereof, and (iv) do not contravene, or constitute a default under, any provision of applicable law, rule or regulation or of the Purchaser’s organizational documents or of any agreement, judgment, injunction, order, writ, decree or other instrument binding upon the Purchaser.

(c) Binding Effect . This Agreement constitutes the legal, valid and binding obligation of the Purchaser, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar laws affecting the rights of creditors generally or general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).

(d) Patriot Act . Neither the Purchaser nor any of its Affiliates is (A) a Person listed in the Annex to Executive Order No. 13224 (2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who

 

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Commit, Threaten to Commit, or Support Terrorism), (B) named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control, (C) a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank, (D) a senior non-U.S. political figure or an immediate family member or close associate of such figure, or (E) otherwise prohibited from investing in the Receivables pursuant to applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules or orders.

(e) Prior to the date hereof, neither the Purchaser nor any of its Affiliates engaged in the conduct prohibited by Section 8.08 .

(f) Purchaser is acquiring the Receivables and the Related Assets hereunder for its own account and with an investment intent and does not intend to sell the Receivable or the Related Assets in any manner that requires registration under the Securities Act of 1933 unless such sale is so registered.

(g) The Purchaser is an “accredited investor” within the meaning of Securities and Exchange Commission (“SEC”) Rule 501 of Regulation D, as presently in effect.

(h) Purchaser understands that the Receivables will not be registered, to the extent applicable, under the Securities Act of 1933, as amended, or any applicable state securities law.

SECTION 4.04. Survival of Representations and Warranties . The representations and warranties made pursuant to this Article IV on the date of any Purchase shall survive such Purchase and the termination of this Agreement.

ARTICLE V

GENERAL COVENANTS OF THE SELLER

SECTION 5.01. Affirmative Covenants of the Seller . At all times from the Closing Date to the Termination Date (or indefinitely with respect to (f), (h), (l), (n) and (o)), unless the Purchaser shall otherwise consent in writing:

(a) Compliance with Law . The Seller will comply in all material respects with all Requirements of Law applicable to the Purchased Assets.

(b) Preservation of Existence . The Seller will preserve and maintain its existence, rights, franchises and privileges as a limited liability company in the jurisdiction of its organization, and qualify and remain qualified in good standing as a foreign business entity in each jurisdiction where the conduct of such business requires such qualification except for such failures that could not reasonably be expected to have a Material Adverse Effect.

(c) Inspection of Books and Records . The Purchaser, its assigns (or designated representative thereof) and independent accountants appointed by, or other agents of, any of the foregoing, shall have the right, upon reasonable prior written notice to the Seller, to visit the Seller, to (i) discuss the affairs, finances and accounts of the Seller with, and to be

 

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

advised as to the same by, its officers, and (ii) examine the books of account and records of the Seller, and to make or be provided with copies and extracts therefrom, all at such reasonable times and intervals and to such reasonable extent during regular business hours as the Purchaser, its assigns (or designated representatives) or such accountants or agents appointed by any of the foregoing, as applicable, may desire. Seller shall pay for one (1) such inspection during each calendar year; provided , that , if a Purchase Commitment Termination Event has occurred, Seller shall pay for any related inspections; provided further, that Seller shall have no obligation to (x) pay for any inspections occurring more than five (5) years after the Closing Date and (y) pay more than $7,500 per calendar year for such inspection(s).

(d) Keeping of Records and Books of Account . The Seller itself or through its agents will (i) keep proper books of record and account, which shall be maintained or caused to be maintained by the Seller and shall be separate and apart from those of any Affiliate of the Seller, in which full and correct entries shall be made of all financial transactions and the assets and business of the Seller in accordance with GAAP consistently applied, and (ii) maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing the Receivables and Related Assets in the event of the destruction of the originals thereof) and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all Receivables (including, without limitation, records adequate to permit the daily identification of all Collections of and adjustments to each existing Receivable).

(e) Location of Records . The Seller will keep at its principal place of business, chief executive office and the office where it keeps the books, records and documents regarding the Purchased Assets at the address of the Seller referred to in Section 4.01(i) , or in each case, upon satisfaction of the conditions set forth in Section 5.02(f) , at any other location within the United States.

(f) Settlement Purchase Agreements . The Seller will at its expense, timely perform and comply with all provisions, covenants and other promises required to be observed by the Seller under each Settlement Purchase Agreement, maintain each Settlement Purchase Agreement in full force and effect, enforce each Settlement Purchase Agreement in accordance with its respective terms, and, at the request of the Purchaser or any of its assigns, make to the Claimant such reasonable demands and requests for information and reports or for action as such Person may request to the extent that the Seller is entitled to do the same thereunder; it being agreed however that with respect to the obligations of the Seller to remit Split Payments to the Claimant pursuant to the Settlement Purchase Agreements relating to the Purchased Assets, such obligation shall hereafter be performed by the Purchaser. Remittances by the Purchaser with respect to Split Payments shall be made via check, wire transfer or such other form of payment as the Purchaser may select in its sole discretion. The Seller will not take any action inconsistent with the Purchaser’s ownership of the Purchased Asset and will not, except as otherwise requested by the Purchaser: (i) challenge the enforceability or validity of the related Settlement Purchase Agreement or (ii) amend, modify, waive or purport to amend, modify or waive the related Settlement Purchase Agreement.

(g) Payment of Taxes, Etc . The Seller will pay promptly when due all taxes, assessments and governmental charges or levies imposed upon it in respect of the Purchased

 

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Assets, or in respect of its income or profits therefrom, and any and all claims of any kind (including, without limitation, claims for labor, materials and supplies) in respect of the Purchased Assets, except where such tax, assessment, charge or levy is being contested in good faith and by proper proceedings.

(h) Collections . In the event that the Seller or any of the Seller’s Affiliates (other than the Purchaser or any of its assigns) receives any Collections, the Seller agrees to hold, or cause such Affiliate to hold, all such Collections in trust and to deposit such Collections as soon as practicable, but in no event later than two (2) Business Days after its receipt thereof, to (i) the Lockbox Account or (ii) to the Collection Account.

(i) Fidelity Insurance . The Seller shall maintain, at its own expense, a fidelity insurance policy, with broad coverage with responsible companies on all officers, employees or other persons acting on behalf of the Seller in any capacity with regard to the Receivables and Related Assets in handling documents and papers related thereto. Any such fidelity insurance shall protect and insure the Seller against losses, including forgery, theft, embezzlement, and fraud, and shall be maintained in an amount of at least [*] or such lower amount as the Purchaser or any of its assigns may in their commercially reasonable credit judgment designate to the Seller from time to time. No provision of this Section 5.01(i) requiring such fidelity insurance shall diminish or relieve the Seller from its duties and obligations as set forth in this Agreement or any of the other Transaction Documents. The Seller shall be deemed to have complied with this provision if one of its Affiliates has such fidelity policy coverage and, by the terms of such fidelity policy, the coverage afforded thereunder extends to the Seller. Upon the request of the Purchaser or any of its respective assigns, the Seller shall cause to be delivered to the Purchaser or such assigns at any time thereafter, as applicable, a certification evidencing coverage under such fidelity policy. Any such insurance policy shall contain a provision or endorsement providing that such policy may not be canceled or modified without ten (10) days’ prior written notice to the Purchaser and such assigns.

(j) Protection of Right, Title and Interest to Purchaser and Assignees . Following Seller’s satisfaction of its obligations under Section 3.01(d) , the Seller shall cooperate with the Purchaser to allow the Purchaser to cause all financing statements and continuation statements and any other necessary documents covering the Purchaser’s and the Purchaser’s assignees’ right, title and interest in and to the Purchased Assets to be promptly recorded, registered and filed, and at all times to be kept recorded, registered and filed, all in such manner and in such places as may be required by law to preserve and protect fully the right, title and interest of the Purchaser and its assignees in and to all such Purchased Assets. The Seller shall cooperate with the Purchaser or any of its respective assigns, and the Seller shall take commercially reasonable actions as any such Person shall reasonably request, in order to carry out the objectives of this Agreement and the other Transaction Documents.

(k) Accounting For Purchases . To the fullest extent permitted by the Requirements of Law, the Seller and its Affiliates shall treat all Purchases hereunder by the Purchaser as sales thereof for all tax, accounting and other purposes. The Seller shall clearly and unambiguously mark its accounting records evidencing the Receivables sold on each Purchase Date with a legend stating that such Receivables have been sold to Purchaser in accordance with this Agreement.

 

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

(l) Repurchase or Substitution of Receivables . To the extent (i) that any representation or warranty of the Seller with respect to any Receivable constituting a Purchased Asset under Section 4.02 or set forth in any certificate delivered by or on behalf of the Seller in connection with any Purchase or in connection with any opinions of counsel delivered on the Closing Date in any case with respect to any Receivable constituting a Purchased Asset was incorrect in any material respect when made or remade or deemed made or remade (except for such representations and warranties which are qualified by their terms by references to “materiality” or “Material Adverse Effect,” which such representations and warranties as so qualified were incorrect in any respect when made or remade) or (ii) any bona fide claim against a Receivable (or the Scheduled Payments reflected therein) is made by [*] (in either case, a “ Breach ”), the Seller shall promptly notify the Purchaser of such Breach. Within [*] Business Days of receipt of notification of such Breach, the Purchaser must notify the Seller if it elects to waive the requirements of this Section 5.01(l) with respect to such Breach and any related Purchase Commitment Termination Event. Unless the Purchaser provides a waiver to the Seller in accordance with the preceding sentence, within [*] Business Days of discovery of a Breach (but in no case earlier than [*] Business Days after such discovery), without further action by the Purchaser, the Seller shall either (X) convey to the Purchaser in exchange for the affected Receivable, one or more different Eligible Receivables (1) to be described on an Purchase Request delivered to the Purchaser in accordance with Section 2.02(a) , (2) having a Discounted Receivables Balance approximately equal to, but not less than, the Discounted Receivables Balance of the Receivable being so replaced (as calculated by treating any past-due Scheduled Payments then due as if such Scheduled Payments were due on the date of such calculation) and (3) having a scheduled date for receipt of its last Scheduled Payment that is no later than the scheduled date for receipt of the last Scheduled Payment of the Receivable being so replaced or (Y) repurchase in cash delivered to the Purchaser as aforesaid, in an amount equal to the sum of the Discounted Receivables Balance plus any past-due Scheduled Payments then due on such Receivable, as if such Scheduled Payments were due on the date of such repurchase or (Z) in the case of a claim by a [*] under clause (ii) of the definition of Breach, satisfy the claim of such [*] as evidenced by a general release, receipt or other documentation signed by such [*]. Any Receivable being replaced or repurchased under this paragraph shall cease to be a “Receivable” hereunder. In the event that the Purchaser does not provide a waiver as described above, as long as the Seller timely complies with its obligations under this paragraph, no Purchase Commitment Termination Event shall occur as a consequence of any Breach. Purchaser and Seller hereby agree (i) to work together with each other in good faith to structure any repurchase transactions to be in compliance with the Requirements of Law, Transfer Orders and the related Settlement Purchase Agreement and, (ii) to execute and deliver to each other such documents and take such other action as may be necessary or desirable in order to consummate such repurchase transactions (which may include ownership assignments and the granting of limited powers of attorney to endorse for deposit checks received under the repurchased Receivables) and arrange for the forwarding of any and all payments under the repurchased Receivables to the Seller and (iii) that the Seller shall pay or reimburse the Purchaser for its reasonable costs and expenses incurred in connection with such activities.

