exv10w22






Exhibit 10.22



EXECUTION VERSION




SECOND AMENDMENT

TO FINANCING AGREEMENT




          SECOND
AMENDMENT, dated as of July 23, 2009 (this “Amendment”), to the
Financing Agreement, dated as of March 13, 2009, as amended by that certain First Amendment to
Financing Agreement dated as of April 30, 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 (in such capacity, the “Collateral Agent”), and White Oak, as
administrative agent for the Lenders (in such capacity, the “Administrative Agent” and
together with the Collateral Agent, each an “Agent” and collectively, the
“Agents”).




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




          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:



                    “Applicable Interest Rate” with respect to any Tranche hereunder, shall mean 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 Lender
in accordance with Section 2.09.



                    “Second Amendment” means the Second Amendment to Financing Agreement, dated as of July
____, 2009, among the Borrower, the Agents and the Lenders.



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



               (b) Section 2.04 of the Financing Agreement is hereby amended and restated in its entirety
to read as follows:



               Section 2.04 Interest. (a) Each Tranche of a Term Loan shall bear interest on the
principal amount thereof from time to time outstanding, from January 1, 2009 until such principal
amount becomes due, at a rate per annum equal to the Applicable Interest Rate; provided,
that, subject to paragraph (c) of this Section 2.04, all of such interest (the
“PIK



 









 




Interest Amount”) shall be paid-in-kind by being added to the outstanding principal balance
of such Tranche. Any interest to be capitalized shall be capitalized on the first day of each
month, commencing on the first day of the month following the month in which such Tranche is made
and added to the then outstanding principal amount of such Tranche and, thereafter, shall bear
interest as provided hereunder as if it had originally been part of the outstanding principal of
such Tranche.




               (c) Default Interest. To the extent permitted by law and notwithstanding anything to
the contrary in this Section, upon the occurrence and during the continuance of an Event of
Default, the principal of, and all accrued and unpaid interest on, all Term Loans, fees,
indemnities or any other Obligations of the Borrower under this Agreement and the other Loan
Documents, shall bear interest, from the date such Event of Default occurred until the date such
Event of Default is cured or waived in writing in accordance herewith, at a rate per annum equal
at all times to the Applicable Interest Rate plus 3%.



               (d) Interest Payment. Notwithstanding paragraph (a) of this Section 2.04, interest
on each Loan shall be payable, without duplication:



                    (i) on each date Collections are received if sufficient Collections or other funds are
available hereunder for the payment of interest pursuant to Section 2.05(d); and



                    (ii) on the Final Maturity Date;



     provided, that interest payable pursuant to paragraph (b) of this Section 2.04 shall
be payable on demand. The Borrower hereby authorizes the Administrative Agent to, and the
Administrative Agent may, from time to time, charge the Loan Account pursuant to Section 4.01 with
the amount of any interest payment due hereunder.



               (e) General. All interest shall be computed on the basis of a year of 360 days for
the actual number of days, including the first day but excluding the last day, elapsed.



          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 Second 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), and no
Default or Event of Default (except as expressly waived hereunder) has occurred and is continuing
as of the Second Amendment Effective Date or would result from this Amendment becoming effective in
accordance with its terms.



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               (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, (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
“Second Amendment Effective Date”):




               (a) The Agents shall have received (i) this Amendment, duly executed by the Borrower, each
Agent and each Lender.



               (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
Second 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



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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 Second
Amendment Effective Date or result from the Amendment becoming effective in accordance with its
terms.



          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 Second 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 the 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





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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 Second Amendment Effective Date arising
out of, connected with or related in any way to this Amendment, the Financing 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 Second Amendment
Effective Date.




          7. 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.



[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/ Beverly Gross
 	 
	 	 	Name:  	Beverly Gross  	 
	 	 	Title:  	President 	 
	 



	 	 	 	 	 
	 	ADMINISTRATIVE AGENT, COLLATERAL 

AGENT AND REQUIRED LENDER:



WHITE OAK STRATEGIC MASTER FUND, LP

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



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SCHEDULE 1.01(E)




APPLICABLE INTEREST RATE


IMPERIAL
LIFE FINANCING II, LLC

Applicable Interest Rate Listing by

Tranche/Insurance Premium Loan Number




	 	 	 	 	 
	Tranche/Insurance	 	 	 
	Premium Loan	 	 	 
	Number	 	Applicable Rate	 
	2008-1123
	 	 	18.05900	 
	2008-1161
	 	 	18.83000	 
	2009-147
	 	 	17.91900	 
	2009-159
	 	 	19.26600	 
	2009-167
	 	 	18.41300	 
	2009-190
	 	 	18.56300	 
	2009-192
	 	 	19.24800	 
	2009-111
	 	 	18.67500	 
	2009-139
	 	 	18.42200	 
	2009-141
	 	 	18.42200	 
	2009-143
	 	 	17.55900	 
	2009-150
	 	 	18.83000	 
	2009-162
	 	 	18.78400	 
	2009-173
	 	 	18.56300	 
	2009-176
	 	 	18.59900	 
	2009-177
	 	 	18.83000	 
	2009-181
	 	 	18.87800	 
	2009-183
	 	 	18.54000	 
	2009-184
	 	 	18.71400	 
	2009-201
	 	 	18.57400	 
	2009-127
	 	 	18.15000	 
	2009-148
	 	 	18.46900	 
	2009-161
	 	 	17.79900	 
	2009-164
	 	 	17.97100	 
	2009-174
	 	 	13.30000	 
	2009-186
	 	 	18.85400	 
	2009-214
	 	 	18.57600	 
	2009-218
	 	 	19.10700	 
	2009-229
	 	 	18.73700	 
	2009-231
	 	 	18.87700	 
	2009-124
	 	 	17.90900	 
	2009-153
	 	 	18.13400	 
	2009-187
	 	 	18.97300	 
	2009-205
	 	 	19.00700	 
	2009-206
	 	 	18.99900	 
	2009-216
	 	 	19.02900	 
	2009-219
	 	 	18.95400	 
	2009-225
	 	 	19.06500	 
	2009-233
	 	 	19.00700	 
	2009-240
	 	 	19.07700	 






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	IMPERIAL LIFE FINANCING II, LLC	 
	Applicable Interest Rate Listing by	 
	Tranche/Insurance
Premium Loan Number

	 
	Tranche/Insurance	 	 	 
	Premium Loan	 	 	 
	Number	 	Applicable Rate	 
	2009-242
	 	 	17.75400	 
	2008-1158
	 	 	18.40800	 
	2009-144
	 	 	18.54200	 
	2009-198
	 	 	18.79500	 
	2009-209
	 	 	18.36500	 
	2009-210
	 	 	18.36500	 
	2009-211
	 	 	18.36500	 
	2009-217
	 	 	18.82600	 
	2009-222
	 	 	17.56800	 
	2009-246
	 	 	18.81800	 
	2009-247
	 	 	18.87800	 
	2009-248
	 	 	18.77300	 
	2009-250
	 	 	18.55100	 
	2009-261
	 	 	18.92000	 
	2009-262
	 	 	18.50700	 
	2009-268
	 	 	18.43600	 
	2009-282
	 	 	48.39200	 






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