exv10w23






Exhibit 10.23




EXECUTION VERSION




THIRD AMENDMENT AND CONSENT

TO FINANCING AGREEMENT




          THIRD AMENDMENT AND CONSENT, dated as of September 11, 2009 (this “Amendment”), to the
Financing Agreement, dated as of March 13, 2009, as amended, supplemented or otherwise modified
from time to time (as so amended, the “Financing Agreement”), by and among Imperial Life
Financing II, LLC, a Georgia limited liability company (the “Borrower”), the lenders from
time to time party thereto (each a “Lender” and collectively, the “Lenders”), White
Oak Global Advisors, LLC, a Delaware limited liability company (“White Oak”), as collateral
agent for the Lenders (as successor to CTL Holdings II, LLC in such capacity, the “Collateral
Agent”), and White Oak Global Advisors, LLC, a Delaware limited liability company, as
administrative agent for the Lenders (as successor to CTL Holdings II, LLC in such capacity,
the “Administrative Agent” and together with the Collateral Agent, each an “Agent”
and collectively, the “Agents”).




          WHEREAS, the Borrower, the Agents and the Lenders wish to amend certain terms and provisions
of the Financing Agreement as hereafter set forth.




          WHEREAS, the Borrower has requested White Oak, as the sole Lender, to provide a Commitment
Increase in an amount equal to $12,000,000.




          WHEREAS, White Oak is willing to provide such Commitment Increase subject to the terms and
conditions of this Amendment and the Financing Agreement.




          NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the
parties hereto hereby agree as follows:




          1. Definitions. All terms used herein that are defined in the Financing Agreement and
not otherwise defined herein shall have the meanings assigned to them in the Financing Agreement.




          2. Amendments.




               (a) New Definitions. Section 1.01 of the Financing Agreement is hereby amended by
adding the following definitions, in appropriate alphabetical order:




“‘Fund Fee Letter’ means the Fee Letter, dated as of
September 11, 2009 by and between Imperial and White Oak.”




“‘Third Amendment’ means the Third Amendment and Consent to
Financing Agreement, dated as of September 11, 2009, among the
Borrower, the Agents and the Lenders.”




“‘Third Amendment Effective Date’ means the date on which
the Third Amendment shall become effective in accordance with its
terms.”



 









 





               (b) Amended and Restated Definitions.



                    (i) The definition of “Applicable Interest Rate” in Section 1.01 of the Financing Agreement is
hereby amended and restated in its entirety to read as follows:




“‘Applicable Interest Rate’ means (i) with respect to any
Tranche of any Loan made hereunder prior to the Third Amendment
Effective Date, the interest rate which is applicable thereto, as
set forth on Schedule 1.01(E) attached hereto and made a part
hereof, which Schedule 1.01(E) may be supplemented by agreement of
the parties in the event that any increase in Term Loan Commitments
is requested by Borrower and authorized by the Administrative Agent
in accordance with Section 2.09 and (ii) with respect to any Tranche
of any Loan made on and after the Third Amendment Effective Date,
the interest rate per annum described in writing by the
Administrative Agent to the Borrower on or prior to the date such
Tranche of such Loan is made available to the Borrower, which
writing shall automatically modify and deemed to be included on
Schedule 1.01(E), without further action.”



                    (ii) The definition of “Borrowing Base” in Section 1.01 of the Financing Agreement is hereby
amended and restated in its entirety to read as follows:




“‘Borrowing Base’ means, at any time of determination, an
amount equal to one hundred percent (100%) of the present value of
the aggregate of: (i) the aggregate outstanding principal balance of
all Eligible Insurance Premium Loans financed hereunder at such
time, plus (ii) the sum of all financed Origination Fees with
respect to such Insurance Premium Loans, plus (iii) the aggregate of
the Collateral Value Policy and Contingent Collateral Value Policy
premium reimbursement amounts payable, directly or indirectly, by
the Premium Finance Borrowers to the Originator or the Borrower in
respect of such Insurance Premium Loans, to the extent financed
hereunder, plus (iv) the amount of interest that is reasonably
expected to be due on the scheduled maturity dates of the Eligible
Insurance Premium Loans financed hereunder at such time; provided
that, the Borrowing Base shall not at anytime exceed 100% of the
present value of the sum of (A) the aggregate of the Covered Loan
Amount of all Eligible Insurance Premium Loans owned (actually,
beneficially or through a participation) by the Borrower and pledged
as Collateral for the Loans hereunder and the Loan Documents and in
which the Collateral Agent has for the benefit of the Agents and the Lenders a perfected first priority
lien and (B) the Aggregate Interest Amount of each Insurance Premium
Loan at the maturity date of each such Insurance Premium Loan. For
purposes of determining present value (x) in



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the case of the Eligible Insurance Premium Loans to be financed by Loans made prior
to the Third Amendment Effective Date, a discount rate of twenty-one
and 951/1000 percent (21.951%) shall be used and the amounts shall
be present valued back to January 30, 2009, (y) in the case of the
Eligible Insurance Premium Loans to be financed by Loans made on or
after the Third Amendment Effective Date, a discount rate of
twenty-one and 25/1000 percent (21.025%) shall be used and the
amounts shall be present valued back to September 1, 2009, and (z)
in all other cases, the date of the determination.”



                    (iii) Clause (i) of the definition of “Eligible Insurance Premium Loan” in Section 1.01 of the
Financing Agreement is hereby amended and restated in its entirety to read as follows:




“(i) for which the principal balance thereof plus anticipated
finance charges through maturity, including origination fees
discounted at (i) in the case of Insurance Premium Loans financed by
Loans made prior to the Third Amendment Effective Date, 21.951% from
January 30, 2009 to the scheduled maturity date and (ii) in the case
of Insurance Premium Loans financed by Loans made on or after the
Third Amendment Effective Date, 21.025% from September 1, 2009 to
the scheduled maturity date, totals at least $50,000, but is not in
excess of $1,000,000;”



                    (iv) The definition of “Final Maturity Date” in Section 1.01 of the Financing Agreement is
hereby amended and restated in its entirety to read as follows:




“‘Final Maturity Date’ means the earliest of (i)(A) in the
case of each Tranche of Loans made prior to the Third Amendment
Effective Date, September 30, 2011 and (B) in the case of each
Tranche of Loans made on or after the Third Amendment Effective
Date, March 11, 2012, (ii) the date on which all Loans shall become
due and payable in accordance with the terms of this Agreement, and
(iii) the payment in full of all Obligations and the termination of
all Commitments.”



                    (v) The definition of “Loan Document” in Section 1.01 of the Financing Agreement is hereby
amended and restated in its entirety to read as follows:




“‘Loan Document’ means this Agreement, any Individual
Guaranty, any Guarantor Security Agreement, any Security Agreement,
any UCC Filing Authorization Letter, the Collateral Agency Agreement,
the Collateral Value Policy, the Contingent Collateral Value Policy,
any Cash Management Agreement, any Servicing Agreement, any Coverage
Certificate and any other agreement,



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instrument, and other document executed and delivered pursuant hereto or thereto or otherwise
evidencing or securing any Loan or any other Obligation; provided
that, notwithstanding the foregoing, the Fund Fee Letter shall not
be a Loan Document.”



                    (vi) The definition of “Maximum Tranche Amount” in Section 1.01 of the Financing Agreement is
hereby amended and restated in its entirety to read as follows:




“‘Maximum Tranche Amount’ means, with respect to each
Tranche of the Term Loan in connection with an Insurance Premium
Loan on any date of delivery of a Notice of Borrowing, an amount not
to exceed an amount equal to one hundred percent (100%) of present
value of the sum of: (i) the outstanding principal balance of the
Insurance Premium Loan to be financed hereunder by such requested
Term Loan, plus (ii) the Origination Fee with respect to such
Insurance Premium Loan, plus (iii) the Collateral Value Policy and
the Contingent Collateral Value Policy premium reimbursement amounts
payable, directly or indirectly, by the Premium Finance Borrower to
the Originator in respect of such Insurance Premium Loan, to the
extent financed by such requested Term Loan, plus (iv) the amount of
interest that is reasonably expected to be due on the scheduled
maturity date of the Insurance Premium Loan to be financed hereunder
by such requested Term Loan; provided, however, that the Maximum
Tranche Amount with respect to any Insurance Premium Loan shall at
no time exceed one hundred percent (100%) of the present value of
the sum of (A) Covered Loan Amount with respect to the Insurance
Premium Loan to be financed hereunder by such Term Loan and (B) the
Aggregate Interest Amount at the maturity of such Insurance Premium
Loan. For purposes of determining present value, a discount rate of
(x) in the case of Insurance Premium Loans financed by Loans made
prior to the Third Amendment Effective Date, twenty-one and 951/1000
percent (21.951%) shall be used and the amounts shall be present
valued back to January 30, 2009 and (y) in the case of Insurance
Premium Loans financed by Loans made on or after the Third Amendment
Effective Date, twenty-one and 25/1000 percent (21.025%) shall be
used and the amounts shall be present valued back to September 1,
2009.”



                    (vii) The definition of “Term Loan Commitment Termination Date” in Section 1.01 of the
Financing Agreement is hereby amended and restated in its entirety to read as follows:




“‘Term Loan Commitment Termination Date’ means the earliest
to occur of (i) the date the Term Loan Commitments are permanently



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reduced to zero pursuant to Section 2.01(b), (ii) the date of the
termination of the Term Loan Commitments pursuant to Section 9.01,
(iii) November 19, 2009 and (iv) the date of any change in law that
makes it illegal or imposes adverse conditions on Premium Finance
Loans as contemplated by the Transaction Documents.”



                    (viii) The definition of “Transaction Documents” in Section 1.01 of the Financing Agreement is
hereby amended and restated in its entirety to read as follows:




“‘Transaction Documents’ means the Master Participation
Agreement, each Insurance Premium Loan Sale and Assignment
Agreement, any Servicing Agreement, any Escrow Agreement, the Trust
Agreements and such other instruments, certificates, agreements,
reports and documents to be executed and delivered under and or in
connection with the Insurance Premium Loans (including each
applicable Loan Document Package), as any of the foregoing may be
amended, amended and restate, supplemented or otherwise modified
from time to time in accordance with this Agreement; provided that,
notwithstanding the foregoing, the Fund Fee Letter shall not be a
Transaction Document.”



               (c) Schedule 1.01(A). Schedule 1.01(A) of the Financing Agreement is amended and
restated in its entirety to read as attached hereto as Exhibit I.



               (d) Section 2.09(a). Section 2.09(a) of the Financing Agreement is amended and
restated in their entirety to read as follows:




“(a) Request for Increase. Provided no Default or Event of
Default then exists or would arise therefrom, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the
Borrower may, prior to March 11, 2010, request an increase in the
Term Loan Commitments by an amount not exceeding $45,000,000 in the
aggregate (the “Commitment Increase”); provided
that any such request for a Commitment Increase shall be in
a minimum amount of $5,000,000. Following the delivery by the
Borrower of the request, the Administrative Agent and the Lenders
shall, by notice to the Borrower given not more than 30 Business
Days after the date of receipt of the Offer Notice, either
accept the Offer or reject the Offer, provided that, the Lenders
shall have no obligation to accept any request.”