(m) [Intentionally Omitted] .

(n) Cooperation with Sales, Transfers, Assignment and Securitizations . If requested by the Purchaser, the Seller shall reasonably cooperate with respect to any and all

 

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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

sales, transfers, assignments, conveyances or securitization transactions involving the Purchaser or any of its Affiliates or any other Person relating to its or their respective interests in the Purchased Assets, including without limitation by (i) participating in and answering reasonable questions during due diligence discussions and meetings relating to any and all sales, transfers, assignments, conveyances or securitization transactions, (ii) providing any Person, including without limitation, potential purchasers, transferees, assignees, rating agencies and actuarial consultants, and their respective advisors, on a confidential basis, information regarding the Purchased Assets reasonably requested by such parties to evaluate such Purchased Assets and any and all proposed sales, transfers, assignments, conveyances or securitization transactions and (iii) executing and delivering such amendments of, and waivers and consents relating to, the Transaction Documents as the Purchaser, any of its Affiliates or any other Person may reasonably request in connection with any and all such sales, transfers, assignments, conveyances or securitization transactions; provided , however , that no such amendment, waiver or consent needs to be executed or delivered by the Seller if it would (x) cause the Seller to receive financial compensation less than that provided to the Seller as of the date thereof in the Transaction Documents or (y) materially adversely alter the rights of the Seller as of the date thereof in the Transaction Documents, unless for either (x) or (y), the Seller and the Purchaser agree in advance to such amendment, waiver or consent. The Seller agrees that, in connection with any securitization transaction entered into by the Purchaser relating to the Purchased Assets, if requested, it will obtain an opinion of counsel with respect to true sale matters relating to the sale of Receivables from the Claimants to the Seller under the form of Settlement Purchase Agreement attached hereto as Exhibit B , such opinion to be in form and substance reasonably satisfactory to the Purchaser. The Purchaser agrees to pay or reimburse the Seller’s reasonable costs and expenses incurred in providing such cooperation and assistance.

(o) Defenses . Unless repurchased in accordance with Section 5.01(l) , the Seller shall defend each Receivable against all lawsuits and Adverse Claims of all Persons where the action is claimed to have arisen due to the action or inaction of the Seller prior to the related Purchase Date. For any such claim: (a) Purchaser shall provide Seller with prompt notice of the claim; (b) Seller shall, in consultation with the Purchaser, control the defense and settlement of the claim; (c) Purchaser shall have the right to obtain its own counsel at its own expense; and (d) Purchaser shall provide reasonable cooperation to Seller. Seller shall not settle any such lawsuits or Adverse Claims without the prior written consent of the Purchaser. If the Seller desires to settle any such lawsuits or Adverse Claims in a way as to encumber a Receivable or adversely affect the Purchaser’s rights in such Receivable, the Seller shall repurchase such Receivable for an amount equal to the sum of the Discounted Receivables Balance plus any past-due Scheduled Payments then due on such Receivable, as if such Scheduled Payments were due on the date of such repurchase prior to entering into such settlement. If such lawsuits or Adverse Claims are decided in such a way as to encumber a Receivable or adversely affect the Purchaser’s rights in such Receivable, the Seller shall be required to repurchase such Receivable for an amount equal to the sum of the Discounted Receivables Balance plus any past-due Scheduled Payments then due on such Receivable, as if such Scheduled Payments were due on the date of such repurchase. The Seller’s obligation to defend, consult and provide notice with respect to a Receivable under this Section 5.01(o) shall cease and terminate upon repurchase of that Receivable pursuant to Section 5.01(l) or otherwise.

 

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(p) Reporting Requirements .

(i) As soon as possible and in any event within [*] after any officer of the Seller has actual knowledge of the occurrence of a Purchase Commitment Termination Event, the Seller shall send to the Purchaser an officer’s certificate of the Seller setting forth details of such event and the action the Seller proposes to take with respect thereto.

(ii) As soon as possible and in any event within [*] after any officer of the Seller has actual knowledge of the occurrence of any material litigation, arbitration or regulatory inquiries against the Seller, which if determined adversely against the Seller, would have a Material Adverse Effect on the Seller’s ability to meet its obligations under this Agreement, the Seller shall send to the Purchaser an officer’s certificate of the Seller setting forth details of such event and the action the Seller proposes to take with respect thereto.

(iii) On the first Business Day of each calendar week, prior to the Purchase Termination Date, the Seller shall prepare and deliver to Purchaser and Servicer a report, substantially in the form of Exhibit D (a “ Pipeline Report ”) with respect to the Receivables to be sold to the Purchaser on the next Purchase Date (if any), as well as information about Receivables the Seller plans to sell under this Agreement in the future.

(iv) Upon discovery of any error in any report or information furnished to the Purchaser or the Servicer, the Purchaser, the Servicer, and the Seller shall confer and shall agree upon any necessary adjustments to correct any such errors. Until correction of such error, all Collections relating to such errors shall be retained in the Collection Account, to the extent such Collections have been deposited in the Collection Account pursuant to the terms hereof. Unless the Purchaser has received actual notice of any discrepancy, the Servicer and the Purchaser may rely on such reports or information for all purposes hereunder.

SECTION 5.02. Negative Covenants of the Seller . From the Closing Date until the Termination Date (or indefinitely with respect to (a) and (k), without the written consent of the Purchaser:

(a) No Liens . The Seller will not sell, pledge, assign or transfer to any Person, or grant, create, incur, assume or suffer to exist any Lien (other than a Permitted Lien) on, any Purchased Asset, whether now existing or hereafter created, or any interest therein, and the Seller shall defend the right, title and interest of the Purchaser in and to the Purchased Assets, whether now existing or hereafter created, against all claims of third parties claiming through or under the Seller.

(b) Amendment to Organization Documents . The Seller will not amend, otherwise modify or waive any term or condition of its (i) formation documents, or (ii) governing documents, in each case, in any manner that could reasonably be expected to result in a Material Adverse Effect except with the prior written consent of the Purchaser.

 

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(c) Change in Credit Policy Manual and Business Policy . The Seller will not make, or consent or fail to object to, any change in the Credit Policy Manual which change could be reasonably likely to impair or delay the collectability or marketability of any Receivable or result in a deterioration in the creditworthiness of the Obligors or Settlement Annuity Providers generally. Upon any change in the Credit Policy Manual, the Seller will promptly forward a copy of the same to the Purchaser. The Seller will not make any change in the character of its business that could reasonably be expected to have a Material Adverse Effect on the collectability or marketability of the Receivables or the Related Assets.

(d) Deposits to Lockbox Accounts, the Collection Account . The Seller will not deposit or otherwise credit, or cause to be so deposited or credited, or consent or fail to object to any such deposit or credit, to the Lockbox Account or the Collection Account, cash or cash proceeds other than Collections of Purchased Assets (except for any amounts received in respect of Split Payments); provided, that, to the extent any such other amounts are so deposited on any date, it shall not constitute a breach hereunder if such other funds are removed from the Lockbox Account within two (2) Business Days after such amounts were so deposited in such Lockbox Account.

(e) Receivables Not To Be Evidenced by Promissory Notes . The Seller will take no action to cause any Receivable to be evidenced by any “instrument” (as defined in the UCC of the jurisdiction the law of which governs the perfection of the interest in such Receivable created hereunder), except in connection with its enforcement.

(f) Change in Name . The Seller will not make any change to its name, principal place of business, limited liability company structure or location of books and records or use any tradenames, fictitious names, assumed names or “doing business as” names unless at least thirty (30) days prior to the effective date of any such name change, change in principal place of business, change in limited liability company structure, change in location of its books and records, or change in trade or fictitious names, the Seller notifies the Purchaser and has taken all other steps reasonably requested by the Purchaser to ensure that the Purchaser continue to have a first priority, perfected ownership or security interest in the Purchased Assets.

(g) Merger . The Seller 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 unless:

(i) the Person formed by such consolidation or into which the Seller is merged or the Person which acquires by conveyance or transfer the properties and assets of the Seller substantially as an entirety shall be, if the Seller is not the surviving entity, a corporation, limited partnership or limited liability company organized and existing under the laws of the United States of America or any state thereof or the District of Columbia, and such entity shall have expressly assumed, by an agreement supplemental hereto, executed and delivered to the Purchaser, in form reasonably satisfactory to the Purchaser the performance of the Seller hereunder and (Y) the Seller shall have delivered to Purchaser an officer’s certificate and an opinion of counsel each in form reasonably satisfactory to Purchaser and stating that such consolidation, merger, conveyance or transfer complies with this Section 5.02(g) and that all conditions precedent herein provided for relating to such transaction have been complied with; and

 

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(ii) the corporation, limited partnership or limited liability company formed by such consolidation or into which the Seller is merged or which acquires by conveyance or transfer the properties and assets of the Seller substantially as an entirety shall have all licenses and approvals to perform the Seller’s obligations hereunder and under the other Transaction Documents to which the Seller is a party, except to the extent the failure to have any such license and approval could not reasonably be expected to have, a Material Adverse Effect.

(h) Change in Lockbox Accounts and Instructions to Obligors and Settlement Annuity Providers . The Seller will not terminate or substitute any Lockbox Account, except as otherwise permitted hereunder. The Seller will not instruct any Obligor or Settlement Annuity Provider to remit, or consent to any applicable Claimant’s or Obligor’s instructions to remit or remittance of, Collections to any Person, address or account other than the Lockbox Account or the Collection Account.

(i) Purchase Commitment Period Exclusivity . Until the Purchase Termination Date, the Seller will not, and will cause its Affiliates to not, directly or indirectly, finance, factor, offer or sell Receivables with respect to Life Contingent Structured Settlements which have been originated by it (or any of its Affiliates) to any Person other than the Purchaser, a designee of the Purchaser or any of their Affiliates; provided that, (1) to the extent any Receivables with respect to Life Contingent Structured Settlements are originated by the Seller (or any of its Affiliates) (x) that cannot be sold by the Seller to the Purchaser hereunder due to either (i) the Eligibility Criteria in Schedule IV or (ii) the Concentration Limits under Section 2.5 , such Receivables may be sold or offered to, or financed or factored with, other Persons, if Purchaser shall have declined to waive the elements of the Eligibility Criteria or the Concentration Limits limiting the purchase hereunder with respect to such Receivable (as the case may be) within five (5) Business Days after a written offer by the Seller to sell such Receivables to the Purchaser hereunder; (2) to the extent that the sale of a Receivable hereunder to the Purchaser will be unprofitable to the Seller taking into account the Purchase Price that would be payable hereunder and Seller’s direct costs associated with its purchase of the Receivable and its reasonably allocable overhead, such Receivable may be sold or offered to, or financed or factored with, other Persons, if (i) Purchaser shall have declined to purchase such Receivable at a price that would be profitable to the Seller taking into account the Purchase Price that would be payable hereunder and Seller’s direct costs associated with its purchase of the Receivable and its reasonably allocable overhead within five (5) Business Days after a written offer by the Seller to sell such Receivable to the Purchaser hereunder and (ii) the Aggregate Discounted Receivables Balance of all Receivables sold, financed or factored with other Persons pursuant to this clause (2) after the Amendment Date will not exceed 10% of the Aggregate Discounted Receivables Balance of all Receivables purchased by the Purchaser and any Purchaser Designees from the Seller under this Agreement after the Amendment Date; and (3) the Purchaser fails to Purchase Eligible Receivables on two consecutive occasions as and when required hereunder this Section 5.02(i) shall cease to be applicable; provided, further, that upon the occurrence of a Limited Purchase Availability Event, the Purchaser must provide notice to

 

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the Seller of an increase in the Maximum Purchase Amount as contemplated by Section 2.06 hereof within 15 business days of the date of the occurrence of such Limited Purchase Availability Event in order to retain exclusivity pursuant to this Section 5.02(i) following the date on which the Purchaser has purchased Receivables equal to the Maximum Purchase Amount (determined prior to the noticed increase).

(j) Change of Control of the Seller . Until the Purchase Termination Date, the Seller shall not become subject to a Change of Control.

(k) Changes to Designated Address or Designated Assignee . From and after the sale of the related Receivable hereunder, the Seller will not change the “Designated Assignee” or “Designated Address” for payment described within a Transfer Order without notarized, written approval from the Purchaser (for the purposes of this paragraph, references to “Designated Assignee” and “Designated Address” are meant to include words of similar import, in each case), provided that the Seller may make such changes with respect to any Receivable in connection with the repurchase of such Receivable hereunder.

(l) Accounting Changes . The Seller will not make any material change: (i) in accounting treatment and reporting practices except as permitted or required by GAAP, (ii) in tax reporting treatment except as permitted or required by law, (iii) in the calculation or presentation of financial and other information contained in any reports delivered hereunder (except as disclosed therein), or (iv) in any financial policy of the Seller, in each case, if such change could reasonably be expected to have a material adverse effect on the Receivables sold to the Purchaser or the collectibility thereof.

(m) Extension or Amendment of Receivables . The Seller will not extend, amend or otherwise modify (or consent to any such extension, amendment or modification of) the terms of any Receivable or rescind or cancel, or permit the rescission or cancellation of, any Receivable, except as ordered by a court of competent jurisdiction or other Governmental Authority.

ARTICLE VI

ADMINISTRATION AND COLLECTION

SECTION 6.01. Servicing of Receivables . From and after the Purchase of any Receivable by the Purchaser from the Seller, the Purchaser (or its designees or assignees, including the Servicer) shall have the sole right to service, administer and monitor the Receivables and the Seller shall cease to have any rights whatsoever in connection with such Receivables constituting Purchased Assets. The Seller shall also deliver all books and records relating to the Receivables and Related Assets as shall be reasonably requested, from time to time, by the Purchaser (or any of its agents or assigns, including but not limited to the Servicer), to the Purchaser (or the agent or assign so designated by Purchaser) promptly after each such request, and shall take such other action as shall be reasonably requested by Purchaser (or such agents or assigns) to further evidence such assignment or to assist in the servicing, monitoring, collecting and administering the Receivables and Related Assets sold hereunder.

 

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SECTION 6.02. Responsibilities of the Seller . Anything herein to the contrary notwithstanding, subject to the obligation of the Purchaser to remit Split Payments to Claimants pursuant to Settlement Purchase Agreements relating to Purchased Assets, as allocated under Section 5.01(f) , (i) the Seller shall perform all of its obligations under the Settlement Purchase Agreements related to the Receivables and Related Assets sold (directly or indirectly) by it hereunder with the same standard of care as it would exercise for assets maintained for its own account, and the exercise by the Purchaser (or any of its assignees) of its respective rights hereunder shall not relieve the Seller from such obligations and (ii) the Purchaser and its assignees shall have no obligation or liability with respect to any Receivable or related Settlement Purchase Agreement, nor shall the Purchaser or any such assignee be obligated to perform any of the obligations of the Seller thereunder.

SECTION 6.03. Further Action Evidencing Purchases .

(a) The Seller agrees that at any time and from time to time, at its expense, it will promptly execute and deliver all further instruments and documents, and use commercially reasonable efforts, to perfect, protect or more fully evidence the Purchaser’s interests in the Purchased Assets, or to enable the Purchaser (or any agent or designee of any of the foregoing) to exercise or enforce any of their respective rights hereunder. Without limiting the generality of the foregoing, the Seller will (i) execute and file such financing or continuation statements, or amendments thereto or assignments thereof, and such other instruments and notices, as may be necessary or appropriate or as the Purchaser or any of its assigns, may reasonably request, (ii) without limiting the foregoing, mark its master data processing records evidencing the Receivables included in the Purchased Assets and the related Settlement Purchase Agreements with a legend indicating that such assets have been sold to the Purchaser and (iii) indicate on its financial statements that such Receivables have been sold to the Purchaser pursuant to this Agreement.

(b) If the Seller fails to perform any of its agreements or obligations under this Agreement, following expiration of any applicable cure period, the Purchaser (or any assignee thereof) may (but shall not be required to) perform, or cause performance of, such agreement or obligation, and the Seller shall indemnify the Purchaser (or any such assignee) for its reasonable costs and expenses incurred in connection therewith (including reasonable and documented attorneys fees) upon written demand (which demand shall itemize such expenses in reasonable detail).

ARTICLE VII

INDEMNIFICATION

SECTION 7.01. Indemnities by the Seller . Without limiting any other rights which the Purchaser may have hereunder or under applicable law, but without duplication, the Seller hereby agrees to indemnify the Purchaser and all officers, directors, agents and employees of the foregoing (each of the foregoing Persons being individually referred to herein as an “ Indemnified Party ”) from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable and documented attorneys’ fees and disbursements, awarded against or incurred by any Indemnified Party primarily resulting from

 

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any of the following (collectively, the “ Indemnified Losses ”, and each an “ Indemnified Loss ”), other than any such Indemnified Loss (x) constituting recourse for Receivables which are uncollectible for credit reasons or (y) which arise solely from the fraud, gross negligence or willful misconduct of the affected Indemnified Party:

(i) the sale of any Receivable that is not an Eligible Receivable on the date of such sale to the Purchaser pursuant hereto;

(ii) any representation or warranty made in writing by or on behalf of the Seller or any of its officers under or in connection with this Agreement, any Purchase Request or any other information or report delivered by the Seller with respect to the Seller or the Purchased Assets (to the extent based on information provided by the Seller) pursuant to this Agreement, which shall have been false, incorrect or misleading in any material respect when made (except for such representations and warranties which are qualified by their terms by references to “materiality” or “Material Adverse Effect,” which such representations and warranties as so qualified shall have been false, incorrect or misleading in any respect when made);

(iii) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, or any agreement executed in connection with this Agreement or with any applicable Requirements of Law, with respect to any Receivable, the related Settlement Purchase Agreement or the Related Assets, or the nonconformity of any Receivable, the related Settlement Purchase Agreement or the Related Assets with any such applicable Requirements of Law;

(iv) the failure to vest and maintain vested in the Purchaser or to transfer to the Purchaser, legal and equitable title to, and first priority perfected ownership of, the Receivables, Related Assets and other Purchased Assets, which are, or are purported to be, sold or otherwise transferred by the Seller hereunder, free and clear of any Lien (other than Permitted Liens);

(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables, Related Assets and other Purchased Assets which are, or are purported to be, sold or otherwise transferred by the Seller hereunder, whether at the time of any Purchase or at any subsequent time;

(vi) the failure by the Seller to be duly qualified to do business, to be in good standing or to have filed appropriate fictitious or assumed name registration documents in any jurisdiction;

(vii) the failure of the Seller to pay when due any sales taxes or other governmental fees or charges imposed in connection with the transfer of the Purchased Assets hereunder;

 

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(viii) the failure of the Seller or any of its agents, employees or representatives to remit to the Purchaser, Collections of Purchased Assets remitted to the Seller or any such agent, employees or representatives in accordance with the terms hereof;

(ix) the commingling of Collections of Receivables at any time with other funds of the Seller except to the extent such Collections have been promptly remitted to the Purchaser;

(x) any investigation, litigation or proceeding related to this Agreement or in respect of any Receivable or any Related Property sold to Purchaser hereunder in respect of any breach by Seller of its representations, warranties or covenants hereunder;

(xi) responding to requests, subpoenas or inquiries from any Governmental Authority relating to this Agreement or relating to the U.S. Government Investigation, the SEC Investigation or in respect of any Receivable or any Related Asset sold to the Purchaser hereunder;

(xii) any amounts paid by the Purchaser arising from any indemnity inuring to the benefit of any provider of lockbox services or bank holding a Lockbox Account in respect of any Existing Receivable or Warehouse Receivable or, in each case, any Related Asset sold to the Purchaser hereunder;

(xiii) the failure of the Transfer Orders and any related stipulations to permit the further transfer of the Scheduled Payments in respect to any Receivables to successors and assigns;

(xiv) any lawsuits or Adverse Claims for which the Seller is required to assume the defense pursuant to Section 5.1(o) ; and

(xv) the assignment by a Claimant or the Seller of the rights to Scheduled Payments (or any portion thereof) under a Settlement Agreement in contravention of an anti-assignment provision in such Settlement Agreement that prohibits the transfer of the rights to such Scheduled Payments (or any such thereof); provided , however , that no amount shall be paid in satisfaction of such an Indemnified Loss until a court with appropriate jurisdiction has issued a final non-appealable order holding that such anti-assignment clause is valid.

Notwithstanding the foregoing, in the case of an event described above that relates to the transfer of a Receivable to Purchaser that is, or is required to be, repurchased by Seller under Section 5.01(l) , the term “Indemnified Losses” shall only include transaction expenses and reasonable and documented attorney’s fees to the extent the Seller complies with its obligations under Section 5.01(l) . The agreements of the Seller contained in this Section 7.01 shall survive the Termination Date and the termination of this Agreement. In addition, in no event shall Indemnified Losses include any consequential, special or punitive damages.

 

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ARTICLE VIII

CONFIDENTIALITY

SECTION 8.01. Restrictions on Use and Disclosure . Unless otherwise consented to by the other party, Seller and Purchaser hereby agree that neither will disclose the contents of any Transaction Document (including this Agreement), or any other confidential or proprietary information furnished by the other party, to any Person other than (a) its Affiliates, auditors, attorneys, agents, administrators, custodians, shareholders, investors or financing sources of the Seller or Purchaser, any Purchaser Designee, or any prospective purchasers of Eligible Receivables acquired by the Purchaser or as required by the Requirements of Law or (b) by Imperial in accordance with its disclosure obligations under the Securities Exchange Act of 1934, as amended. The parties will restrict disclosure of Confidential Information to those of its personnel who have a need to know such Confidential Information to the extent that such disclosure is reasonably necessary for the performance of its duties and obligations under this Agreement and such disclosure is not prohibited by the GLB Act, the regulations promulgated thereunder or other Requirements of Law.

SECTION 8.02. Exceptions . The obligations under Section 8.01 will not apply to Confidential Information to the extent that a party can prove by written documentation that such Confidential Information: (a) is or becomes publicly known (other than through unauthorized disclosure); (b) is disclosed without obligation of confidentiality from a third party who has the right to disclose such information without restriction; or (c) is independently developed without any use of Confidential Information disclosed pursuant to this Agreement and without violating the either party’s proprietary rights. If the GLB Act, the regulations promulgated thereunder or other Requirements of Law now or hereafter in effect imposes a higher standard of confidentiality to the Confidential Information, such standard will prevail over the provisions of this Section 8.02 . In addition, a party may disclose Confidential Information to the extent that it is ordered by a court of competent jurisdiction to do so; provided however, that the party provides to the other party prompt written notice of such order prior to such disclosure and provides reasonable information and assistance to the other party, at the other party’s request, to contest or limit such order.