               (e) Section 9.01. Section 9.01 of the Financing Agreement is hereby amended by:



                    (i) deleting the word “or” at the end of clause (u);



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                    (ii) adding the word “or” at the end of Clause (v); and



                    (iii) adding the following new Clause (w):




“(w) the Equity Guarantor or any of its Affiliates fail to pay the
Fee (as defined in the Fund Fee Letter) when due and such failure to
pay shall continue for two Business days;”



          3. Representations and Warranties. The Borrower hereby represents and warrants to the
Agents and the Lenders as follows:




               (a) Representations and Warranties; No Event of Default. The representations and
warranties herein, in Article VI of the Financing Agreement and in each other Loan Document,
certificate or other writing delivered by or on behalf of the Borrower to any Agent or any Lender
pursuant to the Financing Agreement or any other Loan Document on or prior to the Third Amendment
Effective Date are true and correct on and as of such date as though made on and as of such date
(unless such representations or warranties are stated to relate to an earlier date, in which case
such representations and warranties shall be true and correct as of such earlier date), except that
the representations and warranties contained in subsections (g)(i) and (g)(ii) of Section
6.01 of the Financing Agreement shall be deemed to refer to the most recent statements
furnished pursuant to subsections (a)(i) and (a)(ii), respectively, of Section 7.01, and no
Default or Event of Default (except as expressly waived hereunder) has occurred and is continuing
as of the Third Amendment Effective Date or would result from this Amendment becoming effective in
accordance with its terms.



               (b) Organization, Good Standing, Etc. The Borrower (i) has been duly formed or
organized and is validly existing and in good standing under the laws of its jurisdiction of
organization or formation, (ii) has all requisite power and authority to conduct its business as
now conducted and as presently contemplated, and to execute and deliver this Amendment, and to
consummate the transactions contemplated hereby and by the Financing Agreement, as amended hereby,
and (iii) is duly qualified to do business in, and is in good standing in each jurisdiction where
the character of the properties owned or leased by it or in which the transaction of its business
makes such qualification necessary.



               (c) Authorization; Enforceability. The execution, delivery and performance of this
Amendment by the Borrower, and the performance of the Financing Agreement, as amended hereby
(i) are within the power and authority of the Borrower and have been duly authorized by all
necessary action and (ii) have been duly authorized, executed and delivered by the Borrower and constitute legal, valid and binding obligations of the Borrower,
enforceable in accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally.



               (d) Governmental Approvals; No Conflicts. The execution, delivery and performance of
this Amendment by the Borrower, and the performance of the Financing Agreement, as amended hereby
(i) do not require any consent or approval of, registration or filing with, or any other action by,
any Governmental Authority that has not been obtained,



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(ii) will not violate any applicable law, policy or regulation or the organizational documents of the Borrower or any order of any
Governmental Authority, (iii) will not violate or result in a default under any indenture,
agreement or other instrument binding upon the Borrower, or any of its assets, or give rise to a
right thereunder to require any payment to be made by the Borrower, (iv) do not and will not result
in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any
permit, license, authorization or approval applicable to its operations or any of its properties
and (v) except for the Liens created by the Loan Documents, will not result in the creation or
imposition of any Lien on any asset of the Borrower.




          4. Conditions to Effectiveness. This Amendment shall become effective only upon
satisfaction in full, in a manner satisfactory to the Agents, of the following conditions precedent
(the first date upon which all such conditions shall have been satisfied being herein called the
“Third Amendment Effective Date”):




               (a) The Agents shall have received (i) this Amendment, duly executed by the Borrower, each
Agent and each Lender, (ii) a certificate of each Credit Party dated as of the Third Amendment
Effective Date signed by an Authorized Officer of such Credit Party certifying and attaching the
resolutions adopted by such Credit Party approving or consenting to the Commitment Increase
pursuant to this Amendment, (iii) the Borrower shall have delivered to the Administrative Agent and
the Lenders an opinion or opinions substantially similar to the opinions delivered on the Effective
Date from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent, and
(iv) the Fund Fee Letter, duly executed by each party thereto.



               (b) The representations and warranties contained in this Amendment and in Article VI of the
Financing Agreement and in each other Loan Document shall be true and correct on and as of the
Third Amendment Effective Date as though made on and as of such date (except to the extent such
representations and warranties expressly relate to an earlier date in which case such
representations and warranties shall be true and correct as of such earlier date).



               (c) No Default or Event of Default shall have occurred and be continuing on the Third
Amendment Effective Date or result from the Amendment becoming effective in accordance with its
terms.