SECTION 8.03. Non-Public Personal and Customer Information . The Seller will, at a minimum, establish, implement and maintain such physical, electronic and procedural safeguards to: (a) use commercially reasonable efforts to maintain the security integrity and confidentiality of such Seller Information; (b) use commercially reasonable efforts to protect against any anticipated threats or hazards to the security or integrity of such Seller Information; (c) use commercially reasonable efforts to comply with the Purchaser’s data security program as disclosed by the Purchaser to the Servicer from time to time; and (d) use commercially reasonable efforts to protect against unauthorized access to or use of such Seller Information that could result in harm or inconvenience to the individuals to whom such Seller Information pertains. The Seller will provide to the Purchaser all appropriate reviews and reports to monitor the Seller’s compliance with its obligations under this Section 8.03 .

SECTION 8.04. Unauthorized Access Notification . If the Seller experiences unauthorized access to any of its facilities or systems pursuant to which it believes or suspects

 

44


that one or more third parties may have been able to obtain access to any non-public personal information (as defined in the GLB Act, including any non-public personal information relating to the Purchaser personnel) or Seller Information, the Seller will promptly notify the Purchaser and reasonably cooperate with the Purchaser in the Purchaser’s handling of such matter, including without limitation, any investigation, reporting and other obligations required by applicable law or regulation.

SECTION 8.05. Return or Destruction . Upon the earliest of: (a) the termination or expiration of this Agreement; or (b) the Purchaser’s request, the Seller will promptly return to the Purchaser, at no cost to the Purchaser, all the Purchaser property and all Confidential Information provided by the Purchaser. Alternatively, if so directed by the Purchaser, the Seller will destroy, at no cost to the Purchaser, all Confidential Information provided by the Purchaser according to the Purchaser’s instructions or relevant industry best practices if no instructions are provided, and all copies thereof, in the Seller’s possession or control, and will provide a certificate signed by an officer of the Seller that certifies such return or destruction in detail acceptable to the Purchaser.

SECTION 8.06. Audit Right . The Purchaser reserves the right, upon ten (10) business days’ written notice to the Seller, to conduct a detailed review of the Seller with respect to its obligations under this Article VIII which may include an onsite assessment during normal business hours of the Seller’s privacy and security programs to ensure compliance with such Section. The Seller agrees to reasonably cooperate with the Purchaser during any such review or assessment. If after the completion of a review, the Purchaser determines that the Seller needs requirements in addition to those set forth in this Agreement, the Seller agrees to work with the Purchaser, in good faith, to address reasonable additional requirements noted in such review or assessment. The Seller will provide the independent outside auditors and/or internal auditors of the Purchaser reasonable access to, and an opportunity to review, all of the Seller’s privacy and security programs as determined by the Purchaser with respect to this Agreement. In addition, the Seller will permit representatives of supervisory agencies of the Purchaser reasonable access from time to time upon the request of the Purchaser to the Seller’s privacy and security programs and shall cooperate with such agency to the extent necessary to enable the Purchaser to comply with its obligations under law with regard to such requests for access.

SECTION 8.07. Subcontracting . After the Amendment Date, the Seller may not delegate any of its duties hereunder to any subcontractor without the prior written consent of the Purchaser, which shall not be unreasonably delayed or withheld.

SECTION 8.08. Use of Confidential Information . Notwithstanding anything herein to the contrary, the Purchaser will not, and will cause any Affiliates or Purchaser Designees and their respective successors and assigns to not, directly or indirectly, for itself, or through, on behalf of, or in conjunction with any Person or other entity use or disclose any information, including Seller Information, relating to the Claimants or their Scheduled Payments, Receivables or Settlement Agreements for the purpose of soliciting the purchase of Scheduled Payments from Claimants who have previously transferred Receivables that have been sold or offered for sale to the Purchaser pursuant to Section 2.01 ; provided , however , that for avoidance of doubt, the Purchaser and its Affiliates and their respective successors and assigns shall not be

 

45


in breach of the provisions of this Section 8.07 to the extent of any purchases of Scheduled Payments from Claimants that have been originated by other independent third party factoring or finance firms engaged in the purchase, sale and financing of structured settlements and which transactions are originated independently and without the use of the information obtained hereunder.

ARTICLE IX

MISCELLANEOUS

SECTION 9.01. Waivers; Amendments . No failure or delay on the part of the Purchaser or the Seller (or any assignee thereof) in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other further exercise thereof or the exercise of any other power, right or remedy. All waivers of any provision of this Agreement, including, but not limited to, the waiver of a Purchase Commitment Termination Event, must be in writing and delivered prior to the date of the effectiveness of such waiver, with a copy provided to any Purchaser Designee at the address set forth in the Joinder. The rights and remedies herein provided shall be cumulative and nonexclusive of any rights or remedies provided by law. Any provision of this Agreement may be amended if, but only if, such amendment is in writing and is signed by the Seller and the Purchaser.

SECTION 9.02. Notices . Except as provided below, all communications and notices provided for hereunder shall be in writing and shall be given to the other party at the following address or at such other address as such party may hereafter specify for the purposes of notice to such party:

If to the Seller:

Washington Square Financial, LLC

701 Park of Commerce Blvd., Ste. 301

Boca Raton, FL 33487

Attention:

Facsimile:

E-mail:

If to the Purchaser:

Compass Settlements LLC

c/o GFG Alternative Investment Advisors LLC

Attention:

One Sound Shore Drive, Suite 104

Greenwich, CT 06830

Telephone:

Email:

 

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Each such notice or other communication shall be effective (i) if given by mail, three (3) Business Days following such posting, postage prepaid, U.S. certified or registered, (ii) if given by overnight courier, one (1) Business Day after deposit thereof with a national overnight courier service, or (iii) if given by any other means, when received at the address specified above.

SECTION 9.03. Effectiveness; Binding Effect; Assignability .

(a) This Agreement shall become effective on the Closing Date and shall, from and after such date, be binding upon and inure to the benefit of the Seller and the Purchaser and their respective successors and permitted assigns. The Seller may not assign any of its rights or delegate any of its duties hereunder without the prior written consent of the Purchaser. No provision of this Agreement shall in any manner restrict the ability of the Purchaser to assign, participate, grant security interests in, or otherwise transfer any of their rights or remedies hereunder.

(b) This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until the Termination Date; provided , however , that (i) the indemnification and payment provisions of Article VII and Section 9.05 and (ii) the provisions of Section 4.04 , Sections 5.01(f) , (h) , (l) , (n)  and (o) , Sections 5.02(a) and (k) , Article VIII and Article IX shall, in each case, be continuing and shall survive any termination of this Agreement.

SECTION 9.04. GOVERNING LAW; WAIVER OF JURY TRIAL .

(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAW PROVISIONS) OF THE STATE OF GEORGIA.

(b) EACH OF THE SELLER AND THE PURCHASER HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE BETWEEN EITHER OF THEM ARISING OUT OF, CONNECTED WITH, RELATING TO OR INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS.

SECTION 9.05. Costs and Expenses; Waiver of Setoff . In addition to the rights of indemnification under Article VII hereof, the Seller agrees to pay the Purchaser (and its agents and assignees) within thirty (30) days after demand all reasonable out-of-pocket costs and expenses (including without limitation, reasonable counsel fees and expenses) in connection with the enforcement of the covenants, agreements, liabilities and obligations of the Seller under this Agreement. Except as expressly provided herein, all payments hereunder by the Seller to the Purchaser shall be made without setoff, counterclaim or other defense and the Seller hereby waives any and all of its rights to assert any right of setoff, counterclaim or other defense to the making of a payment due hereunder to the Seller.

SECTION 9.06. Execution in Counterparts; Severability . This Agreement may be executed in any number of counterparts and by different parties hereto in separate

 

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counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. A signature page sent to the Purchaser or its counsel by facsimile or other electronic means (including in portable document format (.pdf)) shall be effective as an original counterpart signature. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

SECTION 9.07. Purchase Termination .

(a) The agreement of the Purchaser to purchase Receivables and Related Assets hereunder shall terminate on the Purchase Termination Date.

(b) Notwithstanding any such termination described under paragraph (a)  above, certain provisions of this Agreement shall remain in full force and effect as provided in Section 9.03 .

SECTION 9.08. Third Party Beneficiaries . The Seller and the Purchaser hereby agree that each Purchaser Designee (including its successors and permitted assigns) is an express third party beneficiary to all terms of this Agreement, including, without limitation, all representations, warranties, and covenants. Each Purchaser Designee shall be entitled to enforce all rights of the Purchaser under this Agreement and receive all protections afforded to the Purchaser under this Agreement at law or in equity, including, but not limited to Section 2.08 , the guarantee referred to in Section 3.01(e) , Section 4.04 , Article V , Article VII, Article VIII and Section 9.05 hereof. For the avoidance of doubt, Seller acknowledges and agrees that the obligation to purchase Eligible Receivables hereunder is the sole obligation of the Purchaser and the Seller waives any claims, liabilities or losses whether at law, in equity or pursuant to the terms of this Agreement arising in connection with this Agreement against a Purchaser Designee related to such obligation.

SECTION 9.09. Entire Agreement . This Agreement, together with the other Transaction Documents, including the exhibits and schedules hereto and thereto, contains a final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof, superseding all previous oral statements and other writings with respect thereto.

SECTION 9.10. Section and Paragraph Headings . Section and paragraph headings used in this Agreement are provided solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement.

SECTION 9.11. Tax Disclosure . Notwithstanding anything herein to the contrary, each party hereto (and each of their employees, representatives or other agents) may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure of the transaction (as defined in Section 1.6011-4 of the U.S. Treasury Regulations) and all materials of any kind (including opinions or other tax analyses) to the extent relating to such tax treatment and tax structure.

 

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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

WASHINGTON SQUARE FINANCIAL, LLC , as the Seller
By:  

/s/ David Manchester

Name:   David Manchester
Title:   Vice President
COMPASS SETTLEMENTS LLC , as the Purchaser
By: Beacon Annuity Fund, LP, as sole member of Compass Settlements LLC
By: GFG Alternative Investment Advisors LLC, as Investment Manager of the Beacon Annuity Fund, LP
By:  

/s/ Brian Robinson

Name:   Brian Robinson
Title:   Managing Partner


SCHEDULE I

Seller’s Location of Records

701 Park of Commerce Blvd., Ste. 301, Boca Raton, FL 33487


SCHEDULE II

ERISA Matters

none


SCHEDULE III

Lockbox Accounts;

Lockbox Numbers

 

Purchaser    Lockbox Account   

Lockbox:

Compass Settlements LLC

Purchaser    Collection Account    Bank Name: SunTrust Bank
Purchaser    Transition Lockbox Account   

Lockbox:

Contingent Settlements I, LLC


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

SCHEDULE IV – ELIGIBLE RECEIVABLE

Eligible Receivable ” means a Receivable with respect to which each of the following is true on its Purchase Date:

 

  (a) such Receivable was originated in the ordinary course of business of the Seller in accordance with the Credit Policy Manual.

 

  (b) such Receivable has not been, at any time, required to be written off pursuant to the Credit Policy Manual.

 

  (c) such Receivable has not had any of its provisions waived, amended, altered or modified ( provided , that , if a Settlement Annuity Provider is late with a Scheduled Payment, the deadline for such Scheduled Payment may be extended if such extension (i) does not have a material adverse effect on the amount of such Scheduled Payment, (ii) does not extend the due date for such Scheduled Payment beyond the date that is [*] years after the related Purchase Date for such Receivable (or in the case of the Excess Portion, [*] years after the Purchase Date of such Receivable) and (iii) is otherwise granted in accordance with the Credit Policy Manual).

 

  (d) the Seller has duly fulfilled all material obligations on its part to be fulfilled under or in connection with the origination, acquisition and assignment of such Receivable and has done nothing to impair the rights of the Purchaser in such Receivable or payments with respect thereto.

 

  (e) such Receivable was originated by the Seller without any fraud or material misrepresentation on its part, or, to its knowledge, on the part of the related Obligor or Settlement Annuity Provider.

 

  (f) such Receivable has been acquired by the Seller pursuant to a Settlement Purchase Agreement, and all conditions precedent to the purchase thereof by the Seller pursuant to such Settlement Purchase Agreement have been satisfied (or waived by the Seller, to the extent that (i) the Seller has added an explanatory “exception memo” to the Records in respect of such waiver and (ii) such waiver is given by the Seller in accordance with customary industry practices and the Credit Policy Manual).

 

  (g) such Receivable is evidenced by a Settlement Agreement (or other documents certified by the Seller as being sufficient to evidence the material terms of the Settlement Agreement, in accordance with customary industry practices) and a Settlement Purchase Agreement substantially in the form of Exhibit B that, in each case, has been duly authorized and constitutes the genuine, legal, valid, binding and full recourse payment obligation of the parties thereto, enforceable against such parties in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and by general principles of equity.

 

1


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  (h) Except under the Receivables Purchase Agreement, dated as of the Closing Date, between the Transition Purchase Entity and the Seller, such Receivable was not previously repurchased from another party by the Seller.

 

  (i) the Seller has a good and marketable title in such Receivable (including the Related Assets) and the rights to receive Scheduled Payments in respect of such Receivable (except the portion(s) of any such Scheduled Payments which constitute Split Payments that are payable pursuant to the Settlement Purchase Agreement to the related Claimant), free and clear of all Liens other than Permitted Liens and the representations and warranties with respect to such Receivable in Section 4.02 are true and correct in all respects.

 

  (j) after giving effect to any sale hereunder, the Purchaser shall have a good and marketable title in each purchased Receivable and its Related Assets (except the portion(s) of any such Scheduled Payments which constitute Split Payments that are payable pursuant to the Settlement Purchase Agreement to the related Claimant), and shall be the sole owner thereof and shall have the full right to grant a security interest therein in favor of the Purchaser, free and clear of any Liens other than Permitted Liens.

 

  (k) excluding any Initial Scheduled Payments, such Receivable is not a Delinquent Receivable on the relevant Purchase Date.

 

  (l) the last Scheduled Payment on such Receivable is scheduled to occur no more than [*] years after the date on which such Receivable was purchased by the Seller.

 

  (m) such Receivable did not result from a class action lawsuit.

 

  (n) the Settlement Agreement related to such Receivable evidences a contractual settlement of a personal injury claim (relating to personal physical injuries or the physical sickness of the related Claimant) and the related contractual obligation of the Obligor or Eligible Annuity Provider thereunder, and the Claimant’s assignment of its rights under the Settlement Purchase Agreement to the Seller does not constitute an assignment of a right represented by a judgment within the meaning of Section 9-109 of the UCC of any applicable jurisdiction.

 

  (o) in respect of which the underlying Settlement Agreement does not arise under, and is not subject to, any workmen’s compensation statute as in effect in any applicable state or other jurisdiction unless such claims are permitted to be assigned pursuant to a Transfer Statute.

 

  (p) such Receivable is payable in Dollars, and payments thereon will be made without deduction or withholding for federal income tax.

 

  (q)

Records exist with respect to such Receivable that contain at all times each item listed in the definition of Records, copies of such Records have been delivered to the Purchaser at the time such Receivable is purchased by the Purchaser

 

2


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  hereunder and no documents or instruments other than those included within the Records are required in order to evidence the obligation of the related Obligor (and the related obligation of the relevant Settlement Annuity Provider).

 

  (r) all information set forth as to such Receivable in the related Purchase Request is complete, true and correct in all material respects and such Receivable has not been paid in full, satisfied, subordinated or rescinded.

 

  (s) such Receivable has no related guaranty, letter of credit providing support for the related Scheduled Payments, or collateral security therefor, other than any guaranty, letter of credit or collateral security that has been assigned by the Claimant to the Seller and from the Seller to the Purchaser hereunder.

 

  (t) the documents, instruments, agreements and orders consisting of the Records, evidencing, securing and/or guaranteeing such Receivable, together with such Receivable, are in full force and effect and constitute the legal, valid and binding obligation of each related Obligor, Settlement Annuity Provider and/or guarantor thereof enforceable against each such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and by general principles of equity; provided , that , the related Obligor or Settlement Annuity Provider to such Receivable, at the time that such Receivable was initially conveyed hereunder, is not in bankruptcy.

 

  (u) the sum of the (i) Discounted Receivable Balance of such Receivable at the time of purchase hereunder by the Purchasing Entity and (ii) Purchase Prices of all Receivables previously purchased by the Purchasing Entity with the same Referenced Settlement Recipient does not exceed [*].

 

  (v) the Transfer Order in respect of such Receivable shall (i) approve the transfer of the Scheduled Payments from the Claimant to the Seller, and (ii) direct the related Obligor or Settlement Annuity Provider (for itself or on behalf of the related Obligor) to remit all Scheduled Payments on such Receivable to the order of the Purchaser at the Lockbox Account ; provided , that , with respect to Receivables with a Transfer Order dated prior to the Closing Date such Transfer Order may direct the related Obligor or Settlement Annuity Provider (for itself or on behalf of the related Obligor) to remit all Scheduled Payments on such Receivable to the order of the Transition Purchase Entity at the Transition Lockbox Account .

 

  (w) the Claimant related to such Receivable is a U.S. resident or a U.S. citizen and, if a related Obligor or Settlement Annuity Provider has any continuing payment obligations under such Receivable, such Obligor or Settlement Annuity Provider is domiciled in the United States.

 

  (x) the Obligor of such Receivable is not the federal government of the United States of America or any other Governmental Authority, except where the Governmental Authority has consented in writing to such transaction.

 

3


  (y) the Obligor of such Receivable has entered into a Settlement Annuity Contract with an Eligible Annuity Provider in order to fund its obligations under the related Settlement Agreement, and such Eligible Annuity Provider is not an affiliate of the Seller.

 

  (z) the conveyance of such Receivable (and the Related Assets) from the Seller to the Purchaser hereunder does not violate the terms or provisions of any agreement to which the Seller is a party or by which it is bound, provided, however, that where a Transfer Statute permits assignability of Receivables, any restrictions on transfer of a Receivable contained in a related Settlement Agreement shall not be deemed to be violated if a Transfer Order has been obtained by the Seller.

 

  (aa) as to which neither the related Transfer Order nor any stipulation or consent relating to such Receivable purports to prohibit or otherwise restrict the ability of the Claimant or Seller to sell, assign, pledge, or otherwise encumber the Claimant’s or Seller’s right to receive Scheduled Payments in respect thereof; provided , that , it shall not be deemed a prohibition, restriction or a purported restriction if the Transfer Order, stipulation or consent specifies that (i) payment should be made by the Obligor or Settlement Annuity Provider only to the order of the Purchaser at the Lockbox Account or (ii) in the event that Claimant or Seller attempts to transfer their rights to receive Scheduled Payments, neither the Settlement Annuity Provider nor the Obligor is obligated to honor such transfer.

 

  (bb) such Receivable, the Related Assets, the origination by the Seller, and the purchase thereof by the Purchaser comply with Requirements of Law and the sale of such Receivable by the Seller and any assignee thereof does not violate any Requirements of Law.

 

  (cc) the conveyance of such Receivable and Related Assets from the Seller to the Purchaser hereunder is not subject to any tax, fee or governmental charge payable by the Purchaser (or, to the Seller’s knowledge, any other Person) to any federal, state or local government, other than filing fees in connection with the perfection of the security interests created under the Transaction Documents or other fees or charges which have already been paid in a timely manner by the Seller.

 

  (dd) the sale and transfer of such Receivable by the Claimant to the Seller and from the Seller to the Purchaser (i) does not require notice to the related Obligor or Settlement Annuity Provider, or such notice has been given, and (ii) has been approved pursuant to a Transfer Order that is in full force and effect and has been sent to the relevant Obligor and Settlement Annuity Provider and as to which there is no pending appeal.

 

  (ee) to the Seller’s knowledge, such Receivable and/or the related Obligor and Settlement Annuity Provider are not subject to any asserted or threatened default, dispute, litigation, or counterclaim at the time of the sale to the Purchaser and are not subject to any defense (including the defense of usury), rescission, reduction or offset.

 

4


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  (ff) neither the Obligor, Settlement Annuity Provider nor the Claimant related to such Receivable is subject to a bankruptcy, insolvency or receivership proceeding; provided , that , the related Claimant may be subject to a bankruptcy, insolvency or receivership proceeding, so long as (i) the bankruptcy court having jurisdiction over such Claimant has approved the transfer of such Receivable by such Claimant to the Seller, lifted the stay with respect to such Receivable or determined that the Scheduled Payments in respect of such Receivable are not included in the bankruptcy estate of such Claimant and (ii) the Seller has procured a Transfer Order with respect to the transfer of such Receivable.

 

  (gg) the Claimant related to such Receivable has not, at any time preceding the sale of such Receivable to the Seller pursuant to the related Settlement Purchase Agreement, been rejected or denied by the Seller or, to Seller’s knowledge, any other originator of structured settlements, for material, non-technical reasons (e.g., fraud, misrepresentation, personal problems uncovered in the diligence process) other than decisions based on pricing in such Claimant’s attempt to sell its interest (or any portion thereof) in either (i) the related Settlement Agreement or (ii) any other structured settlement or related annuity.

 

  (hh) the Seller has provided the Approved Medical Underwriter all information with respect to such Referenced Settlement Recipient as requested by the Approved Medical Underwriter, including any additional information required with respect to specific medical conditions.

 

  (ii) there are no proceedings pending or, to the Seller’s knowledge, threatened (i) asserting insolvency of the Settlement Annuity Provider of such Receivable, or (ii) wherein the Obligor or related Settlement Annuity Provider of such Receivable or any Governmental Authority has alleged that such Receivable or any of the Related Assets is illegal or unenforceable.

 

  (jj) such Receivable has not been determined by a court of competent jurisdiction to be an executory contract subject to rejection by the related Obligor or Settlement Annuity Provider under Section 365 of the Bankruptcy Code.