               (d) On or prior to the date hereof, Imperial shall pay to the Administrative Agent, in
immediately available funds, $75,000 which represents a deposit (the “Deposit”) to fund
expenses incurred by or on behalf of the Administrative Agent or its Affiliates in connection with the establishment and capitalization of one or more investment vehicles
that will finance additional Eligible Insurance Premium Loans as described in the Fund Fee Letter.



               (e) The Borrower shall have delivered such other instruments, documents and agreements as the
Administrative Agent may reasonably have requested.



               (f) All legal matters incident to this Amendment shall be satisfactory to the Agents and their
respective counsel.



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          5. Continued Effectiveness of the Financing Agreement and Other Loan Documents. The
Borrower hereby (i) acknowledges and consents to this Amendment, (ii) confirms and agrees that the
Financing Agreement and each other Loan Document to which it is a party is, and shall continue to
be, in full force and effect and is hereby ratified and confirmed in all respects except that on
and after the Third Amendment Effective Date all references in any such Loan Document to “the
Financing Agreement”, the “Agreement”, “thereto”, “thereof”, “thereunder” or words of like import
referring to the Financing Agreement shall mean the Financing Agreement as amended by this
Amendment, and (iii) confirms and agrees that to the extent that any such Loan Document purports to
assign or pledge to the Collateral Agent for the benefit of the Agents and the Lenders, or to grant
to the Collateral Agent for the benefit of the Agents and the Lenders a security interest in or
Lien on, any Collateral as security for the Obligations of the Borrower from time to time existing
in respect of the Financing Agreement (as amended hereby) and the other Loan Documents, such
pledge, assignment and/or grant of the security interest or Lien is hereby ratified and confirmed
in all respects. This Agreement does not and shall not affect any of the obligations of the
Borrower, other than as expressly provided herein, including, without limitation, the Borrower’s
obligation to repay the Loans in accordance with the terms of Financing Agreement, or the
obligations of the Borrower under any Loan Document to which it is a party, all of which
obligations shall remain in full force and effect. Except as expressly provided herein, the
execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of the Agents or any Lender under the Financing Agreement or any other Loan
Document, nor constitute a waiver of any provision of the Financing Agreement or any other Loan
Document.




          6. Release. The Borrower hereby acknowledges and agrees that: (a) neither it nor any
of its Affiliates has any claim or cause of action against any Agent or any Lender (or any of their
respective Affiliates, officers, directors, employees, attorneys, consultants or agents) and
(b) each Agent and each Lender has heretofore properly performed and satisfied in a timely manner
all of its obligations to the Borrower and its Affiliates under the Financing Agreement and the
other Loan Documents. Notwithstanding the foregoing, the Agents and the Lenders wish (and the
Borrower agrees) to eliminate any possibility that any past conditions, acts, omissions, events or
circumstances would impair or otherwise adversely affect any of the Agents’ and the Lenders’
rights, interests, security and/or remedies under the Financing Agreement and the other Loan
Documents. Accordingly, for and in consideration of the agreements contained in this Amendment and
other good and valuable consideration, the Borrower (for itself and its Affiliates and the
successors, assigns, heirs and representatives of each of the foregoing) (collectively,
the “Releasors”) does hereby fully, finally, unconditionally and irrevocably release and
forever discharge each Agent, each Lender and each of their respective Affiliates, officers,
directors, employees, attorneys, consultants and agents (collectively, the “Released Parties”)
from any and all debts, claims, obligations, damages, costs, attorneys’ fees, suits, demands,
liabilities, actions, proceedings and causes of action, in each case, whether known or unknown,
contingent or fixed, direct or indirect, and of whatever nature or description, and whether in law
or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or
now or hereafter can, shall or may have against any Released Party by reason of any act, omission
or thing whatsoever done or omitted to be done on or prior to the Third Amendment Effective Date
arising out of, connected with or related in any way to this Amendment, the Financing




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Agreement or any other Loan Document, or any act, event or transaction related or attendant thereto, or the
agreements of any Agent or any Lender contained therein, or the possession, use, operation or
control of any of the assets of the Borrower, or the making of any Loans or other advances, or the
management of such Loans or advances or the Collateral on or prior to the Third Amendment Effective
Date.