 

  (kk) solely if the related Claimant was [*] and lived in or was a resident of a [*] on the date on which such Settlement Agreement was entered into and is no longer [*], (A) a court having jurisdiction has determined (as evidenced by appropriate orders or a [*] issued thereby) that such [*] in, to or under the related Receivable, (B) such [*] has executed an agreement waiving or relinquishing all rights, in, to and under such Receivable or consenting to the sale of such Receivable or (C) such [*] has executed a property settlement or similar agreement, pursuant to which such [*] agrees that it has no rights, in, to and under such Receivable.

 

  (ll) such Receivable is a “payment intangible” (and is not evidenced by any “chattel paper” and does not constitute a “commercial tort claim” or “an interest in or an assignment of a claim under a policy of insurance”) within the meaning of the UCC (unless settlement claims or obligations under annuity contracts are excluded from the scope of the relevant UCC).

 

5


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  (mm) a Transfer Order relating to such Receivable shall have been obtained in the jurisdiction in which the related Claimant was domiciled at the time of the transfer of such Receivable from the Claimant to the Seller, or if such jurisdiction did not at such time have a Transfer Statute, in the jurisdiction in which either (1) the applicable obligor obligated to make payments under the related Settlement Agreement was domiciled at such time, (2) the original claim giving rise to the related Settlement Agreement was adjudicated or (3) the annuity provider under the related Settlement Agreement was domiciled at such time.

 

  (nn) a “qualified order” (as defined in Section 5891 of the Internal Revenue Code) shall have been obtained by the Seller in respect of such Receivable, and all other applicable requirements of Section 5891 of the Internal Revenue Code have been satisfied with respect to such Receivable.

 

  (oo) if such Receivable is the subject of a “qualified assignment” (as defined in Section 130 of the Internal Revenue Code) or other assignment, the underlying Settlement Agreement releases all liable parties (other than the assignee) under the applicable Settlement Agreement from all liability pertaining thereto.

 

  (pp) with respect to such Receivable, the Seller has performed a check or search of the NASP Anti-Fraud Database, if available, relative to such Receivable and the related Seller, in the same manner that a reasonably prudent acquirer of Receivables would do if such acquirer were acquiring such Receivables for its own account and has cleared any “hits” arising from such search of the NASP Anti-Fraud Database.

 

  (qq) the Claimant related to such Receivable shall have an [*] in an aggregate amount greater than [*], or shall have otherwise satisfied the Seller that it has [*] in accordance with the Credit Policy Manual.

 

  (rr) if the Person receiving the related Scheduled Payments for such Receivable is not the Claimant, then the Claimant has granted to such Person a valid power of attorney with respect to such Receivable or such Person is the legal guardian of the Claimant.

 

  (ss) the Claimant related to such Receivable was at least the [*] (per the laws of the jurisdiction in which the related Transfer Order was obtained) at the time such Receivable was transferred to the Seller.

 

  (tt) the Claimant related to such Receivable has represented to Seller that such Claimant had the capacity and competency (legal and otherwise) to enter into the related Settlement Purchase Agreement and Settlement Agreement.

 

  (uu)

the Seller has provided the Purchaser with an affidavit, executed by the Claimant, which states that (a) medical decisions relating to the Claimant are not being

 

6


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

  determined and/or directed by a third party and (b) the Claimant is not under the influence of alcohol, illegal drugs, or duress, and does not suffer from dementia, bi-polar, schizophrenia, or other psychotic disorder as determined by a medical doctor.

 

  (vv) there is only one Referenced Settlement Recipient under the Settlement Annuity Contract related to such Receivable; provided , that , there may be more than one Referenced Settlement Recipient under the Settlement Annuity Contract related to such Receivable if the Settlement Annuity Contract provides that Life Contingent Periodic Payments are paid in full while any of the Referenced Settlement Recipients are alive and, in such case, the “Referenced Settlement Recipient” shall mean the person with the shortest life expectancy as of the date of Purchase of such Receivable as determined using the Mortality Table and the Mortality Rating for each such person.

 

  (ww) as of the related Purchase Date, the Referenced Settlement Recipient related to such Receivable is not deceased.

 

  (xx) the Medical Questionnaire related to such Referenced Settlement Recipient has been completed in its entirety by the Claimant (either manually or by telephone interview) with no omitted information.

 

  (yy) the Medical Underwriting Report related to such Referenced Settlement Recipient [*].

 

  (zz) the Mortality Rating of the Referenced Settlement Recipient related to such Receivable does not exceed [*].

 

  (aaa) the Referenced Settlement Recipient related to such Receivable is not [*].

 

  (bbb) the Referenced Settlement Recipient related to such Receivable is not [*].

 

  (ccc) if the Settlement Annuity Provider with respect to such Receivable is a High Mortality Verification Requirement Annuity Provider, (i) with respect to each Scheduled Payment that a portion of which was purchased by the Seller under the Settlement Purchase Agreement, the Claimant shall have retained the lesser of (i) [*] or (ii) [*] of the Scheduled Payment amount to be received by the Claimant prior to such purchase; and (ii) the Seller shall have used reasonable efforts in light of the prevailing industry standards to structure the purchase under the Settlement Purchase Agreement as a Split Payment such that the each Scheduled Payment that a portion of which has been purchased by the Seller shall be remitted in its entirety to the Purchaser by an Obligor or Settlement Annuity Provider and the Purchaser shall have an obligation to pay over the reserved interest of the Claimant to the Claimant.

 

  (ddd) if there is more than one Claimant related to such Receivable, each Claimant must satisfy the foregoing requirements.

 

7


SCHEDULE V

Approved States

The following states are Approved States:

(i) All states and United States related jurisdictions other than New Hampshire and Wisconsin, and the District of Columbia, and the US Territories (including, but not limited to, Puerto Rico, the Virgin Islands and Guam). The other 48 states have passed legislation that establish the court process for procuring court approval of the transfer of scheduled payment rights due under a structured settlement.

(ii) With respect to New Hampshire and Wisconsin, and the District of Columbia and the U.S. Territories, Receivables originated in such jurisdictions may be sold hereunder, provided , that , the Seller obtains a “qualified order” approving the transfer of the underlying structured settlement to the Seller under 26 USC § 5891(b)(3)(b) (providing that if the state of origination is not an Approved State identified in (i) above, a “qualified order” may be obtained in accordance with the law of an Approved State identified in (i) above in which either the party to the structured settlement, or the obligor (i.e., insurance company) responsible for funding the structured settlement is domiciled or has its principal place of business in such Approved State identified in (i) above).


SCHEDULE VI

Schedule of Existing Receivables


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

 

LOGO

 


EXHIBIT A

Form of Purchase Request

[MM/DD/YYYY]

Compass Settlements LLC

c/o GFG Alternative Investments

One Sound Shore Drive, Suire 104

Greenwich, CT 06830

Attn:

E-mail:

 

  Re: Amended and Restated Purchase and Sale Agreement dated as of May 21, 2013

Ladies and Gentlemen:

This Purchase Request is delivered to you (the “ Purchaser ”) pursuant to Section 2.01 of that certain Amended and Restated Purchase and Sale Agreement dated as of May 21, 2013 (as modified and supplemented and in effect from time to time, the “ Purchase Agreement ”) among Washington Square Financial, LLC, a limited liability company organized under the laws of the state of Georgia (the “ Seller ”) and Compass Settlements LLC, a limited liability company organized under the laws of Delaware (the “ Purchaser ”). Capitalized terms used but not defined herein shall have the respective meanings given to such terms in (or incorporated by reference in) the Purchase Agreement.

 

1. The Seller hereby requests a Purchase:

(i) The aggregate amount of Purchases to date by the Purchaser and the Purchaser Designee (excluding the Existing Receivables) is $[        ].

(ii) The amount of the Purchase requested is $[        ].

(iii) The aggregate amount of Purchases made by the Purchaser and the Purchaser Designee after such requested Purchase will be $[        ] [not to exceed the Maximum Purchase Amount].

 

2. The Purchase Date with respect to such Purchase is [                    ].

 

3. All of the conditions precedent to the Purchase requested herein as set forth in the Purchase Agreement have been satisfied as of the date hereof and as of the Purchase Date requested above.

 

4. Attached as Annex 1 hereto is a true, correct and complete copy of the Transfer Report relating to this Purchase Request.


IN WITNESS WHEREOF, the undersigned has executed this Purchase Request on [            ], 201[    ].

 

WASHINGTON SQUARE FINANCIAL, LLC , as Seller
By:  

 

Name:  
Title:  


EXHIBIT B

Form of Settlement Purchase Agreement


ABSOLUTE ASSIGNMENT AND SECURITY AGREEMENT

(THE “AGREEMENT”)

I, [Customer Name]” , (“I”, “Me” or “Assignor”) am entitled to certain periodic payments (the “Periodic Payments”), which I am receiving as a result of the settlement of a personal injury claim. The terms of the settlement are set forth in an agreement (the “Settlement Agreement”). The Periodic Payments are due to Me from [OBLIGOR] (the “Settlement Obligor”). The Settlement Agreement provides for the Periodic Payments to be paid to Me through an annuity issued by [ISSUER] (the “Annuity Issuer”), bearing Annuity Contract Number [CONTRACT NUMBER]” .

A. I agree to sell to Washington Square Financial, LLC dba Imperial Structured Settlements (“You” or “Assignee”) through an assignment, all of my rights to and interest in the following payments, which I am due to receive under the Settlement Agreement:

[PAYMENT STREAM] (the “Assigned Payments”)

In consideration for selling and assigning to You my rights to receive these payments, You shall pay Me the sum of: [GROSS PURCHASE PRICE]” (the “Assignment Price”).

B. I hereby make the following unconditional representations, warranties and promises:

 

  1. No one other than Me has any interest or claim of any kind or nature in, to or under the Assigned Payments.

 

  2. I am not indebted to anyone that would in any way affect either the assignment of the Assigned Payments referenced above or Assignee’s absolute rights to receive the Assigned Payments.

 

  3. I agree to conduct my affairs so as to ensure that You receive the Assigned Payments exactly as described in Paragraph A above.

C. I understand and agree that I will be in breach of this Agreement if:

 

  1. Any of the representations set forth in Paragraphs B (1) and B (2) at any time turn out to be untrue.

 

  2. I fail to perform the promise set forth in Paragraph B (3) above.

 

  3. Either the Settlement Obligor or the Annuity Issuer refuses or fails to make any one or more of the Assigned Payments as a result of any act by Me, my estate, my representatives, or any of my heirs.

 

  4. I fail to promptly forward to You any of the Assigned Payments that might be received by Me from the Settlement Obligor or the Annuity Issuer after the Assignment to You has been completed.

 

  5. I fail to fulfill any other obligation of mine under this Agreement.


D. Your obligation to complete this transaction, and to pay Me the Assignment Price depends upon the following conditions being satisfied unless waived by You.

 

  1. You shall be satisfied, in Your sole reasonable judgment, that there are no claims or interests of any kind or nature that do or could affect rights to or interest in the Assigned Payments and/or prevent or interfere with Your receipt of the Assigned Payments on the dates and in the amounts described above Paragraph A, exactly in such amounts and at the times set forth therein.

 

  2. You have received a final non-appealable court order and/or a signed acknowledgment from Settlement Obligor and Annuity Issuer satisfactory to the Assignee in its sole discretion (collectively referred to as the “Order”), which You, in Your sole judgment, consider sufficient to recognize, authorize, and provide for the transfer by assignment of the Assigned Payments (which may continue to be made out to my name) to You, Assignee, and to insure that the Periodic Payments due on or after the day of the Order will be forwarded directly to You.

E. Security Interest. You and I intend to create a security interest in the rights to and interest in payments due to Me under the Settlement Agreement which I am assigning to You under this Agreement as “General Intangibles” to extent permitted under that version of Article 9 of the Uniform Commercial Code (governing Secured Transactions) that is in effect in the state designed in Paragraph F below. This Agreement shall also function as a security agreement. This security interest secures payment of the rights assigned by Me to You and the performance of my obligations under Paragraph B above. I authorize You to direct any account debtor or obligor on an instrument, without limitation, Settlement Obligor or Annuity Issuer, to make periodic payments directly to You and as contemplated by the Uniform Commercial Code. You (Assignee) are authorized to file a UCC-1 Financing Statement to perfect Your rights and the security interest intended to be created under this Agreement.

F. Except as otherwise required by applicable statutory law, this Agreement shall be governed by and interpreted in accordance with the law of the state of residence of the Assignor on the date of this Agreement.

ARBITRATION

Any and all controversies, claims, disputes, rights, interests, suits or causes of action arising out of or relating to this Agreement and the negotiations related thereto, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association. The demand for arbitration shall be filed in writing with the other party to this Agreement and with the American Arbitration Association offices in your state of residence. The arbitration shall be held in the largest city in your state of residence. The arbitration shall be held before a single arbitrator selected in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect at the time that the demand for arbitration is filed. Discovery, specifically including interrogatories, production of documents and depositions shall be at the discretion of the arbitrator and to the extent permitted shall be conducted in accordance with, and governed by the Federal Rules of Civil Procedure.

A demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event, shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question, would be barred by the applicable statute of limitations.

No arbitration arising out of or relating to this Agreement shall include, by consolidation or joinder or in any other manner, an additional person or entity not a party to this Agreement, except by written consent of the parties hereto, containing a specific reference to this Agreement and signed by the entity sought to be joined. Consent to arbitration involving an additional person or entity shall not


constitute consent to arbitration of any claim, dispute or other matter in question not described in the written consent or with a person or entity not named or described therein. The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by parties to this Agreement, shall be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof.

The award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Such arbitrator shall identify the substantially prevailing party and shall include legal fees and expenses for the substantially prevailing party.

This provision does not apply to the extent inconsistent with applicable state law regarding the transfer of structured settlement payments. In such case any disputes between the parties will be governed in accordance with the laws of the domicile state of the payee and the domicile state of the payee is the proper venue

G. I hereby grant You an Irrevocable Power of Attorney with full powers of substitution to do all acts and things that I might do regarding the Assigned Payments, and any and all rights I have under the Settlement Agreement. I understand and intend that by doing so, I am giving You all of the power and right I currently have under the Settlement Agreement to endorse checks, drafts or other instruments, to alter, edit and change payment instructions and/or beneficiary designations, and/or to perform any other act in my name that in Your sole discretion as my Attorney-in-Fact is necessary or expedient for You to obtain all of the benefits of the bargain contemplated by this transaction. This power of attorney is coupled with an interest and shall survive my death or disability.

H. Payments Received by Party Other Than the Party Intended to Receive the Payments.

 

  1. If prior to the completion of the transfer provided for in this Agreement, I receive any of the Assigned Payments or any portion thereof, I understand and agree an equal amount shall be deducted from the Assignment Price, and the Assignment Price shall be reduced in the same amount as these payments, and that the terms of this Agreement regarding the payments to be assigned, shall be treated as amended to reflect for the adjusted amount.

 

  2. In the event You receive or otherwise come into possession of any of the Periodic Payment(s) or portion(s) thereof which are not included in the payments being absolutely assigned to You pursuant to this Agreement, You agree to forward such amount(s) to Me at the address set forth above within seven (7) days of receipt of such amount(s).

I. You shall be entitled to, and are authorized by Me to discharge any liens or adverse claims against Me or any of the Assigned Payments, whether of not such adverse claims are disclosed, and You are further authorized by Me, provided You furnish prior written notice to Me, to pay any and all amounts necessary or if the Assignment Price has been deposited into an escrow account, to instruct the escrow agent to pay any and all amounts necessary to discharge such liens or other adverse claims. I understand and agree that any such amounts that You pay are payments You are making on my behalf and shall reduce the Assignment Price. Adverse claims may include disclosed amounts to be deducted by You from the Assignment Price to pay You, as servicer for Washington Square Financial, LLC dba Imperial Structured Settlements, to enable Me to obtain Washington Square Financial, LLC dba Imperial Structured Settlements release of its encumbrance on a portion of the Assigned Payments relating to a prior transfer transaction(s) that occurred before the enactment of the applicable statute (“Transfer Act”) regulating such transfers. I understand and acknowledge that the law currently in effect requires that such encumbrance be released in order to complete the transfer that is the subject of this Agreement.


J. This Agreement shall take effect on the date it is signed by Me (the Assignor) or on such later date prescribed by applicable law.

K. All disclosure statements I receive from You in connection with this transaction are a material part of this Agreement and shall be considered part of the terms of this Agreement and shall be read as if the contents of the disclosure statement were set forth in full in the body of this Agreement.

L. I know that it will take some time for the Settlement Obligor and the Annuity Issuer to receive and process the court order once it is granted. I would like to receive the Assignment Price or a portion thereof as soon as possible thereafter. Accordingly, I hereby request Assignee to pay Me a portion of the Assignment Price as soon as possible after the court order is granted and authorize Assignee to hold in escrow an amount it deems necessary or advisable from the Assignment Price (the “Escrow Amount”) until all conditions precedent have been satisfied, including, without limitation, the receipt by Assignee of the Settlement Obligor and the Annuity Issuer’s acknowledgment of the terms of the court order in writing and their agreement to honor an comply with same. At such time or earlier as Assignee may determine, I understand that Assignee will send the Escrow Amount to Me minus any Assigned Payments that the Annuity Issuer and/or Settlement Obligor sent to Me while the Settlement Obligor and the Annuity Issuer were processing the court order.

M. I have the right to cancel this Agreement, without penalty or further obligation, within the first three business days after the date the Agreement is signed, by providing You with written notice within three (3) day period, as provided for in Paragraph N.

N. All notices, demands, and other communications required or permitted under this Agreement must be made in writing, and delivered by hand, via the United States Post Office, Certified Mail, Return Receipt Requested, or by overnight delivery service, to You or Me as the recipient at the address set forth in the beginning of this Agreement and must be evidenced by a receipt showing time, date of delivery and the person receiving the delivery.

In witness whereof I hereunto set my hand.

 

 

[CUSTOMER NAME]”

STATE OF                                 

COUNTY OR CITY OF                                 

On the      day of             , in the year          before Me, the undersigned, personally appeared [Customer Name]” personally known to Me or proved to Me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument, and acknowledged to Me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

Notary


      PLEASE DO NOT SIGN THIS
      DOCUMENT UNTIL [Sign Date]”

My Commission expires on:                     

Accepted:

Washington Square Financial, LLC dba Imperial Structured Settlements

 

 

Title:
Date:


EXHIBIT C

Mortality Table


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

LOGO

 

 


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

LOGO

 

 


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

LOGO

 

 


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

Exhibit D

Form of Pipeline Report

The form of Pipeline Report (which may be in electronic format) shall be acceptable to the Purchaser and shall specify the following with respect to

(a) each Receivable to be sold on the related Purchase Date:

(ii) the name and address of the Claimant

(iii) the date of birth of the Referenced Settlement Recipient (based solely upon the statements and representations of the Referenced Settlement Recipient)

(iv) the gender of the Referenced Settlement Recipient

(v) the tobacco use class for such Referenced Settlement Recipient based on the Medical Underwriting Report

(vi) Mortality Rating of the Referenced Settlement Recipient (based solely upon the report of the Approved Medical Underwriter)

(vii) the state pursuant to which the Transfer Order was obtained

(viii) the identity of the Obligor and Settlement Annuity Provider

(ix) the gross purchase price to the Claimant

(x) the Purchase Price

(xi) the Discounted Receivables Balance of the Excess Portion, if any

(xii) the Scheduled Payments to be purchased

(xiii) [*]

(b) each possible Receivable the Seller has selected and intends to sell to the Purchaser in the future

(i) a transaction identifier (i.e. Claimant’s initials, transaction number etc),

(ii) the date of birth of the Referenced Settlement Recipient (based solely upon the statements and representations of the Referenced Settlement Recipient)

(iii) the gender of the Referenced Settlement Recipient

 


[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

(iv) the tobacco use class for such Referenced Settlement Recipient based on the Medical Underwriting Report

(v) Mortality Rating of the Referenced Settlement Recipient (based solely upon the report of the Approved Medical Underwriter)

(vi) the state pursuant to which the Transfer Order is expected to be obtained

(vii) the identity of the Obligor and Settlement Annuity Provider

(viii) the estimated gross purchase price to the Claimant

(ix) the estimated Purchase Price

(x) the estimated Discounted Receivables Balance of the Excess Portion, if any

(xi) the Scheduled Payments expected to be purchased

(xii) [*]

The inclusion of any possible Receivable in a Pipeline Report shall not constitute any representation or warranty that such Receivable is an Eligible Receivable and shall not constitute any representation, warranty or contractual promise that such Receivable will ever become an Eligible Receivable.

 


EXHIBIT E

Form of Bill of Sale

BILL OF SALE AND ASSIGNMENT

This Bill of Sale and Assignment (this “Bill of Sale”) is effective as of             , 201    , by Washington Square Financial, LLC, a Georgia limited liability company (“Seller”), in favor of [Compass Settlements LLC, a Delaware limited liability company][PURCHASER DESIGNEE, a                     ] (“Buyer”).

WHEREAS, Seller and Buyer are parties to an Amended and Restated Purchase and Sale Agreement dated May 21, 2013 (“Purchase Agreement”), under which the Seller will periodically sell to Buyer, and Buyer will periodically purchase from Seller, Eligible Receivables described in Purchase Requests delivered under the Purchase Agreement, together with all of the Related Assets relating to such Eligible Receivables (Capitalized terms used but not defined herein shall have the meanings assigned to them in the Purchase Agreement);

WHEREAS, the Buyer desires to have the Seller confirm each purchase and sale effected under the Purchase Agreement by delivery of a Bill of Sale conveying the Eligible Receivables and Related Assets to the Buyer; and

WHEREAS, Seller is the beneficial owner of various Eligible Receivables listed on Exhibit “A” annexed hereto (the “ Structured Settlements ”); and

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller does hereby irrevocably and unconditionally grant, bargain, sell, deliver, transfer, assign and convey unto Buyer, its successors and assigns forever, all of its right, title and interest in and to the Structured Settlements and the associated Related Assets.

TO HAVE AND TO HOLD the Structured Settlements and associated Related Assets unto Buyer, its successors and assigns forever.

Pursuant to Subsection 2.04 of the Purchase Agreement, the Seller has delivered to the Buyer and the Servicer, as applicable, the documents for the Structured Settlements sold hereunder. The Seller confirms to the Buyer that the representations and warranties set forth in Sections 4.01 and 4.02 of the Purchase Agreement are true and correct as of the date hereof.

This Bill of Sale is to be governed by and construed in accordance with the laws of the State of Delaware without regard to the conflict of laws principles.