          7. Consent. The Borrower has requested a Commitment Increase in an amount equal to
$12,000,000 and White Oak, as the sole Lender, has agreed to increase its Term Loan Commitment by
$12,000,000 subject to the terms and conditions of this Amendment and the Financing Agreement.




          8. Miscellaneous.




               (a) This Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement. Delivery of an executed counterpart of
this Amendment by facsimile or electronic mail shall be equally effective as delivery of an
original executed counterpart of this Amendment.



               (b) Section and paragraph headings herein are included for convenience of reference only and
shall not constitute a part of this Amendment for any other purpose.



               (c) This Amendment shall be governed by, and construed in accordance with, the laws of the
State of New York.



               (d) The Borrower hereby acknowledges and agrees that this Amendment constitutes a “Loan
Document” under the Financing Agreement. Accordingly, it shall be an Event of Default under the
Financing Agreement if (i) any representation or warranty made by the Borrower under or in
connection with this Amendment shall have been untrue, false or misleading in any material respect
when made, or (ii) the Borrower shall fail to perform or observe any term, covenant or agreement
contained in this Amendment.



               (e) Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.



               (f) The Borrower will pay on demand all reasonable fees, costs and expenses of the Agents and
the Lenders in connection with the preparation, execution and delivery of this Amendment or
otherwise payable under the Financing Agreement, including, without limitation, reasonable fees,
disbursements and other charges of counsel to the Agents.



               (g) The Administrative Agent and any of its Affiliates may request, and Imperial shall
forthwith pay to the Administrative Agent or such Affiliate, in immediately available funds, an
additional expense deposit if the amount of expenses incurred or to be



9









 




incurred by the Administrative Agent or its Affiliates in connection with the establishment and capitalization of
one or more investment vehicles that will finance additional Eligible Insurance Premium Loans as
described in the Fund Fee Letter exceeds or will exceed the amount of the Deposit. The Deposit
will not be segregated and may be commingled with other funds and Imperial will not be entitled to
receive interest on the Deposit.




[remainder of page intentionally left blank]






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          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered
as of the date set forth on the first page hereof.




	 	 	 	 	 
	 	BORROWER:




IMPERIAL LIFE FINANCING II, LLC

 	 
	 	By:  	/s/ David Manchester
 	 
	 	 	Name:  	David Manchester 	 
	 	 	Title:  	Senior Vice President 

	 
	 	ADMINISTRATIVE AGENT, COLLATERAL 
AGENT AND
LENDER:


WHITE OAK STRATEGIC MASTER FUND, LP

 	 
	 	By:  	WHITE OAK GLOBAL ADVISORS, LLC, its
 	 
	 	 	Investment Advisor 	 
	 	 	 	 
	 	By:  	
/s/ Barbara J. S. Mckee
 	 
	 	 	Name:  	Barbara J. S. Mckee 	 
	 	 	Title:  	Managing Member 

	 
	 	REQUIRED LENDER:





WHITE OAK STRATEGIC MASTER FUND, LP

 	 
	 	By:  	WHITE OAK GLOBAL ADVISORS, LLC, its
 	 
	 	 	Investment Advisor 

	 
	 	By:  	
/s/ Barbara J. S. Mckee
 	 
	 	 	Name:  	Barbara J. S. Mckee 	 
	 	 	Title:  	Managing Member 	 
	 



Third Amendment




















 








EXHIBIT I




Schedule 1.01(A)



Lenders and Lenders’ Commitments



	 	 	 	 	 
	Lender	 	Total Commitment*	 
	White Oak Strategic Master Fund, LP
	 	$	27,000,000	 
	Total
	 	$	27,000,000	 








 




			
	*	 	The available Commitment on and after the Third Amendment Effective Date is $12,000,000.