All of the terms and conditions of this Bill of Sale shall be for, and shall inure to the benefit of, Buyer and its successors and assigns.

[Signatures appear on next page.]


IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be signed as of the date first above written.

 

WASHINGTON SQUARE FINANCIAL, LLC
By:  

 

Name:  
Title:  

 

1


EXHIBIT F

Form of Joinder

JOINDER, dated as of [            ], 201     (this “ Joinder ”), among Compass Settlements LLC (the “Purchaser”) and the Purchaser Designee identified in Item 2 of Schedule I hereto (the “ Joining Purchaser ”).

RECITALS

This Joinder is being executed and delivered under the Amended and Restated Purchase and Sale Agreement, dated as of May 21, 2013, between Washington Square Financial, LLC, a Georgia limited liability company (the “ Seller ”) and the Purchaser (as from time to time amended, supplemented or otherwise modified in accordance with the terms thereof, the “ Purchase Agreement ”); and

The Joining Purchaser wishes to become a Purchaser Designee under the Purchase Agreement;

NOW, THEREFORE, the parties hereto hereby agree as follows:

(a) From and after the execution of this Joinder, the Joining Purchaser shall be a Purchaser Designee under the Purchase Agreement for all purposes thereof.

(b) The Joining Purchaser hereby makes the representations identified in Section 4.03 of the Purchase Agreement, provided that solely as relates to the Joining Purchaser Section 4.03(a) shall be replaced with the representations set forth on Schedule II hereto.

(c) The Joining Purchaser and the Purchaser hereby agree that the Seller (including its successors and permitted assigns) is an express third party beneficiary of the representations and warranties set forth in this Joinder and the obligation of the Joining Purchaser to remit Split Payments in Section 5.01(f) of the Purchase Agreement relating to any Receivable under the Purchase Agreement purchased by the Joining Purchaser. The Seller and the Purchaser each acknowledge that notwithstanding the designation of Receivables for purchase by a Purchaser Designee pursuant to Section 2.01(g) of the Purchase Agreement, the obligation of the Purchaser to purchase Receivables pursuant to Section 2.01(a) of the Purchase Agreement shall be a sole obligation of the Primary Purchaser and any right of recourse with respect to such obligation shall be solely to the Primary Purchaser.

(d) This Joinder shall be governed by, and construed in accordance with, the laws of the State of Delaware.


IN WITNESS WHEREOF, the parties hereto have caused this Joinder to be executed by their respective duly authorized officers as of the date hereof.

 

JOINING PURCHASER:     [                    ]
    By:  

 

      Name:
      Title:


PURCHASER:     COMPASS SETTLEMENTS LLC
      By:  

 

      Name:  
      Title:  


Acknowledged and accepted by the Seller:     WASHINGTON SQUARE FINANCIAL, LLC
      By:  

 

      Name:  
      Title:  


SCHEDULE I TO

JOINDER

 

Name of Purchaser Designee:    [                    ]
Purchaser Designee Tax ID Number:    [                    ]
Purchaser Designee Notice Information:    [                    ]
Purchaser Designee Lockbox Account:    [                    ]
Purchaser Designee Collection Account:    [                    ]
Limited Recourse:    [                    ]


Schedule II to

JOINDER

 

  (a) Organization and Good Standing . The exact legal name of the Purchaser is [                    ]. The Purchaser is a [                    ] duly organized, validly existing and in good standing under the laws of [                    ]. The Purchaser’s organizational identification number is [                    ]. The Purchaser has full power and all governmental licenses, authorizations, consents and approvals required to carry on its business in each jurisdiction in which its business is now conducted, and to execute, deliver and perform its obligations under this Agreement and each of the other Transaction Document to which it is a party.

Exhibit 10.7

IMPERIAL HOLDINGS, INC.

2010 OMNIBUS INCENTIVE PLAN

STOCK OPTION AWARD AGREEMENT

 

 

 

 

Dear [                    ]:

You have been granted an option (the “ Option ”) to purchase shares of common stock (“ Common Stock ”) of Imperial Holdings, Inc., a Florida corporation (the “ Company ”), pursuant to the Imperial Holdings, Inc. 2010 Omnibus Incentive Plan (the “ Plan ”) and this Stock Option Award Agreement (the “ Option Agreement ”). Your Option is granted under and governed by the terms and conditions of the Plan and this Option Agreement. Capitalized terms used but not defined in this Option Agreement shall have the same meaning as set forth in the Plan.

 

Grant Date:    [                 , 201    ]
Type of Option:   

¨ Incentive Stock Option

¨ Nonqualified Stock Option

Number of Option Shares:    [                    ]
Exercise Price per Share:    U.S. $[        ]
Term:    This Option shall expire on the seventh (7 th ) 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-third (1/3) of the total shares subject to this Option are vested on the Grant Date. An additional one-third of the total shares subject to this Option will vest on each of the first two 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 for any reason other than death or due to a Company-initiated reduction in force, the unvested portion of this Option shall be forfeited. Upon your termination from the Company as a result of your death or due to a Company-initiated reduction in force, the Option shall be vested in full on the date of such termination.

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 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 Company’s 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.

 

c.        Termination Other than for Cause or As a Result of Death . If your employment is terminated other than for Cause or other than as a result of your death, then you may exercise the vested portion of this Option until the date that is one hundred and eighty (180) days after the date of such termination.

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

 

2


   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, but exercise will not be completed until you pay the total exercise price and all applicable withholding taxes due as a result of the exercise to 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 Company’s 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.
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 ”), 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 Company’s 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, but in no event shall such period exceed one hundred eighty (180) days (the “Market Stand-Off Period”).

 

Notwithstanding anything herein to the contrary, if the Option would otherwise expire or cease to be exercisable during the Market Stand-Off Period, and if the Company and the Company’s underwriters fail to provide written consent to allow you (or your estate or beneficiary) to exercise the Option during such Market Stand-Off Period without any restrictions, then the expiration or termination of the Option will be tolled during the Market Stand-Off Period. As a result, the Option will remain exercisable following the end of the Market Stand-Off Period for a number of days equal to the number of days during the Market Stand-Off Period for which the restrictions on exercise of this Option applied.

Restrictions on Exercise, Issuance and Transfer of Shares:    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 to any shares of Common Stock acquired or to be acquired under this Option.

 

3


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.

 

•        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.

BY SIGNING BELOW AND AGREEING TO THIS STOCK OPTION AWARD AGREEMENT, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS DESCRIBED HEREIN AND IN THE PLAN. YOU ALSO ACKNOWLEDGE RECEIPT OF A COPY OF THE PLAN.

 

 

   

 

Authorized Officer     Optionee

 

4


EXHIBIT A

IMPERIAL HOLDINGS, INC.

2010 OMNIBUS INCENTIVE PLAN

NOTICE OF STOCK OPTION EXERCISE

Your completed form should be delivered to:                     ,                     . Phone:                     

Fax:                     . Incomplete forms may cause a delay in processing your option exercise.

OPTIONEE INFORMATION

Please complete the following. PLEASE WRITE YOUR FULL LEGAL NAME SINCE THIS NAME MAY BE ON YOUR STOCK CERTIFICATE.

 

Name:  

 

 

Street Address:  

 

 

City:  

 

   State:   

 

   Zip Code:   

 

Work Phone #: (              ) -              -              Home Phone #: (              ) -              -             

Social Security #:              -              -             

DESCRIPTION OF OPTION(S) BEING EXERCISED

Please complete the following for each option that you wish to exercise.

 

Grant Date

   Type of
Option

(specify ISO
or NQSO)
   Exercise Price
Per Share
     Number of
Option Shares
Being
Purchased*
   Total Exercise Price
(multiply Exercise Price
Per Share by Number  of
Option Shares Being
Purchased)
 
      $            $     
      $            $     
      $            $     
      $            $     
      $            $     

Aggregate Exercise Price

            $     

 

* Must be a whole number only. Exercise of fractional Option Shares is not permitted.

 

A-1


METHOD OF PAYMENT OF OPTION EXERCISE PRICE

Please select only one:

 

¨ Cash Exercise . I am enclosing a check or money order payable to “Imperial Holdings, Inc.” for the Aggregate Exercise Price.

 

¨ 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.

CERTIFICATE INSTRUCTIONS

Please select only one.

Name(s) in which the certificate for the purchased shares will be issued:

 

¨ In my name only

 

¨ In the names of my spouse and myself as community property

 

¨ In the names of my spouse and myself as joint tenants with the rights of survivorship

 

Spouse’s name (if applicable):  

 

The certificate for the purchased shares should be sent to the following address ( complete only if to be sent to a different address than specified in Part 1 ):

 

Street Address:   

 

 

City:  

 

   State:   

 

   Zip Code:   

 

METHOD OF SATISFYING TAX WITHHOLDING OBLIGATION

Please select only one . You do not need to complete this Part if you are exercising incentive stock options (ISOs) or if you are a non-employee director or consultant.

 

¨ Cash . I am enclosing a check or money order payable to “Imperial Holdings, Inc.” for the withholding tax amount.

 

¨ 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


ACKNOWLEDGEMENT AND SIGNATURE

Prior to receipt of the Shares exercised in accordance with this Notice, I acknowledge that I have received a copy of the Plan and the prospectus for the Plan.

 

Signature:   

 

      Date:   

 

FOR COMPANY USE ONLY:

Received by the Company on                     .

 

A-3

Exhibit 31.1

CERTIFICATIONS

I, Antony Mitchell, certify that:

 

1. I have reviewed this Quarterly Report on Form 10-Q of Imperial Holdings, Inc.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

 

  a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  c. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

/s/ Antony Mitchell

Antony Mitchell
Chief Executive Officer and Director
(Principal Executive Officer)
August 13, 2013

Exhibit 31.2

CERTIFICATIONS

I, Richard S. O’Connell, Jr., certify that:

 

1. I have reviewed this Quarterly Report on Form 10-Q of Imperial Holdings, Inc.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

 

  a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  c. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

/s/ Richard S. O’Connell, Jr.

Richard S. O’Connell, Jr.
Chief Financial Officer and Chief Credit Officer
(Principal Financial Officer)
August 13, 2013

Exhibit 32.1

Certification of the Chief Executive Officer

Pursuant to 18 U.S.C. Section 1350,

As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

In connection with the Quarterly Report of Imperial Holdings, Inc. (the Registrant) on Form 10-Q for the period ended June 30, 2013 as filed with the U.S. Securities and Exchange Commission on the date hereof (the Report), I, Antony Mitchell, Chief Executive Officer of the Registrant, certify to the best of my knowledge, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:

 

  1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

  2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.

 

/s/ Antony Mitchell

Antony Mitchell
Chief Executive Officer and Director
August 13, 2013

Exhibit 32.2

Certification of the Chief Executive Officer

Pursuant to 18 U.S.C. Section 1350,

As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

In connection with the Quarterly Report of Imperial Holdings, Inc. (the Registrant) on Form 10-Q for the period ended June 30, 2013 as filed with the U.S. Securities and Exchange Commission on the date hereof (the Report), I, Richard S. O’Connell, Jr., Chief Financial Officer and Chief Credit Officer of the Registrant, certify to the best of my knowledge, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:

 

  1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

  2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.

 

/s/ Richard S. O’Connell, Jr.

Richard S. O’Connell, Jr.
Chief Financial Officer and Chief Credit Officer
August 13, 2013